FIRST DIVISION

[ G.R. No. 150606, June 07, 2007 ]

STATE PROSECUTOR AND SPECIAL PROSECUTOR ON SSS CASES IN REGION V, ROMULO SJ. TOLENTINO, AND
REGIONAL STATE PROSECUTOR SANTIAGO M. TURINGAN, AS ALTER EGOOF THE ECRETARY OF JUSTICE IN REGION
V, IN THEIR OFFICIAL CAPACITIES, AND, FOR AND IN REPRESENTATION OF THE PEOPLE OF THE PHILIPPINES AND
MARITES C. DE LA TORRE, IN HER OFFICIAL CAPACITY AS COUNSEL FOR THE COMPLAINANT, SOCIAL SECURITY
SYSTEM (SSS) BICOL CLUSTER, PETITIONERS, PROMULGATED: VS. HON. PABLO M. PAQUEO, JR., IN HIS CAPACITY AS
PRESIDING JUDGE OF RTC, BRANCH 23, OF THE CITY OF NAGA, AND ACCUSED BENEDICT DY TECKLO,
RESPONDENTS.

DECISION
AZCUNA, J.:
This is a petition for certiorari and mandamus alleging that respondent Judge Pablo M. Paqueo, Jr., Regional Trial
Court (RTC) of Naga City, Branch 23, acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the Orders dated August 24, 2001 and October 15, 2001. The Order dated August 24, 2001
granted the Motion to Quash of private respondent Benedict Dy Tecklo, thus dismissing the Information filed by
petitioner State Prosecutor Romulo SJ. Tolentino. The Order dated October 15, 2001 denied State Prosecutor
Tolentino's Objection and Motion dated September 5, 2001.

The facts are:

On June 22, 2001, petitioner State Prosecutor Romulo SJ. Tolentino filed an Information charging private
respondent Benedict Dy Tecklo, the owner/proprietor of Qualistronic Builders, of violation of Sec. 22 (a) in relation
to Sec. 28 (e) of Republic Act No. 8282[1] for failing to remit the premiums due for his employee to the Social
Security System despite demand.

The Information contains a certification by State Prosecutor Tolentino, thus:

CERTIFICATION

I HEREBY CERTIFY THAT THE REQUIRED INVESTIGATION IN THIS CASE HAS BEEN CONDUCTED BY THE
UNDERSIGNED SPECIAL PROSECUTOR IN ACCORDANCE WITH LAW AND UNDER OATH AS OFFICER OF THE COURT,
THAT THERE IS REASONABLE GROUND TO BELIEVE THAT THE OFFENSE HAS BEEN COMMITTED, THAT THE
ACCUSED IS PROBABLY GUILTY THEREOF AND THAT THE FILING OF THE INFORMATION IS WITH THE PRIOR
AUTHORITY AND APPROVAL OF THE REGIONAL STATE PROSECUTOR.[2]
The case was raffled to the RTC of Naga City, Branch 23, presided by respondent Judge Pablo M. Paqueo, Jr. It was
set for arraignment on August 7, 2001. On said date, counsel for private respondent moved for the deferment of
the arraignment and requested time to file a motion to quash the Information, which request was granted by the
court.
On August 10, 2001, private respondent filed a Motion to Quash, thus:
Accused, through counsel, most respectfully moves to quash the Information x x x upon the sole ground that State
Prosecutor Romulo SJ Tolentino, not being the City Prosecutor nor the Provincial Prosecutor, has no legal
personality nor is he legally clothed with the authority to commence prosecution by the filing of the Information
and thus prosecute the case.[3]
On August 16, 2001, State Prosecutor Tolentino filed an Opposition to Motion to Quash [4] on the following
grounds:
(1) He (State Prosecutor Tolentino) is authorized to investigate, file the necessary Information and prosecute SSS
cases since he was designated as Special Prosecutor for SSS cases by Regional State Prosecutor Santiago M.
Turingan by virtue of Regional Order No. 97-024A dated July 14, 1997;

(2) In a letter[5] dated October 24, 2000, Chief State Prosecutor Jovencito Zuo confirmed such authority and that
Informations to be filed in court by prosecutors-designate do not need the approval of the Regional State
Prosecutor or Provincial or City Prosecutor;

(3) Under the Administrative Code of 1987, the Regional State Prosecutor, as alter ego of the Secretary of Justice,
is vested with authority to designate Special Prosecutors; and

(4) The City Prosecutor has been inhibited by the private complainant from investigating SSS Cases as it is the Panel
of Prosecutors that is now acting as City Prosecutor over all city cases involving violations of the Social Security Act.
As acting Prosecutor, the panel outranks the City Prosecutor.
On August 24, 2001, the RTC issued an Order quashing the Information and dismissing the case, thus:
For resolution is a motion to quash filed by x x x counsel for the accused, with an opposition to the same filed by
State Prosecutor Romulo SJ. Tolentino, the prosecutor who filed the information.

The motion is based on the lack of legal personality of State Prosecutor Tolentino, [not being] legally clothed with
the authority to commence prosecution by the filing of the information and, thus, prosecute the case.

One of the grounds provided by the rules to quash an Information is paragraph (c), of Sec. 3 of Rule 117.
"(c) that the officer who filed the information had no authority to do so."
A glance on the face of the information would glaringly show that it was filed by State Prosecutor Romulo
Tolentino, without the approval of the City Prosecutor of Naga City, the situs of the crime, a blatant violation of the
third paragraph of Sec. 4 of Rule 112 of the Revised Rules on Criminal Procedure.

An information filed by a qualified and authorized officer is required for the jurisdiction of the court over the case
(Villa v. Ibaez, et al., 88 Phil. 402).

A justification put up by State Prosecutor Tolentino is a Regional Order No. 07-024-A subject of which is the
Designation of Personnel issued by the Regional State Prosecutor which in effect designated him as the special
prosecutor to handle the investigation of all SSS cases filed before the Offices of the City Prosecutor of the Cities of
Naga, Iriga and Legaspi and the Offices of the Provincial Prosecutor of the different provinces in the Bicol Region,
except the provinces of Catanduanes and Masbate, and if evidence warrants to file the necessary information and
prosecute the same in the court of [appropriate] jurisdiction.

The designation of State Prosecutor Tolentino to investigate, file this information if the evidence warrants, and to
prosecute SSS cases in court does not exempt him from complying with the provision of the third paragraph of
[Sec. 4 of] Rule 112 of the Revised Rules on Criminal Procedure, that no complaint or information may be filed or
dismissed by an investigating prosecutor without the prior written authority or approval of the Provincial or City
Prosecutor or Chief State Prosecutor or the Ombudsman or his deputy. The designation given to Prosecutor
Tolentino came from the Regional Chief State Prosecutor [who] is not one of those mentioned exclusively by the
Rules to approve in writing the filing or the dismissal of an information.

Also, as ruled by this court in a similar case which was dismissed, the second attached document supporting the
opposition to the motion, is but an opinion of the Chief State prosecutor which has no force and effect to set aside
the mandatory requirement of the Rules in the filing of an information in court.

WHEREFORE, in view of all the foregoing, the motion is granted, The information is hereby ordered quashed and
dismissed.[6]
Petitioner State Prosecutor Tolentino filed an Objection and Motion praying that the Order dated August 24, 2001
be set aside and that the case entitled People v. Tecklo be scheduled for arraignment without unnecessary delay.

In an Order dated October 15, 2001, respondent Judge denied Tolentino's Objection and Motion, thus:
For consideration is an Objection and Motion filed by State Prosecutor Romulo SJ. Tolentino, praying that the
Order of this court dated August 24, 2001 be set aside and the case be scheduled for arraignment.

Acting on said motion upon receipt thereof, the court gave the defense a period of fifteen (15) days from receipt of
the order dated September 18, 2001 to file its comment and/or opposition; however, the period lapsed with the
court never receiving any comment and/or opposition from the defense.

The records show that the issue raised in the pleadings from both parties is whether Prosecutor Tolentino, in filing
the information, can just ignore the provision of the third paragraph of Sec. 4 of Rule 112 of the Revised Rules on
[C]riminal [P]rocedure.

It is the stand of this court, when it ruled and so holds that Prosecutor Tolentino may conduct exclusive
investigation and prosecute all violations of the provisions of the SSS Laws within the Bicol Region, but in the filing
of the information in court, he must comply with [x x x] the above-cited provision of the rules on criminal
procedure, that is, to have the provincial or city prosecutor at the situs of the offense approve in writing said
information. It was further ruled by this court that failure to secure said written authority of the provincial or city
prosecutor would touch on the jurisdiction of this court.

With the foregoing, this court cannot find any legal basis to disturb its ruling of August 24, 2001. The instant
objection and motion is therefore denied.

SO ORDERED.[7]
Petitioners, thereafter, filed this petition praying for the nullification of the Orders dated August 24, 2001 and
October 15, 2001.

The main issue in this case is whether or not petitioner State Prosecutor Tolentino is duly authorized to file the
subject Information without the approval of the City Prosecutor?

In their Memorandum,[8] petitioners allege that State Prosecutor Tolentino was duly authorized to file the
Information based on the following:
1. Petitioner Regional State Prosecutor Santiago M. Turingan, per Regional Order dated July 14, 1997, authorized
State Prosecutor Tolentino to file the necessary Information for violations of Republic Act No. 8282 in the Bicol
Region, except Masbate and Catanduanes, and to prosecute the same in courts of competent jurisdiction. This
was in response to the request of the SSS, Region V for the designation of a Special Prosecutor to handle the
prosecution of said criminal cases with the Office of the City Prosecutor and Office of the Provincial Prosecutor
of the cities of Naga, Legaspi and Iriga and all provinces of the Bicol Region.

2. Per ruling of the Chief State Prosecutor in his letter dated October 24, 2000, ". . . the information to be filed in
court by prosecutors-designate do not need the approval of the Regional State Prosecutor or the Provincial or
City Prosecutor." An administrative opinion interpreting existing rules issued by agencies directly involved in
the implementation of the rules should be respected and upheld.
Respondent judge quashed the Information based on Sec. 3 (d), Rule 117 of the Revised Rules of Criminal
Procedure in relation to the third paragraph of Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure, thus:
Rule 112. Sec 4. Resolution of investigating prosecutor and its review. x x x
No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy.[9]

Rule 117. Sec. 3. Grounds. The accused may move to quash the complaint or information on any of the following
grounds:

xxx

(d) That the officer who filed the information had no authority to do so.
Notably, changes in the third paragraph of Sec. 4, Rule 112 were introduced in the Revised Rules of Criminal
Procedure, which took effect on December 1, 2000. It is noted that the letter dated October 24, 2000 of Chief State
Prosecutor Jovencito R. Zuo, upon which State Prosecutor Tolentino relies to support his authority to file the
subject Information without the approval of the City Prosecutor, was issued before the changes in the third
paragraph of Sec. 4, Rule 112 were introduced in the Revised Rules of Criminal Procedure.

While the old 1985 Rules of Criminal Procedure, as amended, stated that "[no] complaint or information may be
filed or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city
fiscal of chief state prosecutor," the 2000 Revised Rules of Criminal Procedure states that "[n]o complaint or
information may be filed or dismissed by an investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy." Since the
provision is couched in negative terms importing that the act shall not be done otherwise than designated, it is
mandatory.[10]

An examination of the functions[11] of the Regional State Prosecutor under Sec. 8 of Presidential Decree No.
1275[12] showed that they do not include that of approving the Information filed or dismissed by the investigating
prosecutor.

It is a rule of statutory construction that the express mention of one person, thing, or consequence implies the
exclusion of all others, expressio unius est exclusio alterius.

Since the Regional State Prosecutor is not included among the law officers authorized to approve the filing or
dismissal of the Information of the investigating prosecutor, the Information filed by petitioner State Prosecutor
Tolentino did not comply with the requirement of Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure.
Consequently, the non-compliance was a ground to quash the Information under Sec. 3 (d), Rule 117 of the
Revised Rules of Criminal Procedure.
Petitioners also contend that the accused must move to quash at any time before entering his plea and the trial
court is barred from granting further time to the accused to do so; and that there is no evidence in support of the
motion to quash.

Rule 117 of the Revised Rules of Criminal Procedure on the Motion to Quash provides:
SECTION 1. Time to move to quash.At any time before entering his plea, the accused may move to quash the
complaint or information.

SEC. 2. Form and contents. The motion to quash shall be in writing, signed by the accused or his counsel and shall
distinctly specify its factual and legal grounds. The court shall consider no grounds other than those stated in the
motion, except lack of jurisdiction over the offense charged.
The Court finds that there is substantial compliance by private respondent with the rule above quoted, as it was
satisfactorily explained in his Memorandum[13] that his counsel orally moved to quash the Information before the
arraignment on August 7, 2001. In an Order issued on the same date, respondent Judge required private
respondent's counsel to file a motion to quash within five days from the issuance of the Order. Accordingly, the
motion was filed on August 10, 2001.

Moreover, there was no need to submit any evidence to support the ground for quashing the Information, since it
was apparent and within judicial notice that petitioner State Prosecutor Tolentino was not the City Prosecutor or
the Provincial Prosecutor.

As regards the allegation of willful miscitation of the ground for quashing the Information, the Court finds that
respondent Judge failed to cite in his Order the correct paragraph under Rule 117 of the Rules of Court where the
ground relied upon for quashing the Information is enumerated. What is important, however, is that he correctly
cited the ground for quashing the Information.

Certiorari implies an indifferent disregard of the law, arbitrariness and caprice, an omission to weigh pertinent
considerations, a decision arrived at without rational deliberation.[14]

In this petition for certiorari, the Court finds that respondent judge did not gravely abuse his discretion in
dismissing the Information filed by petitioner State Prosecutor Romulo SJ. Tolentino for failure to comply with the
third paragraph of Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure.

The Rules of Court governs the pleading, practice and procedure in all courts of the Philippines. For
the orderlyadministration of justice, the provisions contained therein should be followed by all litigants, but
especially by the prosecution arm of the Government.

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

No costs.

SO ORDERED.

January 13, 2016

G.R. No. 216920

GIRLIE M. QUISAY, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated October 10, 2014 and the
Resolution3dated January 30, 2015 of the Court of Appeals (CA) in CA-G.R. SP No. 131968, which affirmed the
denial of petitioner Girlie M. Quisay's (petitioner) Motion to Quash before the Regional Trial Court of Makati,
Branch 144 (RTC).

The Facts

On December 28, 2012, the Office of the City Prosecutor of Makati City (OCP-Makati) issued a Pasiya4 or
Resolution finding probable cause against petitioner for violation of Section 10 of Republic Act No. (RA)
7610,5otherwise known as the "Special Protection of Children Against Abuse Exploitation and Discrimination Act."
Consequently, a Pabatid Sakdal6 or Information was filed before the RTC on January 11, 2013 charging petitioner
of such crime.

On April 12, 2013, petitioner moved for the quashal of the Information against her on the ground of lack of
authority of the person who filed the same before the RTC. In support of her motion, petitioner pointed out that
thePasiya issued by the OCP-Makati was penned by Assistant City Prosecutor Estefano H. De La Cruz (ACP De La
Cruz) and approved by Senior Assistant City Prosecutor Edgardo G. Hirang (SACP Hirang), while the Pabatid
Sakdal was penned by ACP De La Cruz, without any approval from any higher authority, albeit with a Certification
claiming that ACP De La Cruz has prior written authority or approval from the City Prosecutor in filing the said
Information. In this regard, petitioner claimed that nothing in the aforesaid Pasiya and Pabatid Sakdal would show
that ACP De La Cruz and/or SACP Hirang had prior written authority or approval from the City Prosecutor to file or
approve the filing of the Information against her. As such, the Information must be quashed for being tainted with
a jurisdictional defect that cannot be cured.7
In its Comment and Opposition,8 the OCP-Makati countered that the review prosecutor, SACP Hirang, was
authorized to approve the Pasiya pursuant to OCP-Makati Office Order No. 32.9 Further, it maintained that
thePabatid Sakdal was filed with the prior approval of the City Prosecutor as shown in the Certification in the
Information itself.10

The RTC Ruling

In an Order11 dated May 8, 2013, the RTC denied petitioner's motion to quash for lack of merit. It found the
Certification attached to the Pabatid Sakdal to have sufficiently complied with Section 4, Rule 112 of the Rules of
Court which requires the prior written authority or approval by, among others, the City Prosecutor, in the filing of
Informations.12

Petitioner moved for reconsideration,13 which was, however, denied in an Order14 dated July 10, 2013. Aggrieved,
petitioner elevated the matter to the CA via a petition for certiorari.15

The CA Ruling

In a Decision16 dated October 10, 2014, the CA affirmed the RTC ruling. It held that pursuant to Section 9 of RA
10071,17 otherwise known as the "Prosecution Service Act of 201 O," as well as OCP-Makati Office Order No. 32,
the City Prosecutor of Makati authorized SACP Hirang to approve the issuance of, inter alia, resolutions finding
probable cause and the filing of Informations before the courts. As such, SACP Hirang may, on behalf of the City
Prosecutor, approve the Pasiya which found probable cause to indict petitioner of violation of Section 10 of RA
7610.18

Further, it held that the Certification made by ACP De La Cruz in the Pabatid Sakdal clearly indicated that the same
was filed after the requisite preliminary investigation and with the prior written authority or approval of the City
Prosecutor. In this regard, the CA opined that such Certification enjoys the presumption of regularity accorded to a
public officer's performance of official functions, in the absence of convincing evidence to the contrary. 19

Undaunted, petitioner moved for reconsideration,20 but was denied in a Resolution21 dated January 30, 2015;
hence, this petition.

The Issue Before the Court

The core issue for the Court's resolution is whether or not the CA correctly held that the R TC did not gravely abuse
its discretion in dismissing petitioner's motion to quash.

The Court's Ruling

The petition is meritorious.

Section 4, Rule 112 of the 2000 Revised Rules on Criminal Procedure states that the filing of a complaint or
information requires a prior written authority or approval of the named officers therein before a complaint or
information may be filed before the courts, viz.:

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

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor
or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by
theSandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days
from their receipt thereof and shall immediately inform the parties of such action.1wphi1

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy.

x x x x (Emphases and underscoring supplied)

Thus, as a general rule, complaints or informations filed before the courts without the prior written authority or
approval of the foregoing authorized officers renders the same defective and, therefore, subject to quashal
pursuant to Section 3 (d), Rule 11 7 of the same Rules, to wit:

SECTION 3. Grounds. - The accused may move to quash the complaint or information on any of the following
grounds:

xxxx

(d) That the officer who filed the information had no authority to do so;

x x x x (Emphasis and underscoring supplied)

In this relation, People v. Garfin22 firmly instructs that the filing of an Information by an officer without the
requisite authority to file the same constitutes a jurisdictional infirmity which cannot be cured by silence, waiver,
acquiescence, or even by express consent. Hence, such ground may be raised at any stage of the proceedings. 23

In the case at bar, the CA affirmed the denial of petitioner's motion to quash on the grounds that: (a) the City
Prosecutor ofMakati may delegate its authority to approve the filing of the Pabatid Sakdal pursuant to Section 9 of
RA 10071, as well as OCP-Makati Office Order No. 32; and (b) the Pabatid Sakdal contained a Certification stating
that its filing before the RTC was with the prior written authority or approval from the City Prosecutor.

The CA correctly held that based on the wordings of Section 9 of RA 10071, which gave the City Prosecutor the
power to "[i]nvestigate and/or cause to be investigated all charges of crimes, misdemeanors and violations of
penal laws and ordinances within their respective jurisdictions, and have the necessary information or complaint
prepared or made and filed against the persons accused,"24 he may indeed delegate his power to his subordinates
as he may deem necessary in the interest of the prosecution service. The CA also correctly stressed that it is under
the auspice of this provision that the City Prosecutor of Makati issued OCP-Makati Office Order No. 32, which gave
division chiefs or review prosecutors "authority to approve or act on any resolution, order, issuance, other action,
and any information recommended by any prosecutor for approval," 25 without necessarily diminishing the City
Prosecutor's authority to act directly in appropriate cases. 26 By virtue of the foregoing issuances, the City
Prosecutor validly designated SACP Hirang, Deputy City Prosecutor Emmanuel D. Medina, and Senior Assistant City
Prosecutor William Celestino T. Uy as review prosecutors for the OCP-Makati.27

In this light, the Pasiya or Resolution finding probable cause to indict petitioner of the crime charged, was validly
made as it bore the approval of one of the designated review prosecutors for OCP-Makati, SACP Hirang, as
evidenced by his signature therein.
Unfortunately, the same could not be said of the Pabatid Sakdal or Information filed before the RTC, as there was
no showing that it was approved by either the City Prosecutor of Makati or any of the OCPMakati' s division chiefs
or review prosecutors. All it contained was a Certification from ACP De La Cruz which stated, among others,
that"DAGDAG KO PANG PINATUTUNAYAN na ang paghahain ng sakdal na ito ay may nakasulat na naunang
pahintulot o pagpapatibay ng Panlunsod na Taga-Usig"28 - which translates to "and that the filing of the
Information is with the prior authority and approval of the City Prosecutor."

In the cases of People v. Garfin,29 Turingan v. Garfin,30 and Tolentino v. Paqueo,31 the Court had already rejected
similarly-worded certifications, uniformly holding that despite such certifications, the Informations were defective
as it was shown that the officers filing the same in court either lacked the authority to do so or failed to show that
they obtained prior written authority from any of those authorized officers enumerated in Section 4, Rule 112 of
the 2000 Revised Rules of Criminal Procedure.

Here, aside from the bare and self-serving Certification, there was no proof that ACP De La Cruz was authorized to
file the Pabatid Sakdal or Information before the RTC by himself. Records are bereft of any showing that the City
Prosecutor of Makati had authorized ACP De La Cruz to do so by giving him prior written authority or by
designating him as a division chief or review prosecutor of OCP-Makati. There is likewise nothing that would
indicate that ACP De La Cruz sought the approval of either the City Prosecutor or any of those authorized pursuant
to OCP-Makati Office Order No. 32 in filing the Pabatid Sakdal. Quite frankly, it is simply baffling how ACP De La
Cruz was able to have the Pasiya approved by designated review prosecutor SACP Hirang but failed to have
the Pabatid Sakdal approved by the same person or any other authorized officer in the OCP-Makati.

In view of the foregoing circumstances, the CA erred in according the Pabatid Sakdal the presumption of regularity
in the performance of official functions solely on the basis of the Certification made by ACP De La Cruz considering
the absence of any evidence on record clearly showing that ACP De La Cruz: (a) had any authority to file the same
on his own; or (b) did seek the prior written approval from those authorized to do so before filing the Information
before the RTC.

In conclusion, the CA erred in affirming the RTC's dismissal of petitioner's motion to quash as the Pabatid Sakdalor
Information suffers from an incurable infirmity - that the officer who filed the same before the RTC had no
authority to do so. Hence, the Pabatid Sakdal must be quashed, resulting in the dismissal of the criminal case
against petitioner.

As a final note, it must be stressed that "[t]he Rules of Court governs the pleading, practice, and procedure in all
courts of the Philippines. For the orderly administration of justice, the provisions contained therein should be
followed by all litigants, but especially by the prosecution arm of the Govemment." 32

WHEREFORE, the petition is GRANTED. The Decision dated October 10, 2014 and the Resolution dated January 30,
2015 of the Court of Appeals in CA-G.R. SP No. 131968 are hereby REVERSED and SET ASIDE. Accordingly, the
Information against petitioner Girlie M. Quisay is QUASHED and the criminal case against her is DISMISSED.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 209330, January 11, 2016 ]
SECRETARY LEILA DE LIMA, ASSISTANT STATE PROSECUTOR STEWART ALLAN A. MARIANO, ASSISTANT STATE
PROSECUTOR VIMAR M. BARCELLANO AND ASSISTANT STATE PROSECUTOR GERARD E. GAERLAN, PETITIONERS, VS.
 MARIO JOEL T. REYES, RESPONDENT.

DECISION
LEONEN, J.:
The Secretary of Justice has the discretion, upon motion or motu proprio, to act on any matter that may cause a
probable miscarriage of justice in the conduct of a preliminary investigation. This action may include, but is not
limited to, the conduct of a reinvestigation. Furthermore, a petition for certiorari under Rule 65 questioning the
regularity of preliminary investigation becomes moot after the trial court completes its determination of probable
cause and issues a warrant of arrest.

This Petition for Review on Certiorari assails the Decision[1] dated March 19, 2013 and Resolution[2] dated
September 27, 2013 of the Court of Appeals, which rendered null and void Department of Justice Order No.
710[3]issued by the Secretary of Justice.[4] The Department Order created a second panel of prosecutors to conduct
a reinvestigation of a murder case in view of the first panel of prosecutors' failure to admit the complainant's
additional evidence.

Dr. Gerardo Ortega (Dr. Ortega), also known as "Doc Gerry," was a veterinarian and anchor of several radio shows
in Palawan. On January 24, 2011, at around 10:30 am, he was shot dead inside the Baguio Wagwagan Ukay-ukay in
San Pedro, Puerto Princesa City, Palawan.[5] After a brief chase with police officers, Marlon B. Recamata was
arrested. On the same day, he made an extrajudicial confession admitting that he shot Dr. Ortega. He also
implicated Rodolfo "Bumar" O. Edrad (Edrad), Dennis C. Aranas, and Armando "Salbakotah" R. Noel, Jr. [6]

On February 6, 2011, Edrad executed a Sinumpaang Salaysay before the Counter-Terrorism Division of the National
Bureau of Investigation where he alleged that it was former Palawan Governor Mario Joel T. Reyes (former
Governor Reyes) who ordered the killing of Dr. Ortega.[7]

On February 7, 2011, Secretary of Justice Leila De Lima issued Department Order No. 091 [8] creating a special panel
of prosecutors (First Panel) to conduct preliminary investigation. The First Panel was composed of Senior Assistant
Prosecutor Edwin S. Dayog, Assistant State Prosecutor Bryan Jacinto S. Cacha, and Assistant State Prosecutor John
Benedict D. Medina.[9]

On February 14, 2011, Dr. Patria Gloria Inocencio-Ortega (Dr. Inocencio-Ortega), Dr. Ortega's wife, filed a
Supplemental Affidavit-Complaint implicating former Governor Reyes as the mastermind of her husband's murder.
Former Governor Reyes' brother, Coron Mayor Mario T. Reyes, Jr., former Marinduque Governor Jose T. Carreon,
former Provincial Administrator Atty. Romeo Seratubias, Marlon Recamata, Dennis Aranas, Valentin Lesias, Arturo
D. Regalado, Armando Noel, Rodolfo O. Edrad, and several John and Jane Does were also implicated. [10]
On June 8, 2011, the First Panel concluded its preliminary investigation and issued the Resolution [11] dismissing the
Affidavit-Complaint.

On June 28, 2011, Dr. Inocencio-Ortega filed a Motion to Re-Open Preliminary Investigation, which, among others,
sought the admission of mobile phone communications between former Governor Reyes and Edrad. [12] On July 7,
2011, while the Motion to Re-Open was still pending, Dr. Inocencio-Ortega filed a Motion for Partial
Reconsideration Ad Cautelam of the Resolution dated June 8, 2011. Both Motions were denied by the First Panel in
the Resolution[13] dated September 2, 2011.[14]

On September 7, 2011, the Secretary of Justice issued Department Order No. 710 creating a new panel of
investigators (Second Panel) to conduct a reinvestigation of the case. The Second Panel was composed of Assistant
State Prosecutor Stewart Allan M. Mariano, Assistant State Prosecutor Vimar M. Barcellano, and Assistant State
Prosecutor Gerard E. Gaerlan.

Department Order No. 710 ordered the reinvestigation of the case "in the interest of service and due process" [15]to
address the offer of additional evidence denied by the First Panel in its Resolution dated September 2, 2011. The
Department Order also revoked Department Order No. 091. [16]

Pursuant to Department Order No. 710, the Second Panel issued a Subpoena requiring former Governor Reyes to
appear before them on October 6 and 13, 2011 and to submit his counter-affidavit and supporting evidence.[17]

On September 29, 2011, Dr. Inocencio-Ortega filed before the Secretary of Justice a Petition for Review (Ad
Cautelam) assailing the First Panel's Resolution dated September 2, 2011.[18]

On October 3, 2011, former Governor Reyes filed before the Court of Appeals a Petition for Certiorari and
Prohibition with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order assailing the
creation of the Second Panel. In his Petition, he argued that the Secretary of Justice gravely abused her discretion
when she constituted a new panel. He also argued that the parties were already afforded due process and that the
evidence to be addressed by the reinvestigation was neither new nor material to the case.[19]

On March 12, 2012, the Second Panel issued the Resolution finding probable cause and recommending the filing of
informations on all accused, including former Governor Reyes.[20] Branch 52 of the Regional Trial Court of Palawan
subsequently issued warrants of arrest on March 27, 2012. However, the warrants against former Governor Reyes
and his brother were ineffective since the two allegedly left the country days before the warrants could be
served.[22]
On March 29, 2012, former Governor Reyes filed before the Secretary of Justice a Petition for Review Ad
Cautelam[23] assailing the Second Panel's Resolution dated March 12, 2012. .

On April 2, 2012, he also filed before the Court of Appeals a Supplemental Petition for Certiorari and Prohibition
with Prayer for Writ of Preliminary Injunction and/or Temporary Restraining Order impleading Branch 52 of the
Regional Trial Court of Palawan.[24]

In his Supplemental Petition, former Governor Reyes argued that the Regional Trial Court could not enforce the
Second Panel's Resolution dated March 12, 2012 and proceed with the prosecution of his case since this
Resolution was void.[25]

On March 19, 2013, the Court of Appeals, in a Special Division of Five, rendered the Decision[26] declaring
Department Order No. 710 null and void and reinstating the First Panel's Resolutions dated June 8, 2011 and
September 2, 2011.

According to the Court of Appeals, the Secretary of Justice committed grave abuse of discretion when she issued
Department Order No. 710 and created the Second Panel. The Court of Appeals found that she should have
modified or reversed the Resolutions of the First Panel pursuant to the 2000 NPS Rule on Appeal [27] instead of
issuing Department Order No. 710 and creating the Second Panel. It found that because of her failure to follow the
procedure in the 2000 NPS Rule on Appeal, two Petitions for Review Ad Cautelam filed by the opposing parties
were pending before her.[28]

The Court of Appeals also found that the Secretary of Justice's admission that the issuance of Department Order
No. 710 did not set aside the First Panel's Resolution dated June 8, 2011 and September 2, 2011 "[compounded]
the already anomalous situation."[29] It also stated that Department Order No. 710 did not give the Second Panel
the power to reverse, affirm, or modify the Resolutions of the First Panel; therefore, the Second Panel did not have
the authority to assess the admissibility and weight of any existing or additional'evidence. [30]

The Secretary of Justice, the Second Panel, and Dr. Inocencio-Ortega filed a Motion for Reconsideration of the
Decision dated March 19, 2013. The Motion, however, was denied by the Court of Appeals in the
Resolution[31]dated September 27, 2013.

In its Resolution, the Court of Appeals stated that the Secretary of Justice had not shown the alleged miscarriage of
justice sought to be prevented by the creation of the Second Panel since both parties were given full opportunity
to present their evidence before the First Panel. It also ruled that the evidence examined by the Second Panel was
not additional evidence but "forgotten evidence"[32] that was already available before the First Panel during the
conduct of the preliminary investigation.[33]

Aggrieved, the Secretary of-Justice and the Second Panel filed the present Petition for Review on
Certiorari[34]assailing the Decision dated March 19, 2013 and Resolution dated September 27, 2013 of the Court of
Appeals. Respondent Mario Joel T. Reyes filed his Comment[35] to the Petition in compliance with this court's
Resolution dated February 17, 2014.[36] Petitioners' Reply[37] to the Comment was filed on October 14, 2014 in
compliance with this court's Resolution dated June 23, 2014.[38]

Petitioners argue that the Secretary of Justice acted within her authority when she issued Department Order No.
710. They argue that her issuance was a purely executive function and not a quasi-judicial function that could be
the subject of a petition for certiorari or prohibition.[39] In their submissions, they point out that under Republic Act
No. 10071 and the 2000 NPS Rule on Appeal, the Secretary of Justice has the power to create a new panel of
prosecutors to reinvestigate a case to prevent a miscarriage of justice. [40]

Petitioners' position was that the First Panel "appear[ed] to have ignored the rules of preliminary
investigation"[41]when it refused to receive additional evidence that would have been crucial for the determination
of the existence of probable cause.[42] They assert that respondent was not deprived of due process when the
reinvestigation was ordered since he was not prevented from presenting controverting evidence to Dr. Inocencio-
Ortega's additional evidence.[43] Petitioners argue that since the Information had been filed, the disposition of the
case was already within the discretion of the trial court.[44]

Respondent, on the other hand, argues that the Secretary of Justice had no authority to order motu proprio the
reinvestigation of the case since Dr. Inocencio-Ortega was able to submit her alleged new evidence to the First
Panel when she filed her Motion for Partial Reconsideration. He argues that all parties had already been given the
opportunity to present their evidence before the First Panel so it was not necessary to conduct a
reinvestigation.[45]

Respondent argues that the Secretary of Justice's discretion to create a new panel of prosecutors was not
"unbridled"[46] since the 2000 NPS Rule on Appeal requires that there be compelling circumstances for her to be
able to designate another prosecutor to conduct the reinvestigation. [47] He argues that the Second Panel's
Resolution dated March 12, 2012 was void since the Panel was created by a department order that was beyond
the Secretary of Justice's authority to issue. He further argues that the trial court did not acquire jurisdiction over
the case since the Information filed by the Second Panel was void. [48]

The issues for this court's resolution are:

First, whether the Court of Appeals erred in ruling that the Secretary of Justice committed grave abuse of
discretion when she issued Department Order No. 710, and with regard to this:

a. Whether the issuance of Department Order No. 710 was an executive function beyond the scope of a petition
for certiorari or prohibition; and

b. Whether the Secretary of Justice is authorized to create motu proprio another panel of prosecutors in order to
conduct a reinvestigation of the case.

Lastly, whether this Petition for Certiorari has already been rendered moot by the filing of the information in court,
pursuant to Crespo v. Mogul.[49]

The determination by the Department of Justice of the existence of probable cause is not a quasi-judicial
proceeding. However, the actions of the Secretary of Justice in affirming or reversing the findings of prosecutors
may still be subject to judicial review if it is tainted with grave abuse of discretion.

Under the Rules of Court, a writ of certiorari is directed against "any tribunal, board or officer exercising judicial or
quasi-judicial functions."[50] A quasi-judicial function is "the action, discretion, etc., of public administrative officers
or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw
conclusions from them, as a basis for their official action and to exercise discretion of a judicial
nature."[51]Otherwise stated, an administrative agency performs quasi-judicial functions if it renders awards,
determines the rights of opposing parties, or if their decisions have the same effect as the judgment of a court.[52]

In a preliminary investigation, the prosecutor does not determine the guilt or innocence of an accused. The
prosecutor only determines "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."[53] As such, the
prosecutor does not perform quasi-judicial functions. In Santos v. Go:[54]

[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.

Though some cases 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. 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. 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.[55]

In Spouses Dacudao v. Secretary of Justice,[56] a petition for certiorari, prohibition, and mandamus was filed against
the Secretary of Justice's issuance of a department order. The assailed order directed all prosecutors to forward all
cases already filed against Celso de los Angeles of the Legacy Group to the Secretariat of the Special Panel created
by the Department of Justice.

This court dismissed the petition on the ground that petitions for certiorari and prohibition are directed only to
tribunals that exercise judicial or quasi-judicial functions. The issuance of the department order was a purely
administrative or executive function of the Secretary of Justice. While the Department of Justice may perform
functions similar to that of a court of law, it is not a quasi-judicial agency:

The fact that the DOJ is the primary prosecution arm of the Government does not make it a quasi-judicial office or
agency. Its preliminary investigation of cases is not a quasi-judicial proceeding. Nor does the DOJ exercise a quasi-
judicial function when it reviews the findings of a public prosecutor on the finding of probable cause in any
case. Indeed, in Bautista v. Court of Appeals, the Supreme Court has held that a preliminary investigation is not a
quasi-judicial proceeding, stating:
. . . [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.

There may be some decisions of the Court that have characterized the public prosecutor's power to conduct a
preliminary investigation as quasi-judicial in nature. Still, this characterization is true only to the extent that the
public prosecutor, like a quasi-judicial body, is an officer of the executive department exercising powers akin to
those of a court of law.

But the limited similarity, between the public prosecutor and a quasi-judicial body quickly ends there. For sure, a
quasi-judicial body is an organ of government other than a court of law or a legislative office that affects the rights
of private parties through either adjudication or rule-making; it performs adjudicatory functions, and its awards
and adjudications determine the rights of the parties coming before it; its decisions have the same effect as the
judgments of a court of law. In contrast, that is not the effect whenever a public prosecutor conducts a preliminary
investigation to determine probable cause in order to file a criminal information against a person properly charged
with the offense, or whenever the Secretary of Justice reviews the public prosecutor's orders or
resolutions.[57](Emphasis supplied)

Similarly, in Callo-Claridad v. Esteban,[58] we have stated that a petition for review under Rule 43 of the Rules of
Court cannot be brought to assail the Secretary of Justice's resolution dismissing a complaint for lack of probable
cause since this is an "essentially executive function":[59]

A petition for review under Rule 43 is a mode of appeal to be taken only to review the decisions, resolutions or
awards by the quasi-judicial officers, agencies or bodies, particularly those specified in Section 1 of Rule 43. In the
matter before us, however, the Secretary of Justice was not an officer performing a quasi-judicial function. In
reviewing the findings of the OCP of Quezon City on the matter of probable cause, the Secretary of Justice
performed an essentially executive function to determine whether the crime alleged against the respondents was
committed, and whether there was 'probable cause to believe that the respondents were guilty thereof.[60]

A writ of prohibition, on the other hand, is directed against "the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions."[61] The Department of Justice
is not a court of law and its officers do not perform quasi-judicial functions. The Secretary of Justice's review of the
resolutions of prosecutors is also not a ministerial function.

An act is considered ministerial if "an officer or tribunal performs in the context of a given set of facts, in a
prescribed manner and without regard for the exercise of his or its own judgment, upon the propriety or
impropriety of the act done."[62] In contrast, an act is considered discretionary "[i]f the law imposes a duty upon a
public officer, and gives him the right to decide how or when the duty shall be performed." [63] Considering that
"full discretionary authority has been delegated to the executive branch in the determination of probable cause
during a preliminary investigation,"[64] the functions of the prosecutors and the Secretary of Justice are not
ministerial.
However, even when an administrative agency does not perform a judicial, quasi-judicial, or ministerial function,
the Constitution mandates the exercise of judicial review when there is an allegation of grave abuse of
discretion.[65] In Auto Prominence Corporation v. Winterkorn:[66]

In ascertaining whether the Secretary of Justice committed grave abuse of discretion amounting to lack or excess
of 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. [67]

Therefore, any question on whether the Secretary of Justice committed grave abuse of discretion amounting to
lack or excess of jurisdiction in affirming, reversing, or modifying the resolutions of prosecutors may be the subject
of a petition for certiorari under Rule 65 of the Rules of Court.

II

Under existing laws, rules of procedure, and jurisprudence, the Secretary of Justice is authorized to issue
Department Order No. 710.

Section 4 of Republic Act No. 10071[68] outlines the powers granted by law to the Secretary of Justice. The
provision reads:

Section 4. Power of the Secretary of Justice. - The power vested in the Secretary of Justice includes authority to act
directly on any matter involving national security or a probable miscarriage of justice within the jurisdiction of the
prosecution staff, regional prosecution office, and the. provincial prosecutor or the city prosecutor and to review,
reverse, revise, modify or affirm on appeal or petition for review as the law or the rules of the Department of
Justice (DOJ) may provide, final judgments and orders of the prosecutor general, regional prosecutors, provincial
prosecutors, and city prosecutors.

A criminal prosecution is initiated by the filing of a complaint to a prosecutor who shall then conduct a preliminary
investigation in order to determine whether there is probable cause to hold the accused for trial in court.[69] The
recommendation of the investigating prosecutor on whether to dismiss the complaint or to file the corresponding
information in court is still subject to the approval of the provincial or city prosecutor or chief state prosecutor.[70]
However, a party is not precluded from appealing the resolutions of the provincial or city prosecutor or chief state
prosecutor to the Secretary of Justice. Under the 2000 NPS Rule on Appeal, [71] appeals may be taken within 15 days
within receipt of the resolution by filing a verified petition for review before the Secretary of Justice. [72]

In this case, the Secretary of Justice designated a panel of prosecutors to investigate on the Complaint filed by Dr.
Inocencio-Ortega. The First Panel, after conduct of the preliminary investigation, resolved to dismiss the Complaint
on the ground that the evidence was insufficient to support a finding of probable cause. Dr. Inocencio-Ortega filed
a Motion to Re-Open and a Motion for Partial Investigation, which were both denied by the First Panel. Before Dr.
Inocencio-Ortega could file a petition for review, the Secretary of Justice issued Department Order No. 710 and
constituted another panel of prosecutors to reinvestigate the case. The question therefore is whether, under the
2000 NPS Rule on Appeal, the Secretary of Justice may, even without a pending petition for review, motu
proprio order the conduct of a reinvestigation.

The 2000 NPS Rule on Appeal requires the filing of a petition for review before the Secretary of Justice can reverse,
affirm, or modify the appealed resolution of the provincial or city prosecutor or chief state prosecutor. [73]The
Secretary of Justice may also order the conduct of a reinvestigation in order to resolve the petition for review.
Under Section 11:

SECTION 11. Reinvestigation. If the Secretary of Justice finds it necessary to reinvestigate the case, the
reinvestigation shall be held by the investigating prosecutor, unless, for compelling reasons, another prosecutor is
designated to conduct the same.

Under Rule 112, Section 4 of the Rules of Court, however, the Secretary of Justice may motu proprio reverse or
modify resolutions of the provincial or city prosecutor or the chief state prosecutor even without a pending
petition for review. Section 4 states:

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

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

The Secretary of Justice exercises control and supervision over prosecutors and it is within her- authority to affirm,
nullify, reverse, or modify the resolutions of her prosecutors. In Ledesma v. Court of Appeals:[74]

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[.] [75]

Similarly, in Rural Community Bank ofGuimba v. Hon. Talavera:[76]

The actions of prosecutors are not unlimited; they are subject to review by the secretary of justice who may affirm,
nullify, reverse or modify their actions or opinions.' Consequently the secretary may direct them to file either a
motion to dismiss the case or an information against the accused.

In short, the secretary of justice, who has the power of supervision and control over prosecuting officers, is the
ultimate authority who decides which of the conflicting theories of the complainants and the respondents should
be believed.[77]

Section 4 of Republic Act No. 10071 also gives the Secretary of Justice the authority to directly act on any
"probable miscarriage of justice within the jurisdiction of the prosecution staff, regional prosecution office, and the
provincial prosecutor or the city prosecutor." Accordingly, the Secretary of Justice may step in and order a
reinvestigation even without a prior motion or petition from a party in order to prevent any probable miscarriage
of justice.
Dr. Inocencio-Ortega filed a Motion to Re-Open the preliminary investigation before the First Panel in order to
admit as evidence mobile phone conversations between Edrad and respondent and argued that these phone
conversations tend to prove that respondent was the mastermind of her husband's murder. The First Panel,
however, dismissed the Motion on the ground that it was filed out of time. The First Panel stated:

Re-opening of the preliminary investigation for the purpose of receiving additional evidence presupposes that the
case has been submitted for resolution but no resolution has been promulgated therein by the investigating
prosecutor. Since a resolution has already been promulgated by the panel of prosecutors in this case, the motion
to re-open the preliminary investigation is not proper and'has to be denied. [78]

In the same Resolution, the First Panel denied Dr. Inocencio-Ortega's Motion for Partial Reconsideration on the
ground that "the evidence on record does not suffice to establish probable cause."[79] It was then that the
Secretary of Justice issued Department Order No. 710, which states:

In the interest of service and due process, and to give both parties all the reasonable opportunity to present their
evidence during the preliminary investigation, a new panel is hereby created composed of the following for the
purpose of conducting a reinvestigation . . . .
....

The reinvestigation in this case is hereby ordered to address the offer of additional evidence by the complainants,
which was denied by the former panel in its Resolution of 2 September 2011 on the ground that an earlier
resolution has already been promulgated prior to the filing of the said motion, and such other issues which may be
raised before the present panel.[80] (Emphasis supplied)

In her reply-letter dated September 29, 2011 to respondent's counsel, the Secretary of Justice further explained
that:

The order to reinvestigate was dictated by substantial justice and our desire to have a comprehensive
investigation. We do not want any stone unturned, or any evidence overlooked. As stated in D.O. No. 710, we want
to give "both parties all the reasonable opportunity to present their evidence." [81]

Under these circumstances, it is clear that the Secretary of Justice issued Department Order No. 710 because she
had reason to believe that the First Panel's refusal to admit the additional evidence may cause a probable
miscarriage of justice to the parties. The Second Panel was created not to overturn the findings and
recommendations of the First Panel but to make sure that all the evidence, including the evidence that the First
Panel refused to admit, was investigated. Therefore, the Secretary of Justice did not act in an "arbitrary and
despotic manner,'by reason of passion or personal hostility."[82]

Accordingly, Dr. Inocencio-Ortega's Petition for Review before the Secretary of Justice was rendered moot with the
issuance by the Second Panel of the Resolution dated March 12, 2012 and the filing of the Information against
respondent before the trial court.

III

The filing of the information and the issuance by the trial court of the respondent's warrant of arrest has already
rendered this Petition moot.

It is settled that executive determination of probable cause is different from the judicial determination of probable
cause. In People v. Castillo and Mejia:[83]

There are two kinds of determination of probable cause: executive and judicial. The executive determination of
probable cause is one made during preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom
he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated,
such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in
court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he
has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself
does not and may not be compelled to pass upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a
warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence
submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If
the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant. [84] (Emphasis supplied)

The courts do not interfere with the prosecutor's conduct of a preliminary investigation. The prosecutor's
determination of probable cause is solely within his or her discretion. Prosecutors are given a wide latitude of
discretion to detennine whether an information should be filed in court or whether the complaint should be
dismissed.[85]

A preliminary investigation is "merely inquisitorial,"[86] and is only conducted to aid the prosecutor in preparing the
information.[87] It serves a two-fold purpose: first, to protect the innocent against wrongful prosecutions; and
second, to spare the state from using its funds and resources in useless prosecutions. In Salonga v. Cruz-Pao:[88]
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. [89]

Moreover, a preliminary investigation is merely preparatory to a trial. It is not a trial on the merits. An accused's
right to a preliminary investigation is merely statutory;' it is not a right guaranteed by the Constitution. Hence, any
alleged irregularity in an investigation's conduct does not render the information void nor impair its validity.
InLozada v. Fernando:[90]

It has been said time and again that a preliminary investigation is not properly a trial or any part thereof but is
merely preparatory thereto, its only purpose being to determine whether a crime has been committed and
whether there is probable cause to'believe the accused guilty thereof. The right to such investigation is not a
fundamental right guaranteed by the constitution. At most, it is statutory. And rights conferred upon accused
persons to participate in preliminary investigations concerning themselves depend upon the provisions of law by
which such rights are specifically secured, rather than upon the phrase "due process of law." [91] (Citations omitted)

People v. Narca[92] further states:

It must be emphasized that the preliminary investigation is not the venue for the full exercise of the rights of the
parties. This is why preliminary investigation is not considered as a part of trial but merely preparatory thereto and
that the records therein shall not form part of the records of the case in court. Parties' may submit affidavits but
have no right to examine witnesses though they can propound questions through the investigating officer. In fact,
a preliminary investigation may even be conducted ex-part'e in certain cases. Moreover, in Section 1 of Rule 112,
the purpose of a preliminary investigation is only to determine a well grounded belief if a crime was probably
committed by an accused. In any case, the invalidity or absence of a preliminary investigation does not affect the
jurisdiction of the court which may have taken cognizance of the information nor impair the validity of the
information or otherwise render it defective.[93] (Emphasis supplied)

Once the information is filed in court, the court acquires jurisdiction of the case and any motion to dismiss the case
or to determine the accused's guilt or innocence rests within the sound discretion of the court. In Crespo v.
Mogul:[94]

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. 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
submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the
accused.
The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case
exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper
court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused
in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of
the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be
submitted to the Court for appropriate action. While it is true that the fiscal has the quasi judicial discretion to
determine whether or not a criminal case should be filed in court or not, once the case had already been brought
to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for
the consideration of the Court, the only qualification is that the action of the Court must not impair the substantial
rights of the accused or the right of the People to due process of law.

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a
review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise
of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper
determination of the case.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive
of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case
cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution
nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the
Secretary of Justice.

The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is -done and not
necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the
contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to
enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or
acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even
under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a
private prosecutor for then the entire proceedings will be null and void. The least that the fiscal should do is to
continue to appear for the prosecution although he may turn over the presentation of the evidence to the private
prosecutor but still under his direction and control.

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court, any disposition of the
case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court.
Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do
with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion
to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the
same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed
after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the
investigation.[95] (Emphasis supplied)

Thus, it would be ill-advised for the Secretary of Justice to proceed with resolving respondent's Petition for Review
pending before her. It would be more prudent to refrain from entertaining the Petition considering that the trial
court already issued a warrant of arrest against respondent.[96] The issuance of the warrant signifies that the trial
court has made an independent determination of the existence of probable cause. In Mendoza v. People:[97]

While it is within the trial court's discretion to make an independent assessment of the evidence on hand, it is only
for the purpose of determining whether a warrant of arrest should be issued. The judge does not act as an
appellate court' of the prosecutor and has no capacity to review the prosecutor's determination of probable cause;
rather, the judge makes a determination of probable cause independent of the prosecutor's finding.[98]

Here, the trial court has already determined, independently of any finding or recommendation by the First Panel or
the Second Panel, that probable cause exists for the issuance of the warrant of arrest against respondent. Probable
cause has been judicially determined. Jurisdiction over the case, therefore, has transferred to the trial court. A
petition for certiorari questioning the validity of the preliminary investigation in any other venue has been
rendered moot by the issuance of the warrant of arrest and the conduct of arraignment.

The Court of Appeals should have dismissed the Petition for Certiorari filed before them when the trial court issued
its warrant of arrest. Since the trial court has already acquired jurisdiction over the case and the existence of
probable cause has been judicially determined, a petition for certiorari questioning the conduct of the preliminary
investigation ceases to be the "plain, speedy, and adequate remedy"[99] provided by law. Since this Petition for
Review is an appeal from a moot Petition for Certiorari, it must also be rendered moot.

The prudent course of action at this stage would be to proceed to trial. Respondent, however, is not without
remedies. He may still file any appropriate action before the trial court or question any alleged irregularity in the
preliminary investigation during pre-trial.

WHEREFORE, the Petition is DISMISSED for being moot. Branch 52 of the Regional Trial Court of Palawan
isDIRECTED to proceed with prosecution of Criminal Case No. 26839.
SO ORDERED.

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

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,

vs.

OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of the Ombudsman, NATIONAL BUREAU OF
INVESTIGATION and ATTY. LEVITO D. BALIGOD, Respondents.

DECISION

CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the
witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that
the respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by
the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their
witnesses, to be afforded an opportunity to be present but without the right to examine or crossexamine.

- Paderanga v. Drilon1

This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary restraining order and/or Writ
of Preliminary Injunction enjoining respondents Office of the Ombudsman (Ombudsman), Field Investigation Office
(FIO) of the Ombudsman, National Bureau of Investigation (NBI), and Atty. Levito D. Baligod (Atty. Baligod)
(collectively, respondents), from conducting further proceedings in OMB-CC-13-03013 and OMB-C-C-13-0397 until
the present Petition has been resolved with finality; and (2) this Courts declaration that petitioner Senator Jinggoy
Ejercito Estrada (Sen. Estrada)was denied due process of law, and that the Order of the Ombudsman dated 27
March 2014 and the proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to and affected by the
issuance of the challenged 27 March 2014 Order are void.

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D. Baligod v. Jose "Jinggoy" P.
Ejercito Estrada, et al.,refers to the complaint for Plunder as defined under Republic Act (RA) No. 7080, while OMB-
C-C-13-0397,4 entitled Field Investigation Office, Office of the Ombudsman v. Jose "Jinggoy" P. Ejercito-Estrada, et
al., refers to the complaint for Plunder as defined underRA No. 7080 and for violation of Section 3(e) of RA No.
3019 (Anti-Graft and Corrupt Practices Act).
The Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-C-13-0313,
filed by the NBI and Atty. Baligod, which prayed, among others, that criminal proceedings for Plunder as defined in
RA No. 7080 be conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit inOMB-C-C-13-0313 on 9
January 2014.

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

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

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

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

(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);

(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);

(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);

(e) Consolidated Reply of complainant NBI, if one had been filed; and

(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional witnesses for
the Complainants.6

Sen. Estradas request was made "[p]ursuant to the right of a respondent to examine the evidence submitted by
the complainant which he may not have been furnished (Section 3[b], Rule 112 of the Rules of Court) and to have
access to the evidence on record (Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman)."7

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313. The pertinent portions of the
assailed Order read:

This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b], Rule 112 of the Rules
of Court and Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman] do not entitle
respondent [Sen. Estrada]to be furnished all the filings of the respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:

(a) The complaintshall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause

xxx xxx xxx

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents,
the respondent shall submit his counter affidavit and that of his witnesses and other supporting documents relied
upon for his defense. The counter affidavits shall be subscribed and sworn to and certified as provided in
paragraph (a) of this section, with copies thereof furnished by him to the complainant.

Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure of the Office of
the Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on April 10, 1990]:

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the
complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of
the affidavits and other supporting documents, directing the respondents to submit, within ten (10) days from
receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the
complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.

It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen. Estrada] a copy of the
Complaint and its supporting affidavits and documents; and this Office complied with this requirement when it
furnished [Sen. Estrada] with the foregoing documents attached to the Orders to File Counter-Affidavit dated 19
November 2013 and 25 November 2013.
It is to be noted that there is noprovision under this Offices Rules of Procedure which entitles respondent to be
furnished all the filings by the other parties, e.g. the respondents. Ruby Tuason, Dennis Cunanan, Gondelina G.
Amata and Mario L. Relampagos themselves are all respondents in these cases. Under the Rules of Court as well as
the Rules of Procedure of the Office of the Ombudsman, the respondents are only required to furnish their
counter-affidavits and controverting evidence to the complainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary investigation depend on the
rights granted to him by law and these cannot be based on whatever rights he believes [that] he is entitled to or
those that may be derived from the phrase "due process of law." Thus, this Office cannot grant his motion to be
furnished with copies of all the filings by the other parties. Nevertheless, he should be furnished a copy of the
Reply of complainant NBI as he is entitled thereto under the rules; however, as of this date, no Reply has been filed
by complainant NBI.

WHEREFORE, respondent [Sen.] Estradas Request to be Furnished with Copies of Counter-Affidavits of the Other
Respondents, Affidavits of New Witnesses and Other Filingsis DENIED. He is nevertheless entitled to be furnished a
copy of the Reply if complainant opts to file such pleading.8 (Emphases in the original)

On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint Resolution9 which
found probable cause to indict Sen. Estrada and his co-respondents with one count of plunder and 11 counts of
violation of Section 3(e) of RA No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint Resolution
dated 28 March 2014) dated 7 April 2014. Sen. Estrada prayed for the issuance of a new resolution dismissing the
charges against him. Without filing a Motion for Reconsideration of the Ombudsmans 27 March 2014 Order
denying his Request, Sen. Estrada filed the present Petition for Certiorari under Rule 65 and sought to annul and
set aside the 27 March 2014 Order.

THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED 27 MARCH 2014, ACTED WITHOUT
OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.10 Sen. Estrada
also claimed that under the circumstances, he has "no appeal or any other plain, speedy, and adequate remedy in
the ordinary course of law, except through this Petition."11 Sen. Estrada applied for the issuance of a temporary
restraining order and/or writ of preliminary injunction to restrain public respondents from conducting further
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397. Finally, Sen. Estrada asked for a judgment declaring that
(a) he has been denied due process of law, and as a consequence thereof, (b) the Order dated 27 March 2014, as
well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to and affected bythe issuance of
the 27 March 2014 Order, are void.12
On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and OMB-C-C-13-0397 a Joint Order
furnishing Sen. Estrada with the counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Francisco Figura,
Gregoria Buenaventura, and Alexis Sevidal, and directing him to comment thereon within a non-extendible period
of five days fromreceipt of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend proceedings in OMB-C-C-13-0313
and OMB-C-C-13-0397 because the denial of his Request to be furnished copies of counter-affidavits of his co-
respondents deprived him of his right to procedural due process, and he has filed the present Petition before
thisCourt. The Ombudsman denied Sen. Estradas motion to suspend in an Order dated 15 May 2014. Sen. Estrada
filed a motion for reconsideration of the Order dated 15 May 2014 but his motion was denied in an Order dated 3
June 2014.

As of 2 June 2014,the date of filing of the Ombudsmans Comment to the present Petition, Sen. Estrada had not
filed a comment on the counter-affidavits furnished to him. On 4 June 2014, the Ombudsman issued a Joint Order
in OMB-C-C-13-0313 and OMB-C-C-13-0397 denying, among other motions filed by the other respondents, Sen.
Estradas motion for reconsideration dated 7 April 2014. The pertinent portion of the 4 June 2014 Joint Order
stated:

While it is true that Senator Estradas request for copies of Tuason, Cunanan, Amata, Relampagos, Figura,
Buenaventura and Sevidals affidavits was denied by Order dated 27 March 2014 and before the promulgation of
the assailed Joint Resolution, this Office thereafter reevaluated the request and granted it byOrder dated 7 May
2014 granting his request. Copies of the requested counter-affidavits were appended to the copy of the Order
dated 7 May 2014 transmitted to Senator Estrada through counsel.

This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this proceeding in light of
its grant to Senator Estrada a period of five days from receipt of the 7 May 2014 Order to formally respond to the
above-named co-respondents claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his right to procedural due
process.13 (Emphasis supplied)

On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents), through the Officeof the
Solicitor General, filed their Comment to the present Petition. The public respondents argued that:

I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF LAW.

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW.

III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY INJUNCTION AND/OR TEMPORARY RESTRAINING

ORDER.14

On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated that Sen. Estradas
resort to a Petition for Certiorari under Rule 65 is improper. Sen. Estrada should have either filed a motion for
reconsideration of the 27 March 2014 Order or incorporated the alleged irregularity in his motion for
reconsideration of the 28 March 2014 Joint Resolution. There was also no violation of Sen. Estradas right to due
process because there is no rule which mandates that a respondent such as Sen. Estrada be furnished with copies
of the submissions of his corespondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents Comment. Sen. Estrada insisted that he
was denied due process. Although Sen. Estrada received copies of the counter-affidavits of Cunanan, Amata,
Relampagos, Buenaventura, Figura, Sevidal, as well as one of Tuasons counter-affidavits, heclaimed that he was
not given the following documents:

a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

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

e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013 (to the FIO Complaint);

f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to the NBI Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14 March 2014;
h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guaizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and

k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen. Estrada argues that the Petition isnot
rendered moot by the subsequent issuance of the 7 May 2014 Joint Order because there is a recurring violation of
his right to due process. Sen. Estrada also insists that there is no forum shopping as the present Petition arose from
an incident in the main proceeding, and that he has no other plain, speedy, and adequate remedy in the ordinary
course of law. Finally, Sen. Estrada reiterates his application for the issuance of a temporary restraining order
and/or writ of preliminary injunction to restrain public respondents from conducting further proceedings in OMB-
C-C-13-0313 and OMB-C-C-13-0397.

This Courts Ruling

Considering the facts narrated above, the Ombudsmans denial in its 27 March 2014 Order of Sen. Estradas
Request did not constitute grave abuse of discretion. Indeed, the denial did not violate Sen. Estradas
constitutional right to due process.

First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies of the counter-
affidavits of his co-respondents.

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as well as Rule II of
Administrative Order No. 7, Rules of Procedure of the Office of the Ombudsman, for ready reference.

From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3. Procedure. The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in
such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be
subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their
absence or unavailability, before a notary public, each of who must certify thathe personally examined the affiants
and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds
no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the
complaint and its supporting affidavits and documents. The respondent shall have the right to examine the
evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If
the evidence is voluminous, the complainant may be required to specify those which he intends to present against
the respondent, and these shall be made available for examination or copying by the respondent at his expense.

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

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

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

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party ora 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. Section 4. Resolution of investigating prosecutor and its
review. If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the
resolution and information. He shall certify under oath in the information that he, or as shown by the record, an
authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to
believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was
informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to
submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

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

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy.

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

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio,
the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without
conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information
with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the
Office of the Ombudsman. From the Rules of Procedure of the Office of the Ombudsman, Administrative Order No.
7, Rule II: Procedure in Criminal Cases

Section 1. Grounds. A criminal complaint may be brought for an offense in violation of R.A. 3019,as amended,
R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the Revised Penal Code, and for such other
offenses committed by public officers and employees in relation to office.

Sec. 2. Evaluation. Upon evaluating the complaint, the investigating officer shall recommend whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

Sec. 3. Preliminary investigation; who may conduct. Preliminary investigation may be conducted by any of the
following:

1) Ombudsman Investigators;

2) Special Prosecuting Officers;

3) Deputized Prosecutors;

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

5) Lawyers in the government service, so designated by the Ombudsman.

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

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the
complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of
the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from
receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on thecomplainant.
The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed by
him, if any, as his answer to the complaint. In any event, the respondent shall have access to the evidence on
record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of
particulars be entertained. If respondent desires any matter in the complainants affidavit to be clarified, the
particularization thereof may be done at the time of clarificatory questioning in the manner provided in paragraph
(f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or having been served,
does not comply therewith, the complaint shall be deemed submitted for resolution on the basis of the evidence
on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case
which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the
parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the
witness being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory
questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or
a party shall be reduced into writing and served on the witness concerned who shall be required to answer the
same in writing and under oath.

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

No information may be filed and no complaint may be dismissed without the written authority or approval of the
Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in
all other cases.

xxxx

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

Sec. 7. Motion for reconsideration. a) Only one (1) motion for reconsideration or reinvestigation of anapproved
order or resolution shall be allowed, the same to be filed within fifteen (15) days from notice thereof with the
Office of the Ombudsman, or the proper deputy ombudsman as the case may be.

xxxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding
Information in court on the basis of the finding of probable cause in the resolution subject of the motion.
(Emphasis supplied)
Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-respondents violates his
constitutional right to due process. Sen. Estrada, however, fails to specify a law or rule which states that it is a
compulsory requirement of due process in a preliminary investigation that the Ombudsman furnish a respondent
with the counter-affidavits of his co-respondents. Neither Section 3(b), Rule 112 of the Revised Rules of Criminal
Procedure nor Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman supports Sen.
Estradas claim. What the Rules of Procedure of the Office of the Ombudsman require is for the Ombudsman to
furnish the respondent with a copy of the complaint and the supporting affidavits and documents at the time the
order to submit the counter-affidavit is issued to the respondent. This is clear from Section 4(b), Rule II of the Rules
of Procedure of the Office of the Ombudsman when it states, "[a]fter such affidavits [of the complainant and his
witnesses] have been secured, the investigating officer shall issue an order, attaching thereto a copy of the
affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt
thereof, his counter-affidavits x x x." At this point, there is still no counter-affidavit submitted by any respondent.
Clearly, what Section 4(b) refers to are affidavits of the complainant and his witnesses, not the affidavits of the co-
respondents. Obviously, the counter-affidavits of the co-respondents are not part of the supporting affidavits of
the complainant. No grave abuse of discretion can thus be attributed to the Ombudsman for the issuance of the 27
March 2014 Order which denied Sen. Estradas Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides that a
respondent "shall have access to the evidence on record," this provision should be construed in relation to Section
4(a) and (b) of the same Rule, as well as to the Rules of Criminal Procedure. First, Section 4(a) states that
"theinvestigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate
the complaint." The "supporting witnesses" are the witnesses of the complainant, and do not refer to the co-
respondents.

Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a copy of the
affidavits and all other supporting documents, directing the respondent" tosubmit his counter-affidavit. The
affidavits referred to in Section 4(b) are the affidavits mentioned in Section

4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant and his
supporting witnesses. The provision in the immediately succeeding Section 4(c) of the same Rule II that a
respondent shall have "access to the evidence on record" does not stand alone, but should be read in relation to
the provisions of Section 4(a and b) of the same Rule II requiring the investigating officer to furnish the respondent
with the "affidavits and other supporting documents" submitted by "the complainant or supporting witnesses."
Thus, a respondents "access to evidence on record" in Section 4(c), Rule II of the Ombudsmans Rules of
Procedure refers to the affidavits and supporting documents of "the complainant or supporting witnesses" in
Section 4(a) of the same Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he respondent shall have
the right to examine the evidence submitted by the complainant which he may not have been furnished and to
copy them at his expense." A respondents right to examine refers only to "the evidence submitted by the
complainant."
Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the Ombudsmans
Rules of Procedure, there is no requirement whatsoever that the affidavits executed by the corespondents should
be furnished to a respondent. Justice Velascos dissent relies on the ruling in Office of the Ombudsman v. Reyes
(Reyes case),15 an administrative case, in which a different set of rules of procedure and standards apply. Sen.
Estradas Petition, in contrast, involves the preliminary investigation stage in a criminal case. Rule III on the
Procedure in Administrative Cases of the Rules of Procedure of the Office of the Ombudsman applies in the Reyes
case, while Rule II on the Procedure in Criminal Cases of the Rules of Procedure of the Office of the Ombudsman
applies in Sen. Estradas Petition. In both cases, the Rules of Court apply in a suppletory character or by analogy.16

In the Reyescase, the complainant Acero executed an affidavit against Reyes and Pealoza, who were both
employees of the Land Transportation Office. Pealoza submitted his counter-affidavit, as well as those of his two
witnesses. Reyes adopted his counter-affidavit in another case before the Ombudsman as it involved the same
parties and the same incident. None of the parties appeared during the preliminary conference. Pealoza waived
his right to a formal investigation and was willing to submit the case for resolution based on the evidence on
record. Pealoza also submitted a counter-affidavit of his third witness. The Ombudsman found Reyes guilty of
grave misconduct and dismissed him from the service. On the other hand, Pealoza was found guilty of simple
misconduct and penalized with suspension from office without pay for six months. This Court agreed with the
Court of Appeals finding that Reyes right to due process was indeed violated. This Court remanded the records of
the case to the Ombudsman, for two reasons: (1) Reyes should not have been meted the penalty of dismissal from
the service when the evidence was not substantial, and (2) there was disregard of Reyes right to due process
because he was not furnished a copy of the counter-affidavits of Pealoza and of Pealozas three witnesses. In the
Reyes case, failure to furnish a copy of the counter-affidavits happened in the administrative proceedings on the
merits, which resulted in Reyes dismissal from the service. In Sen. Estradas Petition, the denial of his Request
happened during the preliminary investigation where the only issue is the existence of probable cause for the
purpose of determining whether an information should be filed, and does not prevent Sen. Estrada from
requesting a copy of the counter-affidavits of his co-respondents during the pre-trial or even during the trial.

We should remember to consider the differences in adjudicating cases, particularly an administrative case and a
criminal case:

Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending on whether the cases to
which they are meant to apply are criminal, civil or administrative in character. In criminal actions, proof beyond
reasonable doubt is required for conviction;in civil actions and proceedings, preponderance of evidence, as
support for a judgment; and in administrative cases, substantial evidence, as basis for adjudication. In criminal and
civil actions, application of the Rules of Court is called for, with more or less strictness. In administrative
proceedings, however, the technical rules of pleadingand procedure, and of evidence, are not strictly adhered to;
they generally apply only suppletorily; indeed, in agrarian disputes application of the Rules of Court is actually
prohibited.17

It should be underscored that the conduct of a preliminary investigation is only for the determination of probable
cause, and "probable cause merely implies probability of guilt and should be determined in a summary manner. A
preliminary investigation is not a part of the trial and it is only in a trial where an accused can demand the full
exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence."18
Thus, the rights of a respondent in a preliminary investigation are limited to those granted by procedural law.
A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is
sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty thereof, and should be held for trial. The quantum of
evidence now required in preliminary investigation is such evidence sufficient to "engender a well founded belief"
as tothe fact of the commission of a crime and the respondent's probable guilt thereof. A preliminary investigation
is not the occasion for the full and exhaustive display of the parties evidence; it is for the presentation of such
evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is
probably guilty thereof. We are in accord with the state prosecutors findings in the case at bar that there exists
prima facie evidence of petitioners involvement in the commission of the crime, it being sufficiently supported by
the evidence presented and the facts obtaining therein.

Likewise devoid of cogency is petitioners argument that the testimonies of Galarion and Hanopol are inadmissible
as to him since he was not granted the opportunity of cross-examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the
witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that
the respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by
the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their
witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine. Thus,
even if petitioner was not given the opportunity to cross-examine Galarion and Hanopol atthe time they were
presented to testify during the separate trial of the case against Galarion and Roxas, he cannot assert any legal
right to cross-examine them at the preliminary investigation precisely because such right was never available to
him. The admissibility or inadmissibility of said testimonies should be ventilated before the trial court during the
trial proper and not in the preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and control over the
conduct of a preliminary investigation. If by its very nature a preliminary investigation could be waived by the
accused, we find no compelling justification for a strict application of the evidentiary rules. In addition, considering
that under Section 8, Rule 112 of the Rules of Court, the record of the preliminary investigation does not form part
of the record of the case in the Regional Trial Court, then the testimonies of Galarion and Hanopol may not be
admitted by the trial court if not presented in evidence by the prosecuting fiscal. And, even if the prosecution does
present such testimonies, petitioner can always object thereto and the trial court can rule on the admissibility
thereof; or the petitioner can, during the trial, petition said court to compel the presentation of Galarion and
Hanopol for purposes of cross-examination.19 (Emphasis supplied)

Furthermore, in citing the Reyes case, Justice Velascos dissent overlooked a vital portion of the Court of Appeals
reasoning. This Court quoted from the Court of Appeals decision: "x x x [A]dmissions made by Pealoza in his
sworn statement are binding only on him. Res inter alios act a alteri nocere non debet. The rights of a party cannot
be prejudiced by an act, declaration or omission of another." In OMB-C-C-13-0313 and OMB-C-C-13-0397, the
admissions of Sen. Estradas co-respondents can in no way prejudice Sen. Estrada. Even granting Justice Velascos
argument that the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-039720 mentioned the
testimonies of Sen. Estradas corespondents like Tuason and Cunanan, their testimonies were merely
corroborative of the testimonies of complainants witnesses Benhur Luy, Marina Sula, and Merlina Suas and were
not mentioned in isolation from the testimonies of complainants witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada to establish its
finding of probable cause in the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-CC-13-0397 was
judicially confirmed by the Sandiganbayan, when it examined the evidence, found probable cause, and issued a
warrant of arrest against Sen. Estrada on 23 June 2014.

We likewise take exception to Justice Brions assertion that "the due process standards that at the very least
should be considered in the conduct of a preliminary investigation are those that this Court first articulated in Ang
Tibay v. Court of Industrial Relations [Ang Tibay]."21 Simply put, the Ang Tibay guidelines for administrative cases
do not apply to preliminary investigations in criminal cases. An application of the Ang Tibay guidelines to
preliminary investigations will have absurd and disastrous consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay described as the
"fundamental and essential requirements of due process in trials and investigations of an administrative
character."22 These requirements are "fundamental and essential" because without these, there isno due process
as mandated by the Constitution. These "fundamental and essential requirements" cannot be taken away by
legislation because theyare part of constitutional due process. These "fundamental and essential requirements"
are:

(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to
present his own case and submit evidence in support thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and adduce evidence tending to establish
the rights which he asserts but the tribunal must consider the evidence presented. x x x.

(3) "While the duty to deliberatedoes not impose the obligation to decide right, it does imply a necessity which
cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely
nothing to support it is a nullity, x x x."

(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be
"substantial." "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record
and disclosed to the parties affected. x x x.
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent
consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving
at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in sucha manner that
the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered.
The performance of this duty is inseparable from the authority conferred upon it.23

The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA24 (GSIS): "what Ang Tibay failed to explicitly
state was, prescinding from the general principles governing due process, the requirement of an impartial
tribunalwhich, needless to say, dictates that one called upon to resolve a dispute may not sit as judge and jury
simultaneously, neither may he review his decision on appeal."25 The GSIS clarification affirms the non
applicability of the Ang Tibay guidelines to preliminary investigations in criminal cases: The investigating officer,
which is the role that the Office of the Ombudsman plays in the investigation and prosecution of government
personnel, will never be the impartial tribunal required in Ang Tibay, as amplified in GSIS. The purpose of the Office
of the Ombudsman in conducting a preliminary investigation, after conducting its own factfinding investigation, is
to determine probable cause for filing an information, and not to make a final adjudication of the rights and
obligations of the parties under the law, which is the purpose of the guidelines in Ang Tibay. The investigating
officer investigates, determines probable cause, and prosecutes the criminal case after filing the corresponding
information.

The purpose in determining probable cause is to make sure that the courts are not clogged with weak cases that
will only be dismissed, as well as to spare a person from the travails of a needless prosecution.26 The Ombudsman
and the prosecution service under the control and supervision of the Secretary of the Department of Justice are
inherently the fact-finder, investigator, hearing officer, judge and jury of the respondent in preliminary
investigations. Obviously, this procedure cannot comply with Ang Tibay, as amplified in GSIS. However, there is
nothing unconstitutional with this procedure because this is merely an Executive function, a part of the law
enforcement process leading to trial in court where the requirements mandated in Ang Tibay, as amplified in GSIS,
will apply. This has been the procedure under the 1935, 1973 and 1987 Constitutions. To now rule that Ang Tibay,
as amplified in GSIS, should apply to preliminary investigations will mean that all past and present preliminary
investigations are in gross violation of constitutional due process.

Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case when he filed his
Request, is not yet an accused person, and hence cannot demand the full exercise of the rights of an accused
person:

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been
committed and was committed by the suspects. Probable cause need not be based on clear and convincing
evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence
establishing absolute certainty of guilt. As well put in Brinegar v. United States, while probable cause demands
more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of
probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding of probable cause, wealso hold
that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory
questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the
investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator
need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be
determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an
accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to
establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been
adduced to establish probable cause and clarificatory hearing was unnecessary.27

Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v. Hernandez,28 that the "rights
conferred upon accused persons to participate in preliminary investigations concerning themselves depend upon
the provisions of law by which such rights are specifically secured, rather than upon the phrase due process of
law." This reiterates Justice Jose P. Laurels oft-quoted pronouncement in Hashim v. Boncan29 that "the right to a
preliminary investigation is statutory, not constitutional." In short, the rights of a respondent ina preliminary
investigation are merely statutory rights, not constitutional due process rights. An investigation to determine
probable cause for the filing of an information does not initiate a criminal action so as to trigger into operation
Section 14(2), Article III of the Constitution.30 It is the filing of a complaint or information in court that initiates a
criminal action.31

The rights to due process in administrative cases as prescribed in Ang Tibay,as amplified in GSIS, are granted by the
Constitution; hence, these rights cannot be taken away by merelegislation. On the other hand, as repeatedly
reiterated by this Court, the right to a preliminary investigation is merely a statutory right,32 not part of the
"fundamental and essential requirements" of due process as prescribed in Ang Tibay and amplified in GSIS. Thus, a
preliminary investigation can be taken away by legislation. The constitutional right of an accused to confront the
witnesses against him does not apply in preliminary investigations; nor will the absence of a preliminary
investigation be an infringement of his right to confront the witnesses against him.33 A preliminary investigation
may be done away with entirely without infringing the constitutional right of an accused under the due process
clause to a fair trial.34

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the evidenceneeded in a
preliminary investigation to establish probable cause, or to establish the existence of a prima facie case that would
warrant the prosecution of a case. Ang Tibay refers to "substantial evidence," while the establishment of probable
cause needs "only more than bare suspicion, or less than evidence which would justify . . . conviction." In the
United States, from where we borrowed the concept of probable cause,35 the prevailing definition of probable
cause is this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities.These are not
technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men,
not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt." McCarthy v. De
Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at 161. And this "means less than
evidence which would justify condemnation" or conviction, as Marshall, C. J., said for the Court more than a
century ago in Locke v. United States, 7 Cranch 339, 348. Since Marshalls time, at any rate, it has come to mean
more than bare suspicion: Probable cause exists where "the facts and circumstances within their [the officers]
knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a
man of reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United States,
267 U. S. 132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy
and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the communitys
protection. Because many situations which confront officers in the course of executing their duties are more or
less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of
reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a
practical, non technical conception affording the best compromise that has been found for accommodating these
often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave
law-abiding citizens at the mercy of the officers whim or caprice.36

In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where probable cause is
needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof,
and should be held for trial. A preliminary investigation is required before the filing of a complaint or information
for an offense where the penalty prescribed by law is at least four years, two months and one day without regard
to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or a commitment order,
if the accused has already been arrested, shall be issued and that there is a necessity of placing the respondent
under immediate custody in order not to frustrate the ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless arrest when an offense
has just been committed, and he has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be issued, and only upon
probable cause in connection with one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the things to be seized which may be anywhere in the Philippines.
In all these instances, the evidence necessary to establish probable cause is based only on the likelihood, or
probability, of guilt. Justice Brion, in the recent case of Unilever Philippines, Inc. v. Tan37 (Unilever), stated:

The determination of probable cause needs only to rest on evidence showing that more likely than not, a crime has
been committed and there is enough reason to believe that it was committed by the accused. It need not be based
on clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt. What is
merely required is "probability of guilt." Its determination, too, does not call for the application of rules or
standards of proof that a judgment of conviction requires after trial on the merits. Thus, in concluding that there is
probable cause, it suffices that it is believed that the act or omission complained of constitutes the very offense
charged.

It is also important to stress that the determination of probable cause does not depend on the validity or merits of
a partys accusation or defense or on the admissibility or veracity of testimonies presented. As previously
discussed, these matters are better ventilated during the trial proper of the case. As held in Metropolitan Bank &
Trust Company v. Gonzales:

Probable cause has been defined as the existence of such facts and circumstances as would excite the belief in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted. x x x. The term does not mean "actual or positive cause" nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not
require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed
that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception
of evidence of the prosecution in support of the charge. (Bold facing and italicization supplied)

Justice Brions pronouncement in Unilever that "the determination of probable cause does not depend on the
validity or merits of a partys accusation or defense or on the admissibility or veracity of testimonies presented"
correctly recognizes the doctrine in the United States that the determination of probable cause can rest partially,
or even entirely, on hearsay evidence, as long as the person making the hearsay statement is credible. In United
States v. Ventresca,38 the United States Supreme Court held:

While a warrant may issue only upon a finding of "probable cause," this Court has long held that "the term
probable cause . . . means less than evidence which would justify condemnation," Locke v. United States, 7
Cranch 339, 11 U.S. 348, and that a finding of "probable cause" may rest upon evidence which is not legally
competent in a criminal trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311. As the Court stated in Brinegar v.
United States, 338 U.S. 160, 173, "There is a large difference between the two things tobe proved (guilt and
probable cause), as well as between the tribunals which determine them, and therefore a like difference in the
quanta and modes of proof required to establish them." Thus, hearsay may be the basis for issuance of the
warrant "so long as there . . . [is] a substantial basis for crediting the hearsay." Jones v. United States, supra, at 362
U.S. 272. And, in Aguilar, we recognized that "an affidavit may be based on hearsay information and need not
reflect the direct personal observations of the affiant," so long as the magistrate is "informed of some of the
underlying circumstances" supporting the affiants conclusions and his belief that any informant involved "whose
identity need not be disclosed . . ." was "credible" or his information "reliable." Aguilar v. Texas, supra, at 378 U.S.
114. (Emphasis supplied)
Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting
the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because
such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. However,
in administrative cases, where rights and obligations are finally adjudicated, what is required is "substantial
evidence" which cannot rest entirely or even partially on hearsay evidence. Substantial basis is not the same as
substantial evidence because substantial evidence excludes hearsay evidence while substantial basis can include
hearsay evidence. To require the application of Ang Tibay, as amplified in GSIS, in preliminary investigations will
change the quantum of evidence required in determining probable cause from evidence of likelihood or probability
of guilt to substantial evidence of guilt.

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an accused and the right
to a preliminary investigation. To treat them the same will lead toabsurd and disastrous consequences.

All pending criminal cases in all courts throughout the country will have to be remanded to the preliminary
investigation level because none of these will satisfy Ang Tibay, as amplified in GSIS. Preliminary investigations are
conducted by prosecutors, who are the same officials who will determine probable cause and prosecute the cases
in court. The prosecutor is hardly the impartial tribunal contemplated in Ang Tibay, as amplified in GSIS. A
reinvestigation by an investigating officer outside of the prosecution service will be necessary if Ang Tibay, as
amplified in GSIS, were to be applied. This will require a new legislation. In the meantime, all pending criminal
cases in all courts will have to be remanded for reinvestigation, to proceed only when a new law is in place. To
require Ang Tibay, as amplified in GSIS, to apply to preliminary investigation will necessarily change the concept of
preliminary investigation as we know it now. Applying the constitutional due process in Ang Tibay, as amplified in
GSIS, to preliminary investigation will necessarily require the application of the rights of an accused in Section
14(2), Article III of the 1987 Constitution. This means that the respondent can demand an actual hearing and the
right to cross-examine the witnesses against him, rights which are not afforded at present toa respondent in a
preliminary investigation.

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

Second. Sen. Estradas present Petition for Certiorari is premature.

Justice Velascos dissent prefers thatSen. Estrada not "be subjected to the rigors of a criminal prosecution incourt"
because there is "a pending question regarding the Ombudsmans grave abuse of its discretion preceding the
finding of a probable cause to indict him." Restated bluntly, Justice Velascos dissent would like this Court to
conclude that the mere filing of the present Petition for Certiorari questioning the Ombudsmans denial of Sen.
Estradas Request should have, by itself, voided all proceedings related to the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen. Estradas Request, the
Ombudsman subsequently reconsidered its Order. On 7 May 2014, the same date that Sen. Estrada filed the
present Petition, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 that
furnishedSen. Estrada with the counter-affidavits of Ruby Tuason, Dennis Cunanan, Gondelina Amata, Mario
Relampagos, Francisco Figura, Gregoria Buenaventura, and AlexisSevidal, and directed him to comment within a
non-extendible period of five days from receipt of said Order. Sen. Estrada did not file any comment, as noted in
the 4 June 2014 Joint Order of the Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estradas Motion for Reconsideration
ofits 28 March 2014 Joint Resolution which found probable cause toindict Sen. Estrada and his corespondents with
one count of plunder and 11 counts of violation of Section 3(e), Republic Act No. 3019. In this 4 June 2014 Joint
Order, the Ombudsman stated that "[t]his Office, in fact, held in abeyance the disposition of motions for
reconsideration in this proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7
May 2014 Order to formally respond to the above-named respondents claims."

We underscore Sen. Estradas procedural omission. Sen. Estrada did not file any pleading, much less a motion for
reconsideration, to the 27 March 2014 Order inOMB-C-C-13-0313. Sen. Estrada immediately proceeded to file this
Petition for Certiorari before this Court. Sen. Estradas resort to a petitionfor certiorari before this Court stands in
stark contrast to his filing of his 7 April 2014 Motion for Reconsideration of the 28 March 2014 Joint Resolution
finding probable cause. The present Petition for Certiorari is premature.

A motion for reconsideration allows the public respondent an opportunity to correct its factual and legal errors.
Sen. Estrada, however, failed to present a compelling reason that the present Petition falls under the exceptions41
to the general rule that the filing of a motion for reconsideration is required prior to the filing of a petition for
certiorari. This Court has reiterated in numerous decisions that a motion for reconsideration is mandatory before
the filing of a petition for certiorari.42

Justice Velascos dissent faults the majority for their refusal to apply the Reyes case to the present Petition. Justice
Velascos dissent insists that "this Court cannot neglect to emphasize that, despite the variance in the quanta of
evidence required, a uniform observance of the singular concept of due process is indispensable in all
proceedings."

As we try to follow Justice Velascos insistence, we direct Justice Velasco and those who join him in his dissent to
this Courts ruling in Ruivivar v. Office of the Ombudsman (Ruivivar),43 wherein we stated that "[t]he law can no
longer help one who had been given ample opportunity to be heard but who did not take full advantage of the
proffered chance."
The Ruivivar case, like the Reyes44 case, was also an administrative case before the Ombudsman. The Ombudsman
found petitioner Rachel Beatriz Ruivivar administratively liable for discourtesy in the course of her official functions
and imposed on her the penalty of reprimand. Petitioner filed a motion for reconsideration of the decision on the
ground that she was not furnished copies of the affidavits of the private respondents witnesses. The Ombudsman
subsequently ordered that petitioner be furnished with copies of the counter-affidavits of private respondents
witnesses, and that petitioner should "file, within ten (10) days from receipt of this Order, such pleading which she
may deem fit under the circumstances." Petitioner received copies of the affidavits, and simply filed a
manifestation where she maintained that her receipt of the affidavits did not alter the deprivation of her right to
due process or cure the irregularity in the Ombudsmans decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondents witnesses afterthe Ombudsman rendered
a decision against her. We disposed of petitioners deprivation of due process claim in this manner:

The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to exhaust all the
administrative remedies available to her before the Ombudsman. This ruling is legallycorrect as exhaustion of
administrative remedies is a requisite for the filing of a petition for certiorari. Other than this legal significance,
however, the ruling necessarily carries the direct and immediate implication that the petitioner has been granted
the opportunity to be heard and has refused to avail of this opportunity; hence, she cannot claim denial of due
process. In the words of the CA ruling itself: "Petitioner was given the opportunity by public respondent to rebut
the affidavits submitted by private respondent. . . and had a speedy and adequate administrative remedy but she
failed to avail thereof for reasons only known to her."

For a fuller appreciation of our above conclusion, we clarify that although they are separate and distinct concepts,
exhaustion of administrative remedies and due process embody linked and related principles. The "exhaustion"
principle applies when the ruling court or tribunal is not given the opportunity tore-examine its findings and
conclusions because of an available opportunity that a party seeking recourse against the court or the tribunals
ruling omitted to take. Under the concept of "due process," on the other hand, a violation occurs when a court or
tribunal rules against a party without giving him orher the opportunity to be heard. Thus, the exhaustion principle
is based on the perspective of the ruling court or tribunal, while due process is considered from the point of view
of the litigating party against whom a ruling was made. The commonality they share is in the same"opportunity"
that underlies both. In the context of the present case, the available opportunity to consider and appreciate the
petitioners counter-statement offacts was denied the Ombudsman; hence, the petitioner is barred from seeking
recourse at the CA because the ground she would invoke was not considered at all at the Ombudsman level. At the
same time, the petitioner who had the same opportunity to rebut the belatedly-furnished affidavits of the
private respondents witnesses was not denied and cannot now claim denial of due process because she did not
take advantage of the opportunity opened to her at the Ombudsman level.

The records show that the petitioner duly filed a motion for reconsideration on due process grounds (i.e., for the
private respondents failure to furnish her copies of the affidavits of witnesses) and on questions relating to the
appreciation of the evidence on record. The Ombudsman acted on this motion by issuing its Order of January 17,
2003 belatedly furnishing her with copies of the private respondents witnesses, together with the "directive to
file, within ten (10) days from receipt of this Order, such pleading which she may deem fit under the
circumstances."
Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to file a
"Manifestation" where she took the position that "The order of the Ombudsman dated 17 January 2003 supplying
her with the affidavits of the complainant does not cure the 04 November 2002 order," and on this basis prayed
that the Ombudsmans decision "be reconsidered and the complaint dismissed for lack of merit."

For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration dated 27 January
2003 and prayed for the denial of the petitioners motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioners motion for reconsideration after finding
no basis to alter or modify its ruling. Significantly, the Ombudsman fully discussed in this Order the due process
significance of the petitioners failure to adequately respond to the belatedly-furnished affidavits. The
Ombudsman said:

"Undoubtedly, the respondent herein has been furnished by this Office with copies of the affidavits, which she
claims she has not received. Furthermore, the respondent has been given the opportunity to present her side
relative thereto, however, she chose not to submit countervailing evidence orargument. The respondent,
therefore (sic), cannot claim denial of due process for purposes of assailing the Decision issued in the present case.
On this score, the Supreme Court held in the case of People v. Acot, 232 SCRA 406, that "a party cannot feign
denial of due process where he had the opportunity to present his side". This becomes all the more important
since, as correctly pointed out by the complainant, the decision issued in the present case is deemed final and
unappealable pursuant to Section 27 of Republic Act 6770, and Section 7, Rule III of Administrative Order No. 07.
Despite the clear provisions of the law and the rules, the respondent herein was given the opportunity not
normally accorded, to present her side, but she opted not to do so which is evidently fatal to her cause." [emphasis
supplied].

Under these circumstances, we cannot help but recognize that the petitioners cause is a lost one, not only for her
failure to exhaust her available administrative remedy, but also on due process grounds. The law can no longer
help one who had been given ample opportunity to be heard but who did not take full advantage of the proffered
chance.45

Ruivivar applies with even greater force to the present Petition because here the affidavits of Sen. Estradas co-
respondents were furnished to him beforethe Ombudsman rendered her 4 June 2014 Joint Order. In Ruivivar, the
affidavits were furnished after the Ombudsman issued a decision.

Justice Velascos dissent cites the cases of Tatad v. Sandiganbayan46 (Tatad) and Duterte v. Sandiganbayan47
(Duterte) in an attempt to prop up its stand. A careful reading of these cases, however, would show that they do
not stand on all fours with the present case. In Tatad, this Court ruled that "the inordinate delay in terminating the
preliminary investigation and filing the information [by the Tanodbayan] in the present case is violative of the
constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against
him."48 The Tanod bayan took almost three years to terminate the preliminary investigation, despite Presidential
Decree No. 911s prescription of a ten-day period for the prosecutor to resolve a case under preliminary
investigation. We ruled similarly in Duterte, where the petitioners were merely asked to comment and were not
asked to file counter-affidavits as isthe proper procedure in a preliminary investigation. Moreover, in Duterte, the
Ombudsman took four years to terminate its preliminary investigation.

As we follow the reasoning in Justice Velascos dissent, it becomes more apparent that Sen. Estradas present
Petition for Certiorari is premature for lack of filing of a motion for reconsideration before the Ombudsman. When
the Ombudsman gave Sen. Estrada copies of the counter-affidavits and even waited for the lapse of the given
period for the filing of his comment, Sen. Estrada failed to avail of the opportunity to be heard due to his own
fault. Thus, Sen. Estradas failure cannot in any way be construed as violation of due process by the Ombudsman,
much less of grave abuse of discretion. Sen. Estrada has not filed any comment, and still chooses not to.

Third. Sen. Estradas present Petition for Certiorari constitutes forum shopping and should be summarily
dismissed.

In his verification and certification of non-forum shopping in the present petition filed on 7 May 2014, Sen. Estrada
stated:

3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in OMB-C-C-13-0313 and
OMB-CC-13-0397, raising as sole issuethe finding of probable cause in the Joint Resolution dated 28 March 2014.

Such Motion for Reconsideration has yet to be resolved by the Office of the Ombudsman.49 (Emphasis supplied)

Sen. Estradas Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed that the Ombudsman
reconsider and issue a new resolution dismissing the charges against him. However, in this Motion for
Reconsideration, Sen. Estrada assailed the Ombudsmans 27 March 2014 Joint Order denying his Request, and that
such denial is a violation of his right to due process.

8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112, Section 4 of the Rules of
Court] and principles. A reading of the Joint Resolution will reveal that various pieces of evidence which Senator
Estrada was not furnished with hence, depriving him of the opportunity to controvert the same were heavily
considered by the Ombudsman in finding probable cause to charge him with Plunder and with violations of Section
3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be Furnished with Copies of Counter-
Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings," pursuant to the right of a
respondent "to examine the evidence submitted by the complainant which he may not have been furnished"
(Section 3[b], Rule 112 of the Rules of Court), and to "have access to the evidence on record" (Section 4[c], Rule II
of the Rules of Procedure of the Office of the Ombudsman).

However, notwithstanding the gravity of the offenses leveled against Senator Estrada and the laws vigilance in
protecting the rights of an accused, the Special Panel of Investigators, in an Order dated 27 March 2014,
unceremoniously denied the request on the ground that "there is no provision under this Offices Rules of
Procedure which entitles respondent to be furnished all the filings by the other parties x x x x." (Order dated 27
March 2013, p. 3)

As such, Senator Estrada was not properly apprised of the evidence offered against him, which were eventually
made the bases of the Ombudsmans finding of probable cause.50

The Ombudsman denied Sen. Estradas Motion for Reconsideration in its 4 June 2014 Joint Order. Clearly, Sen.
Estrada expressly raised in his Motion for Reconsideration with the Ombudsman the violation of his right to due
process, the same issue he is raising in this petition. In the verification and certification of non-forum shopping
attached to his petition docketed as G.R. Nos. 212761-62 filed on 23 June 2014, Sen. Estrada disclosed the
pendency of the present petition, as well as those before the Sandiganbayan for the determination of the
existence of probable cause. In his petition in G.R. Nos. 212761-62, Sen. Estrada again mentioned the
Ombudsmans 27 March 2014 Joint Order denying his Request.

17. Sen. Estrada was shocked not only at the Office of the Ombudsmans finding of probable cause, which he
maintains is without legal or factual basis, but also thatsuch finding of probable cause was premised on evidence
not disclosed tohim, including those subject of his Request to be Furnished with Copiesof Counter-Affidavits of the
Other Respondents, Affidavits of New Witnesses and Other Filings dated 20 March 2014.

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

i. Alexis G. Sevidals Counter-Affidavits dated 15 January and 24 February 2014;

ii. Dennis L. Cunanans Counter-Affidavits both dated 20 February 2014;

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

iv. Ruby Tuasons Counter-Affidavits both dated 21 February 2014;

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

vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy upstages Napoles in Senate Hearing"
by Norman Bordadora and TJ Borgonio, published on 06 March 2014, none of which were ever furnished Sen.
Estrada prior to the issuance of the challenged Joint Resolution, despite written request.

xxxx

II

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT RESOLUTION DATED 28 MARCH 2014 AND
CHALLENGED JOINT ORDER DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION
OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, BUT ALSO VIOLATED
SEN. ESTRADAS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND TO EQUAL PROTECTION OF THE LAWS.

xxxx

2.17 x x x x

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even arbitrarily limited the filing of
Sen. Estradas comment to the voluminous documents comprisingthe documents it furnished Sen. Estrada to a
"non-extendible" period offive (5) days, making it virtually impossible for Sen. Estrada to adequately study the
charges leveled against him and intelligently respond to them. The Joint Order also failed to disclose the existence
of other counter-affidavits and failed to furnish Sen. Estrada copies of such counter-affidavits.51

Sen. Estrada has not been candid with this Court. His claim that the finding of probable cause was the "sole issue"
he raised before the Ombudsman in his Motion for Reconsideration dated 7 April 2014 is obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsmans 4 June 2014 Joint Order which
denied his motion for reconsideration of the 28 March 2014 Joint Resolution, Sen. Estrada did not mention that
the 4 June 2014 Joint Order stated that the Ombudsman "held in abeyance the disposition of the motions for
reconsideration in this proceeding in light of its grant to [Sen. Estrada] a period of five days from receipt of the 7
May 2014 [Joint] Order to formally respond to the abovenamed co-respondents claims."

Sen. Estrada claims that his rights were violated but he flouts the rules himself.
The rule against forum shopping is not limited tothe fulfillment of the requisites of litis pendentia.52 To determine
whether a party violated the rule against forum shopping, the most important factor to ask is whether the
elements of litis pendentia are present, or whether a final judgment in one case will amount to res judicatain
another.53 Undergirding the principle of litis pendentia is the theory that a party isnot allowed to vex another
more than once regarding the same subject matter and for the same cause of action. This theory is founded on the
public policy that the same matter should not be the subject of controversy in court more than once in order that
possible conflicting judgments may be avoided, for the sake of the stability in the rights and status of persons.54

x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a recourse that in the usual
course and because of its nature and purpose is not covered by the rule on forum shopping. The exception from
the forum shopping rule, however, is true only where a petition for certiorari is properly or regularly invoked in the
usual course; the exception does not apply when the relief sought, through a petition for certiorari, is still pending
with or has as yet to be decided by the respondent court, tribunal or body exercising judicial or quasi-judicial body,
e.g., a motion for reconsideration of the order assailed via a petition for certiorari under Rule 65, as in the present
case. This conclusion is supported and strengthened by Section 1, Rule 65 of the Revised Rules of Court which
provides that the availability of a remedy in the ordinary course of law precludes the filing of a petition for
certiorari; under this rule, the petitions dismissal is the necessary consequence if recourse to Rule 65 is
prematurely taken.

To be sure, the simultaneous remedies the petitioners sought could result in possible conflicting rulings, or at the
very least, to complicated situations, between the RTC and the Court of Appeals. An extreme possible result is for
the appellate court to confirm that the RTC decision is meritorious, yet the RTC may at the same time reconsider
its ruling and recall its order of dismissal. In this eventuality, the result is the affirmation of the decision that the
court a quo has backtracked on. Other permutations depending on the rulings of the two courts and the timing of
these rulings are possible. In every case, our justice system suffers as this kind of sharp practice opens the system
to the possibility of manipulation; to uncertainties when conflict of rulings arise; and at least to vexation for
complications other than conflict of rulings. Thus, it matters not that ultimately the Court of Appeals may
completely agree with the RTC; what the rule on forum shopping addresses are the possibility and the actuality of
its harmful effects on our judicial system.55

Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of due process by the
Ombudsman even as his Motion for Reconsideration raising the very same issue remained pending with the
Ombudsman. This is plain and simple forum shopping, warranting outright dismissal of this Petition.

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits and documents,
fully complied with Sections 3 and 4 of Rule 112 of the Revised Rules of Criminal Procedure, and Section 4, Rule II
of the Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7. Both the Revised Rules of
Criminal Procedure and the Rules of Procedure of the Office of the Ombudsman require the investigating officer to
furnish the respondent with copies of the affidavits of the complainant and affidavits of his supporting witnesses.
Neither of these Rules require the investigating officer to furnish the respondent with copies of the affidavits of his
co-respondents. The right of the respondent is only "to examine the evidence submitted by the complainant," as
expressly stated in Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure. This Court has unequivocally
ruled in Paderanga that "Section 3, Rule 112 of the Revised Rules of Criminal Procedure expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their
witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine."
Moreover, Section 4 (a, b and c) of Rule II of the Ombudsmans Rule of Procedure, read together, only require the
investigating officer to furnish the respondent with copies of the affidavits of the complainant and his supporting
witnesses.1wphi1 There is no law or rule requiring the investigating officer to furnish the respondent with copies
of the affidavits of his co-respondents.

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even furnished Sen. Estrada with
copies of the counter-affidavits of his co-respondents whom he specifically named, as well as the counteraffidavits
of some of other co-respondents. In the 4 June 2014 Joint Order, the Ombudsman even held in abeyancethe
disposition of the motions for reconsideration because the Ombudsman granted Sen. Estrada five days from
receipt of the 7 May 2014 Joint Order to formally respond to the claims made by his co-respondents. The
Ombudsman faithfully complied with the existing Rules on preliminary investigation and even accommodated Sen.
Estrada beyond what the Rules required. Thus, the Ombudsman could not be faulted with grave abuse of
discretion. Since this is a Petition for Certiorari under Rule 65, the Petition fails in the absence of grave abuse of
discretion on the part of the Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are not applicable to
preliminary investigations which are creations of statutory law giving rise to mere statutory rights. A law can
abolish preliminary investigations without running afoul with the constitutional requirements of dueprocess as
prescribed in Ang Tibay, as amplified in GSIS. The present procedures for preliminary investigations do not comply,
and were never intended to comply, with Ang Tibay, as amplified in GSIS. Preliminary investigations do not
adjudicate with finality rights and obligations of parties, while administrative investigations governed by Ang Tibay,
as amplified in GSIS, so adjudicate. Ang Tibay,as amplified in GSIS, requires substantial evidencefor a decision
against the respondent in the administrative case.In preliminary investigations, only likelihood or probability of
guiltis required. To apply Ang Tibay,as amplified in GSIS,to preliminary investigations will change the quantum of
evidence required to establish probable cause. The respondent in an administrative case governed by Ang Tibay,as
amplified in GSIS,has the right to an actual hearing and to cross-examine the witnesses against him. In preliminary
investigations, the respondent has no such rights.

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer must be impartial
and cannot be the fact-finder, investigator, and hearing officer atthe same time. In preliminary investigations, the
same public officer may be the investigator and hearing officer at the same time, or the fact-finder, investigator
and hearing officer may be under the control and supervisionof the same public officer, like the Ombudsman or
Secretary of Justice. This explains why Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations.
To now declare that the guidelines in Ang Tibay, as amplified in GSIS, are fundamental and essential requirements
in preliminary investigations will render all past and present preliminary investigations invalid for violation of
constitutional due process. This will mean remanding for reinvestigation all criminal cases now pending in all
courts throughout the country. No preliminary investigation can proceeduntil a new law designates a public
officer, outside of the prosecution service, to determine probable cause. Moreover, those serving sentences by
final judgment would have to be released from prison because their conviction violated constitutional due process.
Sen. Estrada did not file a Motion for Reconsideration of the 27 March 2014 Order in OMB-C-C-13-0313 denying
his Request, which is the subject of the present Petition. He should have filed a Motion for R econsideration, in the
same manner that he filed a Motion for Reconsideration of the 15 May 2014 Order denying his motion to suspend
proceedings. The unquestioned rule in this jurisdiction is that certiorari will lie only if there is no appeal or any
other plain, speedy and adequate remedy in the ordinary course of law against the acts of the public
respondent.56 The plain, speedy and adequate remedy expressly provided by law is a Motion for Reconsideration
of the 27 March 2014 Order of the Ombudsman. Sen. Estrada's failure to file a Motion for Reconsideration renders
this Petition premature.

Sen. Estrada also raised in this Petition the same issue he raised in his Motion for Reconsideration of the 28 March
2014 Joint Resolution of the Ombudsman finding probable cause. While his Motion for Reconsideration of the 28
March 2014 Joint Resolution was pending, Sen. Estrada did not wait for the resolution of the Ombudsman and
instead proceeded to file the present Petition for Certiorari. The Ombudsman issued a Joint Order on 4 June 2014
and specifically addressed the issue that Sen. Estrada is raising in this Petition. Thus, Sen. Estrada's present Petition
for Certiorari is not only premature, it also constitutes forum shopping. WHEREFORE, we DISMISS the Petition for
Certiorari in G.R. Nos. 212140-41.

SO ORDERED.

G.R. No. L-45129 March 6, 1987

PEOPLE OF THE PHILIPPINES, petitioner,

vs.

THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Court of First Instance of Batangas,
Second Branch, and MANUEL OPULENCIA, respondents.

FELICIANO, J.:

In this petition for certiorari and mandamus, the People of the Philippines seek to set aside the orders of the
respondent Judge of the Court of First Instance of Batangas in Criminal Case No. 266, dated 12 August 1976 and 8
November 1976, respectively, quashing an information for theft filed against private respondent Manuel Opulencia
on the ground of double jeopardy and denying the petitioner's motion for reconsideration.

On 1 February 1975, members of the Batangas City Police together with personnel of the Batangas Electric Light
System, equipped with a search warrant issued by a city judge of Batangas City, searched and examined the
premises of the Opulencia Carpena Ice Plant and Cold Storage owned and operated by the private respondent
Manuel Opulencia. The police discovered that electric wiring, devices and contraptions had been installed, without
the necessary authority from the city government, and "architecturally concealed inside the walls of the building"
1 owned by the private respondent. These electric devices and contraptions were, in the allegation of the
petitioner "designed purposely to lower or decrease the readings of electric current consumption in the electric
meter of the said electric [ice and cold storage] plant." 2 During the subsequent investigation, Manuel Opulencia
admitted in a written statement that he had caused the installation of the electrical devices "in order to lower or
decrease the readings of his electric meter. 3

On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of Batangas City an
information against Manuel Opulencia for violation of Ordinance No. 1, Series of 1974, Batangas City. A violation of
this ordinance was, under its terms, punishable by a fine "ranging from Five Pesos (P5.00) to Fifty Pesos (P50.00) or
imprisonment, which shall not exceed thirty (30) days, or both, at the discretion of the court." 4 This information
reads as follows:

The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Lat of violation of Sec. 3 (b) in relation to Sec. 6
(d) and Sec. 10 Article II, Title IV of ordinance No. 1, S. 1974, with damage to the City Government of Batangas, and
penalized by the said ordinance, committed as follows:

That from November, 1974 to February, 1975 at Batangas City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to defraud the City Government of Batangas, without
proper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully,
unlawfully and feloniously make unauthorized installations of electric wirings and devices to lower or decrease the
consumption of electric fluid at the Opulencia Ice Plant situated at Kumintang, Ibaba, this city and as a result of
such unathorized installations of electric wirings and devices made by the accused, the City Government of
Batangas was damaged and prejudiced in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND
SIXTEEN CENTAVOS (P41,062.16) Philippine currency, covering the period from November 1974 to February, 1975,
to the damage and prejudice of the City Government of Batangas in the aforestated amount of P41,062.16,
Philippine currency.

The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February 1976, he filed a motion
to dismiss the information upon the grounds that the crime there charged had already prescribed and that the civil
indemnity there sought to be recovered was beyond the jurisdiction of the Batangas City Court to award. In an
order dated 6 April 1976, the Batangas City Court granted the motion to dismiss on the ground of prescription, it
appearing that the offense charged was a light felony which prescribes two months from the time of discovery
thereof, and it appearing further that the information was filed by the fiscal more than nine months after discovery
of the offense charged in February 1975.

Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before the Court of First
Instance of Batangas, Branch 11, another information against Manuel Opulencia, this time for theft of electric
power under Article 308 in relation to Article 309, paragraph (1), of the Revised Penal Code. This information read
as follows:
The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime of theft, defined and penalized by
Article 308, in relation to Article 309, paragraph (1) of the Revised Penal Code, committed as follows:

That on, during, and between the month of November, 1974, and the 21st day of February, 1975, at Kumintang,
lbaba, Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
with intent of gain and without the knowledge and consent of the Batangas Electric Light System, did then and
there, wilfully, unlawfully and feloniously take, steal and appropriate electric current valued in the total amount of
FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the
damage and prejudice of the said Batangas Electric Light System, owned and operated by the City Government of
Batangas, in the aforementioned sum of P41,062.16.

The above information was docketed as Criminal Case No. 266 before the Court of First Instance of Batangas,
Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion to Quash, dated 5 May 1976,
alleging that he had been previously acquitted of the offense charged in the second information and that the filing
thereof was violative of his constitutional right against double jeopardy. By Order dated 16 August 1976, the
respondent Judge granted the accused's Motion to Quash and ordered the case dismissed. The gist of this Order is
set forth in the following paragraphs:

The only question here is whether the dismissal of the first case can be properly pleaded by the accused in the
motion to quash.

In the first paragraph of the earlier information, it alleges that the prosecution "accuses Manuel Opulencia y Lat of
violation of Sec. 3(b) in relation to Sec. 6(d) and Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage
to the City Government of Batangas, etc. " (Emphasis supplied). The first case, as it appears, was not simply one of
illegal electrical connections. It also covered an amount of P41,062.16 which the accused, in effect, allegedly with
intent to defraud, deprived the city government of Batangas. If the charge had meant illegal electric installations
only, it could have alleged illegal connections which were done at one instance on a particular date between
November, 1974, to February 21, 1975. But as the information states "that from November, 1974 to February 1975
at Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with
intent to defraud the City Government of Batangas, without proper authorization from any lawful and/or permit
from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations
of electric wirings and devices, etc." (Emphasis supplied), it was meant to include the P 41,062.16 which the
accused had, in effect, defrauded the city government. The information could not have meant that from November
1974 to 21 February 1975, he had daily committed unlawful installations.

When, therefore, he was arraigned and he faced the indictment before the City Court, he had already been
exposed, or he felt he was exposed to consequences of what allegedly happened between November 1974 to
February 21, 1975 which had allegedly resulted in defrauding the City of Batangas in the amount of P 41,062.16.
(Emphases and parentheses in the original)
A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied by the respondent
Judge in an Order dated 18 November 1976.

On 1 December 1976, the present Petition for certiorari and mandamus was filed in this Court by the Acting City
Fiscal of Batangas City on behalf of the People.

The basic premise of the petitioner's position is that the constitutional protection against double jeopardy is
protection against a second or later jeopardy of conviction for the same offense. The petitioner stresses that the
first information filed before the City Court of Batangas City was one for unlawful or unauthorized installation of
electrical wiring and devices, acts which were in violation of an ordinance of the City Government of Batangas.
Only two elements are needed to constitute an offense under this City Ordinance: (1) that there was such an
installation; and (2) no authority therefor had been obtained from the Superintendent of the Batangas City
Electrical System or the District Engineer. The petitioner urges that the relevant terms of the City Ordinance
which read as follows:

Section 3.-Connection and Installation

(a) xxx

(b) The work and installation in the houses and building and their connection with the Electrical System shall
be done either by the employee of the system duly authorized by its Superintendent or by persons adept in the
matter duly authorized by the District Engineer. Applicants for electrical service permitting the works of installation
or connection with the system to be undertaken by the persons not duly authorized therefor shall be considered
guilty of violation of the ordinance.

would show that:

The principal purpose for (sic) such a provision is to ensure that electrical installations on residences or buildings
be done by persons duly authorized or adept in the matter, to avoid fires and accidents due to faulty electrical
wirings. It is primarily a regulatory measure and not intended to punish or curb theft of electric fluid which is
already covered by the Revised Penal Code. 5

The gist of the offense under the City Ordinance, the petitioner's argument continues, is the installing of electric
wiring and devices without authority from the proper officials of the city government. To constitute an offense
under the city ordinance, it is not essential to establish any mens rea on the part of the offender generally
speaking, nor, more specifically, an intent to appropriate and steal electric fluid.
In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Penal Code filed before
the Court of First Instance of Batangas in Criminal Case No. 266 has quite different essential elements. These
elements are:

1. That personal property be taken;

2. That the personal property (taken) belongs to another;

3. That the taking be done with intent of gain;

4. That the taking be done without the consent of the owner; and

5. That the taking be accomplished without violence against or intimidation of persons or force upon things.
6

The petitioner also alleges, correctly, in our view, that theft of electricity can be effected even without illegal or
unauthorized installations of any kind by, for instance, any of the following means:

1. Turning back the dials of the electric meter;

2. Fixing the electric meter in such a manner that it will not register the actual electrical consumption;

3. Under-reading of electrical consumption; and

4. By tightening the screw of the rotary blade to slow down the rotation of the same. 7

The petitioner concludes that:

The unauthorized installation punished by the ordinance [of Batangas City] is not the same as theft of electricity
[under the Revised Penal Code]; that the second offense is not an attempt to commit the first or a frustration
thereof and that the second offense is not necessarily included in the offense charged in the first inforrnation 8
The above arguments made by the petitioner are of course correct. This is clear both from the express terms of the
constitutional provision involved which reads as follows:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
(Emphasis supplied; Article IV (22), 1973 Constitution) 9

and from our case law on this point. 10 The basic difficulty with the petitioner's position is that it must be
examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under
the second sentence of the same section. The first sentence of Article IV (22) sets forth the general rule: the
constitutional protection against double jeopardy is not available where the second prosecution is for an offense
that is different from the offense charged in the first or prior prosecution, although both the first and second
offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an
exception to the general proposition: the constitutional protection, against double jeopardy is available although
the prior offense charged under an ordinance be different from the offense charged subsequently under a national
statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. This
was made clear sometime ago in Yap vs. Lutero. 11

In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court of Iloilo City, with
violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to Ordinance No. 15, Series of 1954, of the
City of Iloilo. The information charged him with having "wilfully, unlawfully and feloniously drive[n] and
operate[d]" an automobile "recklessly and without reasonable caution thereby endangering other vehicles and
pedestrians passing in said street." Three months later, Yap was again charged in Criminal Case No. 16443 of the
same Municipal Court, this time with serious physical injuries through reckless imprudence. The information
charged him with violation of the Revised Motor Vehicle Law (Act No. 3992 as amended by Republic Act No. 587)
committed by driving and operating an automobile in a reckless and negligent manner and as a result thereof
inflicting injuries upon an unfortunate pedestrian. Yap moved to quash the second information upon the ground
that it placed him twice in jeopardy of punishment for the same act. This motion was denied by the respondent
municipal judge. Meantime, another municipal judge had acquitted Yap in Criminal Case No. 16054. Yap then
instituted a petition for certiorari in the Court of First Instance of Iloilo to set aside the order of the respondent
municipal judge. The Court of First Instance of Iloilo having reversed the respondent municipal judge and having
directed him to desist from continuing with Criminal Case No. 16443, the respondent Judge brought the case to
the Supreme Court for review on appeal. In affirming the decision appealed from and holding that the
constitutional protection against double jeopardy was available to petitioner Yap, then Associate Justice and later
Chief Justice Roberto Concepcion wrote:

To begin with, the crime of damage to property through reckless driving with which Diaz stood charged in the
court of first instance is a violation of the Revised Penal Code (third paragraph of Article 365), not the
Automobile Law (Act No. 3992, as amended by Republic Act No. 587). Hence, Diaz was not twice accused of a
violation of the same law. Secondly, reckless driving and certain crimes committed through reckless driving are
punishable under different provisions of said Automobile Law. Hence from the view point of Criminal Law, as
distinguished from political or Constitutional Law they constitute, strictly, different offenses, although under
certain conditions, one offense may include the other, and, accordingly, once placed in jeopardy for one, the plea
of double jeopardy may be in order as regards the other, as in the Diaz case. (Emphases in the original)
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, section 1,
Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the same
offense." (Emphasis in the original) The second sentence of said clause provides that "if an act is punishable by a
law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the
same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense, whereas the
second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice
put in jeopardy of punishment of the same act provided that he is charged with different offenses, or the offense
charged in one case is not included in or does not include, the crime charged in the other case. The second
sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation
of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act
conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. 12
Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment
for the same offense. So long as jeopardy has attached under one of the informations charging said offense, the
defense may be availed of in the other case involving the same offense, even if there has been neither conviction
nor acquittal in either case.

The issue in the case at bar hinges, therefore, on whether or not, under the information in case No. 16443,
petitioner could if he failed to plead double jeopardy be convicted of the same act charged in case No. 16054,
in which he has already been acquitted. The information in case No. 16054 alleges, substantially, that on the date
and in the place therein stated, petitioner herein had wilfully, unlawfully and feloniously driven and operated
"recklessly and without reasonable caution" an automobile described in said information. Upon the other hand,
the information in case No. 16443, similarly states that, on the same date and in the same place, petitioner drove
and operated the aforementioned automobile in a "reckless and negligent manner at an excessive rate of speed
and in violation of the Revised Motor Vehicle Law (Act No. 3992), as amended by Republic Act No. 587, and
existing city ordinances." Thus, if the theories mentioned in the second information were not established by the
evidence, petitioner could be convicted in case No. 16443 of the very same violation of municipal ordinance
charged in case No. 16054, unless he pleaded double jeopardy.

It is clear, therefore, that the lower court has not erred eventually sustaining the theory of petitioner herein.

Put a little differently, where the offenses charged are penalized either by different sections of the same statute or
by different statutes, the important inquiry relates to the identity of offenses charge: the constitutional protection
against double jeopardy is available only where an Identity is shown to exist between the earlier and the
subsequent offenses charged. In contrast, where one offense is charged under a municipal ordinance while the
other is penalized by a statute, the critical inquiry is to the identity of the acts which the accused is said to have
committed and which are alleged to have given rise to the two offenses: the constitutional protection against
double jeopardy is available so long as the acts which constitute or have given rise to the first offense under a
municipal ordinance are the same acts which constitute or have given rise to the offense charged under a statute.

The question may be raised why one rule should exist where two offenses under two different sections of the
same statute or under different statutes are charged, and another rule for the situation where one offense is
charged under a municipal ordinance and another offense under a national statute. If the second sentence of the
double jeopardy provision had not been written into the Constitution, conviction or acquittal under a municipal
ordinance would never constitute a bar to another prosecution for the same act under a national statute. An
offense penalized by municipal ordinance is, by definition, different from an offense under a statute. The two
offenses would never constitute the same offense having been promulgated by different rule-making authorities
though one be subordinate to the other and the plea of double jeopardy would never lie. The discussions
during the 1934-1935 Constitutional Convention show that the second sentence was inserted precisely for the
purpose of extending the constitutional protection against double jeopardy to a situation which would not
otherwise be covered by the first sentence. 13

The question of Identity or lack of Identity of offenses is addressed by examining the essential elements of each of
the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses
involved. The question of Identity of the acts which are claimed to have generated liability both under a municipal
ordinance and a national statute must be addressed, in the first instance, by examining the location of such acts in
time and space. When the acts of the accused as set out in the two informations are so related to each other in
time and space as to be reasonably regarded as having taken place on the same occasion and where those acts
have been moved by one and the same, or a continuing, intent or voluntary design or negligence, such acts may be
appropriately characterized as an integral whole capable of giving rise to penal liability simultaneously under
different legal enactments (a municipal ordinance and a national statute).

In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and serious physical
injuries through reckless imprudence under the Revised Motor Vehicle Law as derived from the same act or sets of
acts that is, the operation of an automobile in a reckless manner. The additional technical element of serious
physical injuries related to the physical consequences of the operation of the automobile by the accused, i.e., the
impact of the automobile upon the body of the offended party. Clearly, such consequence occurred in the same
occasion that the accused operated the automobile (recklessly). The moral element of negligence permeated the
acts of the accused throughout that occasion.

In the instant case, the relevant acts took place within the same time frame: from November 1974 to February
1975. During this period, the accused Manuel Opulencia installed or permitted the installation of electrical wiring
and devices in his ice plant without obtaining the necessary permit or authorization from the municipal authorities.
The accused conceded that he effected or permitted such unauthorized installation for the very purpose of
reducing electric power bill. This corrupt intent was thus present from the very moment that such unauthorized
installation began. The immediate physical effect of the unauthorized installation was the inward flow of electric
current into Opulencia's ice plant without the corresponding recording thereof in his electric meter. In other
words, the "taking" of electric current was integral with the unauthorized installation of electric wiring and devices.

It is perhaps important to note that the rule limiting the constitutional protection against double jeopardy to a
subsequent prosecution for the same offense is not to be understood with absolute literalness. The Identity of
offenses that must be shown need not be absolute Identity: the first and second offenses may be regarded as the
"same offense" where the second offense necessarily includes the first offense or is necessarily included in such
first offense or where the second offense is an attempt to commit the first or a frustration thereof. 14 Thus, for the
constitutional plea of double jeopardy to be available, not all the technical elements constituting the first offense
need be present in the technical definition of the second offense. The law here seeks to prevent harrassment of an
accused person by multiple prosecutions for offenses which though different from one another are nonetheless
each constituted by a common set or overlapping sets of technical elements. As Associate Justice and later Chief
Justice Ricardo Paras cautioned in People vs. del Carmen et al., 88 Phil. 51 (1951):

While the rule against double jeopardy prohibits prosecution for the same offense, it seems elementary that an
accused should be shielded against being prosecuted for several offenses made out from a single act. Otherwise,
an unlawful act or omission may give use to several prosecutions depending upon the ability of the prosecuting
officer to imagine or concoct as many offenses as can be justified by said act or omission, by simply adding or
subtracting essential elements. Under the theory of appellant, the crime of rape may be converted into a crime of
coercion, by merely alleging that by force and intimidation the accused prevented the offended girl from
remaining a virgin. (88 Phil. at 53; emphases supplied)

By the same token, acts of a person which physically occur on the same occasion and are infused by a common
intent or design or negligence and therefore form a moral unity, should not be segmented and sliced, as it were, to
produce as many different acts as there are offenses under municipal ordinances or statutes that an enterprising
prosecutor can find

It remains to point out that the dismissal by the Batangas City Court of the information for violation of the
Batangas City Ordinance upon the ground that such offense had already prescribed, amounts to an acquittal of the
accused of that offense. Under Article 89 of the Revised Penal Code, "prescription of the crime" is one of the
grounds for "total extinction of criminal liability." Under the Rules of Court, an order sustaining a motion to quash
based on prescription is a bar to another prosecution for the same offense. 15

It is not without reluctance that we deny the people's petition for certiorari and mandamus in this case. It is
difficult to summon any empathy for a businessman who would make or enlarge his profit by stealing from the
community. Manuel Opulencia is able to escape criminal punishment because an Assistant City Fiscal by
inadvertence or otherwise chose to file an information for an offense which he should have known had already
prescribed. We are, however, compelled by the fundamental law to hold the protection of the right against double
jeopardy available even to the private respondent in this case.

The civil liability aspects of this case are another matter. Because no reservation of the right to file a separate civil
action was made by the Batangas City electric light system, the civil action for recovery of civil liability arising from
the offense charged was impliedly instituted with the criminal action both before the City Court of Batangas City
and the Court of First Instance of Batangas. The extinction of criminal liability whether by prescription or by the bar
of double jeopardy does not carry with it the extinction of civil liability arising from the offense charged. In the
present case, as we noted earlier, 16 accused Manuel Opulencia freely admitted during the police investigation
having stolen electric current through the installation and use of unauthorized elibctrical connections or devices.
While the accused pleaded not guilty before the City Court of Batangas City, he did not deny having appropriated
electric power. However, there is no evidence in the record as to the amount or value of the electric power
appropriated by Manuel Opulencia, the criminal informations having been dismissed both by the City Court and by
the Court of First Instance (from which dismissals the Batangas City electric light system could not have appealed
17) before trial could begin. Accordingly, the related civil action which has not been waived expressly or impliedly,
should be remanded to the Court of First Instance of Batangas City for reception of evidence on the amount or
value of the electric power appropriated and converted by Manuel Opulencia and rendition of judgment
conformably with such evidence.

WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for related civil liability be
remanded to the Court of First Instance of Batangas City for further proceedings as indicated above. No
pronouncement as to costs.

SO ORDERED.

[G.R. No. 110286. April 2, 1997]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENERIO P. VERGARA, ERNESTO T. CUESTA, JR., PEDRO G.
DAGAO and BERNARDO P. CUESTA, accused. RENERIO P. VERGARA, accused-appellant.

DECISION

VITUG, J.:

From the decision, dated 10 February 1993, of the Regional Trial Court, 8th Judicial Region, Branch 7, in Tacloban
City, finding accused Renerio P. Vergara guilty beyond reasonable doubt in Criminal Case No. 92-09-508 of a
violation of Section 33 of Presidential Decree ("P.D.") No. 704, as amended by P.D. No. 1508, an appeal to this
Court has been interposed.

Vergara was charged, together with his three co-accused, namely Ernesto T. Cuesta, Jr., Pedro G. Dagao and
Bernardo P. Cuesta, on 25 September 1992, in an information that read:

"The undersigned Provincial Prosecutor of Leyte accuses Ernesto T. Cuesta, Jr., Pedro G. Dagao, Renerio P. Vergara
and Bernardo P. Cuesta of the crime of Violation of Section 33, Presidential Decree No. 704, as amended by
Presidential Decree No. 1058, committed as follows:

"That on or about the 4th day of July, 1992, in the Municipal waters of Palo, Province of Leyte, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, conspiring
and confederating together and mutually helping one another, did then and there willfully, unlawfully and
criminally catch, take and gather fish belonging to the anchovies species known locally as 'bolinao', with the use of
explosives contained in a bottle and called in the vernacular as 'badil', which bottled explosives after being ignited
and hurled to the sea, produced explosion and caused the death of the said fish which were hit or affected by such
explosion.

"CONTRARY TO LAW."[1]
Vergara alone was arraigned and brought to trial; his co-accused escaped and remained at large.

It would appear that at about 7:30 in the morning of 04 July 1992, a team composed of deputized Fish Warden and
President of the Leyte Fish Warden Association Jesus P. Bindoy, Police Officers Casimiro Villas and Diosdado Moron
of the Palo PNP Station, Leyte, Fish Wardens Mario Castillote and Estanislao Cabreros and Fish Examiner Nestor
Aldas of the Department of Agriculture were on board, "Bantay-Dagat," a pumpboat, on "preventive patrol" along
the municipal waters fronting barangays Baras and Candahug of Palo, Leyte, when they chanced upon a blue-
colored fishing boat at a distance of approximately 200 meters away. The boat, 30 feet long, had on board
appellant Renerio Vergara and his three co-accused Bernardo Cuesta, Pedro Dagao and Ernesto Cuesta, Jr., and
was on parallel course toward the general direction of Samar.[2] Momentarily, the team saw appellant throw into
the sea a bottle known in the locality as "badil" containing ammonium nitrate and having a blasting cap on top
which, when ignited and thrown into the water, could explode. The explosion would indiscriminately kill schools
and various species of fish within a certain radius. Approximately three seconds after appellant had thrown the
"badil" into the sea, the explosion occurred. Vergara and Cuesta dove into the sea with their gear while Dagao and
Cuesta, Jr., stayed on board to tend to the air hose for the divers.[3]

The team approached the fishing boat. SPO2 Casimiro Villas boarded the fishing boat while Fish Warden Jesus
Bindoy held on to one end of the boat. Moments later, Vergara and Cuesta surfaced, each carrying a fishnet or
"sibot" filled with about a kilo of "bolinao" fish scooped from under the water. Having been caught red-handed,
the four accused were apprehended and taken by the patrol team to the "Bantay-Dagat" station at Baras, and later
to the police station in Palo, Leyte. The fishing boat and its paraphernalia, as well as the two fishnets of "bolinao,"
were impounded. The accused, however, refused to sign and acknowledge the corresponding receipts therefor.

On 10 February 1993, following the submission of the evidence, the trial court rendered judgment convicting
Vergara, viz:

"WHEREFORE, said Renerio Vergara is hereby sentenced to a penalty of Twenty (20) years to life imprisonment as
punished under Sec. 2, of PD 1058.

"This Court further orders the confiscation of the fishing boat of Mario Moraleta including the following
equipments: 1 air compressor, 3 sets of air hoses, and the 3 pieces of 'sibot' having been found to be instruments
of the crime.

"SO ORDERED "[4]

In his appeal, Vergara submitted the following assignment of errors:

"1. THE LOWER COURT COMMITTED GRAVE ABUSE OF AUTHORITY WHEN IT COMPLETELY IGNORED THE
TESTIMONY OF EMILIO LINDE.

"2. THE LOWER COURT COMMITTED GRAVE ABUSE OF AUTHORITY WHEN IT GAVE MUCH WEIGHT TO BIASED
WITNESSES WHOSE TESTIMONIES WERE GLARINGLY INCONSISTENT.

"3. THE LOWER COURT COMMITTED GRAVE ABUSE OF AUTHORITY WHEN IT OPENLY SHOWED BIAS AGAINST THE
ACCUSED DURING THE TRIAL OF THIS CASE."[5]

Emilio Linde sought to corroborate the claim of appellant that it was another unidentified group of fishermen who
threw the bottle of explosives at a school of "bolinao" fish. It was obvious, however, said the trial court, that the
statement of this defense witness was incredulous since he apparently had not at all been on board the fishing
boat in the company of the accused at the time of the incident. Even the rather lengthy counter-affidavit of the
four accused completely missed to mention Linde. The court a quo went on to observe that the demeanor of the
accused at the witness stand and the substance of his testimony failed to elicit belief.

Trial courts are tasked to initially rule on the credibility of witnesses for both the prosecution and the defense.
Appellate courts seldom would subordinate, with their own, the findings of trial courts which concededly have
good vantage points in assessing the credibility of those who take the witness stand. Nevertheless, it is not all too
uncommon for this Court, in particular, to peruse through the transcript of proceedings in order to satisfy itself
that the records of a case do support the conclusions of trial courts.

Fish Warden Jesus Bindoy gave a detailed account of the 4th July 1992 incident. Thus

"FISCAL DAGANDAN:

"Q In the morning of the 4th day of July, 1992 do you recall where you were?

"A We were on the sea fronting barangays Baras and Candahug.

"Q What municipality?

"A Palo, Leyte.

"Q Did you have anyone with you in this particular incident?
"A Yes, sir.

"Q Who were they?

"A Two policemen Casimiro Villas, Jr. and Diosdado Moron and my fellow fish warden and one from the
Department of Agriculture.

"Q Will you identify your co-fish warden who were present at that time?

"A Mario Castillote, Estanislao Cabreros, Jr.

"Q How about that employee from the Department of Agriculture, who was he?

"A Nestor Aldas.

"Q What were you doing at that particular time on this place fronting barangay Baras and Barangay Candahug,
Palo, Leyte?

"A We were watching for illegal fishers.

"Q What is your authority in this particular task?

"A We are the bantay dagat members of Palo.

Q Do you have any written authoriting evidencing that position?

"A Yes, maam, our deputized ID (witness is showing ID No. 1432-91)

"FISCAL DAGANDAN:
For the records your honor I will quote this ID: This is to certify that Jesus P. Bindoy is a deputy fish warden vested
with full power and authority to enforce all existing fishery laws, rules and regulations (SGD) Leopoldo Romano,
[D]irector, Department of Agriculture, Region 8.

"FISCAL DAGANDAN:

"Q Since you claimed that you were on the sea fronting barangays Baras and Candahug in what vehicle were you in
at that moment?

"A We were in a motorized pumpboat.

"Q So, what unusual incident if any that transpired?

"A In that morning we saw a blue pump boat which is about 200 meters away from us.

"COURT

What time in the morning?

"A About 7:30 in the morning more or less.

"FISCAL DAGANDAN:

"Q About how long is this colored blue pumpboat?

"A More or less 30 feet.

"Q At about this distance of 200 meters were you able to visualize or see if there were any passengers in that blue
colored pumpboat?

"A Yes, maam.

"Q Were you able to identify them?

"A Yes, sir.

"Q Who were they?

"A The one in front of the pumpboat was Renerio Vergara, Bernardo Cuesta, Pedro Dagao and Ernesto Cuesta, Jr.

"Q You mentioned of Renerio Vergara, whom you saw in that blue colored pumpboat and you identified earlier
Renerio Vergara. Is he the same person?

"A Yes, they are one and the same person.

"Q At the time you saw these persons loaded in that color blue pumpboat what were they doing?

"A I saw them paddling.

"Q Towards what direction?

"A Towards the direction of Samar.

"Q And where were you in relation with that pumpboat that was paddled towards Samar area?

"A We were situated parallel to them.

"Q So what happened at this particular time?

"A That was when we saw Renerio Vergara threw a bottle to the sea and after that we heard an explosion.

"Q Did you come to know what particular bottle was it thrown to the sea?
"A It was a dynamite (badil).

"Q As a member of this bantay dagat are you familiar with this 'badil' which you earlier mentioned?

"A Yes, sir.

"Q Will you describe this particular device?

"A This bottle is filled with ammonium nitrate and on top is a blasting cap.

"Q So in case this is used by fishermen, how do they operate this 'badil'?

"A It is ignited and then thrown to the sea and this result in the killing of fishes at the sea.

"Q In this particular instance when you heard the explosion how far were you to this blue pumpboat?

"A About 200 meters.

"Q So what did you do after you heard this explosion?

"A After the explosion we slowly approached them.

"Q From the time you saw this bottle being thrown to the sea by Vergara up to the time you heard this explosion
about how many minutes elapsed?

"A About 3 seconds.

"Q At about how near were you to this blue pumpboat?

"A We went near to a distance of one hundred meters.

"Q So, what did you do at this distance?

"A We kept on watching them first and after we knew that the two persons dived to the sea that was the time that
we approached the pumpboat.

"Q Were you able to recognize these two persons who dived?

"A Yes, maam.

"Q Who were they?

"A Renerio Vergara and Bernardo Cuesta.

"Q You said there were four persons loaded in that pumpboat. How about the other two what were they doing?

"A The two persons were there, one watching the hose that was used by the two persons who dived for breathing.

"Q So, what else did you do?

"A When we approached the pumpboat it was Casimiro Villas, a policeman who boarded the pumpboat.

"Q How about you what did you do when Casimiro Villas boarded the pumpboat?

"A I was the one holding on to the blue pumpboat.

"Q So, what else was done if any by the members of your team?

"A While we were there we let the two persons who dived surface and they were carrying with them fishnet filled
with 'bolinao' fish and then we told them that we will bring them to our temporary station at Baras, Palo.

"Q Do you know the specie of this bolinao?

"A Anchovies.

"Q About how heavy were these fishes of bolinao in the fishnet?

"A About one kilo per fishnet.

"Q How many contraption were carried by them?

"A Each one of them was carrying one 'sibot' (fishnet).

"COURT

So, two divers two nets?

"A Yes, sir.

"Q And each has a catch of one kilo?

"A Almost one kilo.

"Q So, two nets two kilos more or less?

"A Yes, sir.

"FISCAL DAGANDAN:

"Q So, after that what did you do?

"Q When we arrived at our temporary station at Baras, Palo we gave the fishes to the fish examiner and we had
the pumpboat inventoried and told them to sign the receipt we made.
"Q Do you recall if you made an apprehension report of the incident you witnessed?

"A Yes, maam.

"Q I show you a original copy of apprehension report dated July 4, 1992 addressed to the Regional Director,
Department of Agriculture, Tacloban City stating that the following offenders namely Renerio Vergara y Prisno,
Pedro Dagao y Gadin, Ernesto Cueta y Tobilla and Bernardo Cuesta y Pedrero were apprehended and the violation
is fishing with the use of dynamite, the original of which is found on page 4 of the records. Will you examine the
same and tell this court what relation has that to the report you said you made?

"A This is the apprehension report that we prepared on July 4, 1992."[6]

Nestor Aldas, an Agricultural Technologist and Fish Examiner working with the Department of Agriculture, Palo,
Leyte, who examined the fish samples taken from the accused, testified that he was with the team patrolling, on
04 July 1992, the waters of San Pedro Bay, Baras, Palo, Leyte, when he, like the other members of his team,
witnessed the use of explosives by the accused. Fish samples from the catch showed ruptured capillaries, ruptured
and blooded abdominal portion, and crushed internal organs indicating that explosives were indeed used.

The Court is convinced that the trial court has acted correctly in finding accused-appellant guilty of the offense
charged.

Sections 33 and 38 of P.D. No. 704, as amended by P.D. No. 1058, read:

"Sec. 33. Illegal fishing; illegal possession of explosives intended for illegal fishing; dealing in illegally caught fish or
fishery/aquatic products. It shall be unlawful for any person to catch, take or gather or cause to be caught, taken
or gathered fish or fishery/aquatic products in Philippine waters with the use of explosives, obnoxious or
poisonous substance, or by the use of electricity as defined in paragraphs (1), (m) and (d), respectively, of section 3
hereof: Provided, That mere possession of such explosives with intent to use the same for illegal fishing as herein
defined shall be punishable as hereinafter provided: Provided, That the Secretary may, upon recommendation of
the Director and subject to such safeguards and conditions he deems necessary, allow for research, educational or
scientific purposes only, the use of explosives, obnoxious or poisonous substance or electricity to catch, take or
gather fish or fishery/aquatic products in specified area: Provided, further, That the use of chemicals to eradicate
predators in fishponds in accordance with accepted scientific fishery practices without causing deleterious effects
in neighboring waters shall not be construed as the use of obnoxious or poisonous substance within the meaning
of this section: Provided, finally, That the use of mechanical bombs for killing whales, crocodiles, sharks or other
large dangerous fishes, may be allowed, subject to the approval of the Secretary.
"Section 38. (1) By the penalty of imprisonment ranging from twelve (12) years to twenty-five (25) years in the case
of mere possession of explosives intended for illegal fishing; by imprisonment ranging from twenty (20) years to
life imprisonment, if the explosive is actually used: Provided, That if the use of the explosive results in 1) physical
injury to any person, the penalty shall be imprisonment ranging from twenty-five (25) years to life imprisonment,
or 2) in the loss of human life, then the penalty shall be life imprisonment to death."

WHEREFORE, the decision of the court a quo appealed from is affirmed in toto. Costs against accused-appellant.

SO ORDERED.

G.R. No. L-37364 May 9, 1975

BENIGNO S. AQUINO, JR., petitioner,

vs.

MILITARY COMMISSION 2, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, and SECRETARY OF NATIONAL
DEFENSE, THE CHIEF JUSTICE OF THE SUPREME COURT, and SECRETARY OF JUSTICE, * respondents.

Taada, Salonga, Ordoez, Gonzales, Rodrigo, Jr., Roxas, Arroyo, Castro and Felipe for petitioner.

Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor-General Vicente V. Mendoza, Assistant
Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Reynato S. Puno and Attorney Blesila Quintillan
for respondents.

ANTONIO, J.:+.wph!1

Following the proclamation of martial law in the Philippines, petitioner was arrested on September 23, 1972,
pursuant to General Order No. 2-A of the President for complicity in a conspiracy to seize political and state power
in the country and to take over the Government. He was detained at Fort Bonifacio in Rizal province. On
September 25, 1972, he sued for a writ of habeas corpus1 in which he questioned the legality of the proclamation
of martial law and his arrest and detention. This Court issued a writ of habeas corpus, returnable to it, and
required respondents to file their respective answers, after which the case was heard. Thereafter, the parties
submitted their memoranda. Petitioner's last Reply memorandum was dated November 30, 1972. On September
17, 1974, this Court dismissed the petition and upheld the validity of martial law and the arrest and detention of
petitioner.2

In the present case, petitioner challenges the jurisdiction of military commissions to try him, alone or together with
others, for illegal possession of firearms, ammunition and explosives, for violation of the Anti-Subversion Act and
for murder. The charges are contained in six (6) amended charge sheets3 filed on August 14, 1973 with Military
Commission No. 2.

The original petition in this case was filed on August 23, 1973. It sought to restrain the respondent Military
Commission from the proceeding with the hearing and trial of petitioner on August 27, 1973. Because of the
urgency of the petition, this Court called a hearing on Sunday, August 26, on the question of whether with its
membership of only nine (9) Justices, it had a quorum to take cognizance of the petition in view of the
constitutional questions involved. At that hearing, this Court asked the parties to agree to seek from the Military
Commission a postponement of petitioner's trial the following day. The purpose was to relieve the Court of the
pressure of having to decide the question of quorum without adequate time to do so.

When the proceedings before the Military Commission opened the following day, however, petitioner questioned
the fairness of the trial and announced that he did not wish to participate in the proceedings even as he discharged
both his defense counsel of choice and his military defense counsel.

The proceedings were thereupon adjourned to another day. In the meantime, for the petitioner's assurance, a
Special Committee, composed of a retired. Justice of the Supreme Court, to be designated by the Chief Justice, as
Chairman, and four (4) members to be designated respectively by petitioner, the President of the Integrated Bar of
the Philippines, the Secretary of Justice and the Secretary of National Defense, was created to reinvestigate the
charges against petitioner. The Secretaries of Justice and National Defense designated their representatives but
the petitioner refused to name his. The Chief Justice asked former Justice J.B.L. Reyes but the latter declined, as he
also declined in his capacity as President of the IBP to designate a representative to the Committee. As a result,
with only two of its members designed, the Special Committee has not been able to function.

On September 4, 1973, a supplemental petition alleging the creation of the Special Committee and questioning the
legality of its creation was filed. The Chief Justice of the Supreme Court and the Secretary of Justice were included
as respondents. Subsequently, the Court resolved to require the respondents to file their answer and on August
21, 1974, within the extended period granted by the Court, respondents, with the exception of the Chief Justice,
filed their answer to the supplemental petition.

Thereafter, petitioner was required to file a reply and was granted additional time after the lapse of the original
period, but instead of doing so, petitioner asked for the admission of a second supplemental petition challenging
the continued enforcement of martial law in the Philippines, in the light of Presidential statements to the effect
that with the coming into force of the new Constitution on January 17, 1973, martial law was "technically and
legally" lifted. To this petition respondents answered. Thereafter, the parties submitted their respective
memoranda in lieu of oral argument as per Resolution of this Court on January 14, 1975.4
On March 24, 1975, petitioner filed an "Urgent Motion for Issuance of Temporary Restraining Order Against
Military Commission No. 2"; praying that said Commission be prohibited from proceeding with the perpetuation of
testimony under its Order dated March 10, 1975, the same being illegal, until further orders from the Supreme
Court..

On March 31, 1975, respondents filed their Comment to petitioner's aforementioned urgent motion, which motion
and other related incidents were set for hearing on April 14, 1975 at 10:00 a.m., as per Resolution of this Court on
April 8, 1975.

Meanwhile, or on April 1, 1975, this Court issued a Resolution, stating that "for lack of a necessary quorum", it
could not act on petitioner's Urgent Motion for Issuance of temporary Restraining Order Against Military
Commission No. 2, inasmuch as this case involved a constitutional question..

On April 7, 1975, petitioner filed a "Manifestation" stating, among others, that the "Urgent Motion did not and
does not involve a constitutional question", for reasons stated therein.

On April 12, 1975, respondents filed their "Reply to Petitioner's Manifestation", followed by Respondents'
Manifestation filed on April 14, 1975, attaching thereto fourteen (14) sworn statements of witnesses whose
testimonies are sought to be perpetuated..

On April 14, 1975, this Court also issued a restraining order against respondent Military Commission No. 2,
restraining it from further proceeding with the perpetuation of testimony under its Order dated March 10, 1975
until the matter is heard and further orders are issued.

When this case was called for hearing, petitioner's counsel presented to this Court a motion to withdraw the
petition, as well as all other pending matters and/or incidents in connection therewith. Respondents' counsel
interposed objection to the granting of the aforesaid motion to withdraw.

After the hearing, this Court Resolved: "(a) to require the Solicitor General to furnish the Court as well as the
petitioner and the latter's counsel, with copies of the transcript of all the stenographic notes taken at the hearing
before the Military Commission No. 2 for the perpetuation of the testimony of the witnesses for the prosecution in
various criminal cases filed against herein petitioner, within five (5) days from today; (b) to request the Solicitor
General and the AFP Judge Advocate General to make the necessary arrangements for the petitioner to confer
with his counsel on matters connected with the aforementioned motion to withdraw; (c) to allow counsel for the
petitioner, if they so desire, to file a manifestation in amplication of the aforesaid motion to withdraw, within ten
(10) days from the date they confer with the petitioner, and thereafter to allow the Solicitor General to file a
counter-manifestation within ten (10) days from receipt of a copy thereof; and (d) to consider the case submitted
for decision after submission by both parties of their respective pleadings on the motion to withdraw."
Subsequently, the parties manifested their compliance.

Acting on petitioner's motion to withdraw the petitions and motions in this case, and there being only three (3)
Justices (Justices Fernando, Teehankee and Muoz Palma) who voted in favor of granting such withdrawal,
whereas seven (7) Justices (Justices Castro, Barredo, Antonio, Esguerra, Aquino, Concepcion and Martin) voted for
its denial, the said motion to withdraw is deemed denied (Section 11, Rule 56 of the Revised Rules of Court). The
Chief Justice has inhibited himself, having been made respondent by petitioner in his Supplemental Petitions.5

The Justice who voted to deny the withdrawal are of the opinion that since all matters in issue in this case have
already been submitted for resolution, and they are of paramount public interest, it is imperative that the
questions raised by petitioner on the constitutionality and legality of proceedings against civilians in the military
commissions, pursuant to pertinent General Orders, Presidential Decrees and Letters of Instruction, should be
definitely resolved.

In regard to the merits, We Resolve by a vote of eight (8) Justices to dismiss the main as well as the supplemental
petitions. 5*

II

MILITARY COMMISSIONS

We have that the respondent Military Commission No. 2 has been lawfully constituted and validly vested with
jurisdiction to hear the cases against civilians, including the petitioner.

1. The Court has previously declared that the proclamation of Martial Law (Proclamation No. 1081) on September
21, 1972, by the President of the Philippines is valid and constitutional and that its continuance is justified by the
danger posed to the public safety.6

2. To preserve the safety of the nation in times of national peril, the President of the Philippines necessarily
possesses broad authority compatible with the imperative requirements of the emergency. On the basis of this, he
has authorized in General Order No. 8 (September 27, 1972) the Court of Staff, Armed Forces of the Philippines, to
create military tribunals to try and decide cases "of military personnel and such other cases as may be referred to
them." In General Order No. 12 (September 30, 1972), the military tribunals were vested with jurisdiction
"exclusive of the civil courts", among others, over crimes against public order, violations of the Anti-Subversion
Act, violations of the laws on firearms, and other crimes which, in the face of the emergency, are directly related to
the quelling of the rebellion and preservation of the safety and security of the Republic. In order to ensure a more
orderly administration of justice in the cases triable by the said military tribunals, Presidential Decree No. 39 was
promulgated on November 7,1972, providing for the "Rules Governing the Creation, Composition, Jurisdiction,
Procedure and Other Matters Relevant to Military Tribunals." These measures he has the authority to promulgate,
since this Court recognized that the incumbent President, under paragraphs 1 and 2 of Section 3 of Article XVII of
the new Constitution, had the authority to "promulgate proclamations, orders and decrees during the period of
martial law essential to the security and preservation of the Republic, to the defense of the political and social
liberties of the people and to the institution of reforms to prevent the resurgence of the rebellion or insurrection
or secession or the threat thereof....."7 Pursuant to the aforesaid Section 3 [1] and [2] of Article XVII of the
Constitution, General Orders No. 8, dated September 27, 1972 (authorizing the creation of military tribunals), No.
12, dated September 30, 1972 (defining the jurisdiction of military criminals and providing for the transfer from
the civil courts to military tribunals of cases involving subversion, sedition, insurrection or rebellion, etc.), and No.
39, dated November 7, 1972, as amended (prescribing the procedures before military tribunals), are now "part of
the law of the land."8

3. Petitioner nevertheless insists that he being a civilian, his trial by a military commission deprives him of his right
to due process, since in his view the due process guaranteed by the Constitution to persons accused of "ordinary"
crimes means judicial process. This argument ignores the reality of the rebellion and the existence of martial law. It
is, of course, essential that in a martial law situation, the martial law administrator must have ample and sufficient
means to quell the rebellion and restore civil order. Prompt and effective trial and punishment of offenders have
been considered as necessary in a state of martial law, as a mere power of detention may be wholly inadequate for
the exigency. 9 "It need hardly be remarked that martial law lawfully declared," observed Winthrop, "creates an
exception to the general rule of exclusive subjection to the civil jurisdiction, and renders offenses against the laws
of war, as well as those of a civil character, triable, at the discretion of the commander, (as governed by a
consideration for the public interests and the due administration of justice) by military tribunals." 10

Indeed, it has been said that in time of overpowering necessity, "public danger warrants the substitution of
executive process for judicial process." 11 According to Schwartz, "The immunity of civilians from military
jurisdiction must, however, give way in areas governed by martial law. When it is absolutely imperative for public
safety, legal processes can be superseded and military tribunals authorized to exercise the jurisdiction normally
vested in court." 12

In any case, We cannot close Our eyes to the fact that the continued existence of these military tribunals and the
exercise by them of jurisdiction over civilians during the period of martial law are within the contemplation and
intendment of Section 3, paragraph 2 of Article XVII of the Constitution. These are tribunals of special and
restricted jurisdiction created under the stress of an emergency and national security. This is the only logical way
to construe said Section 3, paragraph 2 of Article XVII of the Constitution, in relation to General Order Nos. 8, 12
and 39, in the context of contemporary history and the circumstances attendant to the framing of the new charter.

4. When it has been established that martial law is in force, the responsibility for all acts done thereunder must be
taken by the authorities administering it. 13 It is a serious responsibility which merits the cooperation of all in the
collective desire for the restoration of civil order. In the case at bar, petitioner is charged with having conspired
with certain military leaders of the communist rebellion to overthrow the government, furnishing them arms and
other instruments to further the uprising. There is no question that the continuing communist rebellion was one of
the grave threats to the Republic that brought about the martial law situation. Under General Order No. 12,
jurisdiction over this offense has been vested exclusively upon military tribunals. It cannot be said that petitioner
has been singled out for trial for this offense before the military commission. Pursuant to General Order No. 12, all
"criminal cases involving subversion, sedition, insurrection or rebellion or those committed in furtherance of, on
the occasion of incident to or in connection with the commission of said crimes" which were pending in the civil
courts were ordered transferred to the military tribunals. This jurisdiction of the tribunal, therefore, operates
equally on all persons in like circumstances..

5. Neither are We impressed with petitioner's argument that only thru a judicial proceeding before the regular
courts can his right to due process be preserved. The guarantee of due process is not a guarantee of any particular
form of tribunal in criminal cases. A military tribunal of competent jurisdiction, accusation in due form, notice and
opportunity to defend and trial before an impartial tribunal, adequately meet the due process requirement. Due
process of law does not necessarily means a judicial proceeding in the regular courts. 14 The guarantee of due
process, viewed in its procedural aspect, requires no particular form of procedure. It implies due notice to the
individual of the proceedings, an opportunity to defend himself and "the problem of the propriety of the
deprivations, under the circumstances presented, must be resolved in a manner consistent with essential fairness."
15 It means essentially a fair and impartial trial and reasonable opportunity for the preparation of defense.16

Here, the procedure before the Military Commission, as prescribed in Presidential Decree No. 39, assures
observance of the fundamental requisites of procedural due process, due notice, an essentially fair and impartial
trial and reasonable opportunity for the preparation of the defense.17

6. It is, however, asserted that petitioner's trial before the military commission will not be fair and impartial, as the
President had already prejudged petitioner's cases and the military tribunal is a mere creation of the President,
and "subject to his control and direction." We cannot, however, indulge in unjustified assumptions. Prejudice
cannot be presumed, especially if weighed against the great confidence and trust reposed by the people upon the
President and the latter's legal obligation under his oath to "do justice to every man". Nor is it justifiable to
conceive, much less presume, that the members of the military commission, the Chief of Staff of the Armed Forces
of the Philippines, the Board of Review and the Secretary of National Defense, with their corresponding staff judge
advocates, as reviewing authorities, through whom petitioner's hypothetical conviction would be reviewed before
reaching the President, would all be insensitive to the great principles of justice and violate their respective
obligations to act fairly and impartially in the premises.

This assumption must be made because innocence, not wrongdoing, is to be presumed. The presumption of
innocence includes that of good faith, fair dealing and honesty. This presumption is accorded to every official of
the land in the performance of his public duty. There is no reason why such presumption cannot be accorded to
the President of the Philippines upon whom the people during this period has confided powers and responsibilities
which are of a very high and dedicate nature. The preservation of the rights guaranteed by the Constitution rests
at bottom exactly where the defense of the nation rests: in the good sense and good will of the officials upon
whom the Constitution has placed the responsibility of ensuring the safety of the nation in times of national peril.

III
ADMINISTRATIVE ORDER NO. 355

We also find that petitioner's claim that Administrative Order No. 355 actually "strips him of his right to due
process" is negated by the basic purpose and the clear provisions of said Administrative Order. It was precisely
because of petitioner's complaint that he was denied the opportunity to be heard in the preliminary investigation
of his charges that the President created a Special Committee to reinvestigate the charges filed against him in the
military commission. The Committee is to be composed of a retired Justice of the Supreme Court, to be designated
by the Chief Justice, as Chairman, and four (4) members to be designated respectively by the accused, the
President of the Integrated Bar, the Secretary of Justice and the Secretary of National Defense, all of whom,
according to Administrative Order No. 355 "must be learned in the law, reputed for probity, integrity, impartiality,
incorruptibility and fairness...." It is intended that the Committee should conduct the investigation with "utmost
fairness, 'impartiality and objectivity' ensuring to the accused his constitutional right to due process, to determine
whether "there is reasonable ground to believe that the offenses charged were in fact committed and the accused
is probably guilty thereof."

Petitioner, however, objected by challenging in his supplemental petition before this Court the validity of
Administrative Order No, 355, on the pretense that by submitting to the jurisdiction of the Special Committee he
would be waiving his right to cross-examination because Presidential Decree No. 77, which applies to the
proceedings of the Special Committee, has done away with cross-examination in preliminary investigation.

The infirmity of this contention is apparent from the fact that the committee "shall have all the powers vested by
law in officials authorized to conduct preliminary investigations." We have held as implicit in the power of the
investigating Fiscal or Judge in the discharge of his grave responsibility of ascertaining the existence of probable
cause, is his right to cross-examine the witnesses since "cross-examination whether by the judge or by the
prosecution supplies the gap by permitting an instant contrast of falsehoods and opposing half-truths, mixed with
elements of truth, from which the examining judge or officer is better able to form a correct synthesis of the real
facts." 18

In the case at bar, petitioner's representative in the Committee having been conferred with "all the powers" of
officials authorized to conduct preliminary investigations, is, therefore, expressly authorized by Section 1[c] of
Presidential Decree No. 77 to subpoena the complainant and his witnesses and "profound clarificatory questions".
Viewed in the context of Our ruling in Abrera v.. Muoz, 19 this implies the authority of his representative in the
Committee to cross-examine the witnesses of the prosecution, in order to reach an intelligent and correct
conclusion on the existence of probable cause.

IV

PRELIMINARY INVESTIGATION
Equally untenable is petitioner's contention that his constitutional right to due process has been impaired when
the anti-subversion charges filed against him with the military commission were not investigated preliminarily in
accordance with Section 5 of the Anti-Subversion Act, but in the manner prescribed by Presidential Decree No. 39,
as amended by Presidential Decree No. 77. It is asserted that under the aforesaid Presidential Decrees, he is
precluded from cross-examining the prosecution witnesses and from being assisted by counsel. Contrary to
petitioner's contention, Section 1[b] of Presidential Decree No. 77 specifically grants him the right to counsel, and
Presidential Decree No. 328 amended Presidential Decree No. 39, precisely to secure the substantial rights of the
accused by granting him the right to counsel during preliminary investigation. Under Section 5 of Republic Act No.
1700, the accused shall have the right "to cross-examine witnesses against him" and in case the offense is
penalized by prision mayor to death, the preliminary investigation shall be conducted by the proper Court of First
Instance. As to whether or not the denial to an accused of an opportunity to cross-examine the witnesses against
him in the preliminary investigation constitutes an infringement of his right to due process, We have to advert to
certain basic principles. The Constitution "does not require the holding of preliminary investigations. The right
exists only, if and when created by statute." 20 It is "not an essential part of due process of law." 21 The absence
thereof does not impair the validity of a criminal information or affect the jurisdiction of the court over the case.
22 As a creation of the statute it can, therefore, be modified or amended by law.

It is also evident that there is no curtailment of the constitutional right of an accused person when he is not given
the opportunity to "cross-examine the witnesses presented against him in the preliminary investigation before his
arrest, this being a matter that depends on the sound discretion of the Judge or investigating officer concerned."
23

Speaking for the Court, Justice Tuason, in Bustos v. Lucero, 24 discussed the matter extensively, thus: t.hqw

As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the
punishment for committing them, as distinguished from the procedural law which provides or regulates the steps
by which one who commits a crime is to be punished. (22 C.J.S., 49.) Preliminary investigation is eminently and
essentially remedial; it is the first step taken in a criminal prosecution.

As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence which is 'the mode and manner of
proving the competent facts and circumstances on which a party relies to establish the fact in dispute in judicial
proceedings' is identified with and forms part of the method by which, in private law, rights are enforced and
redress obtained, and, in criminal law, a law transgressor is punished. Criminal procedure refers to pleading,
evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) The entire rules of evidence have been
incorporated into the Rules of Court. We can not tear down section 11 of Rule 108 on constitutional grounds
without throwing out the whole code of evidence embodied in these Rules.

In Beazeil vs. Ohio, 269 U.S., 167, 70 Law. ed., 216, the United States Supreme Court said: t.hqw

'Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be
transgressed by alterations in the rules of evidence or procedure. See Calder Bull, 3 Dall 386, 390. 1 L. ed., 648,
650; Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring Missouri, 107 U.S. 221, 228, 232, 27 L. ed.,
507, 508, 510, 2 Sup. Ct. Rep. 443. And there may be procedural changes which operate to deny to the accused a
defense available under the laws in force at the time of the commission of his offense, or which otherwise affect
him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. Kring vs. Missouri, 107
U.S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 US 343; 42 L. ed., 1061, 18 Sup. Ct. Rep., 620.
But it is now well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive
the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are
not prohibited. A statute which, after indictment, enlarges the class of persons who may be witnesses at the trial,
by removing the disqualification of persons convicted of felony, is not an ex post facto law. Hopt vs. Utah, 110 U.S.,
575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202. 4 Am. Crime Rep 417. Nor is a statute which changes the rules of evidence
after the indictment so as to render admissible against the accused evidence previously held inadmissible,
Thompson Missouri, 171 U.S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep. 922; or which changes the place of trial, Gut vs.
Minnesota, 9 Wall. 35, 19 L. ed., 573; or which abolishes a court for hearing criminal appeals, creating a new one in
its stead. See Duncan vs. Missouri, 152 U.S., 377, 382, 38 L. ed., 485, 487, 14 Sup. Ct. Rep., 570.'

Tested by this standard, we do not believe that the curtailment of the right of an accused in a preliminary
investigation to cross-examine the witness who had given evidence for his arrest is of such importance as to offend
against the constitutional inhibition. As we have said in the beginning, preliminary investigation is not an essential
part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege
formerly enjoyed thereunder can not be held to fall within the constitutional prohibition.

In rejecting the contention of the political offenders accused in the People's Court that their constitutional right to
equal protection of the laws was impaired because they were denied preliminary examination and investigation,
whereas the others who may be accused of the same crimes in the Court of First Instance shall be entitled thereto,
this Court said: t.hqw

(2) Section 22 in denying preliminary investigation to persons accused before the People's Court is justified by the
conditions prevailing when the law was enacted. In view of the great number of prisoners then under detention
and the length of time and amount of labor that would be consumed if so many prisoners were allowed the right
to have preliminary investigation, considered with the necessity of disposing of these cases at the earliest possible
dates in the interest of the public and of the accused themselves, it was not an unwise measure which dispensed
with such investigation in such cases. Preliminary investigation, it must be remembered, is not a fundamental right
guaranteed by the Constitution. For the rest, the constitutional prohibition against discrimination among
defendants placed in the same situation and condition is not infringed. 25

It was realized that the procedure prescribed in Republic Act No. 5180 granting the complainant and respondent in
a preliminary investigation the right to cross-examine each other and their witnesses was "time consuming and not
conducive to the expeditious administration of justice". Hence, it was found necessary in Presidential Decree No.
77 to simplify the procedure of preliminary investigation to conform to its summary character, by eliminating the
cross-examination by the contending parties of their respective witnesses which in the past had made the
proceeding the occasion for the full and exhaustive display of parties' evidence. The procedure prescribed in the
aforecited decrees appears justified by the necessity of disposing cases during martial law, especially those
affecting national security, at the earliest date. On the basis of the aforestated settled principles, the curtailment
of the right of an accused to cross-examine the witnesses against him in the preliminary investigation does not
impair any constitutional right. It may be relevant to note that recently in Litton, et al. v. Castillo, et al., 26 this
Court denied for lack of merit a petition challenging the validity of Presidential Decree No. 77 issued on December
6, 1972, on the ground that aforesaid decree now "forms part of the law of the land."

PERPETUATION OF TESTIMONY

Petitioner claims that the order of the Military Commission for the perpetuation of the testimony of prosecution
witnesses is void because no copy of the petition was previously served on him. He asserts that, as a consequence,
he was not given the opportunity to contest the propriety of the taking of the deposition of the witnesses. It must
be noted that petitioner does not dispute respondents' claim that on March 14, 1975, he knew of the order
allowing the taking of the deposition of prosecution witnesses on March 31, to continue through April 1 to 4, 1975.

The provisions of Presidential Decree No. 328, dated October 31, 1973, for the conditional examination of
prosecution witnesses before trial, is similar to the provisions of Section 7 of Rule 119 of the Revised Rules of
Court. Presidential Decree No. 328 provides: t.hqw

Where, upon proper application, it shall satisfactorily appear to the military tribunal before which a case is
pending, that a witness for the prosecution or the defense is too sick or infirm to appear at the trial, or has to leave
the Philippines with no definite date of returning thereto, or where delay in the taking of its testimony may result
in the failure of justice or adversely affect national security, the witness may forthwith be examined and his
deposition immediately taken, such examination to be by question and answer, in the presence of the other party,
or even in the latter's absence provided that reasonable notice to attend the examination or the taking of the
deposition has been served upon him, and will be conducted in the same manner as an examination, at the trial, in
which latter event the failure or refusal to attend the examination or the taking of the deposition shall be
considered a waiver. (Emphasis supplied.)

Section 7 of Rule 119 of the Revised Rules provides: t.hqw

Deposition of witness for the prosecution. Where, however, it shall satisfactorily appear that the witness cannot
procure bail, or is too sick or infirm to appear at the trial, as directed by the order of the court, or has to leave the
Philippines with no definite date of returning thereto, he may forthwith be conditionally examined or his
deposition immediately taken. Such examination or deposition must be by question and answer, in the presence of
the defendant or after reasonable notice to attend the examination or the taking of the deposition has been
served on him, and will be conducted in the same manner as an examination at the trial. Failure or refusal on the
part of the defendant to attend the examination or the taking of the deposition after notice hereinbefore
provided, shall be considered a waiver. The statement or deposition of the witness thus taken may be admitted in
behalf of or against the defendant. His testimony taken, the witness must thereupon be discharged, if he has been
detained.
The foregoing was taken substantially from Section 7 of Rule 115 of the old Rules of Court, with the difference,
among others, that the phrase "or after one hour notice" in the old Rules of Court has been changed to "or after
reasonable notice" in the Revised Rules of Court.

In Elago v. People, 27 this Court, in rejecting the contention that no written motion was filed by the prosecuting
attorney for the taking of the depositions and that less than one hour notice has been given the defendant, held
that "the one-hour notice mentioned in Section 7, Rule 115, of the Rules of Court, was intended by law mainly to
give the defendant time to attend the taking of a deposition and not to prepare for the taking thereof because in
reality there is no need for preparation. It is not a trial where the defendant has to introduce his evidence. It is only
taking down the statements of the witnesses for the prosecution with opportunity on the part of the defendant to
cross-examine them."

The thrust of Elago is that the order of the court authorizing the taking of the deposition of the witnesses of the
prosecution and fixing the date and time thereof is the one that must be served on the accused within a
reasonable time prior to that fixed for the examination of the witnesses so that the accused may be present and
cross-examine the witness. On this point of the time given the defendant to attend the taking of the deposition,
Professor Wigmore has the following to say: t.hqw

The opportunity of cross-examination involves two elements:

(1) Notice to the opponent that the deposition is to be taken at the time and place specified, and

(2) A sufficient interval of time to prepare for examination and to reach the place.

xxx xxx xxx

(2) The requirements as to the interval of time are now everywhere regulated by statute .... ; the rulings in
regard to the sufficiency of time are thus so dependent on the interpretation of the detailed prescriptions of the
local statutes that it would be impracticable to examine them here. But whether or not the time allowed was
supposedly insufficient or was precisely the time required by statute, the actual attendance of the party obviate
any objection upon the ground of insufficiency, because then the party has actually had that opportunity of cross-
examination ... for the sole sake of which the notice was required. 28

We, therefore, hold that the taking of the testimony or deposition was proper and valid.

VI
WAIVER OF PETITIONER'S PRESENCE

There is conflict among the authorities as to whether an accused can waive his right to be present at his trial. Some
courts have regarded the presence of the accused at his trial for felony as a jurisdictional requirement, which
cannot be waived. 29 Many others do not accept this view.30 In defense of the first view, it has been stated that
the public has an interest in the life and liberty of an accused and that which the law considers essential in a trial
cannot be waived by the accused. 31 In support of the latter view, it has been argued that the right is essentially
for the benefit of the accused, 32 and that "since the accused, by pleading guilty, can waive any trial at all, he
should be able to waive any mere privilege on the trial that is designated only to aid him in shielding himself from
such result."33

In this jurisdiction, this Court, in People v. Avancea, 34 traced the history of the constitutional right of the accused
to be present at his trial from U.S. v. Karelsen 35 and U.S. v. Bello 36 Diaz v. United States 37 and People v.
Francisco. 38 In the first two cases, it was ruled that one whose life or liberty is involved in the prosecution for
felony must be personally present at every stage of the trial when his substantive rights may be affected by the
proceedings and that it is not within his power to waive the right to be personally present. In Diaz v. United States
and People v. Francisco, this rule was modified. Upon the authority of the Diaz and Francisco cases, the Court laid
down as the law in this jurisdiction that: (1) in cases of felony, the accused has the right to be present at every
stage of the trial, inclusive of the arraignment and pronouncement of the judgment; (2) where the offense is
capital the right of the accused to be present at every stage of the trial is indispensable and cannot be waived; (3)
even in felonies not capital, if the accused is in custody, his right to be present at every stage of the trial is likewise
indispensable and cannot be waived; (4) where the offense is not capital and the accused is not in custody his
presence is indispensable only: (a) at the arraignment; (b) at the time the plea is taken, if it be one of guilt; and (c)
at the pronouncement of judgment. The Court looted the rationale of Diaz v. United States as basis of its ruling,
thus: t.hqw

... the court was called upon to pass on the question whether the provision in section 5 of the Philippine Civil
Government Act, securing to the accused in all criminal prosecutions 'the right to be heard by himself and counsel,'
makes his presence indispensable at every stage of the trial, or invests him with a right which he is always free to
assert, but which he also may waive by his voluntary act. After observing that an identical or similar provision is
found in the constitutions of the several states of the American Union, and that its substantial equivalent is
embodied in the 6th Amendment to the Constitution of the United States; that it is the right which these
constitutional provisions secure to persons accused of crime in that country that was carried here by the
congressional enactment; and that, therefore, according to a familiar rule, the prevailing course of decision there
may and should be accepted as determinative of the nature and measure of the right here, Justice Van Devanter
speaking for the court, said: 'As the offense in this instance was a felony, we may put out of view the decisions
dealing with this right in cases of misdemeanor. In cases of felony our courts, with substantial accord, have
regarded it as extending to every stage of the trial, inclusive of the empaneling of the jury and the reception of the
verdict, and as being scarcely less important to the accused than the right of trial itself. And with like accord they
have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving
the right; the one, because his presence or absence is not within his own control; and the other because, in
addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of
the lawful penalty that would follow conviction. But, where the offense is not capital and the accused is not in
custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents
himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary,
operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner
and with like effect as if he were present.' 39

In Avancea, the issue was whether the defendant charged with an offense which is not capital had impliedly
waived his right to be present at his trial, because of his failure to appear in court at the trial of his case.

Under the present Constitution, however, trial even of a capital offense may proceed notwithstanding the absence
of the accused. It is now provided that "after arraignment, trial may proceed notwithstanding the absence of the
accused provided that he has been duly notified and his failure to appear is unjustified." 40

On the basis of the aforecited provision of the Constitution which allows trial of an accused in absentia, the issue
has been raised whether or not petitioner could waive his right to be present at the perpetuation of testimony
proceedings before respondent Commission..

As a general rule, subject to certain exceptions, any constitutional or statutory right may be waived if such waiver
is not against public policy. The personal presence of the accused from the beginning to the end of a trial for
felony, involving his life and liberty, has been considered necessary and vital to the proper conduct of his defense.
The "trend of modern authority is in favor of the doctrine that a party in a criminal case may waive irregularities
and rights, whether constitutional or statutory, very much the same as in a civil case."41

There are, for instance, certain rights secured to the individual by the fundamental charter which may be the
subject of waiver. The rights of an accused to defend himself in person and by attorney, to be informed of the
nature and cause of the accusation, to a speedy and public trial, and to meet the witnesses face to face, as well as
the right against unreasonable searches and seizures, are rights guaranteed by the Constitution. They are rights
necessary either because of the requirements of due process to ensure a fair and impartial trial, or of the need of
protecting the individual from the exercise of arbitrary power. And yet, there is no question that all of these rights
may be waived. 42 Considering the aforecited provisions of the Constitution and the absence of any law
specifically requiring his presence at all stages of his trial, there appears, therefore, no logical reason why
petitioner, although he is charged with a capital offense, should be precluded from waiving his right to be present
in the proceedings for the perpetuation of testimony, since this right, like the others aforestated, was conferred
upon him for his protection and benefit.

It is also important to note that under Section 7 of Rule 119 of the Revised Rules of Court (Deposition of witness
for the prosecution) the "Failure or refusal on the part of the defendant to attend the examination or the taking of
the deposition after notice hereinbefore provided, shall be considered a waiver" (Emphasis supplied.) Similarly,
Presidential Decree No. 328 expressly provides that " ... the failure or refusal to attend the examination or the
taking of the deposition shall be considered a waiver." (Emphasis supplied).
It is for the foregoing reasons that the writer of this opinion voted with the six (6) Justices who ruled on the full
right of petitioner to waive his presence at said proceedings..

Since only six (6) Justices (Fernando, Teehankee, Barredo, Antonio, Muoz Palma and Aquino) are of the view that
petitioner may waive his right to be present at all stages of the proceedings while five (5) Justices (Castro,
Makasiar, Esguerra, Concepcion Jr. and Martin) are in agreement that he may so waive such right, except when he
is to be identified, the result is that the respondent Commission's Order requiring his presence at all times during
the proceedings before it should be modified, in the sense that petitioner's presence shall be required only in the
instance just indicated. The ruling in People v. Avancea 43 is thus pro tanto modified.

Finally, it is insisted that even if said orders and decrees were valid as martial law measures, they have ceased to
be so upon the termination of the emergency. In Aquino, et al. v. Enrile, et al., supra, We adverted to the fact that
the communist rebellion which impelled the proclamation of martial law has not abated. In the absence of any
official proclamation by the President of the cessation of the public emergency, We have no basis to conclude that
the rebellion and communist subversion which compelled the declaration of martial law, no longer pose a danger
to public safety.

It is important to note here that an accused being tried before a military tribunal enjoys the specific constitutional
safeguards pertaining to criminal trials. Thus, he is entitled to be heard by himself and counsel, 44 to be informed
of the nature and cause of the accusation, 45 to meet the witnesses face to face, to have compulsory process to
secure the attendance of witnesses and the production of evidence in his behalf, 46 and to be exempt from being a
witness against himself. As in trial before civil courts, the presumption of innocence can only be overcome by
evidence beyond reasonable doubt of the guilt of the accused. 47 These tribunals, in general, are "bound to
observe the fundamental rules of law and principles of justice observed and expounded by the civil judicature." 48
Section 11 of the Manual for Courts-Martial specifically provides that the "rules of evidence generally recognized in
the trial of criminal cases in the courts of the Philippines shall be applied by courts-martial." 49 This is applicable to
trials in the military commission .50 There is, therefore, no justification for petitioner's contention that such
military tribunals are concerned primarily with the conviction of an accused and that proceedings therein involve
the complete destruction and abolition of petitioner's constitutional rights. This is not, however, to preclude the
President from considering the advisability of the transfer of these cases to the civil courts, as he has previously
announced.

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered dismissing the petitions for prohibition with
preliminary injunction and setting aside the temporary restraining order issued on April 8, 1975, with costs against
petitioner.

Aquino, Concepcion, Jr. and Martin, JJ., concur.1wph1.t

Makalintal, C.J, took no part.

 DOLORES ADORA G.R. No. 156375
MACASLANG,
Petitioner, Present:

CARPIOMORALES, Chairperson,
BRION,
-versus - BERSAMIN,
VILLARAMA, and
SERENO, JJ.

Promulgated:
RENATO AND
MELBAZAMORA,
Respondents. May 30, 2011
x-----------------------------------------------------------------------------------------x

DECISION

BERSAMIN, J.:

The Regional Trial Court (RTC) is not limited in its review of the decision of
the Municipal Trial Court (MTC) to the issues assigned by the appellant, but can
decide on the basis of the entire records of the proceedings of the trial court and such
memoranda or briefs as may be submitted by the parties or required by the RTC.

The petitioner appeals the decision promulgated on July 3, 2002, [1] whereby
the Court of Appeals (CA) reversedfor having no basis in fact and in law the decision
rendered on May 18, 2000[2] by the Regional Trial Court, Branch 25, in Danao City
(RTC) thathad dismissed the respondents action
for ejectment against the petitioner, andreinstated the decision dated September 13,
1999 of the Municipal Trial Court in Cities (MTCC) of DanaoCity (ordering the
petitioner as defendant to vacate the premises and to pay attorneys fees
of P10,000.00 and monthly rental of P5,000.00 starting December 1997 until they
vacated the premises).[3]
 We grant the petition for review and rule that contrary to the CAs conclusion,
the RTCas an appellate court properly considered and resolved issues even if not
raised in the appeal from the decisionrendered in an ejectment case by the MTCC.

ANTECEDENTS

On March 10, 1999, the respondents filed a complaint for unlawful detainer in the
MTCC, alleging that the [petitioner] sold to [respondents] a residential land located
in Sabang,DanaoCity and that the [petitioner] requested to be allowed to live in the
house with a promise to vacate as soon as she would be able to find a new residence.
They further alleged thatdespitetheir demand after a year, the petitioner failed or
refused to vacate the premises.

Despite the due service of the summons and copy of the complaint, the
petitioner did not file heranswer. The MTCC declared her in defaultupon the
respondents motion to declare her in default, and proceeded to receivethe
respondentsoral testimony and documentary evidence. Thereafter, on September 13,
1999, the MTCC rendered judgment against her, disposing:
WHEREFORE, considering the foregoing, Judgment is hereby rendered in
favor [of] plaintiffs (sic) spouses Renato Zamora and Melba Zamora and against
defendant Dolores AdoraMacaslang, ordering defendant to vacate the properties in
question, to pay to plaintiffs Attorneys Fees in the sum of P10,000.00 and monthly
rental of P5,000.00 starting December, 1997 until the time the defendant shall have
vacated the properties in question.

SO ORDERED.[4]

The petitioner appealed to the RTC, averring the following as reversible errors,
namely:

1. Extrinsic Fraud was practiced upon defendant-appellant which ordinary

prudence could not have guarded against and by reason of which she has been
impaired of her rights.

2. Defendant-Appellant has a meritorious defense in that there was no actual sale

considering that the absolute deed of sale relied upon by the plaintiff-appell[ees]
is a patent-nullity as her signature therein was procured through fraud and
trickery.[5]
and praying through her appeal memorandum as follows:

Wherefore, in view of the foregoing, it is most respectfully prayed for that judgment
be rendered in favor of defendant-appellant ordering that this case be remanded
back to the Court of Origin, Municipal Trial Court of Danao City, for further
proceedings to allow the defendant to present her evidence, and thereafter, to render
a judgment anew.[6]

On May 18, 2000, the RTC resolved the appeal, to wit:[7]

WHEREFORE,judgment is hereby rendered dismissing the complaint for

failure to state a cause of action.

The same may, however, be refiled in the same Court, by alleging plaintiffs
cause of action, if any.

Plaintiffs Motion for Execution of Judgment of the lower court is rendered

moot by this judgment.

SO ORDERED.

The respondents appealed to the CA, assailing the RTCs decision for disregarding
the allegations in the complaint in determining the existence or non-existence of a
cause of action.

On July 3, 2002, the CA reversed and set aside the RTCs decision and
reinstated the MTCCs decision in favor of the respondents, disposing:

WHEREFORE,foregoing premises considered, the Petition is hereby GIVEN DUE

COURSE. Resultantly, the impugned decision of the Regional Trial Court is hereby
REVERSED and SET ASIDE for having no basis in fact and in law, and the
Decision of the Municipal Trial Court in Cities REINSTATED and AFFIRMED.
No costs.

SO ORDERED.[8]

The petitionersmotion for reconsideration was denied onNovember 19, 2002.

 ISSUES

Hence, the petitioner appeals the CAs adverse decision, submitting legal issues, as
follows:

1. Whether or not the Regional Trial Court in the exercise of its Appellate
Jurisdiction is limited to the assigned errors in the Memorandum or brief filed
before it or whether it can decide the case based on the entire records of the
case, as provided for in Rule 40, Sec. 7. This is a novel issue which, we
respectfully submit, deserves a definitive ruling by this Honorable Supreme
Court since it involves the application of a new provision, specifically
underlined now under the 1997 Revised Rules on Civil procedure.

2. Whether or not in an action for unlawful detainer, where there was no prior
demand to vacate and comply with the conditions of the lease made, a valid
cause of action exists?

3. Whether or not in reversing the Regional Trial Court Decision and reinstating
and affirming the decision of the Municipal Circuit Trial Court, which was tried
and decided by the MCTC in violation of the Rules on Summary Procedure, the
Court of Appeals sanctioned a gross departure from the usual course of judicial
proceedings?[9]
The issues that this Court has to resolve are stated thuswise:

1. Whether or not the CA correctly found that the RTC committed

reversible error in ruling on issues not raised by the petitioner in her
appeal;

2. Whether or not the CA correctly found that the complaint stated a

valid cause of action;

3. Whether or not the CA erred in finding that there was a valid

demand to vacate made by the respondents on the petitioner; and

4. Whether or not the petitioners defense of ownership was

meritorious.

RULING
 We grant the petition for review.

A.
As an appellate court, RTC may rule
upon an issue notraised on appeal

In its decision, the CA ruled that the RTC could not resolve issues that were
not assigned by the petitioner in her appeal memorandum, explaining:

Indeed(,) We are rather perplexed why the Regional Trial Court, in arriving at its
decision, discussed and ruled on issues or grounds which were never raised,
assigned, or argued on by the Defendant-appellee in her appeal to the former. A
careful reading of the Defendant-appellees appeal memorandum clearly shows that
it only raised two (2) grounds, namely (a) alleged extrinsic fraud, (b) meritorious
defenses based on nullity of the Deed of Sale Instrument. And yet the Trial Court,
in its decision, ruled on issues not raised such as lack of cause of action and no prior
demand to vacate having been made.

Only errors assigned and properly argued on the brief and those necessarily related
thereto, may be considered by the appellate court in resolving an appeal in a civil
case. Based on said clear jurisprudence, the court a quo committed grave abuse of
discretion amounting to lack of jurisdiction when it resolved Defendant-appellees
appeal based on grounds or issues not raised before it, much less assigned by
Defendant-appellee as an error.

Not only that. It is settled that an issue which was not raised during the Trial in the
court below would not be raised for the first time on appeal as to do so would be
offensive to the basic rules of fair play, justice and due process (Victorias Milling
Co., Inc. vs. CA, 333 SCRA 663). We can therefore appreciate Plaintiffs-appellants
dismay caused by the Regional Trial Courts blatant disregard of a basic and
fundamental right to due process.[10]

The petitioner disagrees with the CA and contends that the RTC as an
appellate courtcould rule on the failure of the complaint to state a cause of action
and the lack of demand to vacate even if not assigned in the appeal.

We concur with the petitioners contention.

The CA might have been correct had the appeal been a first appeal from the
RTC to the CA or another proper superior court, in which instance Section 8 of Rule
51, which applies to appeals from the RTC to the CA,imposesthe express limitation
of the review to only those specified in the assignment of errorsor closely related to
or dependent on an assigned error and properly argued in the appellants brief, viz:

Section 8. Questions that may be decided. No error which does not affect the
jurisdiction over the subject matter or the validity of the judgment appealed from
or the proceeding therein will be considered unless stated in the assignment of
errors, or closely related to or dependent on an assigned error and properly
argued in the brief, save as the court may pass upon plain errors and clerical errors.

Butthe petitioners appeal herein,being taken from the decision of the MTCC
to the RTC, was governed by a different rule, specifically Section 18 of Rule 70 of
the Rules of Court, to wit:

Section 18. xxx

xxx
The judgment or final order shall be appealable to the appropriate
Regional Trial Court which shall decide the same on the basis of the entire
record of the proceedings had in the court of origin and such memoranda
and/or briefs as may be submitted by the parties or required by the Regional
Trial Court. (7a)
As such,the RTC, in exercising appellate jurisdiction,was not limited to the
errors assigned in the petitioners appeal memorandum, but coulddecide on the basis
of the entire record of the proceedingshad in the trial court and such memoranda
and/or briefs as may be submitted by the parties or required by the RTC.

The difference between the procedures for deciding on review is traceable to

Section 22 of Batas PambansaBlg. 129,[11]which provides:

Section 22. Appellate Jurisdiction. Regional Trial Courts shall exercise

appellate jurisdiction over all cases decided by Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective
territorial jurisdictions.Such cases shall be decided on the basis of the entire
record of the proceedings had in the court of origin [and] such memoranda
and/or briefs as may be submitted by the parties or required by the Regional
Trial Courts. The decision of the Regional Trial Courts in such cases shall be
appealable by petition for review to the Court of Appeals which may give it due
course only when the petition shows prima facie that the lower court has committed
an error of fact or law that will warrant a reversal or modification of the decision or
judgment sought to be reviewed.[12]
 As its compliance with the requirement of Section 36 of Batas PambansaBlg.
129to adopt special rules or procedures applicable to such cases in order to achieve
an expeditious and inexpensive determination thereof without regard to technical
rules, the Court promulgated the 1991 Revised Rules on Summary
Procedure, whereby it institutionalized the summary procedure for all the first level
courts. Section 21 of the 1991 Revised Rules on Summary Procedurespecifically
stated:

Section 21. Appeal. Thejudgment or final order shall be appealable to the

appropriate Regional Trial Court which shall decide the same in accordance
with Section 22 of Batas PambansaBlg. 129. The decision of the Regional Trial
Court in civil cases governed by this Rule, including forcible entry and unlawful
detainer shall be immediately executory, without prejudice to a further appeal that
may be taken therefrom. Section 10 of Rule 70 shall be deemed repealed.

Later on, the Court promulgated the 1997 Rules of Civil Procedure, effective
on July 1, 1997, and incorporated in Section 7 of Rule 40 thereof the directive to the
RTC todecide appealed caseson the basis of the entire record of the proceedings had
in the court of origin and such memoranda as are filed,viz:

Section 7. Procedure in the Regional Trial Court.

(a) Upon receipt of the complete record or the record on appeal, the clerk of
court of the Regional Trial Court shall notify the parties of such fact.

(b) Within fifteen (15) days from such notice, it shall be the duty of the
appellant to submit a memorandum which shall briefly discuss the errors imputed
to the lower court, a copy of which shall be furnished by him to the adverse party.
Within fifteen (15) days from receipt of the appellants memorandum, the appellee
may file his memorandum. Failure of the appellant to file a memorandum shall be
a ground for dismissal of the appeal.

(c) Upon the filing of the memorandum of the appellee, or the expiration of
the period to do so, the case shall be considered submitted for decision. The
Regional Trial Court shall decide the case on the basis of the entire record of
the proceedings had in the court of origin and such memoranda as are filed.
(n)
 As a result, the RTC presently decides all appeals from the MTC based on the
entire record of the proceedings had in the court of origin and such memoranda or
briefs as are filed in the RTC.

Yet, even withoutthe differentiation in the procedures of deciding appeals,

thelimitation of the review to onlythe errors assigned and properly argued in the
appeal brief or memorandum and the errors necessarily related to such assigned
errorsought not to have obstructed the CA from resolving the unassigned issues by
virtue of their coming under one or several of the following recognized exceptions
to the limitation, namely:

(a) When the question affectsjurisdiction over the subject matter;

(b) Matters that are evidently plain or clerical errors within

contemplation of law;

(c) Matters whose consideration is necessary in arriving at a just

decision and complete resolution of the case or in serving the
interests of justice or avoiding dispensing piecemeal justice;

(d) Matters raised in the trial court and are of record having some
bearing on the issue submitted that the parties failed to raise or that
the lower court ignored;

(e) Matters closely related to an error assigned; and

(f) Matters upon which the determination of a question properly

assigned is dependent.[13]

Consequently, the CA improperly disallowed the consideration and resolution

of the two errors despite their being: (a)necessary in arriving at a just decision and
acomplete resolution of the case; and (b) matters of record having some bearing on
the issues submitted that the lower court ignored.

B.
CA correctly delved into and determined
whether or not complaint stateda cause of action
 The RTC opined that the complaint failed to state a cause of action because
the evidence showed that there was no demand to vacate made upon the petitioner.

The CA disagreed, observingin its appealed decision:

But what is worse is that a careful reading of Plaintiffs-appellants Complaint would

readily reveal that they have sufficiently established (sic) a cause of action against
Defendant-appellee. It is undisputed that as alleged in the complaint and testified
to by Plaintiffs-appellants, a demand to vacate was made before the action for
unlawful detainer was instituted.

A complaint for unlawful detainer is sufficient if it alleges that the withholding of

possession or the refusal is unlawful without necessarily employing the
terminology of the law (Jimenez vs. Patricia, Inc., 340 SCRA 525). In the case at
bench, par. 4 of the Complaint alleges, thus:

4. After a period of one (1) year living in the aforementioned

house, Plaintiff demanded upon defendant to vacate but she failed
and refused;

From the foregoing allegation, it cannot be disputed that a demand to vacate has
not only been made but that the same was alleged in the complaint. How the
Regional Trial Court came to the questionable conclusion that Plaintiffs-appellants
had no cause of action is beyond Us.[14]

We concur with the CA.

A complaint sufficiently alleges a cause of action for unlawful detainer if it

states the following:

(a)Initially, the possession of the property by the defendant was by

contract with or by tolerance of the plaintiff;

(b)Eventually, such possession became illegal upon notice by the

plaintiff to the defendant about the termination of the latters right
of possession;

(c)Thereafter, the defendant remained in possession of the property and

deprived the plaintiff of its enjoyment; and
 (d)Within one year from the making of the last demand to vacate the
propertyon the defendant, the plaintiff instituted the complaint for
ejectment.[15]

In resolving whether the complaint states a cause of actionor not, only the
facts alleged in the complaint are considered. The test is whether the court can
render a valid judgment on the complaint based on the facts alleged and the prayer
asked for.[16] Only ultimate facts, not legal conclusions or evidentiary facts, are
considered for purposes of applying the test.[17]

To resolve the issue, therefore, a look at the respondents complaint is helpful:

2. On September 10, 1997, defendant sold to plaintiffs a residential

land located in Sabang, Danao City, covered by Tax Dec.0312417 RB with an area
of 400 square meters, including a residential house where defendant was then living
covered by Tax Dec. 0312417 RB, a copy of the deed of absolute [sale] of these
properties is hereto attached as Annex A;

3. After the sale, defendant requested to be allowed to live in the

house which plaintiff granted on reliance of defendants promise to vacate as
soon as she would be able to find a new residence;

4. After a period of one (1) year living in the aforementioned house, plaintiffs
demanded upon defendant to vacate but she failed or refused.

5. Plaintiffs sought the aid of the barangay Lupon of Sabang, Danao City for
arbitration but no settlement was reached as shown by a certification to file action
hereto attached as Annex B;

6. Plaintiffs were compelled to file this action and hire counsel for P10,000
by way of attorneys fee;

7. Defendant agreed to pay plaintiffs a monthly rental of P5,000 for the period
of time that the former continued to live in the said house in question.

WHEREFORE, it is respectfully prayed of this Honorable Court to render

judgment ordering the defendant to vacate the properties in question, ordering the
defendant to pay plaintiffs attorneys fees in the sum of P10,000, ordering the
defendant to pay the plaintiffs a monthly rental of P5,000 starting in October 1997,
until the time that defendant vacates the properties in question. Plaintiffs pray for
such other refiefs consistent with justice and equity.[18]
 Based on its allegations, the complaintsufficiently stated a cause of action for
unlawful detainer. Firstly, it averred that the petitioner possessed the property by the
mere tolerance of the respondents. Secondly, the respondents demanded that the
petitioner vacate the property, thereby rendering her possession illegal. Thirdly,she
remained in possession of the property despite the demand to vacate. And, fourthly,
the respondents instituted the complaint on March 10, 1999,which was well within
a year after the demand to vacate was made around September of 1998 or later.

Yet, even as we rule that the respondents complaint stated a cause of action,
we must find and hold that both the RTC and the CA erroneously appreciatedthe real
issue to be about the complaints failure to state a cause of action. It certainly was not
so, butthe respondents lack of cause of action. Their erroneous
appreciationexpectedly prevented the correct resolution of the action.

Failure to state a cause of action and lack of cause of action are really different
from each other.On the one hand, failure to state a cause of actionrefers to the
insufficiency of the pleading, and is a ground for dismissal under Rule 16 of
the Rules of Court. On the other hand, lack of cause action refers to a situation where
the evidence does not prove the cause of action alleged in the pleading. Justice
Regalado, a recognized commentator on remedial law, has explained the
distinction:[19]

xxx What is contemplated, therefore, is a failure to state a cause of action

which is provided in Sec. 1(g) of Rule 16. This is a matter of insufficiency of
the pleading. Sec. 5 of Rule 10, which was also included as the last mode for raising
the issue to the court, refers to the situation where the evidence does not prove a
cause of action. This is, therefore, a matter of insufficiency of evidence. Failure to
state a cause of action is different from failure to prove a cause of action. The
remedy in the first is to move for dismissal of the pleading, while the remedy in the
second is to demur to the evidence, hence reference to Sec. 5 of Rule 10 has been
eliminated in this section. The procedure would consequently be to require the
pleading to state a cause of action, by timely objection to its deficiency; or, at the
trial, to file a demurrer to evidence, if such motion is warranted.

A complaint states a cause of action if it avers the existence of the three

essential elements of a cause of action, namely:

(a) The legal right of the plaintiff;

 (b) The correlative obligation of the defendant; and

(c) The act or omission of the defendant in violation of said legal right.

If the allegations of the complaint do not aver the concurrence of these

elements, the complaint becomes vulnerable to a motion to dismiss on the ground of
failure to state a cause of action.Evidently, it is not the lack or absence of a cause of
action that is a ground for the dismissal of the complaint but the fact that the
complaint states no cause of action.Failure to state a cause of action may be raised
at the earliest stages of an action through a motion to dismiss, but lack of cause of
action may be raised at any time after the questions of fact have been resolved on
the basis of the stipulations, admissions, or evidence presented.[20]

Having found that neither Exhibit C nor Exhibit E was a proper demand to
vacate,[21] considering that Exhibit C (the respondents letter dated February 11,
1998)demanded the payment of P1,101,089.90, and Exhibit E (theirletter dated
January 21, 1999) demandedthe payment of P1,600,000.00, the RTC concluded that
the demand alleged in the complaint did not constitute a demand to pay rent and to
vacate the premises necessary in an action for unlawful detainer. It was this
conclusion that caused the RTC to confuse the defect as failure of the complaint to
state a cause of action for unlawful detainer.

The RTCerred even in that regard.

To begin with, it was undeniable that Exhibit D (the respondents letter dated
April 28, 1998) constitutedthedemand to vacate that validly supported their action
for unlawful detainer, because of its unmistakable tenor as a demand to vacate, which
the following portion indicates:[22]

This is to give notice that since the mortgage to your property has long expired
and that since the property is already in my name, I will be taking over the
occupancy of said property two (2) months from date of this letter.
 Exhibit D, despite not explicitly using the wordvacate, relayed to the
petitionerthe respondents desire to take over the possession of the property by
givingher no alternative exceptto vacate.The word vacate,according toGolden Gate
Realty Corporation v. Intermediate Appellate Court,[23]is not a talismanic word that
must be employed in all notices to vacate.The tenantsin Golden Gate Realty
Corporationhad defaulted in the payment of rents, leading theirlessorto notify them
to pay with a warning that a case of ejectment would be filed against themshould
they not do so. The Court held that the lessor had thereby given strong notice that
you either pay your unpaid rentals or I will file a court case to have you thrown out
of my property,for therewas no other interpretation of the import of the notice due
to the alternatives being clear cut, in that the tenants must pay rentals that had been
fixed and had become payable in the past, failing in which they must move out.[24]
Also, the demand not being to pay rent and to vacate did not render the cause
of action deficient. Based on the complaint, the petitioners possession was allegedly
based on the respondents tolerance, not on any contract between them. Hence,
thedemand to vacate sufficed.

C.
Ejectment was not proper due
to defense of ownership being established

The respondents cause of action for unlawful detainer was based on their
supposed right to possession resulting from their having acquired it through sale.

The RTCdismissed the complaint based on its following findings, to wit:

In the case at bench, there is conflict between the allegation of the complaint
and the document attached thereto.

Simply stated, plaintiff alleged that she bought the house of the defendant
for P100,000.00 on September 10, 1997 as stated in an alleged Deed of Absolute
Sale marked as Exhibit A to the complaint. Insofar as plaintiff is concerned, the
best evidence is the said Deed of Absolute Sale.

The Court is surprised why in plaintiffs letter dated February 11, 1998,
marked as Exhibit C and attached to the same complaint, she demanded from the
defendant the whooping sum ofP1,101,089.90. It must be remembered that this
letter was written five (5) months after the deed of absolute sale was executed.
 The same letter (Exhibit C) is not a letter of demand as contemplated by law
and jurisprudence. The plaintiff simply said that she will appreciate payment per
notarized document. There is no explanation what this document is.

Plaintiffs letter dated April 28, 1998 (Exhibit D) contradicts her allegation
that she purchased the house and lot mentioned in the complaint. Exhibit D, which
is part of the pleading and a judicial admission clearly shows that the house and lot
of the defendant was not sold but mortgaged.

Again, for purposes of emphasis and clarity, a portion of the letter (Exhibit
D) reads:

This is to give notice that since the mortgage to your property has
long expired and that since the property is already in my name, I will
be taking over the occupancy of said property two (2) months from
date of this letter.

x xxx

Exhibit E, which is a letter dated January 21, 1999, shows the real transaction
between the parties in their case. To reiterate, the consideration in the deed of sale
(Exhibit A) is P100,000.00 but in their letter (Exhibit E) she is already demanding
the sum of P1,600,000.00 because somebody was going to buy it
for P2,000,000.00.

There are indications that point out that the real transaction between the
parties is one of equitable mortgage and not sale.[25]

Despite holding herein that the respondents demand to vacate sufficed, we

uphold the result of the RTC decision in favor of the petitioner. This we do,because
therespondents Exhibit Cand Exhibit E, by demandingpayment from the petitioner,
respectively,of P1,101,089.90 and P1,600,000.00, revealedthe true nature of the
transaction involving the property in question as one of equitable mortgage, not a
sale.

Our upholding of the result reached by the RTC rests on the following
circumstancesthat tended to show that the petitioner had not really sold the property
to the respondents, contrary to the latters averments, namely:
 (a)The petitioner, as the vendor, was paid the amount of
only P100,000.00,[26] a price too inadequate in comparison with the
sum of P1,600,000.00 demanded in Exhibit E;[27]

(b) The petitioner retained possession of the property despite the

supposed sale; and

(c) The deed of sale wasexecuted as a result or by reason of the loan the
respondents extended to the petitioner,because they still allowed
the petitioner to redeem the property by paying her obligation
under the loan.[28]

Submissions of the petitioner further supported the findings of the RTCon the
equitable mortgage. Firstly, there was the earlier dated instrument (deed of pactode
retro)involving the same property, albeit the consideration was only P480,000.00,
executed between the petitioner as vendor a retro and the respondent Renato Zamora
as vendeea retro.[29] Secondly, there were two receipts for the payments the
petitioner had made to the respondentstotaling P300,000.00.[30] And, thirdly, the
former secretary of respondent Melba Zamora executed an affidavit acknowledging
that the petitioner had already paid a total of P500,000.00 to the respondents.[31] All
these confirmed the petitioners claim that she remained the owner of the property
and was still entitled to its possession.

Article 1602 of the Civil Codeenumerates the instances when a contract,

regardless of its nomenclature, may be presumed to be an equitable mortgage,
namely:

(a) When the price of a sale with right to repurchase is unusually

inadequate;

(b) When the vendor remains in possession as lessee or otherwise;

(c) When upon or after the expiration of the right to repurchase another
instrument extending the period of redemption or granting a new
period is executed;

(d)When the purchaser retains for himself a part of the purchase price;
 (e)When the vendor binds himself to pay the taxes on the thing sold;
and,

(f) In any other case where it may be fairly inferred that the real
intention of the parties is that the transaction shall secure the
payment of a debt or the performance of any other obligation.

The circumstances earlier mentioned were, indeed, badges of an equitable

mortgage within the context ofArticle 1602 of the Civil Code.

Nonetheless, the findingsfavorable to the petitioners ownership are

neitherfinally determinative of the title in the property, nor conclusive in any other
proceeding where ownership of the property involved herein may be more fittingly
adjudicated.Verily, where the cause of action in an ejectment suit is based on
ownership of the property, the defense that the defendantretainedtitle or ownership
is a proper subject for determination by the MTC but only for the purpose of
adjudicating the rightful possessor of the property.[32]This is based on Rule 70 of
the Rules of Court, viz:

Section 16. Resolving defense of ownership. When the defendant raises the
defense of ownership in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession.(4a)

D.
MTC committed procedural lapses
that must be noted and corrected

The Court seizes theopportunity to note and to correctseveralnoticeable

procedural lapses on the part of the MTCC, to avoid the impression that the Court
condones or tolerates the lapses.

The first lapse wasthe MTCCs granting of the respondents motion to declare
the petitioner in default following her failure to file an answer. The proper
procedurewas not for the plaintiffs to move for the declaration in default of the
defendant who failed to file the answer. Such a motion to declare in default has been
expressly prohibited under Section 13, Rule 70 of
theRules of Court.[33]Instead, the trial court, either motuproprio or on motion of the
plaintiff, should render judgment as the facts alleged in the complaint might
warrant.[34]In other words, the defendants failure to file an answer under Rule 70 of
the Rules of Courtmight result to a judgment by default, not to a declaration of
default.

The second lapse wasthe MTCCsreception of the oral testimony of respondent

Melba Zamora. Rule 70 of the Rules of Courthas envisioned the submission only of
affidavits of the witnesses (not oral testimony) and other proofs on the factual issues
defined in the order issued within five days from the termination of the preliminary
conference;[35]and has permittedthe trial court, should it find the need to clarify
material facts, to thereafterissue an order during the 30-day period from submission
of the affidavits and other proofs specifying the matters to be clarified, and requiring
the parties to submit affidavits or other evidence upon such matters within ten days
from receipt of the order.[36]

The procedural lapses committed in this case are beyond comprehension.The

MTCC judge could not have been unfamiliar with the prevailing procedure,
considering that therevised version of Rule 70, although taking effect only on July
1, 1997,was derived from the 1991 Revised Rule on Summary Procedure, in effect
since November 15, 1991. It was not likely, therefore, that the MTCC judge
committed the lapses out of his unfamiliarity with the relevant rule. We discern
thatthe cause of the lapses was his lack of enthusiasm in implementingcorrect
procedures in this case. If that was the true reason, the Court can only be alarmed
and concerned, for a judge should not lack enthusiasm in applying the rules of
procedure lest the worthy objectives of their promulgation be unwarrantedly
sacrificed and brushed aside. The MTCC judge should not forget that the rules of
procedure were always meant to be implemented deliberately, not casually, and their
non-compliance should only be excused in the higher interest of the administration
of justice.

It is timely, therefore, to remind all MTC judges to display full and

enthusiastic compliance with all the rules of procedure, especially those intended for
expediting proceedings.
 WHEREFORE,we grant the petition for review on certiorari; set aside the
decision promulgated on July 3, 2002 by the Court of Appeals; and dismiss the
complaint for unlawful detainer for lack of a cause of action.

The respondents shall pay the costs of suit.

SO ORDERED.

G.R. No. 93335 September 13, 1990

JUAN PONCE ENRILE, petitioner,

vs.
HON. OMAR U. AMIN, Presiding Judge of Regional Trial Court of Makati, Branch 135, HON.
IGNACIO M. CAPULONG, Presiding Judge of Regional Trial Court of Makati, Branch 134,
Pairing Judge, SPECIAL COMPOSITE TEAM of: Senior State Prosecutor AURELIO TRAMPE,
State Prosecutor FERDINAND ABESAMIS and Asst. City Prosecutor EULOGIO MANANQUIL;
and PEOPLE OF THE PHILIPPINES,respondents.

Ponce Enrile, Cayetano, Reyes & Manalastas Law Offices for petitioner.

GUTIERREZ, JR., J.:

Together with the filing of an information charging Senator Juan Ponce Enrile as having committed rebellion complexed with murder 1 with
the Regional Trial Court of Quezon City, government prosecutors filed another information charging him for violation of Presidential Decree
No. 1829 with the Regional Trial Court of Makati. The second information reads:

That on or about the 1st day of December 1989, at Dasmarias Village, Makati,
Metro Manila and within the jurisdiction of this Honorable Court, the above-named
accused, having reasonable ground to believe or suspect that Ex-Col. Gregorio
"Gringo" Honasan has committed a crime, did then and there unlawfully, feloniously,
willfully and knowingly obstruct, impede, frustrate or delay the apprehension of said
Ex. Lt. Col. Gregorio "Gringo" Honasan by harboring or concealing him in his house.

On March 2, 1990, the petitioner filed an Omnibus Motion (a) to hold in abeyance the issuance of a
warrant of arrest pending personal determination by the court of probable cause, and (b) to dismiss
the case and expunge the information from the record.

On March 16, 1990, respondent Judge Ignacio Capulong, as pairing judge of respondent Judge
Omar Amin, denied Senator Enrile's Omnibus motion on the basis of a finding that "there (was)
probable cause to hold the accused Juan Ponce Enrile liable for violation of PD No. 1829."
On March 21, 1990, the petitioner filed a Motion for Reconsideration and to Quash/Dismiss the
Information on the grounds that:

(a) The facts charged do not constitute an offense;

(b) The respondent court's finding of probable cause was devoid of factual and legal basis; and

(c) The pending charge of rebellion complexed with murder and frustrated murder against Senator
Enrile as alleged co-conspirator of Col. Honasan, on the basis of their alleged meeting on December
1, 1989 preclude the prosecution of the Senator for harboring or concealing the Colonel on the same
occasion under PD 1829.

On May 10, 1990, the respondent court issued an order denying the motion for reconsideration for
alleged lack of merit and setting Senator Enrile's arraignment to May 30, 1990.

The petitioner comes to this Court on certiorari imputing grave abuse of discretion amounting to lack
or excess of jurisdiction committed by the respondent court in refusing to quash/ dismiss the
information on the following grounds, to wit:

I. The facts charged do not constitute an offense;

II. The alleged harboring or concealing by Sen. Enrile of Col. Honasan in a supposed
meeting on 1 December 1989 is absorbed in, or is a component element of, the
"complexed" rebellion presently charged against Sen. Enrile as alleged co-
conspirator of Col. Honasan on the basis of the same meeting on 1 December 1989;

III. The orderly administration of Justice requires that there be only one prosecution
for all the component acts of rebellion;

IV. There is no probable cause to hold Sen. Enrile for trial for alleged violation of
Presidential Decree No. 1829;

V. No preliminary investigation was conducted for alleged violation of Presidential

Decree No. 1829. The preliminary investigation, held only for rebellion, was marred
by patent irregularities resulting in denial of due process.

On May 20, 1990 we issued a temporary restraining order enjoining the respondents from
conducting further proceedings in Criminal Case No. 90-777 until otherwise directed by this Court.

The pivotal issue in this case is whether or not the petitioner could be separately charged for
violation of PD No. 1829 notwithstanding the rebellion case earlier filed against him.

Respondent Judge Amin sustained the charge of violation of PD No. 1829 notwithstanding the
rebellion case filed against the petitioner on the theory that the former involves a special law while
the latter is based on the Revised Penal Code or a general law.

The resolution of the above issue brings us anew to the case of People v. Hernandez (99 Phil. 515
[1956]) the rulings of which were recently repeated in the petition for habeas corpus of Juan Ponce
Enrile v. Judge Salazar,(G.R. Nos. 92163 and 92164, June 5, 1990). The Enrile case gave this Court
the occasion to reiterate the long standing proscription against splitting the component offenses of
rebellion and subjecting them to separate prosecutions, a procedure reprobated in
the Hernandez case. This Court recently declared:

The rejection of both options shapes and determines the primary ruling of the Court,
which thatHernandez remains binding doctrine operating to prohibit the complexing
of rebellion with any other offense committed on the occasion thereof, either as a
means to its commission or as an unintended effect of an activity that commutes
rebellion. (Emphasis supplied)

This doctrine is applicable in the case at bar. If a person can not be charged with the complex crime
of rebellion for the greater penalty to be applied, neither can he be charged separately for two (2)
different offenses where one is a constitutive or component element or committed in furtherance of
rebellion.

The petitioner is presently charged with having violated PD No. 1829 particularly Section 1 (c) which
states:

SECTION 1. The penalty of prison correccional in its maximum period, or a fine

ranging from 1,000 to 6,000 pesos or both, shall be imposed upon any person who
knowingly or wilfully obstructs, impedes, frustrates or delays the apprehension of
suspects and the investigation and prosecution of criminal cases by committing any
of the following acts:

xxx xxx xxx

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has
reasonable ground to believe or suspect has committed any offense under existing
penal laws in order to prevent his arrest, prosecution and conviction.

xxx xxx xxx

The prosecution in this Makati case alleges that the petitioner entertained and accommodated Col.
Honasan by giving him food and comfort on December 1, 1989 in his house. Knowing that Colonel
Honasan is a fugitive from justice, Sen. Enrile allegedly did not do anything to have Honasan
arrested or apprehended. And because of such failure the petitioner prevented Col. Honasan's arrest
and conviction in violation of Section 1 (c) of PD No. 1829.

The rebellion charges filed against the petitioner in Quezon City were based on the affidavits
executed by three (3) employees of the Silahis International Hotel who stated that the fugitive Col.
Gregorio "Gringo" Honasan and some 100 rebel soldiers attended the mass and birthday party held
at the residence of the petitioner in the evening of December 1, 1989. The information (Annex "C", p.
3) particularly reads that on "or about 6:30 p.m., 1 December, 1989, Col. Gregorio "Gringo" Honasan
conferred with accused Senator Juan Ponce Enrile accompanied by about 100 fully armed rebel
soldiers wearing white armed patches". The prosecution thereby concluded that:

In such a situation, Sen. Enrile's talking with rebel leader Col. Gregorio "Gringo"
Honasan in his house in the presence of about 100 uniformed soldiers who were fully
armed, can be inferred that they were co-conspirators in the failed December
coup. (Annex A, Rollo, p. 65; Emphasis supplied)
As can be readily seen, the factual allegations supporting the rebellion charge constitute or include
the very incident which gave rise to the charge of the violation under Presidential Decree No. 1829.
Under the Department of Justice resolution (Annex A, Rollo, p. 49) there is only one crime of
rebellion complexed with murder and multiple frustrated murder but there could be 101 separate and
independent prosecutions for harboring and concealing" Honasan and 100 other armed rebels under
PD No. 1829. The splitting of component elements is readily apparent.

The petitioner is now facing charges of rebellion in conspiracy with the fugitive Col. Gringo Honasan.
Necessarily, being in conspiracy with Honasan, petitioners alleged act of harboring or concealing
was for no other purpose but in furtherance of the crime of rebellion thus constitute a component
thereof. it was motivated by the single intent or resolution to commit the crime of rebellion. As held
in People v. Hernandez, supra:

In short, political crimes are those directly aimed against the political order, as well as
such common crimes as may be committed to achieve a political purpose. The
decisive factor is the intent or motive.(p. 536)

The crime of rebellion consists of many acts. It is described as a vast movement of men and a
complex net of intrigues and plots. (People v. Almasan [CA] O.G. 1932). Jurisprudence tells us that
acts committed in furtherance of the rebellion though crimes in themselves are deemed absorbed in
the one single crime of rebellion. (People v. Geronimo, 100 Phil. 90 [1956]; People v. Santos, 104
Phil. 551 [1958]; People v. Rodriguez, 107 Phil. 659 [1960]; People v. Lava, 28 SCRA 72 [1969]). In
this case, the act of harboring or concealing Col. Honasan is clearly a mere component or ingredient
of rebellion or an act done in furtherance of the rebellion. It cannot therefore be made the basis of a
separate charge. The case of People v. Prieto 2 (80 Phil., 138 [1948]) is instructive:

In the nature of things, the giving of aid and comfort can only be accomplished by
some kind of action. Its very nature partakes of a deed or physical activity as
opposed to a mental operation. (Cramer v. U.S., ante) This deed or physical activity
may be, and often is, in itself a criminal offense under another penal statute or
provision. Even so, when the deed is charged as an element of treason it becomes
Identified with the latter crime and can not be the subject of a separate punishment,
or used in combination with treason to increase the penalty as article 48 of the
Revised Penal Code provides. Just as one can not be punished for possessing
opium in a prosecution for smoking the Identical drug, and a robber cannot be held
guilty of coercion or trespass to a dwelling in a prosecution for robbery, because
possession of opium and force and trespass are inherent in smoking and in robbery
respectively, so may not a defendant be made liable for murder as a separate crime
or in conjunction with another offense where, as in this case, it is averred as a
constitutive ingredient of treason.

The prosecution tries to distinguish by contending that harboring or concealing a fugitive is

punishable under a special law while the rebellion case is based on the Revised Penal Code; hence,
prosecution under one law will not bar a prosecution under the other. This argument is specious in
rebellion cases.

In the light of the Hernandez doctrine the prosecution's theory must fail. The rationale remains the
same. All crimes, whether punishable under a special law or general law, which are mere
components or ingredients, or committed in furtherance thereof, become absorbed in the crime of
rebellion and can not be isolated and charged as separate crimes in themselves. Thus:
 This does not detract, however, from the rule that the ingredients of a crime form part
and parcel thereof, and hence, are absorbed by the same and cannot be punished
either separately therefrom or by the application of Article 48 of the Revised Penal
Code. ... (People v. Hernandez, supra, at p. 528)

The Hernandez and other related cases mention common crimes as absorbed in the crime of
rebellion. These common crimes refer to all acts of violence such as murder, arson, robbery,
kidnapping etc. as provided in the Revised Penal Code. The attendant circumstances in the instant
case, however, constrain us to rule that the theory of absorption in rebellion cases must not confine
itself to common crimes but also to offenses under special laws which are perpetrated in furtherance
of the political offense.

The conversation and, therefore, alleged conspiring of Senator Ponce Enrile with Colonel Honasan
is too intimately tied up with his allegedly harboring and concealing Honasan for practically the same
act to form two separate crimes of rebellion and violation of PD No. 1829.

Clearly, the petitioner's alleged act of harboring or concealing which was based on his acts of
conspiring with Honasan was committed in connection with or in furtherance of rebellion and must
now be deemed as absorbed by, merged in, and Identified with the crime of rebellion punished in
Articles 134 and 135 of the RPC.

Thus, national, as well as international, laws and jurisprudence overwhelmingly favor

the proposition that common crimes, perpetrated in furtherance of a political offense,
are divested of their character as "common" offenses, and assume the political
complexion of the main crime of which they are mere ingredients, and
consequently, cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty. (People v.
Hernandez, supra, p. 541)

In People v. Elias Rodriguez, 107 Phil. 659 [1960], the accused, after having pleaded guilty and
convicted of the crime of rebellion, faced an independent prosecution for illegal possession of
firearms. The Court ruled:

An examination of the record, however, discloses that the crime with which the
accused is charged in the present case which is that of illegal possession of firearm
and ammunition is already absorbed as a necessary element or ingredient in the
crime of rebellion with which the same accused is charged with other persons in a
separate case and wherein he pleaded guilty and was convicted. (at page 662)

xxx xxx xxx

[T]he conclusion is inescapable that the crime with which the accused is charged in
the present case is already absorbed in the rebellion case and so to press it further
now would be to place him in double jeopardy. (at page 663)

Noteworthy is the recent case of Misolas v. Panga, (G.R. No. 83341, January 30, 1990) where the
Court had the occasion to pass upon a nearly similar issue. In this case, the petitioner Misolas, an
alleged member of the New Peoples Army (NPA), was charged with illegal possession of firearms
and ammunitions in furtherance of subversion under Section 1 of PD 1866. In his motion to quash
the information, the petitioner based his arguments on the Hernandez and Geronimo rulings on the
doctrine of absorption of common in rebellion. The Court, however, clarified, to wit:
 ... in the present case, petitioner is being charged specifically for the qualified offense
of illegal possession of firearms and ammunition under PD 1866. HE IS NOT BEING
CHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL
POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED
FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the
rulings of the Court in Hernandez, Geronimo and Rodriguez find no application in this
case.

The Court in the above case upheld the prosecution for illegal possession of firearms under PD 1866
because no separate prosecution for subversion or rebellion had been filed. 3 The prosecution must
make up its mind whether to charge Senator Ponce Enrile with rebellion alone or to drop the
rebellion case and charge him with murder and multiple frustrated murder and also violation of P.D.
1829. It cannot complex the rebellion with murder and multiple frustrated murder. Neither can it
prosecute him for rebellion in Quezon City and violation of PD 1829 in Makati. It should be noted that
there is in fact a separate prosecution for rebellion already filed with the Regional Trial Court of
Quezon City. In such a case, the independent prosecution under PD 1829 can not prosper.

As we have earlier mentioned, the intent or motive is a decisive factor. If Senator Ponce Enrile is not
charged with rebellion and he harbored or concealed Colonel Honasan simply because the latter is a
friend and former associate, the motive for the act is completely different. But if the act is committed
with political or social motives, that is in furtherance of rebellion, then it should be deemed to form
part of the crime of rebellion instead of being punished separately.

In view of the foregoing, the petitioner can not be tried separately under PD 1829 in addition to his
being prosecuted in the rebellion case. With this ruling, there is no need for the Court to pass upon
the other issues raised by the petitioner.

WHEREFORE, the petition is GRANTED. The Information in Criminal Case No. 90-777 is
QUASHED. The writ of preliminary injunction, enjoining respondent Judges and their successors in
Criminal Case No. 90-777, Regional Trial Court of Makati, from holding the arraignment of Sen. Juan
Ponce Enrile and from conducting further proceedings therein is made permanent.

SO ORDERED.

Narvasa, Melencio-Herrera, Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-
Aquino and Regalado, JJ., concur.

Medialdea, J., took no part.

Fernan, C.J. and Paras, J., are on leave.

G.R. No. 109266 December 2, 1993

MIRIAM DEFENSOR SANTIAGO, petitioner,

vs.
HON. JUSTICE FRANCIS GARCHITORENA, SANDIGANBAYAN (First Division) and PEOPLE
OF THE PHILIPPINES, respondents.

Amado M. Santiago, Jr. for petitioner.

The Solicitor General for the People of the Philippines.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside: (a) the
Resolution dated March 3, 1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice Francis
Garchitorena of the Sandiganbayan, disqualified from acting in said criminal case; and (b) the
Resolution of said court promulgated on
March 14, 1993, which deemed as "filed" the 32 Amended Informations against petitioner (Rollo, pp.
2-35 and pp. 36-94).

On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of the Sandiganbayan with
violation of Section 3(e) of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, allegedly committed by her favoring "unqualified" aliens with the benefits of
the Alien Legalization Program (Rollo, p. 36).

On May 24, 1991, petitioner filed with us a petition for certiorari and prohibition, docketed as G.R.
No. 99289-99290 (Santiago v. Vasquez, 205 SCRA 162 [1992]), to enjoin the Sandiganbayan from
proceeding with Criminal Case No. 16698 on the ground that said case was intended solely to
harass her as she was then a presidential candidate. She alleged that this was in violation of Section
10, Article IX-C of the Constitution which provides that "(b)ona fide candidates for any public office
shall be free from any form of harassment and discrimination." The petition was dismissed on
January 13, 1992.

On October 16, 1992, petitioner filed a motion for inhibition of Presiding Justice Garchitorena, which
motion was set for hearing on November 13, 1992 at 8:00 A.M. (Rollo, pp. 38-41).

On October 27, 1992, the Sandiganbayan (First Division), of which Presiding Justice Garchitorena is
a member, set the criminal case for arraignment on November 13, 1992 at 8:00 A.M. (Rollo, p. 42)

On November 6, 1992, petitioner moved to defer the arraignment on the grounds that there was a
pending motion for inhibition, and that petitioner intended to file a motion for a bill of particulars
(Rollo, pp. 43-44).

On November 9, 1992, the Sandiganbayan (First Division) denied the motion to defer the
arraignment (Rollo, p. 45).

On November 10, 1992, petitioner filed a motion for a bill of particulars (Rollo, pp. 47-48). The
motion stated that while the information alleged that petitioner had approved the application or
legalization of "aliens" and gave them indirect benefits and advantages it lacked a list of the favored
aliens. According to petitioner, unless she was furnished with the names and identities of the aliens,
she could not properly plead and prepare for trial.

On November 12, 1992 and upon motion of petitioner in G.R.

No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we directed the Sandiganbayan
(First Division) to reset the arraignment to a later date and to dispose of the two incidents pending
before it (Re: disqualification of Presiding Justice Garchitorena and the motion for the bill of
particulars).
At the hearing on November 13, 1992 on the motion for a bill of particulars, the prosecution stated
categorically that they would file only one amended information against petitioner.

However, on December 8, 1992, the prosecution filed a motion to

admit the 32 Amended Informations (Criminal Cases Nos. 18371 to 18402; Rollo, pp. 61-126).

On March 3, 1993, Presiding Justice Garchitorena issued the questioned Resolution dated March
11, 1993, denying the motion for his disqualification (Rollo, pp. 151-164).

On March 14, 1993, the Sandiganbayan (First Division) promulgated a resolution, admitting the 32
Amended Informations and ordering petitioner to post the corresponding bail bonds within ten days
from notice (Rollo, pp. 165-185). Petitioner's arraignment on the 32 Amended Informations was set
for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).

Hence, the filing of the instant petition.

Acting on the petition for the issuance of a restraining order, we issued the Resolution dated March
25, 1993, ordering Presiding Justice Garchitorena "to CEASE and DESIST from sitting in the case
until the question of his disqualification is finally resolved by this Court and from enforcing the
resolution dated March 11, 1993, ordering petitioner to post bail bonds for the 32 Amended
Informations and from proceeding with the arraignment on
April 12, 1993" (Rollo, p. 194).

Re: Disqualification of the Sandiganbayan Presiding Justice

The petition for disqualification of Presiding Justice Garchitorena is based on the publication of is
letter in the July 29, 1992 issue of the Philippine Star, which to petitioner "prejudged" the validity of
the information filed
against her. Petitioner claims that Presiding Justice Garchitorena "cannot be expected to change the
conclusions he has subconsciously drawn in his public statements . . . when he sits in judgment on
the merits of the case . . ." (Rollo, pp. 16-17).

The letter in question was written in response to an item in Teodoro Benigno's column in the July 22,
1992 issue of the Philippine Star, criticizing the Sandiganbayan for issuing on July 11, 1992 a hold-
departure order against petitioner. Benigno wrote that said order reflected a "perverse morality" of
the Sandiganbayan and the lack of "legal morality" of its Presiding Justice, thus:

I cannot, for example accept the legal morality of Sandiganbayan Justice Francis
Garchitorena who would stop Miriam Defensor Santiago from going abroad for a
Harvard scholarship because of graft charges against her. Some of the most
perfidious Filipinos I know have come and gone, left and returned to these shores
without Mr. Garchitorena kicking any kind of rumpus. Compared to the peccadilloes
of this country's outstanding felons, what Miriam is accused of is kindergarten stuff.
The Sandiganbayan Supremo got a lot of headlines for stopping Miriam but I contend
this is the kind of perverse morality we can do without (Rollo, p. 156).

The portion of the letter of Presiding Justice Garchitorena, which petitioner finds objectionable, reads
as follows:
 (c) Mrs. Santiago has never informed any court where her cases are pending of her
intention to travel, whether the Regional Trial Court where she is charged with
soliciting donations from people transacting with her office at Immigration or before
the Sandiganbayan where she is charged with having favored unqualified aliens with
the benefits of the Alien Legalization Program nor even the Supreme Court where
her petition is still pending (Rollo, p. 158).

In particular, petitioner considered as prejudgment the statement of Presiding Justice Garchitorena

that petitioner had been charged before the Sandiganbayan "with having favored unqualified aliens
with the benefits of the Alien Legalization Program."

The statement complained of was just a restatement of the Information filed against petitioner in
Criminal Case No. 16698 in connection with which the hold-departure order was issued. Said
Information specified the act constituting the offense charged, thus:

That on or about October 17, 1988, or for sometime prior or subsequent thereto, in
Manila, Philippines, and within the jurisdiction of this Honorable Court, accused
Miriam Defensor-Santiago, being then the Commissioner of the Commission on
Immigration and Deportation, with evident bad faith and manifest partiality, did then
and there willfully, unlawfully and criminally approve the application for legalization of
aliens who arrived in the Philippines after January 1, 1984 in violation of Executive
Order No. 324 dated April 13, 1988 which does not allow the legalization of the
same, thereby causing undue injury to the government and giving unwarranted
benefits and advantages to said aliens in the discharge of the official and
administrative functions of said accused (Rollo, p. 36).

It appears that petitioner tried to leave the country without first securing the permission of the
Sandiganbayan, prompting it to issue the hold-departure order which Benigno viewed as uncalled
for. The letter of Presiding Justice Garchitorena, written in defense of the dignity and integrity of the
Sandiganbayan, merely stated that all persons facing criminal charges in court, with no exception,
have to secure permission to leave the country. Nowhere in the letter is the merit of the charge
against petitioner ever touched. Certainly, there would have been no occasion for the letter had
Benigno not written his diatribe, unfair at that, against the Sandiganbayan.

Notwithstanding petitioner's misgiving, it should be taken into consideration that the Sandiganbayan
sits in three divisions with three justices in each division. Unanimity among the three members is
mandatory for arriving at any decision of a division (P.D. No. 1606, Sec. 5). The collegiate character
of the Sandiganbayan thus renders baseless petitioner's fear of prejudice and bias on the part of
Presiding Justice Garchitorena (Paredes v. Gopengco, 29 SCRA 688 [1969] ).

Re: Claim of denial of due process

Petitioner cannot complain that her constitutional rights to due process were violated by reason of
the delay in the termination of the preliminary investigation. According to her, while the offense was
allegedly committed "on or before October 17, 1988", the information was filed only on May 9, 1991
and the amended informations on December 8, 1992 (Rollo, p. 14).

Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there
indeed was an unexplained inaction on the part of the public prosecutors inspite of the simplicity of
the legal and factual issues involved therein.
In the case at bench, there was a continuum of the investigatory process but it got snarled because
of the complexity of the issues involved. The act complained of in the original information came to
the attention of the Ombudsman only when it was first reported in the January 10, 1989 issue of
the Manila Standard. Immediately thereafter, the investigatory process was set in motion. The
investigation was first assigned to Special Prosecutor Gualberto dela Llana but on request of
petitioner herself the investigation was first assigned to Special Prosecutor Gualberto dela Llana but
on request of petitioner herself the investigation was re-assigned to the Office of the Deputy
Ombudsman for Luzon. The case was handled by a panel of four prosecutors, who submitted a draft
resolution for the filing of the charges on March 29, 1990. The draft resolution had to undergo the
hierarchy of review, normal for a draft resolution with a dissenting vote, until it reached the
Ombudsman in March 1991.

We note that petitioner had previously filed two petitions before us involving Criminal Case No.
16698 (G.R. Nos. 99289-99290; G.R.
No. 107598). Petitioner has not explained why she failed to raise the issue of delay in the preliminary
investigation and the filing of the information against her in those petitions. a piece-meal
presentation of issues, like the splitting of causes of action, is self-defeating.

Petitioner next claims that the Amended Informations did not charge any offense punishable under
Section 3 (e) of R.A. No. 3019 because the official acts complained of therein were authorized under
Executive Order No. 324 and that the Board of Commissioners of the Bureau of Investigation
adopted the policy of approving applications for legalization of spouses and unmarried, minor
children of "qualified aliens" even though they had arrived in the Philippines after December 31,
1983. she concludes that the Sandiganbayan erred in not granting her motion to quash the
informations (Rollo, pp. 25-31).

In a motion to quash, the accused admits hypothetically the allegations of fact in the information
(People v. Supnad, 7 SCRA 603 [1963] ). Therefore, petitioner admitted hypothetically in her motion
that:

(1) She was a public officer;

(2) She approved the application for legalization of the stay of aliens, who arrived in
the Philippines after January 1, 1984;

(3) Those aliens were disqualified;

(4) She was cognizant of such fact; and

(5) She acted in "evident bad faith and manifest partiality in the execution of her
official functions."

The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of
R.A. No. 3019.

The claims that the acts complained of were indeed authorized under Executive Order No. 324, that
petitioner merely followed in good faith the policy adopted by the Board of Commissioners and that
the aliens were spouses or unmarried minor children of persons qualified for legalization of stay, are
matters of defense which she can establish at the trial.
Anent petitioner's claim that the Amended Informations did not allege that she had caused "undue
injury to any party, including the Government," there are two ways of violating Section 3 (e) of R.A.
No. 3019. These are: (a) by causing undue injury to any party, including the Government; and (b) by
giving any private party any unwarranted benefit, advantage or preference.

In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:

The use of the distinctive term "or" connotes that either act qualifies as a violation of
Section 3 (a). In other words the act of giving any private party any unwarranted
benefit, advantage or preference is not an indispensable element of the offense of
"causing any undue injury to any party" as claimed by petitioners although there may
be instances where both elements concur.

Re: Delito continuado

Be that as it may, our attention was attracted by the allegation in the petition that the public
prosecutors filed 32 Amended Informations against petitioner, after manifesting to the
Sandiganbayan that they would only file one amended information (Rollo, pp. 6-61). We also noted
that petitioner questioned in her opposition to the motion to admit the 32 Amended Informations, the
splitting of the original information (Rollo, pp. 127-129). In the furtherance of justice, we therefore
proceed to inquire deeper into the validity of said plant, which petitioner failed to pursue with vigor in
her petition.

We find that, technically, there was only one crime that was committed in petitioner's case, and
hence, there should only be one information to be file against her.

The 32 Amended Informations charge what is known as delito continuado or "continued crime" and
sometimes referred to as "continuous crime."

In fairness to the Ombudsman's Office of the Special Prosecutor, it should be borne in mind that the
concept ofdelito continuado has been a vexing problem in Criminal Law difficult as it is to define
and more difficult to apply.

According to Cuello Calon, for delito continuado to exist there should be a plurality of acts performed
during a period of time; unity of penal provision violated; and unity of criminal intent or purpose,
which means that two or more violations of the same penal provisions are united in one and same
instant or resolution leading to the perpetration of the same criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).

According to Guevarra, in appearance, a delito continuado consists of several crimes but in reality
there is only one crime in the mind of the perpetrator (Commentaries on the Revised Penal Code,
1957 ed., p. 102; Penal Science and Philippine Criminal Law, p. 152).

Padilla views such offense as consisting of a series of acts arising from one criminal intent or
resolution (Criminal Law, 1988 ed. pp. 53-54).

Applying the concept of delito continuado, we treated as constituting only one offense the following
cases:
 (1) The theft of 13 cows belonging to two different owners committed by the accused
at the same time and at the same period of time (People v. Tumlos, 67 Phil. 320
[1939] ).

(2) The theft of six roosters belonging to two different owners from the same coop
and at the same period of time (People v. Jaranillo, 55 SCRA 563 [1974] ).

(3) The theft of two roosters in the same place and on the same occasion (People v.
De Leon, 49 Phil. 437 [1926] ).

(4) The illegal charging of fees for services rendered by a lawyer every time he
collects veteran's benefits on behalf of a client, who agreed that the attorney's fees
shall be paid out of said benefits (People v. Sabbun, 10 SCRA 156 [1964] ). The
collection of the legal fees were impelled by the same motive, that of collecting fees
for services rendered, and all acts of collection were made under the same criminal
impulse (People v. Lawas, 97 Phil. 975 [1955] ).

On the other hand, we declined to apply the concept to the following cases:

(1) Two estafa cases, one of which was committed during the period from January 19
to December 1955 and the other from January 1956 to July 1956 (People v. Dichupa,
113 Phil. 306 [1961] ). The said acts were committed on two different occasions.

(2) Several malversations committed in May, June and July, 1936, and falsifications
to conceal said offenses committed in August and October 1936. The malversations
and falsifications "were not the result of only one purpose or of only one resolution to
embezzle and falsify . . ." (People v. Cid, 66 Phil. 354 [1938] ).

(3) Two estafa cases, one committed in December 1963 involving the failure of the
collector to turn over the installments for a radio and the other in June 1964 involving
the pocketing of the installments for a sewing machine (People v. Ledesma, 73
SCRA 77 [1976] ).

(4) 75 estafa cases committed by the conversion by the agent of collections from
customers of the employer made on different dates (Gamboa v. Court of Appeals, 68
SCRA 308 [1975]).

The concept of delito continuado, although an outcry of the Spanish Penal Code, has been applied
to crimes penalized under special laws,
e.g. violation of R.A. No. 145 penalizing the charging of fees for services rendered following up
claims for war veteran's benefits (People v. Sabbun, 10 SCRA 156 [1964] ).

Under Article 10 of the Revised Penal Code, the Code shall be supplementary to special laws,
unless the latter provide the contrary. Hence, legal principles developed from the Penal Code may
be applied in a supplementary capacity to crimes punished under special laws.

The question of whether a series of criminal acts over a period of time creates a single offense or
separate offenses has troubled also American Criminal Law and perplexed American courts as
shown by the several theories that have evolved in theft cases.
The trend in theft cases is to follow the so-called "single larceny" doctrine, that is, the taking of
several things, whether belonging to the same or different owners, at the same time and place
constitutes but one larceny. Many courts have abandoned the "separate larceny doctrine," under
which there is a distinct larceny as to the property of each victim. Also abandoned was the doctrine
that the government has the discretion to prosecute the accused or one offense or for as many
distinct offenses as there are victims (annotation, 37 ALR 3rd 1407, 1410-1414).

The American courts following the "single larceny" rule, look at the commission of the different
criminal acts as but one continuous act involving the same "transaction" or as done on the same
"occasion" (State v. Sampson, 157 Iowa 257, 138 NW 473; People v. Johnson, 81 Mich. 573, 45 NW
1119; State v. Larson, 85 Iowa 659, 52 NW 539).

An American court held that a contrary rule would violate the constitutional guarantee against putting
a man in jeopardy twice for the same offense (Annotation, 28 ALR 2d 1179). Another court observed
that the doctrine is a humane rule, since if a separate charge could be filed for each act, the accused
may be sentenced to the penitentiary for the rest of his life (Annotation, 28 ALR 2d 1179).

In the case at bench, the original information charged petitioner with performing a single criminal act
that of her approving the application for legalization of aliens not qualified under the law to enjoy
such privilege.

The original information also averred that the criminal act : (i) committed by petitioner was in
violation of a law Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one offended party, the Government, and (iii) was done
on a single day, i.e., on or about October 17, 1988.

The 32 Amended Informations reproduced verbatim the allegation of the original information, except
that instead of the word "aliens" in the original information each amended information states the
name of the individual whose stay was legalized.

At the hearing of the motion for a bill of particulars, the public prosecutors manifested that they
would file only one amended information embodying the legalization of stay of the 32 aliens. As
stated in the Order dated November 12, 1992 of the Sandiganbayan (First Division):

On the matter of the Bill of Particulars, the prosecution has conceded categorically
that the accusation against Miriam Defensor Santiago consists of one violation of the
law represented by the approval of the applications of 32 foreign nationals for
availment (sic) of the Alien Legalization Program. In this respect, and responding
directly to the concerns of the accused through counsel, the prosecution is
categorical that there will not be 32 accusations but only one . . . (Rollo, p. 59).

The 32 Amended Informations aver that the offenses were committed on the same period of
time, i.e., on or about October 17, 1988. The strong probability even exists that the approval of the
application or the legalization of the stay of the 32 aliens was done by a single stroke of the pen, as
when the approval was embodied in the same document.

Likewise, the public prosecutors manifested at the hearing the motion for a bill of particulars that the
Government suffered a single harm or injury. The Sandiganbayan in its Order dated November 13,
1992 stated as follows:

. . . Equally, the prosecution has stated that insofar as the damage and prejudice to
the government is concerned, the same is represented not only by the very fact of
 the violation of the law itself but because of the adverse effect on the stability and
security of the country in granting citizenship to those not qualified (Rollo, p. 59).

WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No. 16698 of the
Sandiganbayan (First Division) is AFFIRMED and its Resolution dated March 11, 1993 in Criminal
Case No. 16698 is MODIFIED in the sense that the Office of the Special Prosecutor of the Office of
the Ombudsman is directed to consolidate the 32 Amended Informations (Criminal Cases Nos.
18371 to 18402) into one information charging only one offense under the original case number, i.e.,
No. 16698. The temporary restraining order issued by this Court on March 25, 1993 is LIFTED
insofar as to the disqualification of Presiding Justice Francis Garchitorena is concerned.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Regalado, Davide, Jr., Nocon, Bellosillo, Melo and Puno, JJ.,
concur.

PROMULGATION

G.R. No. 179611 March 12, 2013

EFREN S. ALMUETE, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

DEL CASTILLO, J.:

Section 6,1 Rule 120 of the 1985 Rules on Criminal Procedure allows promulgation of judgment in
absentia and gives the accused a period of fifteen (15) days from notice to him or his counsel within
which to appeal; otherwise, the decision becomes final.2

This Petition for Review on Certiorari3 under Rule 45 of the Rules of Court assails the May 4, 2007
Resolution4and the September 4, 2007 Resolution5 of the Court of Appeals (CA) in CA-G.R. SP No.
98502.

Factual Antecedents

This case is an offshoot of People v. Court of Appeals,6 docketed as G.R. No. 144332 and
promulgated on June 10, 2004.

Efren D. Almuete (petitioner), Johnny Ila (Ila) and Joel Lloren (Lloren) were charged before the
Regional Trial Court (RTC) of Nueva Vizcaya, Branch 27, with violation of Section 687 of Presidential
Decree (P.D.) No. 705, otherwise known as the "Revised Forestry Code of the Philippines," as
amended by Executive Order (E.O.) No. 277,8 docketed as Criminal Case No. 2672.9

On the scheduled date of promulgation of judgment, petitioners counsel informed the trial court that
petitioner and Lloren were ill while Ila was not notified of the scheduled promulgation.10 The RTC,
however, found their absence inexcusable and proceeded to promulgate its Decision as
scheduled.11 The dispositive portion of the September 8, 1998 Decision reads:

WHEREFORE, finding the accused, namely, Efren S. Almuete, Johnny Ila y Ramel and Joel Lloren y
dela Cruz GUILTY beyond reasonable doubt of violation of Section 68, P.D. No. 705, as amended,
they are each sentenced to suffer the penalty of 18 years, 2 months and 21 days of reclusion
temporal, as minimum period to 40 years of reclusion perpetua as maximum period. Costs against
the said accused.

SO ORDERED.12

Accordingly, the RTC cancelled the bail bonds of petitioner, Ila and Lloren13 and issued warrants of
arrest against them.14

Petitioner and his co-accused moved for reconsideration, questioning the validity of the
promulgation, the factual and legal bases of their conviction, and the correctness of the penalty
imposed.15

On October 12, 1998, the RTC denied their motion for lack of merit.16

Instead of filing an appeal, petitioner and his co-accused filed a Petition for Certiorari, docketed as
CA-G.R. SP No. 49953, with the CA.17

On May 19, 2000, the CA granted the Petition and disposed of the case in this wise:

WHEREFORE, premises considered, the present petition is hereby GRANTED. On the basis of the
evidence on record, accused Efren S. Almuete should be, as he is hereby ACQUITTED of the
charge against him.

The court a quo is ORDERED to re-promulgate the decision in the presence of the accused Ila and
Lloren, duly assisted by counsel of their own choice, after notice and allow them to appeal. Let the
complete records of this case be remanded to the court a quo.

SO ORDERED.18

The acquittal of petitioner prompted the People of the Philippines to elevate the case to this Court
via a Petition for Review on Certiorari under Rule 45 of the Rules of Court, docketed as G.R. No.
144332.

On June 10, 2004, this Court reversed petitioners acquittal and reinstated the RTCs September 8,
1998 Decision and its October 12, 1998 Order, to wit:

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision and
resolution of the Court of Appeals are REVERSED AND SET ASIDE. The Decision of the Regional
Trial Court dated September 8, 1998 and its Order dated October 12, 1998 are REINSTATED. No
costs.
SO ORDERED.19

Aggrieved, petitioner moved for reconsideration but his motion was denied by this Court in a
Resolution dated January 17, 2005.20

On February 15, 2005, this Court issued an Entry of Judgment.21

Unfazed, petitioner filed a second and a third Motion for Reconsideration, which were denied by this
Court in its March 28, 2005 and November 9, 2005 Resolutions, respectively.22

Petitioner then filed a Motion for Clarification23 on whether he could still appeal the RTCs September
8, 1998 Decision. This Court noted without action his Motion for Clarification in its July 26, 2006
Resolution.24

On December 13, 2006, petitioner filed with the RTC a Motion for Repromulgation25 of the
September 8, 1998 Decision.

Ruling of the Regional Trial Court

The RTC, in its January 17, 2007 Order,26 denied the Motion for Repromulgation.

Petitioner sought reconsideration but the RTC denied the same in its February 20, 2007 Order.27

Ruling of the Court of Appeals

Imputing grave abuse of discretion on the part of the RTC, petitioner filed a Petition for
Certiorari28 with the CA. On May 4, 2007, the CA rendered its Resolution29 which dismissed the
Petition for lack of merit.

Petitioners Motion for Reconsideration30 was likewise denied by the CA in its September 4, 2007
Resolution.31

Issues

Hence, this recourse, with petitioner raising the following issues:

1. Whether x x x the Decision of the RTC convicting petitioner Almuete of the charge against
him passed the requisite conviction beyond reasonable doubt.

2. Whether x x x the promulgation of the Decision of the RTC convicting the petitioner was
valid despite the absence of the petitioner and regardless of petitioners intention to be
present at the promulgation of the Decision.

3. Whether x x x the Honorable CA committed grave abuse of discretion when it acquitted

petitioner Almuete in a Petition for Certiorari under Rule 65 of the Rules of Court.

4. Whether x x x the judgment of acquittal by the Honorable CA bars further proceedings and
that to do so would constitute a violation of petitioners constitutional right against double
jeopardy.
 5. Whether x x x the denial of the RTC of petitioners motion for re-promulgation is in order,
the denial being based on an inappropriate

Administrative Order of this Honorable Supreme Court (Administrative Order No. 16-93).32

Petitioners Arguments

Petitioner maintains his innocence and asserts that he was wrongly convicted by the RTC because
his guilt was not proven beyond reasonable doubt.33 He argues that his conviction was based on
circumstantial and hearsay evidence as he was convicted only because he owns the truck
containing the lumber.34 Thus, he contends that his earlier acquittal by the CA was proper,35 and that
his acquittal can no longer be assailed without violating the principle of double jeopardy.36

Petitioner likewise assails the validity of the promulgation of the judgment against him since it was
made in his absence.37 He insists that he had a valid reason for not attending the promulgation of the
judgment as he was suffering from stress, anxiety, and some physiological disturbance, and thus,
was advised to rest.38 He also claims that the RTCs denial of his Motion for Repromulgation was not
proper.39 Hence, a repromulgation of the judgment should be made to allow him to avail of his right
to appeal.40

Respondents Arguments

The Solicitor General, on behalf of the People, contends that the issues and arguments raised by
petitioner may no longer be entertained as these have been addressed in People v. Court of
Appeals,41 which is already the "law of the case."42 He likewise points out that the promulgation of
judgment in absentia is allowed under Section 643 of Rule 120 of the 1985 Rules of Criminal
Procedure,44 and that the denial of petitioners Motion for Repromulgation of the September 8, 1998
Decision is proper as the same is in accordance with Administrative Circular No. 16-93.45

As to petitioners right to appeal, respondent opines that petitioners right has prescribed,46 as the
same should have been filed within 15 days from the time he or his counsel received a copy of the
September 8, 1998 Decision instead of filing a Petition for Certiorari with the CA.47

However, notwithstanding the finality of petitioners conviction, respondent recommends that the
penalty be modified by reducing the same to six (6) years and one (1) day to ten (10) years in
accordance with the Indeterminate Sentence Law (ISL).48

Our Ruling

The petition lacks merit.

The denial of the Motion for
Repromulgation is in accordance with
Administrative Circular No. 16-93

Administrative Circular No. 16-93, issued on September 9, 1993, provides that:

TO: ALL JUDGES OF THE REGIONAL TRIAL COURTS, METROPOLITAN TRIAL COURTS,
MUNICIPAL TRIAL COURTS, AND MUNICIPAL CIRCUIT TRIAL COURTS

RE: PROCEDURE AFTER AFFIRMANCE OR MODIFICATION BY SUPREME COURT OR COURT

OF APPEALS OF JUDGMENTS OF CONVICTION IN CRIMINAL CASES
To ensure uniformity in the procedure to be observed by the trial courts in criminal cases after their
judgments of conviction shall have been affirmed or modified by the Supreme Court or the Court of
Appeals, attention is invited to the decisional and statutory guidelines set out hereunder.

1. The procedure for the promulgation of judgments in the trial courts in criminal cases, differs from
that prescribed for the Supreme Court and the Court of Appeals where promulgation is effected by
filing the signed copy of the judgment with the Clerk of Court who causes true copies thereof to be
served upon the parties. The procedural consequence of this distinction was reiterated in Jesus
Alvarado, etc. vs. The Director of Prisons, to wit:

By sections 8 and 9 of Rule 53 (now Sections 10 and 11 of Rule 51) in relation to section 17 of Rule
120 (now Section 17 of Rule 124), a judgment is entered 15 days after its promulgation, and 10 days
thereafter, the records are remanded to the court below including a certified copy of the judgment for
execution.

In the case of People vs. Sumilang (44 Off. Gaz., 881, 883; 77 Phil. 764), it was explained that "the
certified copy of the judgment is sent by the clerk of the appellate court to the lower court under
section 9 of rule 53, not for the promulgation or reading thereof to the defendant, but for the
execution of the judgment against him," it "not being necessary to promulgate or read it to the
defendant, because it is to be presumed that accused or his attorney had already been notified
thereof in accordance with sections 7 and 8, as amended, of the same Rules 53 (now sections 9 and
10 of Rule 51)," and that the duty of the court of first instance in respect to such judgment is merely
to see that it is duly executed when in their nature the intervention of the court of first instance is
necessary to that end.

2. The practice of requiring the convict to appear before the trial court for "promulgation" of the
judgment of the appellate court should, therefore, be immediately discontinued. It is not only an
unauthorized surplusage entailing unnecessary expense, but it could also create security problems
where the convict was already under detention during the pendency of the appeal, and the place of
confinement is at some distance from the station of the court. Upon receipt of the certified copy of
the judgment of the appellate court if the convict is under detention, the trial court should issue
forthwith the corresponding mittimus or commitment order so that the prisoner may be considered
remitted or may be transferred to the corresponding prison facility for confinement and service of
sentence. When the convict is out on bail, the trial court shall immediately order the bondsman to
surrender the convict to it within ten (10) days from notice and thereafter issue the corresponding
mittimus. In both cases, the trial court shall submit to this Court proof of the execution of judgment
within fifteen (15) days from date of such execution. (Emphasis supplied)

xxxx

It is clear from the foregoing that the practice of requiring convicts to appear before the trial courts
for promulgation of the affirmance or modification by this Court or the CA of judgments of conviction
in criminal cases is no longer allowed. Hence, we find no error on the part of the RTC in denying the
Motion for Repromulgation of the RTCs September 8, 1998 Decision which was reinstated in People
v. Court of Appeals.49

The promulgation of judgment is valid.

Petitioners attempt to assail the validity of the promulgation of the RTCs September 8, 1998
Decision must likewise fail as this has already been addressed by this Court in People v. Court of
Appeals.50 As this Court has explained, there was no reason to postpone the promulgation because
petitioners absence was unjustifiable.51Hence, no abuse of discretion could be attributed to the RTC
in promulgating its Decision despite the absence of petitioner.52

It bears stressing that the June 10, 2004 Decision of this Court has attained finality. In fact, an Entry
of Judgment was made by this Court on February 15, 2005.

Petitioners right to appeal has prescribed.

As to whether petitioner may still appeal the RTCs September 8, 1998 Decision, we rule in the
negative.

In People v. Court of Appeals,53 this Court reversed petitioners acquittal by the CA as it was made
with grave abuse of discretion. This Court explained that an acquittal via a Petition for Certiorari is
not allowed because "the authority to review perceived errors of the trial court in the exercise of its
judgment and discretion x x x are correctible only by appeal by writ of error."54 Thus, in filing a
Petition for Certiorari instead of an appeal, petitioner availed of the wrong remedy. Thus:

In this case, the RTC rendered judgment finding all the accused, respondents herein, guilty of the
crime charged based on the evidence on record and the law involved, and sentenced them to suffer
the penalty of imprisonment as provided for in P.D. No. 705, in relation to Articles 304 and 305 of the
Revised Penal Code. They had a plain, speedy and adequate remedy at law to overturn the decision
as, in fact, they even filed a motion for reconsideration of the decision on its merits, and for the
nullification of the promulgation of the said decision. Upon the trial courts denial of their motion for
reconsideration, the petitioners had the right to appeal, by writ of error, from the decision on its
merits on questions of facts and of law. The appeal of the petitioners in due course was a plain,
speedy and adequate remedy. In such appeal, the petitioners could question the findings of facts of
the trial court, its conclusions based on the said findings, as well as the penalty imposed by the
court. It bears stressing that an appeal in a criminal case throws the whole case open for review and
that the appellate court can reverse any errors of the trial court, whether assigned or unassigned,
found in its judgment. However, instead of appealing the decision by writ of error, the respondents
filed their petition for certiorari with the CA assailing the decision of the trial court on its merits. They
questioned their conviction and the penalty imposed on them, alleging that the prosecution failed to
prove their guilt for the crime charged, the evidence against them being merely hearsay and based
on mere inferences. In fine, the respondents alleged mere errors of judgment of the trial court in their
petition. It behooved the appellate court to have dismissed the petition, instead of giving it due
course and granting it.

The CA reviewed the trial courts assessment of the evidence on record, its findings of facts, and its
conclusions based on the said findings. The CA forthwith concluded that the said evidence was
utterly insufficient on which to anchor a judgment of conviction, and acquitted respondent Almuete of
the crime charged.

The appellate court acted with grave abuse of its discretion when it ventured beyond the sphere of
its authority and arrogated unto itself, in the certiorari proceedings, the authority to review perceived
errors of the trial court in the exercise of its judgment and discretion, which are correctible only by
appeal by writ of error. Consequently, the decision of the CA acquitting respondent Almuete of the
crime charged is a nullity. If a court is authorized by statute to entertain jurisdiction in a particular
case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no
application, the judgment rendered is void. The lack of statutory authority to make a particular
judgment is akin to lack of subject-matter jurisdiction. In this case, the CA is authorized to entertain
and resolve only errors of jurisdiction and not errors of judgment.
A void judgment has no legal and binding effect, force or efficacy for any purpose. In contemplation
of law, it is non-existent. It cannot impair or create rights; nor can any right be based on it. Thus,
respondent Almuete cannot base his claim of double jeopardy on the appellate courts
decision.55 (Emphasis supplied)

Clearly, petitioners right to appeal the RTCs September 8, 1998 Decision has long prescribed.
Consequently, the said Decision is no longer open to an appeal.

The penalty imposed must be modified.

Nonetheless, we agree with the suggestion of the Office of the Solicitor General that the penalty
imposed by the RTC in its September 8, 1998 Decision must be modified. Concededly, this case is
an offshoot of G.R. No. 144332 which the Court decided on June 10, 2004 which found grave abuse
of discretion on the part of the CA in acquitting Almuete.

Section 68 of P.D. No. 705, as amended by E.O. No. 277, provides that:

Sec. 68. Cutting, Gathering and/or collecting Timber, or Other Forest Products Without License. Any
person who shall cut, gather, collect, remove timber or other forest products from any forest land, or
timber from alienable or disposable public land, or from private land, without any authority, or
possess timber or other forest products without the legal documents as required under existing
forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310
of the Revised Penal Code: Provided, That in the case of partnerships, associations, or corporations,
the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such
officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on
the part of the Commission on Immigration and Deportation.

The court shall further order the confiscation in favor of the government of the timber or any forest
products cut, gathered, collected, removed, or possessed as well as the machinery, equipment,
implements and tools illegally used in the area where the timber or forest products are found.
(Emphasis supplied)

On the other hand, Articles 309 and 310 of the Revised Penal Code state that:

Art. 309. Penalties. Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is
more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen
exceed[s] the latter amount, the penalty shall be the maximum period of the one prescribed in this
paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which
may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory
penalties which may be imposed and for the purpose of the other provisions of this Code, the
penalty shall be termed prision mayor or reclusion temporal, as the case may be. (Emphasis
supplied)

xxxx

Art. 310. Qualified theft. The crime of theft shall be punished by the penalties next higher by two
degrees than those respectively specified in the next preceding articles, if committed by a domestic
servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or
large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a
fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic
eruption, or any other calamity, vehicular accident or civil disturbance. (Emphasis supplied)

Perusal of the records would show that the trial court imposed the penalty as prescribed in Article
310 which is two degrees higher than those specified in Article 309.56 This is erroneous considering
that the penalty prescribed in Article 310 would apply only if the theft was committed under any the
following circumstances: a) by a domestic servant, or with grave abuse of confidence, or b) if the
stolen property is motor vehicle, mail matter or large cattle, or consists of coconuts taken from the
premises of the plantation or fish taken from a fishpond or fishery, or c) if the property is taken on the
occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or
civil disturbance. None of these circumstances is present in the instant case. Thus, the proper
imposable penalty should be that which is prescribed under Article 309.

In this case, the amount of the timber involved is 57,012.00. Since the amount exceeds
22,000.00, the penalty of prision mayor in its minimum and medium periods57 should be imposed in
its maximum period58 plus an additional one (1) year for each additional 10,000 pesos in excess of
22,000.00 or three more years.59 Thus, the correct imposable maximum penalty is anywhere
between eleven (11) years, eight (8) months and one (1) day of prision mayor to thirteen (13) years
of reclusion temporal.

Applying the Indeterminate Sentence Law, the minimum penalty is one degree lower than that
prescribed by the law. In this case, the minimum penalty should be prision correccional in its medium
and maximum periods, which is anywhere between two (2) years, four (4) months and one (1) day to
six (6) years.

This Court is not unaware of the rule that "a final judgment may no longer be altered, amended or
modified, even if the alteration, amendment or modification is meant to correct what is perceived to
be an erroneous conclusion of fact or law and regardless of what court, be it the highest court of the
land, rendered it."60 However, this Court has suspended the application of this rule based on certain
recognized exceptions, viz:

Aside from matters of life, liberty, honor or property which would warrant the suspension of the Rules
of the most mandatory character and an examination and review by the appellate court of the lower
courts findings of fact, the other elements that should be considered are the following: (a) the
existence of special or compelling circumstances, (b) the merits of the case, (c) a cause not entirely
attributable to the fault or negligence of the party favored by the suspension of the rules, (d) a lack of
any showing that the review sought is merely frivolous and dilatory, and (e) the other party will not be
unjustly prejudiced thereby.61

In this case, it cannot be gainsaid that what is involved is the life and liberty of petitioner. If his
penalty of imprisonment remains uncorrected, it would be not conformable with law and he would be
made to suffer the penalty of imprisonment of 18 years, 2 months and 21 days of reclusion temporal
as minimum, to 40 years of reclusion perpetua, as maximum, which is outside the range of the
penalty prescribed by law. Contrast this to the proper imposable penalty the minimum of which
should only be within the range of 2 years, 4 months and 1 day to 6 years of prision correccional,
while the maximum should only be anywhere between 11 years, 8 months and 1 day of prision
mayor to 13 years of reclusion temporal. Substantial justice demands that we suspend our Rules in
this case. "It is always within the power of the court to suspend its own Rules or except a particular
case from its operation, whenever the purposes of justice require. x x x Indeed, when there is a
strong showing that a grave miscarriage of justice would result from the strict application of the
Rules, this Court will not hesitate to relax the same in the interest of substantial
justice."62 Suspending the Rules is justified "where there exist strong compelling reasons, such as
serving the ends of justice and preventing a miscarriage thereof."63 After all, the Courts "primordial
and most important duty is to render justice x x x."64

Surely, this is not the first time that the Court modified the penalty imposed notwithstanding the
finality of the assailed decision.

In People v. Barro,65 Benigno Barro (Benigno), Joel Florin (Florin) and Joel Barro (Joel) were
charged with murder. After trial, the trial court convicted them as charged. Only Benigno and Florin
filed their notice of appeal. Joel failed to appeal as he escaped from confinement. Hence, the trial
courts Decision insofar as Joel is concerned had become final and executory. In the Courts
Decision of August 17, 2000, the appeal filed by Benigno and Florin was found without merit.
However, the Court noted that as regards Joel, the penalty imposed by the trial court was "outside
the range"66 of the penalty prescribed for the offense. Consequently, the Court modified the penalty
imposed on him notwithstanding that the same had already become final and executory. The Court
ratiocinated that:

Joel Barro, below 15 years old at the time of the commission of the offense, is entitled to the
privileged mitigating circumstance of minority pursuant to Article 68, par. 1 of the Revised Penal
Code. The penalty for murder is reclusion temporal in its maximum period to death. Two degrees
lower is prision correccional maximum to prision mayor medium. Joel Barro escaped from jail,
hence, he is disqualified from the benefits of the Indeterminate Sentence Law. He should, therefore,
be meted the straight penalty of eight years which is within the medium period (6 years 1 month and
11 days to 8 years and 20 days) of the said penalty. The trial court erred in imposing the penalty of
imprisonment of 8 years and 8 months because it is outside the range of said penalty. The records
show that Joel Barro did not appeal. However, where the penalty imposed on the co-accused who
did not appeal was a nullity because it was never authorized by law, that penalty imposed on the
accused can be corrected to make it conform to the penalty prescribed by law, the reason being that,
said penalty can never become final and executory and it is within the duty and inherent power of the
Court to have it conformable with law.67

In Estrada v. People,68 petitioner was charged with the crime of estafa. While the trial was pending,
petitioner jumped bail. Understandably, during the promulgation of judgment in 1997, petitioner was
absent. Two years later, or in 1999, petitioner was arrested. She then moved for reconsideration of
the trial courts Decision. The same was denied for having been filed out of time. Thus, petitioner
filed a Petition for Certiorari before the CA which was denied. Hence, petitioner brought the case
before this Court. In its Decision dated August 25, 2005, the Court ruled that petitioners trial in
absentia was proper; that she was not denied due process; and that the denial by the trial court of
her motion for reconsideration was proper as the same was filed beyond the reglementary period.
However, the Court noted that the penalty imposed by the trial court (which is 12 years of prision
mayor to 24 years as maximum) on petitioner was erroneous. As computed by the Court,
considering that the amount defrauded is only 68,700.00, the proper minimum imposable penalty
should only be within the range of "6 months, and 1 day of prision correccional in its minimum period
and 4 years and 2 months of prision correccional in its medium period"69 while the proper maximum
imposable penalty should only be within the range of "10 years, 8 months and 21 days and 12 years
of prision mayor in its maximum period."70 Hence, notwithstanding the finality of the trial courts
Decision, the Court modified the penalty imposed, as the same was outside the range prescribed by
law.

In Rigor v. The Superintendent, New Bilibid Prison,71 this Court also modified the penalty imposed on
the petitioner notwithstanding the finality of the trial courts Decision based on the observation that
the penalty imposed by the trial court was erroneous because it was outside the range prescribed by
law. The Court ruled thus:
However, the Court noted a palpable error apparent in the Joint Decision of the trial court that must
be rectified in order to avoid its repetition. The trial court erroneously included an additional one day
on the maximum period of arresto mayor imposed on petitioner, which is incorrect, as it is outside
the range of said penalty. The duration of arresto mayor is only from one month and one day to six
months. Adding one day to the maximum penalty will place it within the range of prision correccional.

Moreover, imposing the maximum penalty of imprisonment of four years, four months and one day of
prision correccional is also incorrect as it is outside the range of the penalty imposable in this case. x
xx

xxxx

The error of the trial court in the present case can be corrected to make it conform to the penalty
prescribed by law as it is within the Courts duty and inherent power. x x x

xxxx

Thus, the correction to be made by this Court is meant only for the penalty imposed against
petitioner to be in accordance with the law and nothing else. It is not tantamount to a reduction in
order to be favorable to the petitioner nor an increase so as to be prejudicial to him.72

In People v. Gatward73 the Court explicitly stated that by merely modifying the penalty imposed, it is
not reopening the case; neither is it saying that there was error in judgment. In the same manner, in
this case, we are not reopening G.R. No. 144332, much more reversing it. Thus:

x x x In the case of U Aung Win, and the same hold true with respect to Gatward, the penalty
inflicted by the court a quo was a nullity because it was never authorized by law as a valid
punishment. The penalties which consisted of aliquot one-third portions of an indivisible penalty are
self-contradictory in terms and unknown in penal law. Without intending to sound sardonic or
facetious, it was akin to imposing the indivisible penalties of public censure, or perpetual absolute or
special disqualification, or death in their minimum or maximum periods.

This was not a case of a court rendering an erroneous judgment by inflicting a penalty higher or
lower than the one imposable under the law but with both penalties being legally recognized and
authorized as valid punishments. An erroneous judgment, as thus understood, is a valid judgment.
But a judgment which ordains a penalty which does not exist in the catalogue of penalties or which is
an impossible version of that in the roster of lawful penalties is necessarily void, since the error goes
into the very essence of the penalty and does not merely arise from the misapplication thereof.
Corollarily, such a judgment can never become final and executory. 1wphi1

Nor can it be said that, despite the failure of the accused to appeal, his case was reopened in order
that a higher penalty may be imposed on him. There is here no reopening of the case, as in fact the
judgment is being affirmed but with a correction of the very substance of the penalty to make it
conformable to law, pursuant to a duty and power inherent in this Court. The penalty has not been
changed since what was decreed by the trial court and is now being likewise affirmed by this Court is
the same penalty of reclusion perpetua which, unfortunately, was imposed by the lower court in an
elemental form which is non-existent in and not authorized by law. Just as the penalty has not been
reduced in order to be favorable to the accused, neither has it been increased so as to be prejudicial
to him.

Finally, no constitutional or legal right of this accused is violated by the imposition upon him of the
corrected duration, inherent in the essence and concept, of the penalty. Otherwise, he would be
serving a void sentence with an illegitimate penalty born out of a figurative liaison between judicial
legislation and unequal protection of law. He would thus be the victim of an inadvertence which
could result in the nullification, not only of the judgment and the penalty meted therein, but also of
the sentence he may actually have served. Far from violating any right of U Aung Win, therefore, the
remedial and corrective measures interposed by this opinion protect him against the risk of another
trial and review aimed at determining the correct period of imprisonment.74

Also, it would not be amiss to mention that the Office of the Solicitor General prayed for the
modification of the imposable penalty.75

Finally, pursuant to Section 11(a),76Rule 122 of the Revised Rules on Criminal Procedure, the
favorable modification of the penalty should likewise apply to petitioner's co-accused who failed to
appeal.77

WHEREFORE, the Petition is hereby DENIED. The May 4, 2007 and the September 4, 2007
Resolutions of the Court of Appeals in CA-G.R. SP No. 98502 are hereby AFFIRMED. In addition,
for reasons stated above, the September 8, 1998 Decision of the Regional Trial Court of Nueva
Vizcaya, Branch 27, docketed as Criminal Case No. 2672, is hereby MODIFIED insofar as the
penalty of imprisonment is concerned. The accused, namely, Efren S. Almuete, Johnny Ila y Ramel
and Joel Lloren y dela Cruz are each sentenced to suffer the indeterminate penalty of six ( 6) years
of prision correccional, as minimum, to thirteen (13) years of reclusion temporal, as maximum.

SO ORDERED.

[G.R. No. 162371. August 25, 2005]

MARY HELEN ESTRADA, petitioner, vs. PEOPLE OF THE PHILIPPINES

and HON. BONIFACIO SANZ MACEDA, respondents.

DECISION
AUSTRIA-MARTINEZ, J.:

This resolves the petition for review on certiorari seeking the reversal of the
Decision[1] of the Court of Appeals (CA) promulgated on October 28, 2003, and the CA
Resolution dated February 23, 2004, denying petitioners motion for reconsideration;
together with the letter of petitioner dated January 18, 2005 which was treated by the
Court as a petition for habeas corpusalleging that the Decision dated July 2, 1997 of the
Regional Trial Court (RTC) of Las Pias City, Branch 275, imposed upon petitioner an
erroneous and excessive penalty.
The present case has its origin in a criminal case filed against petitioner. An
Information charging petitioner with estafa was filed with the RTC of Las Pias City. In view
of the fact that petitioner jumped bail, the RTC issued an Order dated May 14, 1997,
considering petitioner to have waived her right to present evidence. Thus, the RTC
rendered judgment based only on prosecution evidence and made the following
conclusions:

Junimar Bermundo applied for employment in Japan with the accused. Accused
collected money from Junimar and his wife in the total amount of P68,700.00.

These payments were all evidenced by various receipts bearing different dates.

Junimar and his wife were able to pay the accused by using the money they obtained
from a loan with the Luzon Development Bank using their parcel of land located at
Pangao, Lipa City as collateral (Exh. L).

After making the necessary payments, the accused told Junimar to proceed to the
Japanese Embassy to claim the plane tickets in December 1993, but when they went
to the Japanese Embassy, they were told that nothing was filed with their office.
Junimar then informed the accused what happened and the latter accompanied him the
second time to the Japanese Embassy. It was only at that time that accused filed the
necessary documents. Accused told them that if they would use the name of her
daughter, the processing of their papers would be faster because her daughter
performs outside the country.

However, in the early part of 1994, the Japanese Embassy wrote a letter to Junimar
requiring them to submit documents but the accused failed to produce these
documents. Junimar then decided to abandon his plan of going to Japan and just get
the money from the accused. Accused, however, failed to return the money despite
receipt of a demand letter the witness made (Exh. I & J, tsn, Sept. 5, 1995, pp. 2-9).

Under the established facts, accused indeed deceived Junimar Bermundo and Rosalie
Bermundo by means of false pretenses and fraudulent misrepresentations which
induced the Bermundos to deliver to the accused their (sic) amount of P68,700.00
which amount accused applied and used for her own benefit to the damage and
prejudice of Junimar and Rosalie Bermundo.

WHEREFORE, IN VIEW OF ALL THE FOREGOING, judgment is rendered finding

accused GUILTY beyond reasonable doubt as charged which is punished under
Article 315, par. 2 (a), and applying the Indeterminate Sentence Law, accused MARY
HELEN ESTRADA is hereby sentenced to suffer an indeterminate prison term of
TWELVE (12) YEARS of prision mayor maximum as minimum to TWENTY-FOUR
(24) YEARS as maximum; to pay back the sum of P68,700.00 to Junimar Bermundo
and Rosalie Bermundo; and to pay the costs. [2]
 In a petition for certiorari and/or mandamus filed with the CA, petitioner assailed the
decision of the RTC, alleging the same to be null and void for having been rendered in
violation of petitioners constitutional rights.
The proceedings that transpired in the trial court are accurately set forth in the
Decision of the CA dated October 28, 2003, as follows:

On October 24, 1994, Asst. Provincial Prosecutor Danilo Uy filed an Information for
estafa against petitioner Mary Helen B. Estrada docketed as Criminal Case No. 94-
6230

On January 23, 1995, petitioner signed an undertaking that in case of her failure to
appear during the trial despite due notice, her absence would constitute as an express
waiver of her right to be present during trial and promulgation of judgment and the
lower court would then proceed with the hearing in absentia.

During the hearing on May 30, 1996, Atty. Ma. Nenette Quicho, counsel for
petitioner, failed to appear. On motion of the private prosecutor, the lower court
directed Atty. Ma. Nenette Quicho to explain in writing within ten (10) days from
notice why she should not be cited for contempt.

After the presentation of evidence for the prosecution on March 31, 1997, the lower
court scheduled the reception of evidence for the petitioner on May 14, 1997. Counsel
for petitioner failed to explain her absence in the previous hearing. She was found
guilty of contempt of court and was sentenced to suffer the penalty of one (1) day
imprisonment.

On May 14, 1997, in view of the fact that petitioner jumped bail, the lower court
considered her to have waived the presentation of her evidence and declared the case
submitted for decision.

On June 13, 1997, a Notice of Appearance with Motion for Presentation of Evidence
for the Defense was filed by Atty. Herenio E. Martinez, as collaborating counsel for
petitioner. He argued among others, that the fact that despite trial in absentia and
accuseds (petitioner) failure to surrender, still petitioner could present her evidence in
support of her defense because there were other witnesses who would testify for her.
Hence, she prayed that the scheduled date for promulgation of decision (June 18,
1997) be cancelled and she be allowed to present her evidence.

However, the subject decision was promulgated on July 2, 1997, convicting petitioner
of the crime charged.

The Decision was entered in the Docket Book on September 3, 1997.

On December 1, 1999, petitioner moved for reconsideration and/or new trial stating
that her constitutional rights to be heard and to counsel were violated for the following
reasons:

(1) counsel for petitioner was not served a copy of the Order dated March 31, 1997
citing her for contempt of court;

(2) counsel for petitioner was not served any copy of the Order dated May 14, 1997
declaring petitioner to have waived her right to present evidence and set the date of
promulgation of decision on June 18, 1994 (sic) at 2:00 p.m.;

(3) the order dated July 18, 1997 denying the motion for reception of petitioners
evidence was not furnished counsel for petitioner and it came after the judgment of
conviction; and

(4) the penalty imposed was beyond that allowed by law.

On March 6, 2000 the motion for reconsideration was denied for lack of merit.

On April 5, 2000 petitioner filed her notice of appeal but was denied due course in an
Order dated April 5, 2000.[3]

It also appears from the records that on September 13, 1999, petitioner was arrested
and detained at the Las Pias Police Station.[4] This was a little over two years after the
judgment of conviction against her had been entered in the criminal docket book on
September 3, 1997, and prior to the filing of a motion for reconsideration and/or new trial
with the trial court on December 1, 1999.
Petitioners appeal was denied due course by the trial court in its Order dated April 5,
2000 for having been filed beyond the reglementary period. [5] She then filed the
aforementioned petition for certiorari and/or mandamus with the CA, alleging that: the
RTC judge violated petitioners constitutional right to due process by depriving petitioner
of the right to be assisted by counsel during the proceedings and failing to notify petitioner
of the scheduled presentation of defense evidence; the RTC judge imposed upon
petitioner a penalty which was not authorized under the law for which petitioner had been
charged; the RTC judge acted with grave abuse of discretion amounting to lack or excess
of jurisdiction when he denied petitioners motion for reconsideration of the decision and/or
motion for new trial; neither petitioner nor her counsel has officially received a copy of the
RTC decision, hence, the same has not yet become final and executory at the time
petitioner filed her motion for reconsideration and/or new trial; the RTC judge acted with
grave abuse of discretion amounting to lack or excess of jurisdiction when he denied due
course to petitioners appeal because petitioner filed her notice of appeal well within the
fifteen-day period within which to appeal, thus, it was the mandatory duty of the RTC
judge to approve the notice of appeal.
 On October 28, 2003, the CA promulgated its decision denying the petition
for certiorari. The CA held that there was no grave abuse of discretion committed by the
RTC judge as his actions were anchored on Section 14 (2), Article III of the 1987
Constitution which states that after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his failure to appear
is unjustifiable, and on Section 1(c), Rule 115 of the Rules of Court which provides that
[t]he absence of the accused without justifiable cause at the trial of which he had notice
shall be considered a waiver of his right to be present thereat. The CA further held that
[t]he deprivation of her right to present evidence in her defense shall be deemed to include
the non-admission of the testimonies of the other witnesses other than the petitioner
herself. This must be so because the deprivation of her opportunity to present evidence
due to unreasonable absences on the scheduled hearings is primarily intended to
safeguard the orderly administration of justice. Thus, the CA concluded that the trial
courts action was well within its jurisdiction.
The CA did not dwell on the propriety of the penalty imposed on petitioner although
petitioner raised it as one of the issues in the petition. In her motion for reconsideration of
the CA Decision, petitioner called the CAs attention to this fact, and also pointed out that
although petitioner, by failing to appear at several trial dates, may be deemed to have
waived her right to be present during the proceedings, such waiver does not include a
waiver of her right to present evidence. On February 23, 2004, the CA issued a resolution
denying the motion for reconsideration for lack of merit.
Hence, petitioner filed the present petition for review on certiorari.
Previously, however, petitioner had filed an administrative case (A.M. OCA IPI No.
00-1002-RTJ) against Judge Bonifacio Sanz Maceda of the RTC of Las Pias City, Branch
275 for gross ignorance of the law. In a Resolution dated August 13, 2001, the Court
dismissed said administrative complaint but issued a stern reminder to respondent judge
to be more cautious in computing the appropriate penalty in the future to avoid injustice.
In connection with said administrative case, petitioner, who is presently detained at
the Correctional Institution for Women, sent a letter dated January 18, 2005, wherein she
emphasized that although the Courts Resolution of August 13, 2001 issued such stern
warning to respondent judge, the same resolution did not give any relief for the injustice
she is now suffering due to the erroneous penalty imposed on her. Thus, in said
administrative case, the Court issued a Resolution dated March 9, 2005, resolving to treat
petitioners letter as a petition for habeas corpus and ordered the Office of the Solicitor
General to comment on said letter-petition. Thereafter, the Office of the Solicitor General
filed its Comment where it was manifested that there is a pending petition for review
on certiorari with the Court which turned out to be the herein petition under consideration,
involving the issue of the penalty imposed on petitioner.
Thus, in a Resolution dated July 5, 2005, the Court resolved to consolidate the
letter/petition for habeas corpus with the instant petition for review on certiorari.
Petitioner alleges that the CA erred in deciding the case in a way not in accord with
law or jurisprudence and departed from the usual course of judicial proceedings. In
support of said allegations, petitioner reiterated her arguments that the trial court denied
her the constitutional right to be heard and to be assisted by counsel by failing to furnish
her counsel copies of the order setting the date for reception of defense evidence on May
14, 1997, and the order considering petitioner to have waived her right to present
evidence in her defense; that the decision of the trial court was null and void for imposing
a penalty not authorized by law; that inasmuch as the decision was null and void, the trial
court acted with grave abuse of discretion in denying petitioners motion for
reconsideration and/or new trial on the ground that the assailed decision had become
final; and that the CA utterly failed to resolve petitioners submission that the trial courts
decision was null and void by virtue of the excessive penalty imposed.
At the outset, the undisputed fact that petitioner jumped bail while trial was pending
should be emphasized. In fact, it appears that from the beginning, the address she
furnished the trial court was incorrect. The trial courts process server, Nap Manguserra,
made a note on the subpoena he was trying to serve on petitioner, that per ocular
inspection made, said address is a vacant lot subject person is unknown to her
neighbors.[6] From such fact alone, petitioners arguments regarding the validity of the
proceedings and promulgation of judgment in absentia for being in violation of her
constitutional right to due process are doomed to fail.
The holding of trial in absentia is authorized under Section 14 (2), Article III of the
1987 Constitution which provides that after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been duly notified and
his failure to appear is unjustifiable. In fact, in People vs. Tabag,[7] the Court even
admonished the trial court for failing to proceed with the trial of some accused who
escaped from preventive detention, to wit:

Finally, the trial court also erred in not proceeding with the case against Laureo Awod
and Artemio Awod after their successful escape on 19 October 1989 while in
preventive detention. They had already been arraigned.Therefore, pursuant to the
last sentence of paragraph (2), Section 14, Article III of the Constitution, trial
against them should continue and upon its termination, judgment should be
rendered against them notwithstanding their absence unless, of course, both
accused have died and the fact of such death is sufficiently established.
Conformably with our decision in People v. Salas, their escape should have been
considered a waiver of their right to be present at their trial, and the inability of
the court to notify them of the subsequent hearings did not prevent it from
continuing with their trial. They were to be deemed to have received notice. The
same fact of their escape made their failure to appear unjustified because they have,
by escaping, placed themselves beyond the pale and protection of the law. This being
so, then pursuant to Gimenez v. Nazareno, the trial against the fugitives, just like those
of the others, should have been brought to its ultimate conclusion. Thereafter, the
trial court had the duty to rule on the evidence presented by the prosecution
against all the accused and to render its judgment accordingly. It should not wait
for the fugitives re-appearance or re-arrest. They were deemed to have waived
their right to present evidence on their own behalf and to confront and cross-
examine the witnesses who testified against them.

It is obvious that the trial court forgot our rulings in Salas and Nazareno. We thus take
this opportunity to admonish trial judges to abandon any cavalier stance against
accused who escaped after arraignment, thereby allowing the latter to make a mockery
of our laws and the judicial process. Judges must always keep in mind Salas and
Nazareno and apply without hesitation the principles therein laid down, otherwise
they would court disciplinary action.[8] (Emphasis supplied)

From the foregoing pronouncement, it is quite clear that all of petitioners protestations
that she was denied due process because neither she nor her counsel received notices
of the trial courts orders are all to naught, as by the mere fact that she jumped bail and
could no longer be found, petitioner is considered to have waived her right to be present
at the trial, and she and her counsel were to be deemed to have received notice.
Moreover, in the earlier case of People vs. Magpalao[9], the Court already ruled that:

. . . once an accused escapes from prison or confinement or jumps bail or flees to a

foreign country, he loses his standing in court and unless he surrenders or submits to
the jurisdiction of the court he is deemed to have waived any right to seek relief from
the court.[10]

Nevertheless, in this case, records reveal that the trial court sent out notices to
petitioner and her counsel. In a Resolution dated September 30, 2002, the CA required
the Office of the Solicitor General to submit proof of service on petitioner and her counsel
of the RTCs Order dated March 31, 1997 setting the date for reception of evidence on
May 14, 1997; the Order dated May 14, 1997 considering petitioner to have waived her
right to present evidence in her defense in view of the fact that she has jumped bail; and
the RTC Decision dated July 2, 1997. On December 20, 2002, the Office of the Solicitor
General, submitted such proof of service. Thus, in its Decision promulgated on October
28, 2003, the CA made the factual finding that petitioner and her counsel were indeed
duly served with copies of the assailed RTC orders and decision at the addresses they
submitted to the trial court. Factual findings of the CA are conclusive on the parties and
not reviewable by this Court.[11] As held in Morandarte vs. Court of Appeals,[12] inquiry
upon the veracity of the CAs factual findings and conclusion is not the function of the
Supreme Court for the Court is not a trier of facts.
With the finding that petitioner and her counsel were duly notified of the hearing dates
for reception of defense evidence and the decision of the trial court, in addition to the
undisputed fact that petitioner jumped bail when trial of her case was pending, petitioners
argument that the RTC Decision was null and void for having been rendered in violation
of petitioners constitutional right to due process, i.e., the right to be heard and be assisted
by counsel, must also fail.
 Due process is satisfied when the parties are afforded a fair and reasonable
opportunity to explain their respective sides of the controversy. [13]
In the present case, petitioner was afforded such opportunity. The trial court set a
hearing on May 14, 1997 for reception of defense evidence, notice of which was duly sent
to the addresses on record of petitioner and her counsel, respectively. When they failed
to appear at the May 14, 1997 hearing, they later alleged that they were not notified of
said setting. Petitioners counsel never notified the court of any change in her address,
while petitioner gave a wrong address from the very beginning, eventually jumped bail
and evaded court processes. Clearly, therefore, petitioner and her counsel were given all
the opportunities to be heard. They cannot now complain of alleged violation of petitioners
right to due process when it was by their own fault that they lost the opportunity to present
evidence.
The Court likewise upholds the validity of the promulgation in absentia of the RTC
judgment and the RTCs Order dated April 5, 2000, denying due course to petitioners
notice of appeal for being filed beyond the reglementary period. Section 6, Rule 120 of
the 1985 Rules on Criminal Procedure, the Rule applicable in this case since
promulgation was held before the effectivity of The Revised Rules of Criminal Procedure,
provides:

Section 6. Promulgation of judgment --The judgment is promulgated by reading the

same in the presence of the accused and any judge of the court in which it was
rendered. However, if the conviction is for a light offense, the judgment may be
pronounced in the presence of his counsel or representative. When the judge is absent
or outside of the province or city, the judgment may be promulgated by the clerk of
court.

If the accused is confined or detained in another province or city, the judgment may
be promulgated by the executive judge of the Regional Trial Court having
jurisdiction over the place of confinement or detention upon request of the court that
rendered the judgment. The court promulgating the judgment shall have authority to
accept the notice of appeal and to approve the bail bond pending appeal.

The proper clerk of court shall give notice to the accused personally or through his
bondsman or warden and counsel, requiring him to be present at the promulgation of
the decision. In case the accused fails to appear thereat the promulgation shall consist
in the recording of the judgment in the criminal docket and a copy thereof shall be
served upon the accused or counsel. If the judgment is for conviction and the accuseds
failure to appear was without justifiable cause, the court shall further order the arrest
of the accused, who may appeal within fifteen (15) days from notice of the decision to
him or his counsel.(Italics supplied)

Clearly, promulgation of judgment in absentia is allowed under the Rules. Hence,

in Pascua vs. Court of Appeals,[14] it was held that such promulgation is valid provided the
following essential elements are present: (a) that the judgment be recorded in the criminal
docket; and (b) that a copy thereof be served upon the accused or counsel. The factual
circumstances in said case are analogous to the case at bar.
In Pascua, the promulgation of judgment in said case was set on May 5, 1998. When
the case was first called on that date, petitioner was not present although her counsel of
record was in court. The case was set for second call. After the lapse of two hours, the
accused still had not appeared, thus, the dispositive portion of the decision was read in
open court. Afterwards, counsel for the accused received a copy of the decision, and
upon motion of the prosecution, the trial court ordered the issuance of a warrant of arrest
and forfeiture of accuseds cash bond. No motion for reconsideration or notice of appeal
was filed by the accused within 15 days from May 5, 1998. On June 8, 1998, accused,
without discharging her counsel of record, filed through another lawyer a notice of change
of address, together with an omnibus motion to lift warrant of arrest and confiscation of
bail bond, and also to set anew the promulgation of the decision, alleging that the accused
failed to appear at the scheduled promulgation because notices for said schedule were
sent to her former address, hence she was not able to receive any notice. Said motion
was denied by the trial court. The matter was brought to this Court where the accused
argued that there was no valid promulgation because she was not properly notified of the
date thereof. The Court held thus:

Let us examine the validity of the May 5, 1998 promulgation which took place in the
case at bar. The dispositive portion of the decision convicting petitioner was read in
open court, after which the public prosecutor, the defense counsel Atty. Marcelino
Arias, and private complainant Lucita Lopez, acknowledged receipt of their respective
copies of the decision by affixing their signatures at the back of the original of the
decision on file with the record of the case. Atty. Arias failed to file a notice of appeal
within fifteen days from receipt of the decision. Is it proper to rule that the period
within which to file an appeal has lapsed?

In Florendo v. Court of Appeals (239 SCRA 325 [1994]), the facts are parallel to
those of the instant case. We held

In the case at bench, a copy of the judgment was served to the counsel of petitioner on
June 15, 1992; therefore, he had only up to June 30, 1992 within which to appeal. The
notice of appeal filed on July 6, 1992 was clearly out of time.

It is presumed that official duties are regularly performed and that the proceedings are
made of record. This serves as a substantial compliance with the procedural
requirement of the recording of the judgment in the criminal docket of the court. At
any rate, petitioner does not question non-compliance of the requirement of the
recording of the judgment in the criminal docket.

(At p. 329.)
Petitioner's first argument is devoid of merit. In the first place, her non-receipt of the
notice of promulgation was due to her own failure to immediately file a notice of
change of address with the trial court, which she clearly admitted. Besides,
promulgation could be properly done even in her absence, subject to the service of a
copy of the decision upon her or her counsel and the recording of the judgment in the
criminal docket.

In the present case, therefore, since the records bear out the fact that copies of the
decision were sent by registered mail to the given addresses of petitioner and her counsel,
Atty. Herenio Martinez, and there is no question that the judgment was indeed recorded
in the criminal docket of the court, the promulgation was valid. The significance of
recording the decision in the criminal docket of the court was explained in Pascua, thus:

What is the significance of the recording of the judgment with the criminal docket of
the court? By analogy, let us apply the principles of civil law on registration.

Simply stated, registration is made for the purpose of notification (Paras, Civil Code
of the Philippines, Vol. II, 1989 ed., p. 653, citing Bautista vs. Dy Bun Chin, 49 O.G.
179 [1952]).

Its purpose is to give notice thereof to all persons.

Applying the above-mentioned principles to the instant case, we are prompted to

further examine the provisions on promulgation in absentia.

As held in Florendo vs. Court of Appeals (supra), the rules allow promulgation of
judgment in absentia to obviate the situation where juridical process could be
subverted by the accused jumping bail. But the Rules also provide measures to make
promulgation in absentia a formal and solemn act so that the absent accused,
wherever he may be, can be notified of the judgment rendered against him. As
discussed earlier, the sentence imposed by the trial court cannot be served in the
absence of the accused. Hence, all means of notification must be done to let the absent
accused know of the judgment of the court. And the means provided by the Rules are:
(1) the act of giving notice to all persons or the act of recording or registering the
judgment in the criminal docket (which Section 6 incidentally mentions first showing
its importance); and (2) the act of serving a copy thereof upon the accused (at his last
known address) or his counsel. In a scenario where the whereabouts of the accused are
unknown (as when he is at large), the recording satisfies the requirement of notifying
the accused of the decision wherever he may be.

From the foregoing, petitioner is deemed notified of the decision upon its recording in
the criminal docket on September 3, 1997 and she only had fifteen (15) days therefrom
within which to file an appeal. Evidently, the notice of appeal filed only on April 5, 2000
was filed out of time.
However, the Court cannot close its eyes to the fact that the penalty imposed by the
trial court on petitioner was indeed erroneous. The dispositive portion of the RTCs
Decision reads thus:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, judgment is rendered finding

accused GUILTY beyond reasonable doubt as charged which is punished under
Article 315, par. 2 (a), and applying the Indeterminate Sentence Law, accused MARY
HELEN ESTRADA is hereby sentenced to suffer an indeterminate prison term of
TWELVE (12) YEARS of prision mayor maximum as minimum to TWENTY-FOUR
(24) YEARS as maximum; to pay back the sum of P68,700.00 to Junimar Bermundo
and Rosalie Bermundo; and to pay the costs.

Art. 315 of the Revised Penal Code provides that the penalty of prision correccional in
its maximum period to prision mayor in its minimum period shall be imposed if the amount
of the fraud is over P12,000.00 but not over P22,000.00; if the amount of fraud
exceeds P22,000.00, the penalty provided for shall be imposed in its maximum period,
adding one year for each additionalP10,000.00, but the total penalty which may be
imposed shall not exceed twenty years.
Thus, in this case, since the amount of fraud, which is P68,700.00,
exceeds P22,000.00, the penalty should be imposed in the maximum period. The range
of the penalty provided for by law is composed of only two periods, thus, to get the
maximum period of the imposable penalty, the total number of years included in the two
periods should be divided into three. A computation produces the following results: the
minimum period is 4 years, 2 months and 1 day to 5 years, 5 months and 10 days; the
medium period is 5 years, 5 months and 11 days to 6 years, 8 months and 20 days; and
the maximum period is 6 years, 8 months and 21 days to 8 years.[15]
The amount defrauded being in excess of P22,000.00, the penalty imposed should
be the maximum period or 6 years, 8 months, and 21 days to 8 years of prision mayor.
However, Art. 315 also provides that an additional one year shall be imposed for each
additional P10,000.00 amount of the fraud. Since the total amount of the fraud in this case
is P68,700.00 (P68,700.00P22,000.00 = P46,700.00), an additional four (4) years of
penalty should be imposed. Thus, the correct imposable maximum penalty is
anywhere between 10 years, 8 months and 21 days and12 years of prision mayor in its
maximum period.
Applying the Indeterminate Sentence Law, the minimum penalty that should have
been imposed by the RTC should be within the range of the penalty next lower to that
prescribed by Article 315 of the Revised Penal Code for the crime committed. Thus, in
this case, the minimum penalty should be anywhere between 6 months, and 1 day
of prision correccional in its minimum periodand 4 years and 2 months of prision
correccional in its medium period.
 In Rigor vs. The Superintendent, New Bilibid Prison,[16] this Court found it to be in the
interest of justice to correct the penalty imposed by the trial court so as to conform to the
penalty prescribed by law despite the fact that the judgment had already become final
and executory for therein petitioners failure to take an appeal. Therein, the Court
expounded thus:

However, the Court noted a palpable error in the Joint Decision of the trial court that
must be rectified in order to avoid its repetition. The trial court erroneously included
an additional one day on the maximum period of arresto mayor imposed on petitioner,
which is incorrect, as it is outside the range of said penalty.

In line with the ruling of the Court in People vs. Barro, Sr., to wit:

However, where the penalty imposed on the co-accused who did not appeal was a
nullity because it was never authorized by law, that penalty imposed on the accused
who did not appeal can be corrected to make it conform to the penalty prescribed by
law, the reason being that, said penalty can never become final and executory and it is
within the duty and inherent power of the Court to have it conformable with law.

the error of the trial court in the present case can be corrected to make it conform to
the penalty prescribed by law as it is within the Courts duty and inherent power. Thus,
the correction to be made by this Court is meant only for the penalty imposed against
petitioner to be in accordance with law and nothing else. [17]

Thus, pursuant to the foregoing ruling, the Court likewise sees it befitting in this case
to modify the penalty imposed on petitioner. It must be noted, though, that in the afore-
quoted case, the Court also pointed out that the petition for habeas corpus cannot be
granted if the accused has only served the minimum of his sentence because he must
serve his sentence up to its maximum term.[18]
WHEREFORE, the letter/petition for habeas corpus is DENIED. The petition for
review on certiorari is PARTLY GRANTED insofar only as the penalty is concerned. In
the interest of justice, the sentence of petitioner in Criminal Case No. 94-6230 is
MODIFIED as follows: Applying the Indeterminate Sentence Law and there being no
mitigating or aggravating circumstance, petitioner is sentenced to suffer an indeterminate
prison term of two (2) years of prision correccional as MINIMUM to eleven (11) years
of prision mayor as MAXIMUM.
SO ORDERED.

[G.R. No. 140243. December 14, 2000]

MARILYN C. PASCUA, petitioner, vs. HON. COURT OF APPEALS, THE
PEOPLE OF THE PHILIPPINES, respondents.

DECISION
MELO, J.:

What constitutes a valid promulgation in absentia? In case of such promulgation,

when does the accused's right to appeal accrue?
Before us is a petition that calls for a ruling on the aforestated issues, particularly
seeking the reversal of the decision of the Court of Appeals dated June 17, 1999 and its
order dated September 28, 1999 denying reconsideration. The Court of Appeals
dismissed the petition for certiorari under Rule 65 filed by petitioner which questioned the
legality of the orders dated June 22, 1998 and October 8, 1998 issued by Branch 153 of
the Regional Trial Court of the National Capital Judicial Region stationed in Pasig City.
The antecedent facts may be briefly chronicled as follows:
Petitioner was charged under 26 Informations for violation of Batas Pambansa Blg.
22. The Informations alleged that in 1989, petitioner issued 26 Philippine National Bank
(PNB) checks to apply on account or for value in favor of Lucita Lopez with the knowledge
that at the time of issue, petitioner did not have sufficient funds in or credit with the drawee
bank for the payment of the face value of the checks in full. Upon presentment of the
subject checks, they were dishonored by the drawee bank for having been drawn against
insufficient funds and against a closed account.
After trial, a judgment of conviction was rendered on February 17, 1998, disposing:

WHEREFORE, the Court finds the accused, MARILYN C. PASCUA, GUILTY

beyond reasonable doubt of twenty six (26) counts of Violation of Batas
Pambansa Bilang 22, and hereby sentences her to suffer ONE (1) YEAR
imprisonment in each case and to pay the private complainant, LUCITA
LOPEZ in the sum of SIX HUNDRED FIVE THOUSAND PESOS
(P605,000.00), Philippine Currency without subsidiary imprisonment in case of
insolvency.

SO ORDERED.

(p. 41, Rollo.)

The judgment was initially scheduled for promulgation on March 31, 1998. However,
considering that the presiding judge was on leave, the promulgation was reset to May 5,
1998.
When the case was called on May 5, 1998, Public Prosecutor Rogelio C. Sescon and
defense counsel Atty. Marcelino Arias appeared and manifested their readiness for the
promulgation of judgment, although the latter intimated that petitioner would be
late. Hence, the case was set for second call. After the lapse of two hours, petitioner still
had not appeared. The trial court again asked the public prosecutor and the defense
counsel if they were ready for the promulgation of judgment. Both responded in the
affirmative. The dispositive portion of the decision was thus read in open
court. Afterwards, the public prosecutor, the defense counsel, and private complainant
Lucita Lopez, acknowledged receipt of their respective copies of the subject decision by
signing at the back of the original copy of the decision on file with the record of the case.
Forthwith, the public prosecutor moved for the forfeiture of the cash bond posted by
petitioner as well as for the issuance of a warrant for her arrest. Acting on the motion, the
trial court issued, also on May 5, 1998, the following order:

When this case was called for the promulgation of judgment, the accused
failed to appear despite due notice. Upon motion of the Public Prosecutor, that
the cash bond posted for her provisional liberty be forfeited in favor of the
government, being well-taken, the same is hereby granted. Likewise, let a
warrant of arrest be issued against her.

SO ORDERED.

(p. 42, Rollo.)

No motion for reconsideration or notice of appeal was filed by petitioner within 15

days from May 5, 1998.
On June 8, 1998, a notice of change of address was filed by petitioner with the trial
court, sent through a private messengerial firm. On the same date, without terminating
the services of her counsel of record, Atty. Marcelino Arias, the one who received the
copy of the judgment of conviction, petitioner, assisted by another counsel, Atty. Rolando
Bernardo, filed an urgent omnibus motion to lift warrant of arrest and confiscation of bail
bond, as well as to set anew the promulgation of the subject decision on the following
allegations: that petitioner failed to appear before the trial court on the scheduled date of
promulgation (May 5, 1998) because she failed to get the notices sent to her former
address at No. 21 La Felonila St., Quezon City; that she had no intention of evading the
processes of the trial court; that in February 1998, she transferred residence to Olongapo
City by reason of an ejectment case filed against her by her landlord concerning her
former residence in Quezon City; and that due to the abrupt dislocation of their family life
as a result of the transfer of their residence to Olongapo City, there were important
matters that she overlooked such as the filing of a notice of change of address to inform
the trial court of her new place of residence.
The motion was set for hearing on June 11, 1998 but on said date, neither petitioner
nor assisting counsel was present. On June 22, 1998, petitioner filed a notice of
appeal. The Office of the City Prosecutor of Pasig filed its comment on the motion for
reconsideration arguing that: the promulgation of the subject decision was made by the
trial court on May 5, 1998 in the presence of the accused's (herein petitioner's) counsel;
that the subject decision is already final and executory, there having been no appeal
interposed by the accused within the reglementary period; that there is no such thing as
repromulgation of a decision; that before the accused could ask for relief from the trial
court, she, being a convict, should submit herself first to the lawful order thereof, that is,
to surrender to the police authorities.
On June 22, 1998, the trial court issued an order denying petitioner's urgent omnibus
motion and notice of appeal for lack of merit, mentioning that its February 17, 1998
decision had already become final and executory. Petitioner moved for reconsideration,
this time assisted by another lawyer, Atty. Romulo San Juan. The motion was set for
hearing on July 8, 1998 but on said hearing date, neither petitioner nor Atty. San Juan
appeared. Instead, Atty. Porfirio Bautista appeared as collaborating counsel of Atty. San
Juan. When asked if he knew petitioner's counsel of record, Atty. Bautista could not
answer.
On July 17, 1998, Attys. San Juan and Bautista as counsel for petitioner, filed a
motion for inhibition of the presiding judge. The motion was set for hearing on July 28,
1998. Once again, petitioner failed to appear although Atty. Bautista did. On October 8,
1998, the trial court denied petitioner's motion for reconsideration and inhibition.
On December 14, 1998, petitioner filed a petition for certiorari under Rule 65 of the
1997 Rules of Civil Procedure with the Court of Appeals praying for the nullification of the
June 22, 1998 and October 8, 1998 orders of the trial court. At first, the Court of Appeals
issued a resolution dated December 29, 1998 dismissing the petition for certiorari, for
failure to contain an explanation why the respondent therein was not personally served a
copy of the petition. However, upon reconsideration, said petition was reinstated.
After an exchange of pleadings, on June 17, 1999, the Court of Appeals issued the
decision assailed herein. Petitioner moved for reconsideration, but to no avail.
Hence, the instant petition on the basis of the following grounds: (1) that petitioner
was not properly notified of the date of promulgation and therefore, there was no valid
promulgation; hence petitioner's period to appeal has not commenced; (2) that the
promulgation in absentia of the judgment against petitioner was not made in the manner
set out in the last paragraph of Section 6, Rule 120 of the 1985 Rules on Criminal
Procedure which then provided that promulgation in absentia shall consist in the
recording of the judgment in the criminal docket and a copy thereof shall be served upon
the accused or counsel; (3) that the decision of the trial court is contrary to applicable
laws and that it disregarded factual evidence and instead resorted to make a conclusion
based on conjectures, presumptions, and misapprehension of facts.
The resolution of the instant petition is dependent on the proper interpretation of
Section 6, Rule 120 of the 1985 Rules on Criminal Procedure, which provides:

Section 6. Promulgation of judgment --The judgment is promulgated by

reading the same in the presence of the accused and any judge of the court in
which it was rendered. However, if the conviction is for a light offense, the
judgment may be pronounced in the presence of his counsel or
representative. When the judge is absent or outside of the province or city, the
judgment may be promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the judgment
may be promulgated by the executive judge of the Regional Trial Court having
jurisdiction over the place of confinement or detention upon request of the
court that rendered the judgment. The court promulgating the judgment shall
have authority to accept the notice of appeal and to approve the bail bond
pending appeal.

The proper clerk of court shall give notice to the accused personally or
through his bondsman or warden and counsel, requiring him to be present at
the promulgation of the decision. In case the accused fails to appear thereat
the promulgation shall consist in the recording of the judgment in the criminal
docket and a copy thereof shall be served upon the accused or counsel. If the
judgment is for conviction and the accuseds failure to appear was without
justifiable cause, the court shall further order the arrest of the accused, who
may appeal within fifteen (15) days from notice of the decision to him or his
counsel. (Italics supplied)

Incidentally, Section 6, Rule 120 of the Revised Rules of Criminal Procedure which
took effect December 1, 2000 adds more requirements but retains the essence of the
former Section 6, to wit:

Section 6. Promulgation of judgment. The judgment is promulgated by reading

it in the presence of the accused and any judge of the court in which it was
rendered. However, if the conviction isfor a light offense the judgment may be
pronounced in the presence of his counsel or representative. When the judge
is absent or outside the province or city, the judgment may be promulgated by
the clerk of court.

If the accused is confined or detained in another province or city the judgment

may be promulgated by the executive judge of the Regional Trial Court having
jurisdiction over the place of confinement or detention upon request of the
court which rendered the judgment. The court promulgating the judgment shall
have authority to accept the notice of appeal and to approve the bail bond
pending appeal; provided, that if the decision of the trial court convicting the
accused changed the nature of the offense from non-bailable to bailable, the
application for bail can only be filed and resolved by the appellate court.

The proper clerk of court shall give notice to the accused personally or
through his bondsman or warden and counsel, requiring him to be present at
the promulgation of the decision. If the accused was tried in absentia because
he jumped bail or escaped from prison, the notice to him shall be served at his
last known address.
In case the accused fails to appear at the scheduled date of promulgation of
judgment despite notice, the promulgation shall be made by recording the
judgment in the criminal docket and serving him a copy thereof at his last
known address or thru his counsel.

If the judgment is for conviction and the failure of the accused to appear was
without justifiable cause, he shall lose the remedies available in these Rules
against the judgment and the court shall order his arrest. Within fifteen
(15) days from promulgation of judgment however, the accused may
surrender and file a motion for leave of court to avail of these remedies. He
shall state the reasons for his absence at the scheduled promulgation and if
he proves that his absence was for a justifiable cause, he shall be allowed to
avail of said remedies within fifteen (15) days from notice. (Italics supplied)

Promulgation of judgment is an official proclamation or announcement of the decision

of the court (Jacinto, Sr., Commentaries and Jurisprudence on the Revised Rules of
Court [Criminal Procedure], 1994 ed., p. 521). In a criminal case, promulgation of the
decision cannot take place until after the clerk receives it and enters it into the criminal
docket. It follows that when the judge mails a decision through the clerk of court, it is not
promulgated on the date of mailing but after the clerk of court enters the same in the
criminal docket (Ibid., citing People v. Court of Appeals, 52 O.G. 5825 [1956]).
According to the first paragraph of Section 6 of the aforesaid Rule (of both the 1985
and 2000 versions), the presence in person of the accused at the promulgation of
judgment is mandatory in all cases except where the conviction is for a light offense, in
which case the accused may appear through counsel or representative. Under the third
paragraph of the former and present Section 6, any accused, regardless of the gravity of
the offense charged against him, must be given notice of the promulgation of judgment
and the requirement of his presence. He must appear in person or in the case of one
facing a conviction for a light offense, through counsel or representative. The present
Section 6 adds that if the accused was tried in absentia because he jumped bail or
escaped from prison, notice of promulgation shall be served at his last known address.
Significantly, both versions of said section set forth the rules that become operative if
the accused fails to appear at the promulgation despite due notice: (a) promulgation shall
consist in the recording of the judgment in the criminal docket and a copy thereof shall be
served upon the accused at his last known address or through his counsel; and (b) if the
judgment is for conviction, and the accused's failure to appear was without justifiable
cause, the court shall further order the arrest of the accused.
Here lies the difference in the two versions of the section. The old rule automatically
gives the accused 15 days from notice (of the decision) to him or his counsel within which
to appeal. In the new rule, the accused who failed to appear without justifiable cause shall
lose the remedies available in the Rules against the judgment. However, within 15 days
from promulgation of judgment, the accused may surrender and file a motion for leave of
court to avail of these remedies. He shall state in his motion the reasons for his absence
at the scheduled promulgation and if he proves that his absence was for a justifiable
cause, he shall be allowed to avail of said remedies within 15 days from notice.
It thus appears that the judgment in a criminal case must be promulgated in the
presence of the accused, except where it is for a light offense, in which case it may be
pronounced in the presence of his counsel or representative (Dimson v. Elepao, 99 Phil.
733 [1956]), and except where the judgment is for acquittal, in which case the presence
of the accused is not necessary(Cea, etc., et al. v. Cinco, et al., 96 Phil. 31
[1954]). Notably, one of the conditions of the bail given for the provisional liberty of an
accused in a criminal case is that he shall surrender himself (or the bondsman shall
surrender the accused) for execution of the final judgment (Section 2[d], Rule 114,
Revised Rules of Criminal Procedure). Thus, it follows that it is the responsibility of the
accused to make himself available to the court upon promulgation of a judgment of
conviction, and such presence is secured by his bail bond. This amplifies the need for the
presence of the accused during the promulgation of a judgment of conviction, especially
if it is for a grave offense. Obviously, a judgment of conviction cannot be executed --and
the sentence meted to the accused cannot be served --without his presence. Besides,
where there is no promulgation of the judgment, the right to appeal does not
accrue (People v. ]aranilla, 55 SCRA 565 [1974]).
Jurisprudence further dictates that the absence of counsel during the promulgation
will not result in a violation of any substantial right of the accused, and will not affect the
validity of the promulgation of the judgment (Bernardo v. Abeto, CA-G. R. No. 6076, 31
January 1940; Gonzales v. Judge, 186 SCRA 101 [1990]).
In the vintage case of Cea, etc., et al. v. Cinco, et al (supra), the Court citing U. S. v.
Beecham, (28 Phil. 258 [1914]), stated the reasons for requiring the attendance of the
accused in case of conviction for a grave or less grave offense, to wit:

...The common law required, when any corporal punishment was to be

inflicted on the defendant, that he should be personally present before the
court at the time of pronouncing the sentence.(1 Chitty's Crim. Law [5th
Am. ed.], 693, 696.) Reasons given for this are, that the defendant may be
identified by the court as the real party adjudged to be punished (Holt,
399); that the defendant may have a chance to plead or move in arrest of
judgment (King vs. Speke, 3 Salk., 358); that he may have an opportunity
to say what he can say why judgment should not be given against him (2
Hale's Pleas of the Crown, 401, 402); and that the example of the
defendants, who have been guilty of misdemeanors of a gross and public
kind, being brought up for the animadversion of the court and the open
denunciation of punishment, may tend to deter others from the
commission of similar offenses (Chitty's Crim. Law [5th ed.], 693, 696) ***.

Nevertheless, as mentioned above, regardless of the gravity of the offense,

promulgation of judgment in absentia is allowed under the Rules. The only essential
elements for its validity are: (a) that the judgment be recorded in the criminal docket; and
(b) that a copy thereof shall be served upon the accused or counsel.
Let us examine the validity of the May 5, 1998 promulgation which took place in the
case at bar. The dispositive portion of the decision convicting petitioner was read in open
court, after which the public prosecutor, the defense counsel Atty. Marcelino Arias, and
private complainant Lucita Lopez, acknowledged receipt of their respective copies of the
decision by affixing their signatures at the back of the original of the decision on file with
the record of the case. Atty. Arias failed to file a notice of appeal within fifteen days from
receipt of the decision. Is it proper to rule that the period within which to file an appeal has
lapsed?
In Florendo v. Court of Appeals (239 SCRA 325 [1994]), the facts are parallel to those
of the instant case. We held -

In the case at bench, a copy of the judgment was served to the counsel of
petitioner on June 15, 1992; therefore, he had only up to June 30, 1992 within
which to appeal. The notice of appeal filed on July 6, 1992 was clearly out of
time.

It is presumed that official duties are regularly performed and that the
proceedings are made of record. This serves as a substantial compliance with
the procedural requirement of the recording of the judgment in the criminal
docket of the court. At any rate, petitioner does not question non-compliance
of the requirement of the recording of the judgment in the criminal docket.

(At p. 329.)

Petitioner's first argument is devoid of merit. In the first place, her non- receipt of the
notice of promulgation was due to her own failure to immediately file a notice of change
of address with the trial court, which she clearly admitted. Besides, promulgation could
be properly done even in her absence, subject to the service of a copy of the decision
upon her or her counsel and the recording of the judgment in the criminal docket.
However, in line with petitioner's second argument, petitioner has presented evidence
sufficient to controvert the presumption of regularity of performance of official duty as
regards the procedural requirement of the recording of the judgment in the criminal docket
of the court. Attached to the petition is a piece of evidence that cannot be ignored by this
Court -- a certification dated October 26, 1998 signed by the Clerk of Court of the Regional
Trial Court of Pasig, which reads:

TO WHOM IT MAY CONCERN:

THIS IS TO CERTIFY that this Office has not yet been furnished, as of this
date, with copies of the decisions in Criminal Cases Nos. 85283-306 and
86064-65, entitled People of the Philippines versus Marilyn C. Pascua, which
were assigned to Branch 153 of this Court.

This certification is issued upon request of Romulo D. San Juan and Porfirio
Bautista, both counsels for the accused.

City of Pasig, October 26, 1998, 1:30 p.m.

(Sgd.) GREGORIO P. SUBONG, JR.

Administrative Officer I In-Charge

Criminal Cases Unit

(Sgd.) GRACE S. BELVIS

Clerk of Court

(p. 61, Record.)

We take judicial notice of said certification and hold that in view thereof, we cannot
presume substantial compliance with the requirement of recording a judgment in the
criminal docket. And in the absence of such compliance, there can be no valid
promulgation. Without the same, the February 17, 1998 decision could not attain finality
and become executory. This means that the 15-day period within which to interpose an
appeal did not even commence.
What is the significance of the recording of the judgment with the criminal docket of
the court? By analogy, let us apply the principles of civil law on registration.
To register is to record or annotate. American and Spanish authorities are unanimous
on the meaning of the term to register as "to enter in a register; to record formally and
distinctly; to enroll; to enter in a list" (Po Sun Tun vs. Prize and Provincial Government of
Leyte, 54 Phil. 192 [1929]). In general, registration refers to any entry made in the books
of the registry, including both registration in its ordinary and strict sense, and cancellation,
annotation, and even the marginal notes. In strict acceptation, it pertains to the entry
made in the registry which records solemnly and permanently the right of ownership and
other real rights (Ibid.). Simply stated, registration is made for the purpose
of notification (Paras, Civil Code of the Philippines, Vol. II, 1989 ed., p. 653,
citing Bautista vs. Dy Bun Chin, 49 O.G. 179 [1952]).
Registration is a mere ministerial act by which a deed, contract, or instrument is
sought to be inscribed in the records of the Office of the Register of Deeds and annotated
at the back of the certificate of title covering the land subject of the deed, contract, or
instrument. Being a ministerial act, it must be performed in any case and, if it is not done,
it may be ordered performed by a court of justice (Cruz, The Law of Public Officers, 1997
ed., p. 102). In fact, the public officer having this ministerial duty has no choice but to
perform the specific action which is the particular duty imposed by law. Its purpose is to
give notice thereof to all persons. It operates as a notice of the deed, contract, or
instrument to others, but neither adds to its validity nor converts an invalid instrument into
a valid one between the parties. If the purpose of registration is merely to give notice,
then questions regarding the effects or invalidity of instruments are expected to be
decided after, not before, registration. It must follow as a necessary consequence that
registration must first be allowed, and validity or effect of the instruments litigated
afterwards (Seron vs. Hon. Rodriguez, etc., and Seron, 110 Phil.. 548 [1960]; Gurbax
Singh Pabla & Co., et al. vs. Reyes, et al., 92 Phil. 177 [1952]; Register of Deeds of Manila
vs. Tinoco Vda. De Cruz, 95 Phil. 818 [1954]; Samanilla vs. Cajucom, et al., 107 Phil. 432
[1960]).
Applying the above-mentioned principles to the instant case, we are prompted to
further examine the provisions on promulgation in absentia.
As held in Florendo vs. Court of Appeals (supra), the rules allow promulgation of
judgment in absentia to obviate the situation where juridical process could be subverted
by the accused jumping bail. But the Rules also provide measures to make
promulgation in absentia a formal and solemn act so that the absent accused, wherever
he may be, can be notified of the judgment rendered against him. As discussed earlier,
the sentence imposed by the trial court cannot be served in the absence of the
accused. Hence, all means of notification must be done to let the absent accused know
of the judgment of the court. And the means provided by the Rules are: (1) the act of
giving notice to all persons or the act of recording or registering the judgment in the
criminal docket (which Section 6 incidentally mentions first showing its
importance; and (2) the act of serving a copy thereof upon the accused (at his last known
address) or his counsel. In a scenario where the whereabouts of the accused are
unknown (as when he is at large), the recording satisfies the requirement of notifying the
accused of the decision wherever he may be.
Thus, on May 5, 1998, although the second kind of notification was satisfied when
defense counsel Atty. Arias received a copy of the February 17, 1998 decision, the
solemn and operative act of recording was not done, making the promulgation in
absentia invalid. This being so, the period to appeal did not begin to run.
The next matter we have to consider is the effect of the service of a copy of the
judgment upon petitioner, who admits having received a copy thereof on June 17,
1998. Did the 15-day period to appeal begin to run on said date of receipt?
We rule in the negative. Petitioner's later receipt of the copy of the decision does not
in any way cure an invalid promulgation. And even if said decision be recorded in the
criminal docket later, such piece-meal compliance with the Rules will still not validate the
May 5, 1998 promulgation which was invalid at the time it was conducted. The express
mention in the provision of both requirements for a valid promulgation in absentia clearly
means that they indeed must concur.
Finally, as regards the third argument, we agree with the Solicitor General that
matters of sufficiency of evidence may not be passed upon in the herein proceedings. The
instant petition assails the Court of Appeals' decision dated June 17, 1999 and its order
dated September 28, 1999 both of which concern the orders of the trial court dated June
22, 1998 and October 8, 1998, in essence ruling that petitioner's notice of appeal dated
June 19, 1998 was filed out of time. The petition is not directed against February 17, 1998
decision of the trial court which convicted petitioner on 26 counts of violation of Batas
Pambansa Blg. 22. Hence, this is not the proper time to rule on the merits of Criminal
Cases No. 85283-306/86064-65. There is, rather, a need to remand the matter to the trial
court for proper promulgation of its decision. Significantly, it is not what petitioner
describes as "repromulgation" since promulgation was not validly made, and hence, as if
not conducted. The requisites of the remedy of appeal shall then apply from that point.
WHEREFORE, the instant petition is hereby GRANTED. The June 17, 1999 decision
and the September 28, 1999 order of the Court of Appeals are hereby set aside. The
instant case is hereby remanded to the trial court for proper promulgation of its decision
in accordance with Section 6, Rule 120 of the Revised Rules of Criminal Procedure.
SO ORDERED.

G.R. No. 202243 August 7, 2013

ROMULO L. NERI, Petitioner,

vs.
SANDIGANBAYAN (FIFTH DIVISION) and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

VELASCO, JR., J.:

The Case

Assailed and sought to be nullified in this Petition for Certiorari, Prohibition and Mandamus under
Rule 65, with application for preliminary injunction and a temporary restraining order, are the
Resolution1 dated February 3, 2012 of the Fifth Division of the Sandiganbayan in SB-10-CRM-0099
entitled People of the Philippines v. Romulo L. Neri, as well as its Resolution2 of April 26, 2012
denying petitioner's motion for reconsideration.

The Facts

Petitioner Romulo L. Neri (Neri) served as Director General of the National Economic and
Development Authority (NEDA) during the administration of former President Gloria Macapagal-
Arroyo.

In connection with what had been played up as the botched Philippine-ZTE3 National Broadband
Network (NBN) Project, the Office of the Ombudsman (OMB ), on May 28, 2010, filed with the
Sandiganbayan two (2) criminal Informations, the first against Benjamin Abalos, for violation of
Section 3(h) of Republic Act No. (RA) 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, docketed as SB-10-CRM-0098 (People v. Abalos), and eventually raffled to
the Fourth Division of that court. The second Information against Neri, also for violation of Sec. 3(h),
RA 3019, in relation to Sec. 13, Article VII of the 1987 Constitution, was docketed as SB-10-CRM-
0099 (People v. Neri) and raffled to the Fifth Division of the Sandiganbayan. Vis--vis the same
project, the Ombudsman would also later file an information against Macapagal-Arroyo and another
information against her and several others docketed as SB-11-CRM-0467 and SB-11-CRM-0468 to
0469, respectively, all of which ended up, like SB-10-CRM-0098, in the anti-graft courts 4th Division.

The accusatory portion of the Information against Neri reads as follows:

That during the period from September 2006 to April 2007, or thereabout in Metro Manila x x x and
within the jurisdiction of this Honorable Court, the above-named accused x x x being the then
Director General of the NEDA, a Cabinet position and as such, is prohibited by Sec. 13 of Article VII
of the 1987 Constitution from being financially interested in any contract with, or in any franchise or
special privilege granted by the Government but in spite of said provision, petitioner, while acting as
such, x x x directly or indirectly have financial or pecuniary interest in the business transaction
between the Government of the Republic of the Philippines and the Zhing Xing Telecommunications
Equipment, Inc., a Chinese corporation x x x for the implementation of the Philippine x x x (NBN)
Project, which requires the review, consideration and approval of the NEDA, x x x by then and there,
meeting, having lunch and playing golf with representatives and/or officials of the ZTE and meeting
with the COMELEC Chairman Benjamin Abalos and sending his emissary/representative in the
person of Engineer Rodolfo Noel Lozada to meet Chairman Abalos and Jose De Venecia III,
President/General Manager of Amsterdam Holdings, Inc. (AHI) another proponent to implement the
NBN Project and discuss matters with them. (Rollo, pp. 48-50.)

In the ensuing trial in the Neri case following the arraignment and pre-trial proceedings, six (6)
individuals took the witness stand on separate dates5 to testify for the prosecution. Thereafter, the
prosecution twice moved for and secured continuance for the initial stated reason that the
prosecution is still verifying the exact address of its next intended witness and then that such witness
cannot be located at his given address.6

In the meantime, a pre-trial conference was conducted in the Abalos case following which the Fourth
Division issued on September 17, 2010 a Pre-Trial Order7 containing, among other things, a list of
witnesses and documents the prosecution intended to present. On October 27, 2010, Neri, whose
name appeared high on the list, took the witness stand against Abalos in the Abalos case.8

On January 3, 2012, in SB-10-CRM-0099, the Office of the Special Prosecutor (OSP), OMB, citing
Sec. 22, Rule 119 of the Rules of Court in relation to Sec. 2 of the Sandiganbayan Revised Internal
Rules, moved for its consolidation with SB-10-CRM-0098 (People v. Abalos), SB-11-CRM-0467
(People v. Arroyo, et al.) and SB-11-0468 to 469 (People v. Arroyo). The stated reason proffered: to
promote a more expeditious and less expensive resolution of the controversy of cases involving the
same business transaction. And in this regard, the prosecution would later manifest that it would be
presenting Yu Yong and Fan Yang, then president and finance officer, respectively, of ZTE, as
witnesses all in said cases which would entail a substantive expense on the part of government if
their testimonies are given separately.9

Neri opposed and argued against consolidation, and, as he would later reiterate, contended, among
other things that: (a) SB-10-CRM-0099, on one hand, and the other cases, on the other, involve
different issues and facts; (b) the desired consolidation is oppressive and violates his rights as an
accused; (c) consolidation would unduly put him at risk as he does not actually belong to the Abalos
group which had been negotiating with the ZTE officials about the NBN Project; (d) he is the
principal witness and, in fact, already finished testifying, in the Abalos case; (e) the trial in the Neri
and Abalos cases are both in the advanced stages already; and (f) the motion is but a ploy to further
delay the prosecution of SB-10-CRM-0099, considering the prosecutions failure to present any more
witnesses during the last two (2) scheduled hearings.

To the opposition, the prosecution interposed a reply basically advancing the same practical and
economic reasons why a consolidation order should issue.

By Resolution dated February 3, 2012, the Sandiganbayan Fifth Division, agreeing with the position
thus taken by the OSP, granted the consolidation of SB-10-CRM-0099 with SB-10-CRM-0098,
disposing as follows:

WHEREFORE, the prosecutions Motion to Consolidate is hereby GRANTED. The instant case (SB-
10-CRM-0099) is now ordered consolidated with SB-10-CRM-0098, the case with the lower court
docket number pending before the Fourth Division of this Court, subject to the conformity of the said
Division.10 (Emphasis added.)

According to the Fifth Division, citing Domdom v. Sandiganbayan,11 consolidation is proper inasmuch
as the subject matter of the charges in both the Abalos and Neri cases revolved around the same
ZTE-NBN Project. And following the movants line, the anti-graft court stated that consolidation
would allow the government to save unnecessary expenses, avoid multiplicity of suits, prevent delay,
clear congested dockets, and simplify the work of the trial court without violating the parties rights.

Neri sought a reconsideration, but the Fifth Division denied it in its equally assailed April 26, 2012
Resolution.

The Issues

Petitioner Neri is now before the Court on the submission that the assailed consolidation order is
void for having been issued with grave abuse of discretion. Specifically, petitioners allege that
respondent court gravely erred:

[A] x x x in ordering a consolidation of the subject criminal cases when the Revised Rules of Criminal
Procedure does not allow a consolidation of criminal cases, only a consolidation of trials or joint trials
in appropriate instances.

[B] x x x in ordering the consolidation because petitioner will now be tried for a crime not charged in
the information in x x x SB-10-CRM-0099 and this is violative of his constitutional right to be

informed of the nature and cause of the accusation against him. Worse, conspiracy was not even
charged or alleged in that criminal information.

[C] x x x in ordering the consolidation for it would surely prejudice the rights of petitioner as an
accused in x x x SB-10-CRM-0099 because he does not actually belong to the Abalos Group which
had been negotiating with the ZTE Officials about the NBN Project.

[D] x x x in ordering the consolidation for it would just delay the trial of the case against the
petitioner, as well as that against Abalos, because these cases are already in the advanced stages
of the trial. Worse, in the Abalos case, the prosecution has listed 50 witnesses and it has still to
present 33 more witnesses while in the case against the petitioner the prosecution (after presenting
six witnesses) has no more witnesses to present and is now about to terminate its evidence in chief.
Clearly, a consolidation of trial of these two (2) cases would unreasonably and unduly delay the trial
of the case against the petitioner in violation of his right to a speedy trial.

[E] x x x in not finding that the proposed consolidation was just a ploy by the prosecution to further
delay the prosecution of x x x SB-10-CRM-0099 because during the last two (2) hearings it has
failed to present any more prosecution witnesses and there appears to be no more willing witnesses
to testify against the petitioner. x x x

[F] x x x in not finding that it would be incongruous or absurd to allow consolidation because
petitioner was the principal witness (as he already finished testifying there) against Abalos in x x x
SB-10-CRM-0098.12

The Courts Ruling

The petition is meritorious, owing for one on the occurrence of a supervening event in the
Sandiganbayan itself. As may be recalled, the assailed resolution of the Sandiganbayan Fifth
Division ordering the consolidation of SB-10-CRM-0099 (the Neri case) with SB-10-CRM-0098 (the
Abalos case) pending with the Fourth Division, was subject to the "conformity of the said (4th)
Division." On October 19, 2012, the Fourth Division, on the premise that consolidation is addressed
to the sound discretion of both the transferring and receiving courts, but more importantly the latter
as the same transferred case would be an added workload, issued a Resolution13 refusing to accept
the Neri case, thus:

WHEREFORE, the foregoing premises considered, the Fourth Division RESPECTFULLY

DECLINES to accept SB-10-CRM-0099 (Neri case) for consolidation with SB-10-CRM-00998
(Abalos case) pending before it.

The Sandiganbayan Fourth Division wrote to justify, in part, its action:

The Fourth Division already heard accused Neri testify against the accused in the Abalos case, and
in the course of the presentation of his testimony (on direct examination, on cross-examination and
based on his reply to the questions from the Court), the individual members of the Fourth Division,
based on accused Neris answers as well as his demeanor on the dock, had already formed their
respective individual opinions on the matter of his credibility. Fundamental is the rule x x x that an
accused is entitled to nothing less that the cold neutrality of an impartial judge. This Court would not
want accused Neri to entertain any doubt in his mind that such formed opinions might impact on the
proper disposition of the Neri case where he stands accused himself.14

While it could very well write finis to this case on the ground of mootness, the actual justiciable
controversy requirement for judicial review having ceased to exist with the supervening action of the
Fourth Division, the Court has nonetheless opted to address the issue with its constitutional law
component tendered in this recourse.

The unyielding rule is that courts generally decline jurisdiction over cases on the ground of
mootness. But as exceptions to this general norm, courts will resolve an issue, otherwise moot and
academic, when, inter alia, a compelling legal or constitutional issue raised requires the formulation
of controlling principles to guide the bench, the bar and the public15 or when, as here, the case is
capable of repetition yet evading judicial review.16 Demetria v. Alba added the following related
reason:
But there are also times when although the dispute has disappeared, as in this case, it nevertheless
cries out to be resolved. Justice demands that we act then, not only for the vindication of the
outraged right, though gone, but also for the guidance of and as a restraint upon the future.17

The interrelated assignment of errors converged on the propriety, under the premises, of the
consolidation of SB-10-CRM-0099 with SB-10-CRM-0098.

Consolidation is a procedural device granted to the court as an aid in deciding how cases in its
docket are to be tried so that the business of the court may be dispatched expeditiously while
providing justice to the parties.18Toward this end, consolidation and a single trial of several cases in
the courts docket or consolidation of issues within those cases are permitted by the rules.

As held in Republic v. Sandiganbayan (Fourth Division), citing American jurisprudence, the term
"consolidation" is used in three (3) different senses or concepts, thus:

(1) Where all except one of several actions are stayed until one is tried, in which case the judgment
in one trial is conclusive as to the others. This is not actually consolidation but is referred to as such.
(quasi consolidation)

(2) Where several actions are combined into one, lose their separate identity, and become a single
action in which a single judgment is rendered. This is illustrated by a situation where several actions
are pending between the same parties stating claims which might have been set out originally in one
complaint. (actual consolidation)

(3) Where several actions are ordered to be tried together but each retains its separate character
and requires the entry of a separate judgment. This type of consolidation does not merge the suits
into a single action, or cause the parties to one action to be parties to the other. (consolidation for
trial)19 (citations and emphasis omitted; italicization in the original.)

To be sure, consolidation, as taken in the above senses, is allowed, as Rule 31 of the Rules of Court
is entitled "Consolidation or Severance." And Sec. 1 of Rule 31 provides:

Section 1. Consolidation. When actions involving a common question of law or fact are pending
before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it
may order all actions consolidated; and it may make such orders concerning proceedings therein as
may tend to avoid unnecessary costs or delay.

The counterpart, but narrowed, rule for criminal cases is found in Sec. 22, Rule 119 of the Rules of
Court stating:

Sec. 22. Consolidation of trials of related offenses. - Charges for offenses founded on the same facts
or forming part of a series of offenses of similar character may be tried jointly at the discretion of the
court. (Emphasis added.)

as complemented by Rule XII, Sec. 2 of the Sandiganbayan Revised Internal Rules which states:

Section 2. Consolidation of Cases. Cases arising from the same incident or series of incidents, or
involving common questions of fact and law, may be consolidated in the Division to which the case
bearing the lowest docket number is raffled.
Whether as a procedural tool to aid the court in dispatching its official business in criminal or civil
cases, the rule allowing consolidationin whatsoever sense it is taken, be it as a merger of several
causes of actions/cases, in the sense of actual consolidation, or merely joint trialis designed,
among other reasons, to avoid multiplicity of suits, guard against oppression and abuse, attain
justice with the least expense and vexation to the litigants.20

While the assailed resolution is silent as to the resultant effect/s of the consolidation it approved,
there is nothing in the records to show that what the prosecution vied for and what the Fifth Division
approved went beyond consolidation for trial or joint trial. This conclusion may be deduced from the
underscored portion of the following excerpts of the resolution in question, thus:

In its reply, the prosecution asserted that the rationale behind consolidation of cases is to promote
expeditious and less expensive resolution of a controversy than if they were heard independently
and separately. It is claimed that the OMB and DOJ have already requested the participation in the
hearing of these cases of the ZTE executives, which will entail huge expenses if they will be
presented separately for each case. x x x

We agree with the prosecution.21 (Emphasis added.)

Not to be overlooked is the fact that the prosecution anchored its motion for consolidation partly on
the aforequoted Sec. 22 of Rule 119 which indubitably speaks of a joint trial.

Given the above perspective, petitioner should now disabuse himself of the unfounded notion that
what the Fifth Division intended was a fusion into one criminal proceedings of the Abalos and Neri
cases, where one is unidentifiable from the other, or worse, where he will be tried as co-accused in
the Abalos case.

This thus brings us to the question of whether a consolidation of trial, under the factual and legal
milieu it was ordered, is proper.

Jurisprudence has laid down the requisites for consolidation of trial. As held in Caos v.
Peralta,22 joint trial is permissible "where the actions arise from the same act, event or transaction,
involve the same or like issues, and depend largely or substantially on the same evidence, provided
that the court has jurisdiction over the cases to be consolidated and that a joint trial will not give one
party an undue advantage or prejudice the substantial rights of any of the parties." More elaborately,
joint trial is proper where the offenses charged are similar, related, or connected, or are of the same
or similar character or class, or involve or arose out of the same or related or connected acts,
occurrences, transactions, series of events, or chain of circumstances, or are based on acts or
transactions constituting parts of a common scheme or plan, or are of the same pattern and
committed in the same manner, or where there is a common element of substantial importance in
their commission, or where the same, or much the same, evidence will be competent and admissible
or required in their prosecution, and if not joined for trial the repetition or reproduction of substantially
the same testimony will be required on each trial.23

In terms of its effects on the prompt disposition of cases, consolidation could cut both ways. It may
1wphi1

expedite trial or it could cause delays. Cognizant of this dichotomy, the Court, in Dacanay v. People,
stated the dictum that "the resulting inconvenience and expense on the part of the government
cannot not be given preference over the right to a speedy trial and the protection of a persons life,
liberty or property." Indeed, the right to a speedy resolution of cases can also be affected by
consolidation. As we intoned in People v. Sandiganbayan, a case involving the denial by the anti-
graft court of the prosecutions motion to consolidate a criminal case for indirect bribery with another
case for plunder, consolidation should be refused if it will unduly expose a party, private respondent
in that instance, to totally unrelated testimonies, delay the resolution of the indirect bribery case,
muddle the issues, and expose him to the inconveniences of a lengthy and complicated legal battle
in the plunder case. Consolidation, the Court added, has also been rendered inadvisable by
supervening eventsin particular, if the testimonies sought to be introduced in the joint trial had
already been heard in the earlier case.25

So it must be here.

Criminal prosecutions primarily revolve around proving beyond reasonable doubt the existence of
the elements of the crime charged. As such, they mainly involve questions of fact. There is a
question of fact when the doubt or difference arises from the truth or the falsity of the allegations of
facts. Put a bit differently, it exists when the doubt or difference arises as to the truth or falsehood of
facts or when the inquiry invites calibration of the whole gamut of evidence considering mainly the
credibility of the witnesses, the existence and relevancy of specific surrounding circumstances as
well as their relation to each other and to the whole, and the probability of the situation.26

Since conviction or acquittal in a criminal case hinges heavily on proof that the overt acts
constituting, or the elements, of the crime were indeed committed or are present, allegations in the
information are crucial to the success or failure of a criminal prosecution. It is for this reason that the
information is considered the battle ground in criminal prosecutions. As stressed in Matrido v.
People:

From a legal point of view, and in a very real sense, it is of no concern to the accused what is the
technical name of the crime of which he stands charged. It in no way aids him in a defense on the
merits. That to which his attention should be directed, and in which he, above all things else, should
be most interested, are the facts alleged. The real question is not did he commit the crime given in
the law in some technical and specific name, but did he perform the acts alleged in the body of the
information in the manner therein set forth.27 (Emphasis supplied.)

The overt acts ascribed to the two accused which formed the basis of their indictments under the
separate criminal charge sheets can be summarized as follows:

People v. Neri (For Violation of Section 3[h] RA 3019)28

1. Directly or indirectly having financial or pecuniary interest in the business transaction

between the Government of the Republic of the Philippines (GRP) and ZTE for the
implementation of the NBN Project, which requires the review, consideration and approval by
the accused, as then NEDA Director General;

2. Meeting, having lunch and playing golf with representatives and/or officials of the ZTE;

3. Meeting with then COMELEC Chairman Benjamin Abalos; and

4. Sending his emissary/representative, Engr. Rodolfo Noel Lozada, to meet Abalos and
Jose de Venecia III, President/General Manager of Amsterdam Holdings Inc. (AHI), another
proponent to implement the NBN Project and discuss matters with them.

People v. Abalos (For Violation of Section 3[h], RA 3019)

1. Having financial or pecuniary interest in the business transaction between the GRP and
the ZTE for the implementation of the Philippines NBN;
 2. Attending conferences, lunch meetings and golf games with said ZTE officials in China, all
expenses paid by them and socializing with them in China and whenever they were here in
the Philippines;

3. Offering bribes to petitioner in the amount of PhP 200,000,000 and to Jose de Venecia III
President and General Manager of AHI in the amount of USD 10,000,000, being also
another proponent to implement said NBN Project of the Government; and

4. Arranging meetings with Secretary Leandro Mendoza of the Department of Transportation

and Communications (DOTC).29

As can be gleaned from the above summary of charges, the inculpatory acts complained of, the
particulars and specifications for each of the cases are dissimilar, even though they were allegedly
done in connection with the negotiations for and the implementation of the NBN Project. Due to this
variance, the prosecution witnesses listed in the pre-trial order in the Neri case are also different
from the list of the peoples witnesses lined up to testify in the Abalos case, albeit some names
appear in both the pre-trial orders. This can be easily seen by a simple comparison of the list of
witnesses to be presented in the cases consolidated. The witnesses common to both cases are
underscored. Thus:

In People v. Neri, the following are named as witnesses,30 viz:

1. Benjamin Abalos

2. Jose de Venecia Jr.

3. Jose de Venecia III

4. Rodolfo Noel "Jun" Lozada

5. Dante Madriaga

6. Jarius Bondoc

7. Leo San Miguel

8. Sec. Margarito Teves

9. Representative of the Bureau of Immigration and Deportation;

10. Employees of the Wack Wack Golf and Country Club

11. Airline Representatives (2)

12. Raquel Desiderio DOTC, Asec. Administrative and Legal Affairs

13. Atty. Frederick Fern Belandres, DOTC

14. Atty. Geronimo Quintos

 15. Nilo Colinares

16. Elmer Soneja

17. Lorenzo Formoso

18. Records Custodian, DOTC

19. Senate Secretary or any of her duly authorized representative

20. Director General of the Senate Blue Ribbon Committee or any of his duly authorized
representative

21. Representative of NEDA;

22. ZTE Officials

23. Ramon Sales

24. Hon. Gloria Macapagal-Arroyo

25. Atty. Jose Miguel Arroyo

26. Others.

In People v. Abalos, the following are the listed witnesses,31 to wit:

1. Atty. Oliver Lozano

2. Mr. Jose De Venecia III

3. Engr. Rodolfo Noel Lozada

4. Engr. Dante Madriaga

5. Secretary Romulo L. Neri

6. Mr. Jarius Bondoc

7. Speaker Jose De Venecia, Jr.

8. Atty. Ernesto B. Francisco

9. Congresswoman Ana Theresa H. Baraquel

10. TESDA Chairman Emmanuel Joel J. Villanueva

11. Mr. Leo San Miguel

12. Secretary Margarito Teves

13. Atty. Raquel T. Desiderio

14. Atty. Frederick Fern M. Belandres

15. Atty. Geronimo V. Quintos

16. Mr. Nilo Colinares

17. Mr. Elmer A. Soneja

18. Asst. Secretary Lorenzo Formoso

19. Atty. Harry L. Roque

20. Vice-President Teofisto T. Guingona, Jr.

21. Dr. Ma. Dominga B. Padilla

22. Fr. Jose P. Dizon

23. Mr. Roel Garcia

24. Mr. Bebu Bulchand

25. Mr. Renato Constantino, Jr.

26. Mr. Ferdinand R. Gaite

27. Mr. Guillermo Cunanan

28. Mr. Amado Gat Inciong

29. Mr. Rafael V. Mariano

30. Ms. Consuelo J. Paz

31. Atty. Roberto Rafael J. Pulido

32. Antonia P. Barrios, Director III, Senate Legislative Records & Archives Services

33. The Personnel Officer, Human Resource Management Office, Commission on Elections
(COMELEC)

34. Representative/s from the Wack-Wack Golf and Country Club, Mandaluyong City

35. Representative/s from the Philippine Airlines (PAL)

 36. Representative/s from Cathay Pacific Airways

37. Representative/s from the Cebu Pacific Airlines

38. Representative/s from the COMELEC

39. Representative/s from the National Economic & Development Authority (NEDA)

40. Representative/s from the Board of Investments

41. Representative/s from the Department of Trade and Industry (DTI)

42. Representative/s from the Department of Foreign Affairs (DFA)

43. Representative/s from the Bureau of Immigration

44. Representative/s from the National Bureau of Investigation (NBI)

45. Representative/s from the Securities and Exchange Commission (SEC)

46. Representative/s from the National Statistics Office (NSO)

47. Representative/s from the Embassy of the Peoples Republic of China to the Philippines

48. Representative/s from the Central Records Division, Office of the Ombudsman

49. Representative/s from the Department of Transportation and Communications (DOTC)

50. Representative/s from the Philippine Senate

The names thus listed in the pre-trial order in the Abalos case do not yet include, as aptly observed
by the Fourth Division in its adverted October 19, 2012 Resolution,32 additional names allowed under
a subsequent resolution. In all, a total of at least 66 warm bodies were lined up to testify for the
prosecution.

It can thus be easily seen that veritably the very situation, the same mischief sought to be avoided in
People v. Sandiganbayan33 which justified the non-consolidation of the cases involved therein, would
virtually be present should the assailed consolidation be upheld. Applying the lessons of People v.
Sandiganbayan to the instant case, a consolidation of the Neri case to that of Abalos would expose
petitioner Neri to testimonies which have no relation whatsoever in the case against him and the
lengthening of the legal dispute thereby delaying the resolution of his case. And as in People v.
Sandiganbayan, consolidation here would force petitioner to await the conclusion of testimonies
against Abalos, however irrelevant or immaterial as to him (Neri) before the case against the latter
may be resolveda needless, hence, oppressive delay in the resolution of the criminal case against
him.

What is more, there is a significant difference in the number of witnesses to be presented in the two
cases. In fact, the number of prosecution witnesses in the Neri case is just half of that in Abalos.
Awaiting the completion in due course of the presentation of the witnesses in Abalos would
doubtless stall the disposition of the case against petitioner as there are more or less thirty-five (35)
prosecution witnesses listed in People v. Abalos who are not so listed in People v. Neri. In the
concrete, this means, in the minimum, awaiting the completion of the testimonies of thirty-five (35)
additional witnesses, whose testimonies are unrelated to the charges against him, before the case
against petitioner may finally be disposed of, one way or another. Also, petitioner will be exposed to
an extra thirty-five (35) irrelevant testimonies which even exceed those relating to his case, since the
prosecution only has roughly about twenty-six (26) witnesses for his case. Further still, any delay in
the presentation of any of the witnesses in People v. Abalos would certainly affect the speedy
disposition of the case against petitioner. At the end of the day, the assailed consolidation, instead of
contributing to the swift dispensation of justice and affording the parties a just, speedy and
inexpensive determination of their cases, would achieve the exact opposite.

Before the Sandigabayan and this Court, petitioner has harped and rued on the possible
infringement of his right to speedy trial should consolidation push through, noting in this regard that
the Neri case is on its advanced stage but with the prosecution unable to continue further with its
case after presenting six witnesses.

Petitioner's point is well-taken. In Dacanay, a case involving a request for separate trial instead of a
joint trial, the Court upheld an accused's right to a speedy trial, guaranteed by Sec. 14 (2), Art. III of
the Constitution, over the claim of the prosecution that a joint trial would make the resolution of the
case less expensive.34 In Dacanay, Dacanay moved for immediate and separate trial, which the
People opposed on the ground that a separate trial, if approved, would entail a repetitive
presentation of the same evidence instead of having to present evidence against Dacanay and his
co-accused only once at the joint trial. According to the respondent therein, this will result in
inconvenience and expense on the part of the Government,35 the very same reasons given by the
prosecution in the case at hand. There. as later in People v. Sandiganbayan,36 We held that the
rights of an accused take precedence over minimizing the cost incidental to the resolution of the
controversies in question.

Clearly then, consolidation, assuming it to be proper owing to the existence of the element of
commonality of the lineage of the offenses charged contemplated in Sec. 22 of Rule 119, should be
ordered to achieve all the objects and purposes underlying the rule on consolidation, foremost of
which, to stress, is the swift dispensation of justice with the least expense and vexation to the
parties. It should, however, be denied if it subverts any of the aims of consolidation. And Dacanay
and People v. Sandiganbayan are one in saying, albeit implicitly, that ordering consolidation-likely to
delay the resolution of one of the cases, expose a party to the rigors of a lengthy litigation and in the
process undermine the accused's right to speedy disposition of cases-constitutes grave abuse of
discretion. Not lost on the Court of course and certainly not on the Sandiganbayan 's Fourth Division
is the resulting absurdity arising from the consolidation of trial where the accused (Neri) in one case
would be the prosecution's main witness in the other case.

WHEREFORE, premises considered, the assailed Resolution of the Sandiganbayan Fifth Division
dated February 3, 2012 in Criminal Case No. SB-10-CRM-0099 and its Resolution dated April 26,
2012 are hereby REVERSED and SET ASIDE. Let Criminal Case No. SB-10-CRM-0098 and
Criminal Case No. SB-1 0-CRM-0099 proceed independently and be resolved with dispatch by the
Divisions of the Sandiganbayan to which each was originally raffled.

No pronouncement as to costs.

SO ORDERED.
Rule 119
G. R. No. 94555 August 17, 1992

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDUARDO LABALAN OCIMAR and ALEXANDER CORTEZ MENDOZA, accused-appellants.

The Solicitor General for plaintiff-appellee.

Virgilio Y. Morales for accused-appellant.

Alfredo Au. Alto for appellant Ocimar.

BELLOSILLO, J.:

EDUARDO LABALAN OCIMAR and ALEXANDER CORTEZ MENDOZA, together with ALFONSO
RAMOS BERMUDEZ, ALBERTO VENZIO CRUZ, VENZIO CRUZ alias "BOY PANA" and JOHN
DOE alias "BUNSO" were charged in the court a quo for violation of P.D. 532, otherwise known as
the "Anti-Piracy and Highway Robbery Law of 1974," in an Information alleging that

. . . on or about the 19th of October, 1986, in . . . Balagtas . . . Bulacan . . . the said

accused Eduardo Labalan Ocimar, Alfonso Ramos Bermudez, Alberto Venzio Cruz
and Alexander Cortez Mendoza, together with Venzio Cruz alias "Boy Pana" and one
John Doe alias "Bunso" . . . conspiring and confederating together . . . did then and
there wilfully, unlawfully and feloniously, with intent of gain and by means of force,
violence and intimidation . . . take, rob and carry away with them cash money,
jewelries and other valuables amounting to P36,100.00 more or less, belonging to
the passengers and driver of the Baliuag Transit, Alejandro de Jesus, while he was
driving the said bus along the North Expressway . . . and that on the occasion
thereof, the said accused, in furtherance of their conspiracy, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot . . . Capt. Cirilo Caeba,
an Army Officer . . . thereby inflicting upon him serious physical injuries which directly
caused his death. 1

On June 22, 1987, accused Eduardo Ocimar and Alexander Mendoza were arraigned. With the
assistance of counsel de oficio, they pleaded "Not Guilty". 2 The other accused were not arraigned
because they could not be accounted for.
On July 7, 1987, Alfonso Bermudez was finally brought before the court. He was accordingly
arraigned and with the assistance likewise of counsel de oficio, he entered a plea of "Guilty". 3

The other two accused, Alberto Venzio Cruz and Venzio Cruz alias "Boy Pana", were never
arraigned as the former was never arrested, while the latter jumped bail before arraignment. 4

On October 28, 1987, after the prosecution had already presented four witnesses, the prosecuting
Fiscal moved for the discharge of accused Bermudez to be utilized as state witness. Although he
had already entered a plea of guilt earlier, no judgment was as yet rendered against him.

On November 9, 1987, the trial court granted the motion of the prosecution for the discharge of
Bermudez. On March 21, 1988, after he testified for the prosecution, Bermudez was released. 5

On April 3, 1990, the trial court rendered judgment finding accused Eduardo Labalan Ocimar and
Alexander Cortez Mendoza guilty beyond reasonable doubt as co-principals in the violation of P.D.
532 and accordingly sentenced each of them to reclusion perpetua, and directing them jointly and
severally to indemnify the heirs of the late Capt. Cirilo Caeba, Jr., the amount of P30,000.00 for his
death, P45,000.00 for funeral expenses, P25,000.00 for moral damages, and P720,000.00
representing loss of expected support of the victim's heirs, plus the costs. 6

Accused Ocimar and Mendoza are now before Us on appeal.

Ocimar imputes ERROR to the court a quo in (a) discharging accused Bermudez, who had earlier
pleaded guilty to the charge, to be utilized as a state witness; (b) giving credence to the testimony of
Bermudez; and, (c) not holding that the prosecution failed to prove his (Ocimar) guilt beyond
reasonable doubt.

On his part, accused Mendoza maintains that the lower court ERRED in (a) relying on the lone
testimony of accused Bermudez; and, (b) convicting him (Mendoza) notwithstanding the failure of
the prosecution to prove his guilt.

Considering the peculiar circumstances attendant to the commission of the offense and in order to
meet squarely the issues raised by accused Ocimar and Mendoza, We prefer to quote hereunder
the findings of fact of the trial court, which makes a detailed account of the participation of each
accused in the perpetration of the highway robbery. We are not usually prone to lift extensively word
for word from narration of facts in decisions of lower courts elevated to Us, but in the instant case
We resolve to, in view of the accurate and systematic reporting done by the trial court. Its factual
findings are well backed up by the evidence on record, hence, We need not improve on them.
Besides, it is an entrenched rule that the matter of assigning value to declarations at the witness
stand is best and most competently performed by the trial judge who, unlike appellate magistrates,
can weigh such testimony in the light of the declarant's demeanor, conduct and attitude at the trial,
and is thereby placed in a more competent position to discriminate between the true and the
false. 7 Thus, as vividly reported by the court a quo

At around 3:00 o'clock in the afternoon of October 19, 1986, Bermudez was fetched
from his house in Amparo Capri, Novaliches, Quezon City by Eduardo Ocimar,
Alexander Mendoza and others he knew only by their first names (Boy Pana, Bunso,
Danny and Boylot) who invited him to a supposed drinking session at a place
somewhere in Sta. Maria, Bulacan. It turned out that the said place served as a hide-
out for the group. The contemplated drinking session in that hide-out did not take
place. Instead, the members of the group were given instructions by one "Boy Pana"
on their seating arrangements inside the bus they intended to hold-up shortly
thereafter.

Not long afterwards, the group (this time in the company of additional persons named
Fred Paraiso, Bebot, Beboy Baya, Fermin, Noel, Boboy and Agoy) boarded at the
Malinta, Valenzuela (Metro Manila) toll gate of the North Expressway a yellow-
painted Novaliches-Blumentritt passenger jeepney and proceeded to the Baliuag
Transit bus terminal at Cubao, Quezon City.

Herein accused and their companions boarded an airconditioned Baliuag Transit

passenger bus bound for Cabanatuan City, and seated themselves in different
places inside the vehicle according to their pre-arranged plan. Bermudez seated
himself somewhere at the middle portion of the bus, Ocimar and Bunso at the far
end, and Mendoza at the front behind the bus driver's seat. Each of them possessed
a concealed firearm or bladed weapon.

Not long after the bus had passed beyond the Malinta toll gate of the North
Expressway, Mendoza rose from his seat, poked a .38 cal. pistol at the bus driver,
and announced the hold-up. Forthwith, the other members of the group, with their
respective weapons exposed to view, went about divesting the passengers of their
wallets and handbags, items of jewelry and other personal effects of value. While the
robbery was in progress, Bermudez heard gunshot reports from the rear end of the
bus. He turned his head towards that direction and saw Ocimar holding a .22 cal.
magnum revolver pointed at the neck of a passenger seated at the back row of the
bus (later identified as Capt. Cirilo Caeba, Jr.) who was then about to drop to the
floor, head first. At the same spot, Bunso was also seen standing close by with a gun
on hand.

Upon reaching that portion of the Expressway with a concrete overpass somewhere
in Burol, Balagtas (Bulacan), Mendoza ordered the bus driver to stop the vehicle and,
after the driver was ordered to proceed on his way, the robbers alighted and boarded
the same yellow-colored passenger jeepney which was already waiting at the place
to serve as a get-away transport. Aboard the passenger jeepney, the group fled to
Bunso's house at Catmon, Sta. Maria where Bermudez was given P1,000.00 cash by
Boy Pana. After they divided the loot among themselves, the robbers parted ways.

After the robbers alighted at Burol, the bus driver with his passengers proceeded to
Tabang, Guiguinto (Bulacan) where the incident was reported to the police station
thereat. Said report was duly entered in the police blotter (Exhibit A).

Eventually, Bermudez was arrested by the police authorities at Novaliches on

November 4, 1986 and brought to the Northern Police District station at Sikatuna
Village, Quezon City where he executed a written statement (Exhibit E; also marked
Exhibit H) wherein he confessed his and his co-accused's participation in the
highway robbery.

Upon written request to this effect (Exhibit I), Dr. Dario L. Gajardo of the PC Crime
Laboratory at Camp Crame, Quezon City performed on October 20, 1986 at the
PCCL morgue a post-mortemexamination of the cadaver of Capt. Cirilo Caeba, Jr.,
after it was first identified by one Capt. Isabelo Almonte. The corresponding medico-
legal report prepared by Dr. Gajardo (Exhibit J) indicates that the aforenamed
deceased sustained, among other injuries, four (4) gunshot wounds, to wit, at the
 right temporal region, right clavicular region, left mammary region and right iliac
region (See also sketches marked as Exhibits K and K-1). As indicated in the same
medico-legal report, the cause of death of Capt. Caeba was "cardiorespiratory
arrest due to shook and hemorrhage secondary to multiple gunshot wounds of the
head and trunk." (Exhibit J-2). Accordingly, Dr. Gajardo issued the corresponding
Certificate of Death (Exhibit L).

Norma Diaz-Caeba testified that she and the late Capt. Cirilo Caeba, Jr. were
married on December 31, 1980 at the Nuestra Seora dela Guadalupe Parish in
President Quirino, Sultan Kudarat before Parish Priest Rev. Fr. Domingo Tagura as
evidenced by the corresponding Marriage Contract (Exhibit G). The couple have a
daughter named Belinda, five to six years of age at this time.

For the wake and funeral of her late husband, Mrs. Caeba incurred expenses
amounting to P45,000.00.

At the time of his death, Capt. Caeba, Jr. (then 35 years old) was stationed at the
Philippine Army Finance Center in Fort Bonifacio receiving a monthly salary of
"almost P3,000.00". When shot inside the Baliuag Transit bus on that fateful day, the
late military officer was on his way to Fort Magsaysay in Palayan City (Nueva Ecija)
on official business.

The testimony of State witness Bermudez was corroborated on material points by

bus driver Alejandro de Jesus and Philippine Army Major Fernando Zabat, one of the
four (4) military officers aboard the same bus at the time the highway robbery
complained of was perpetrated, even as the latter witnesses could not identify any of
the hold-uppers. 8

Both Ocimar and Mendoza deny having any knowledge or participation in the commission of the crime imputed to them. They claim that they
were physically present in different places far from the scene of the crime. Alibi, in other words.

For his part, appellant Ocimar, a car painter residing at Sauyo, Novaliches, Quezon City, testified
that on October 19, 1986, after attending a morning mass with his wife and a child at the town proper
of Novaliches, Quezon City, they returned home and spent the whole day together.

On the other hand, accused Mendoza swore that from 8:00 A.M. to 9:00 P.M. of October 19, 1986,
he reported for work, as a helper electrician repairing television sets and electrical appliances at the
shop of a certain Danilo Malaca located at Banlat, Commonwealth Avenue, Quezon City. He renders
service thereat from Monday to Saturday. His alibi was corroborated by his employer who confirmed
that Mendoza indeed performed a rush job on a television set on that date although only up to 3:00
o'clock in the afternoon. 9

On the propriety of the discharge of Bermudez to be utilized as state witness, Sec. 9, Rule 119 of the
1985 Rules on Criminal Procedure provides:

Sec. 9. Discharge at accused to be state witness. When two or more persons are
jointly charged with the commission of any offense, upon motion of the prosecution
before resting its case, the court may direct one or more of the accused to be
discharged with their consent so that they may be witnesses for the state when after
requiring the prosecution to present evidence and the sworn statement of each
proposed state witness at a hearing in support of the discharge, the court is satisfied
that: (a) There is absolute necessity for the testimony of the accused whose
 discharge is requested: (b) There is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony of said accused; (c) The
testimony of said accused can be substantially corroborated in its material points; (d)
Said accused does not appear to be the most guilty;
(e) Said accused has not at any time been convicted of any offense involving moral
turpitude.

As may be gleaned from the aforequoted Sec. 9 of Rule 119, the trial court must be satisfied that the
conditions prescribed by the rule exist. The court therefore, upon prior determination by the public
prosecutor, retains the prerogative of deciding when a co-accused may be discharged to become a
state witness. With Sec. 9 providing the guidelines, the discharge of an accused depends on sound
judicial discretion. Once that discretion is exercised under those guidelines and a co-accused is
discharged to become a state witness, and subsequently testifies in accordance with his undertaking
with the government, any legal deficiency or defect that might have attended his discharge from the
information will no longer affect the admissibility and credibility of his testimony, provided such
testimony is otherwise admissible an credible. 10

Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the discharge
of a co-accused to become a state witness. He argues that no accused in a conspiracy can lawfully
be discharged and utilized as a state witness, for not one of them could satisfy the requisite of
appearing not to be the most guilty. Appellant assets that since accused Bermudez was part of the
conspiracy, he is equally guilty as the others.

We do not agree. First, there is absolute necessity for the testimony of Bermudez. For, despite the
presentation of four (4) other witnesses, none of them could positively identify the accused except
Bermudez who was one of those who pulled the highway heist which resulted not only in the loss of
cash, jewelry and other valuables, but even the life of Capt. Caeba, Jr. It was in fact the testimony
of Bermudez that clinched the case for the prosecution. Second, without his testimony, no other
direct evidence was available for the prosecution to prove the elements of the crime. Third, his
testimony could be, as indeed it was, substantially corroborated in its material points as indicated by
the trial court in its well-reasoned decision. Fourth, he does not appear to be the most guilty. As the
evidence reveals, he was only invited to a drinking party without having any prior knowledge of the
plot to stage a highway robbery. But even assuming that he later became part of the conspiracy, he
does not appear to be the most guilty. What the law prohibits is that the most guilty will be set free
while his co-accused who are less guilty will be sent to jail. And by "most guilty" we mean the highest
degree of culpability in terms of participation in the commission of the offense, and not necessarily
the severity of the penalty imposed. While all the accused may be given the same penalty by reason
of conspiracy, yet one may be considered least guilty if We take into account his degree of
participation in the perpetration of the offense. Fifth, there is no evidence that he has at any time
been convicted of any offense involving moral turpitude.

Besides, the matter of discharging a co-accused to become state witness is left largely to the
discretion of the trial fiscal, subject only to the approval of the court. The reason is obvious. The
fiscal should know better than the court, and the defense for that matter, as to who of the accused
would best qualify to be discharged to become state witness. The public prosecutor is supposed to
know the evidence in his possession ahead of all the rest. He knows whom he needs to establish his
case.

The rationale for the rule is well explained thus:

In the discharge of a co-defendant, the court may reasonably be expected to err.

Where such error is committed, it cannot, as a general rule, be cured any more than
 any other error can be cured which results from an acquittal of a guilty defendant in a
criminal action. A trial judge cannot be expected or required to inform himself with
absolute certainty at the very outset of the trial as to everything which may be
developed in the course of the trial in regard to the guilty participation of the accused
in the commission of the crime charged in the complaint. If that were practicable or
possible, there would be little need for the formality of a trial. In coming to his
conclusions as to the "necessity for the testimony of the accused whose discharge is
requested," as to "availability or non- availability of other direct or corroborative
evidence," as to which (who) of the accused is the "most guilty" one, and the like, the
judge must rely in a large part upon the suggestions and the information furnished by
the prosecuting
officer . . . . 11

Thus, We agree with the observations of the Solicitor General that the rule on the discharge of an
accused to be utilized as state witness clearly looks at his actual and individual participation in the
commission of the crime, which may or may not have been perpetrated in conspiracy with the other
accused. Since Bermudez was not individually responsible for the killing committed on the occasion
of the robbery except by reason of conspiracy, it cannot be said then that Bermudez appears to be
the most guilty. Hence, his discharge to be a witness for the government is clearly warranted. 12

The credibility of Bermudez as a witness is placed on the crucible by appellants. They point to the
inconsistency in his testimony on whether or not he knew appellants before the commission of the
crime and assert that that necessarily discredits the rest of his testimony under the maxim falsus in
uno, falsus in omnibus. But We are reminded, time and again, that this is not mandatory. It does not
apply where there is sufficient corroboration on many grounds of the testimony; where the mistakes
are not on the very material points; where the errors do not arise from an apparent desire to pervert
the truth but from innocent mistakes and the desire of the witness to exculpate himself though not
completely. 13 Indeed, We have long jettisoned its absolute application for the better rule that the trial
court is the best judge of the witness' credibility or lack of it. The reason is that the trial court is in a
better position to decide the question of credibility, having seen and heard the witnesses themselves
and observed their behavior and manner of testifying. The impressions of the trial court on the
matter are binding upon appellate courts, the Supreme Court not excepted, unless there appears a
grave abuse of discretion or obvious misapprehension of facts. These exceptions to the rule do not
obtain in the instant case. We are thus in complete agreement with the trial court when it ruled

The Court finds no reason at all to disbelieve the testimony of State witness
Bermudez.

For one thing, it was Bermudez alone among the available accused who pleaded
guilty at the very outset, thereby signifying that he had actually participated in the
highway robbery herein complained of. In turn, such participation inexorably
connotes, among other things, adequate knowledge on his part of the circumstances
leading to and surrounding the commission of the crime, including the identities of
the other perpetrators involved therein.

The Court, too, has keenly observed that despite its minor imperfections which
may be ascribed to his low educational attainment the testimony of Bermudez was
rendered in a manner more candid and unrehearsed than the testimonies of
Mendoza and Ocimar.
 Furthermore, Mendoza and Ocimar themselves could not provide any improper or
evil motive on the part of Bermudez to have testified falsely as the defense would
wish it to appear.

Tersely said, the identities of Mendoza and Ocimar as active participants in the
accomplishment of the hold-up herein referred to have been positively established.

It must be noted that Bermudez' account of the holdup incident is corroborated on material points by
the other prosecution witnesses, like the bus driver and some passengers, like Major Fernando
Zabat, an officemate of Capt. Caeba, thus enhancing further the credibility of Bermudez.

Ocimar argues that he cannot be made liable for the crime charged as he did not shoot the victim
and the prosecution failed to identify the person who fired the fatal shot.

We need only quote again for emphasis a portion of the factual findings of the court a quo in this
regard:

Not long after the bus had passed beyond the Malinta Toll Gate of the North
Expressway, Mendoza rose from his seat, poked a .38 cal. pistol at the bus driver,
and announced the hold-up. Forthwith, the other members of the group, with their
respective weapons exposed to view, went about divesting the passengers of their
wallets and handbags, items of jewelry and other personal effects of value. While the
robbery was in progress, Bermudez heard gunshot reports from the rear end of the
bus. He turned his head towards that direction and saw Ocimar holding a .22 cal.
magnum revolver pointed at the neck of a passenger seated at the back row of the
bus (later identified as Capt. Cirilo Caeba, Jr.) who was then about to drop to the
floor, head first. 14

Needless to stress, these circumstances are clear enough to show that appellant Ocimar acted in
concert with his cohorts in the implementation of a common design to rob the Baliuag Transit bus.
As oft-repeated, conspiracy need not be proved by direct evidence. Neither is it essential that there
be shown a previous agreement to commit robbery as the crime of robbery with homicide can be
inferred from the acts of the accused. 15

Certainly, Ocimar's protestation that he cannot be held liable as there was no categorical
identification of the assailant is simply unavailing. For, where conspiracy has been established,
evidence as to who among the accused rendered the fatal blow is not necessary. 16 After all, in
conspiracy, the rule is that the guilt of one is the guilt of all. 17

As to appellants' defense of alibi, suffice it to state that the places (Sauyo, Novaliches, and Banlat,
Commonwealth Avenue, both in Quezon City) where they claim to be at the time the crime was
committed, are places which are not so far away from the Baliuag bus station in Cubao, Quezon
City. Indeed, for alibi to prosper, it is not enough to prove that the accused was somewhere else
when the crime was committed, but he must, likewise, demonstrate that he could not have been
physically present at the place of the crime or its immediate vicinity at the time of its commission.18

Now on the civil aspect of the case. We find the awards made by the trial court to be supported by
the evidence on record. At any rate, they are not disputed. However, as regards the indemnity to the
heirs of Capt. Cirilo Caeba, Jr., which the court a quo fixed at P30,000.00, the same should be
increased to P50,000.00, in accordance with prevailing jurisprudence. 19
PREMISES CONSIDERED, the judgment of the court a quo convicting the accused-appellants
EDUARDO LABALAN OCIMAR and ALEXANDER CORTEZ MENDOZA for violation of P.D. 532
("Anti-Piracy and Highway Robbery Law of 1974") and imposing upon each of them a prison term
of reclusion perpetua, together with the award for funeral expenses, moral damages, and loss of
expected support of the heirs of the late Capt. Cirilo Caeba, Jr., in the amounts of P45,000.00,
P25,000.00 and P720,000.00, respectively, are AFFIRMED. The indemnity to his heirs for his death
is increased from P30,000.00 to P50,000.00. Costs against accused-appellants.

SO ORDERED.

SECOND DIVISION

G.R. No. 209195, September 17, 2014

MANUEL J. JIMENEZ, JR., Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

G.R. NO. 209215

PEOPLE OF THE PHILIPPINES, Petitioner, v. MANUEL J. JIMENEZ, JR., Respondent.

DECISION

BRION, J.:

Before the Court are two consolidated petitions for review on certiorari filed under Rule 45 of the Rules of
Court, assailing the amended decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 121167
entitled Manuel J. Jimenez, Jr. v. Hon. Zaldy B. Docena et al.

The CA did not find any grave abuse of discretion on the part of the Regional Trial Court (RTC Branch 170,
Malabon) Judge Zaldy B. Docena (Judge Docena) in issuing the order which granted the People of the
Philippines motion to discharge Manuel A. Montero (Montero) as a state witness in Criminal Case No.
39225-MN.

The G.R. No. 209195 petition was filed by Manuel J. Jimenez, Jr. (Jimenez). He prays in this petition for the
reversal of the CAs amended decision insofar as it ruled that Judge Docena did not gravely abuse his
discretion in issuing the assailed order.

The People likewise filed its petition, docketed as G.R. No. 209215. This petition seeks to reverse the
amended decision of the CA insofar as it ordered the re-raffle of the criminal case to another RTC judge for
trial on the merits.

The Factual Antecedents

On May 18, 2009 and June 11, 2009, Montero (a former employee of the BSJ Company owned by the
Jimenezes) executed sworn statements confessing his participation in the killing of Ruby Rose
Barrameda (Ruby Rose), and naming petitioner Jimenez, Lope Jimenez (Lope, the petitioner Jimenezs
younger brother), Lennard A. Descalso (Lennard) alias Spyke, Robert Ponce (Robert) alias Obet, and Eric
Fernandez (Eric), as his co-conspirators.2cralawlawl ibra ry

The statements of Montero which provided the details on where the alleged steel casing containing the body
of Ruby Rose was dumped, led to the recovery of a cadaver, encased in a drum and steel casing, near or
practically at the place that Montero pointed to.3 cralawlaw lib rary

On August 20, 2009, the People, through the state prosecutors, filed an Information before the RTC,
charging Jimenez, Lope, Lennard, Robert, Eric and Montero of murder for the killing of Ruby Rose.4 cralawlaw lib rary

Montero thereafter filed a motion for his discharge entitled Motion for the Discharge of the Witness as
Accused Pursuant to the Witness Protection Program pursuant to Republic Act No. 6981. The People also
filed a motion to discharge Montero as a state witness for the prosecution. Jimenez opposed both
motions.5cralawlawl ibra ry

The RTCs ruling

On March 19, 2010, the RTCs Acting Presiding Judge Hector B. Almeyda (Judge Almeyda) denied the motion
to discharge Montero as a state witness.6 cralawlawli bra ry

Judge Almeyda ruled that the prosecution failed to comply with the requirements of Section 17, Rule 119 of
the Revised Rules of Criminal Procedure for the discharge of an accused as a state witness; it failed to
clearly show that Montero was not the most guilty or, at best, the least guilty among the accused. The judge
further ruled that Monteros statements were not corroborated by the other evidence on record. The
prosecution, too, failed to present evidence to sustain the possibility of conviction against Jimenez.7 cra lawlawlib rary

Montero and the People filed separate motions for reconsideration.

The July 30, 2010 order

On July 30, 2010, Judge Docena, the newly-appointed regular judge, reconsidered and reversed Judge
Almeydas order and ruled that the prosecution had presented clear, satisfactory and convincing evidence
showing compliance with the requisites of Section 17, Rule 119 of the Revised Rules of Criminal Procedure.

According to Judge Docena, the crime would have remained undiscovered and unsolved had it not been for
Monteros extrajudicial confession that narrated in detail the manner of the abduction andsubsequent
murder of Ruby Rose. As the crime was committed in secret, only one of the co-conspirators, such as
Montero, could give direct evidence identifying the other coconspirators.

Judge Docena further ruled that Montero is qualified to be discharged as a state witness as he does not
appear to be the most guilty although he is a principal by direct participation. The principals by inducement
are more guilty because, without their orders, the crime would not have been committed. Finally, Montero
has not been convicted of any crime involving moral turpitude.

Jimenez moved for the reconsideration of Judge Docenas ruling.8 c ralawlawli bra ry

The December 29, 2010 order

During the pendency of the motion for reconsideration, Jimenez filed a motion for inhibition, praying that
Judge Docena inhibit himself from hearing the case on the ground of bias and prejudice. Judge Docena
denied the motion in his order of December 29, 2010.9 cralawlaw lib rary

The June 29, 2011 order

On June 29, 2011, Judge Docena issued an omnibus order: 1) denying the petitioners motion for
reconsideration of the July 30, 2010 order; 2) denying the petitioners motion for reconsideration of the
December 29, 2010 order; and 3) granting Manuel Jimenez IIIs alternative motion to suspend the
proceedings, as his inclusion in the Information was still pending final determination by the Office of the
President.

Jimenez responded to these adverse rulings by filing with the CA a petition for certiorari under Rule 65 of
the Rules of Court. The petition sought the annulment of Judge Docenas orders dated July 30, 2010,
December 29, 2010, and June 29, 2011. The petition also prayed for the issuance of a temporary restraining
order and a writ of preliminary injunction that the CA both granted in its resolutions of December 8, 2011
and February 6, 2012, respectively.10 c ralawlawli bra ry

The CAs Decision

On May 22, 2012, the CAs then Tenth Division, through the ponencia of Associate Justice Agnes Reyes-
Carpio (concurred in by Associate Justice Jose C. Reyes, Jr. and Associate Justice Priscilla J. Baltazar-Padilla)
rendered a decision granting Jimenez petition.11 c ralawlawli bra ry

However, on motion for reconsideration filed by the People, the CA reversed its earlier ruling and issued an
Amended Decision penned by Associate Justice Jose Reyes.

The CAs Amended Decision

The CA held that Judge Docena did not gravely abuse his discretion in ordering Monteros discharge to
become a state witness because the prosecution had complied with the requirements of Section 17, Rule
119 of the Revised Rules of Criminal Procedure.12 c ralawlawli bra ry

First, Judge Docena acted in accordance with settled jurisprudence when he ruled that there was absolute
necessity for the testimony of Montero as no other direct evidence other than his testimony was available.
Additionally, since the determination of the requirements under Section 17, Rule 119 of the Revised Rules of
Criminal Procedure is highly factual in nature, Judge Docena did not commit grave abuse of discretion in
largely relying on the recommendation of the prosecution to discharge Montero as a state witness.13 cralawlawlib ra ry

Furthermore, the CA agreed with Judge Docena that Montero is not the most guilty among the accused
because the principals by inducement are more guilty than the principals by direct participation. To the CA,
this finding is highly factual in nature and it would not interfere with the trial courts exercise of discretion on
factual issues in the absence of showing that the court had acted with grave abuse of discretion.14 c ralawlawl ibra ry

On Judge Docenas no inhibition order, the CA held that while the case does not call for mandatory
inhibition, it should still be raffled to another sala for trial on the merits to avoid any claim of bias and
prejudice.15cra lawlawlib ra ry

The CA likewise dismissed the motion for the issuance of a show cause order which Jimenez filed against
Judge Docena.16 cralawlawlib ra ry

Both Jimenez and the People moved for partial reconsideration of the CAs order but these motions were all
denied.17 The denials prompted both parties to file with this Court the present consolidated petitions for
review on certiorari.

The Present Petitions

I. G.R. No. 209195 (The Jimenez Petition)

Jimenez raises the following errors: cha nRoblesv irt ual Lawlib rary

First, there is no necessity to discharge Montero as a state witness because: 1) the voluntary sworn
extrajudicial confessions of Montero are all in the possession of the prosecution which they could readily
present in court without discharging Montero; and 2) there was unjust favoritism in the discharge of
Montero because all the other conspirators are equally knowledgeable of the crime.18 cralawlaw lib rary

Second, contrary to the CAs ruling, the judge, and not the prosecution, has the ultimate discretion in
ensuring that the requirements under Section 17, Rule 119 are complied with.19 c ralawlaw lib rary

Third, the cases the CA cited are factually different from the present case. Chua v. CA20 should not apply as
it deals with two accused, one of whom was ordered discharged.21 cralawlawl ibra ry

Fourth, Monteros testimony cannot be substantially corroborated in its material points as the prosecutions
own evidence contradicts his declarations.

These inconsistencies include: Monteros statement that a busal was placed inside the mouth of Ruby
Rose; this statement is belied by the other prosecution witness; Montero also never mentioned the presence
of a packaging tape wrapped around the head and neck of the recovered cadaver; in Monteros sinumpaang
salaysay, he stated that Ruby Rose was killed by strangulation using a lubidbut the death certificate stated
asphyxia by suffocation and not by strangulation; the identification of the cadaver as Ruby Rose is likewise
questionable as there are differences in the height, and the dental and odontological reports of Ruby Rose
and the recovered cadaver.

Jimenez argued that these inconsistencies would require a thorough scrutiny; hence, the immediate
discharge of Montero as a state witness is suspicious. 22
cralawlaw libra ry

Fifth, Montero appears to be the most guilty. He was the architect who designed and actively participated in
all phases of the alleged crime.23 cralawlaw lib rary

Jimenez further argued that there is no authority supporting the ruling that the principals by inducement are
more guilty than the principal by direct participation. On the contrary, the Revised Penal Code imputes on
the principal by direct participation the heavier guilt; without the latters execution of the crime, the
principal by inducement cannot be made liable. Even if the principal by inducement is acquitted, the
principal by direct participation can still be held liable and not vice-versa.24 cralawlawl ibra ry

Sixth, the discharge of Montero was irregular because Judge Docena failed to conduct a prior hearing.25 cra lawlawlib rary

Finally, Montero already executed a notice of withdrawal of consent and testimony which was submitted to
the CA.26cralawlawlibra ry

Comment of the People

The People argued that Jimenez is now estopped from raising the lack of hearing as an issue since he raised
this issue only after Judge Docena granted the motion to discharge and not after Judge Almeyda denied the
motion an action that was favorable to him.27 cralawlawli bra ry

It also argued that Jimenez actively participated in the proceedings for Monteros discharge as the trial court
received evidence for and against the discharge. In this light, Judge Docenas order granting or denying the
motion for discharge is in order, notwithstanding the lack of actual hearing.28 cralawlawl ibra ry

The People also agreed with the CAs amended ruling that the requirements for the discharge of an accused
as a state witness were complied with.29 It added that the availability of the extrajudicial statements in the
prosecutions possession is not a ground to disqualify an accused from being a state witness.30 cra lawlawlib rary

It further maintained that the alleged contradictions between Monteros statements and other prosecutions
evidence are better resolved during trial and are irrelevant to the issues in the present case.31 cralawlawlib rary

For purposes of the present case, the material allegations of Montero on the identity of the victim and the
manner of her killing were substantially corroborated by the presence of the recovered original steel casing,
the drum containing a cadaver, the place where it was found, and the cadavers apparel.32 c ralawlawl ibra ry

The People observed that Montero had already testified on direct examination on June 28, 2011 and October
25, 2011. He attested and affirmed his statements in his affidavits dated May 18 and June 11, 2009; he
narrated in his statements the murder of Ruby Rose and Jimenez participation.33 cra lawlawlib rary

Reply of Jimenez

Jimenez reiterated his allegations in the comment. He added that Montero did not identify or authenticate
his sworn statements in support of the motion for his discharge.34 cralawlawl ibra ry

According to Jimenez, the notice of withdrawal of consent and testimony of Montero rendered his discharge
as a state witness moot and academic.35 cralawlawlib ra ry

II. G.R. No. 209215 (The Peoples Petition)

The People, through the Office of the Solicitor General, argue that the CAs order to re-raffle the case to
another sala is not supported by Section 1, Rule 137 of the Rules of Court, either under mandatory or
voluntary inhibition.36 c ralawlawl ibra ry

To disqualify a judge from hearing a case, bias and prejudice must be proven, in the manner being done in
cases of voluntary inhibition.37 cralawlawl ib rary

Jurisprudence establishes, too, that affiliation does not necessarily translate to bias.38 A judges non-
favorable action against the defense is not also necessarily indicative of bias and prejudice.39 cra lawlawlib ra ry

Finally, the administrative case filed against Judge Docena is not a ground to disqualify him from hearing the
case.40cralawlawli bra ry

Comment of Jimenez

The option for voluntary inhibition does not give judges unlimited discretion to decide whether or not they
will desist from hearing a case. Jimenez enumerated Judge Docenas acts that allegedly constituted bias and
prejudice: cha nRoblesvi rtu alLaw lib rary

First, Judge Docena granted the motion to discharge even though the legal requirements under Section 17,
Rule 119 of the Revised Rules of Criminal Procedure were not factually and legally proven. He also relied on
the suggestions and information of the prosecutors thereby surrendering his duty to ensure that the
requirements for a discharge are duly complied with.

Second, in a previous case where his fraternity brother appeared as counsel, Judge Docena inhibited himself
from hearing the case. Thus, no reason exists for him not to similarly act in the present case where Jimenez
is his fraternity brother and State Prosecutor Villanueva was his classmate.

Third, Judge Docena granted the prosecutions motion for cancellation of the September 29, 2011 hearing
because the state prosecutor would be attending a legal forum. This was improper since other prosecutors
were available and other prosecution witnesses could be presented.

Fourth, Judge Docena has an uncontrolled temper and unexplainable attitude. In Jimenez bail hearing,
Judge Docena immediately shouted at Jimenez counsel when he made a mistake.41 cralawlaw libra ry

The Issues

1) Whether or not the CA erred in ruling that Judge Docena did not commit
grave abuse of discretion in granting the motion to discharge Montero as
a state witness; and
2) Whether or not the CA erred in ordering the re-raffle of Criminal Case
No. 39225-MN to another RTC branch for trial on the merits.
THE COURTS RULING:

G.R. No. 209195

We agree with the CAs ruling that Judge Docena did not gravely abuse his discretion when he granted the
motion to discharge Montero as a state witness.

The well-settled rule is that a petition for certiorari against a court which has jurisdiction over a case will
prosper only if grave abuse of discretion is clear and patent. The burden is on the part of the petitioner to
prove not merely reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the public respondent issuing the impugned order.

Notably, mere abuse of discretion is not enough; the abuse must be grave. Jurisprudence has defined
grave abuse of discretion as the capricious and whimsical exercise of judgment so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the
power is exercised in an arbitrary and despotic manner because of passion or hostility.42 cralawlawl ibra ry

We agree with the CA that the prosecution has complied with the requisites under Section 17, Rule 119 of
the Revised Rules of Criminal Procedure which provides that: chanRoblesvi rtual Lawli bra ry

(1) Two or more accused are jointly charged with the commission of an
offense;
(2) The motion for discharge is filed by the prosecution before it rests its
case;
(3) The prosecution is required to present evidence and the sworn statement
of each proposed state witness at a hearing in support of the discharge;
(4) The accused gives his consent to be a state witness; and
(5) The trial court is satisfied that:
a) There is absolute necessity for the testimony of the accused whose
discharge is requested;
b) There is no other direct evidence available for the proper prosecution
of the offense committed, except the testimony of said accused;
c) The testimony of said accused can be substantially corroborated in
its material points;
d) Said accused does not appear to be the most guilty; and,
e) Said accused has not at any time been convicted of any offense
involving moral turpitude.
No issues have been raised with respect to conditions (1), (2), (4), and 5(e). The parties dispute the
compliance with conditions (3) and 5(a) to (d) as the issues before us. We shall discuss these issues
separately below.

Absolute necessity of the testimony

of Montero

We see no merit in Jimenezs allegation that no absolute necessity exists for Monteros testimony.

Absolute necessity exists for the testimony of an accused sought to be discharged when he or she alone has
knowledge of the crime. In more concrete terms, necessity is not there when the testimony would simply
corroborate or otherwise strengthen the prosecutions evidence.43 c ralawlawli bra ry

We do not agree with Jimenez that the Courts pronouncement in Chua v. CA et al. is inapplicable in the
present case simply because more than two accused are involved in the present case. The requirement of
absolute necessity for the testimony of a state witness depends on the circumstances of each case
regardless of the number of the participating conspirators.

In People v. Court of Appeals and Perez et al.,44 the Court ordered the discharge of the accused
Roncesvalles, ruling that his testimony is absolutely necessary to prove conspiracy with his other co-
accused. The Court agreed with the Solicitor General that considering the circumstances of the case and that
the other accused could not be compelled to testify, certain facts necessary for the conviction of the accused
would not come to light unless the accused Roncesvalles was allowed to testify for the State. Specifically,
unless accused Roncesvalles was allowed to testify for the government, there would be no other direct
evidence available for the proper prosecution of the offense charged, particularly on the role of his co-
accused in the preparation and completion of the falsified loan application and its supporting papers.

Similarly in People v. Court of Appeals and Tan,45 the Court reinstated the ruling of the trial court which
ordered the discharge of accused Ngo Sin from among the five accused. The record justified his discharge as
a state witness considering the absolute necessity of his testimony to prove that the accused Luciano Tan
had planned and financed the theft.

In the present case, not one of the accused-conspirators, except Montero, was willing to testify on the
alleged murder of Ruby Rose and their participation in her killing. Hence, the CA was correct in ruling that
Judge Docena acted properly and in accordance with jurisprudence in ruling that there was absolute
necessity for the testimony of Montero. He alone is available to provide direct evidence of the crime.

That the prosecution could use the voluntary statements of Montero without his discharge as a state witness
is not an important and relevant consideration. To the prosecution belongs the control of its case and this
Court cannot dictate on its choice in the discharge of a state witness, save only when the legal requirements
have not been complied with.

The prosecutions right to prosecute gives it 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. Under Section 17, Rule 119 of the Revised Rules of Criminal Procedure, the court is given
the power to discharge a state witness only after it has already acquired jurisdiction over the crime and the
accused.46cralawlawlib rary

Monteros testimony can be substantially corroborated

We also do not find merit in Jimenez argument that Monteros testimony cannot be substantially
corroborated in its material points and is even contradicted by the physical evidence of the crime.

As the trial court properly found, the evidence consisting of the steel casing where the cadaver was found;
the drum containing the cadaver which the prosecution successfully identified (and which even the acting
Judge Almeyda believed) to be Ruby Rose; the spot in the sea that Montero pointed to (where the cadaver
was retrieved); the apparel worn by the victim when she was killed as well as her burned personal effects,
all partly corroborate some of the material points in the sworn statements of Montero.47 cralawlawl ibrary

With these as bases, Judge Docenas ruling that Monteros testimony found substantial corroboration cannot
be characterized as grave abuse of discretion.

Jimenez points to the discrepancies in Monteros statements and the physical evidence, such as the absence
of busal in the mouth of the retrieved cadaver; his failure to mention that they used packaging tape
wrapped around the head down to the neck of the victim; and his declaration that the victim was killed
through strangulation using a rope (lubid).

However, the corroborated statements of Montero discussed above are far more material than the
inconsistencies pointed out by Jimenez, at least for purposes of the motion to discharge.

The alleged discrepancies in the physical evidence, particularly on the height and dental records of Ruby
Rose, are matters that should properly be dealt with during the trial proper.

We emphasize at this point that to resolve a motion to discharge under Section 17, Rule 119 of the Revised
Rules of Criminal Procedure, the Rules only require that that the testimony of the accused sought to be
discharged be substantially corroborated in its material points, not on all points.

This rule is based on jurisprudential line that in resolving a motion to discharge under Section 17, Rule 119,
a trial judge cannot be expected or required, at the start of the trial, to inform himself with absolute
certainty of everything that may develop in the course of the trial with respect to the guilty participation of
the accused. If that were practicable or possible, there would be little need for the formality of a trial.48 cralawlaw lib rary

Montero is not the most guilty

We also do not agree with Jimenez that the CA erred in finding that Montero is not the most guilty.

By jurisprudence, most guilty refers to the highest degree of culpability in terms of participation in the
commission of the offense and does not necessarily mean the severity of the penalty imposed. While all the
accused may be given the same penalty by reason of conspiracy, yet one may be considered to have lesser
or the least guilt taking into account his degree of participation in the commission of the offense.49 cralawlawl ibra ry

What the rule avoids is the possibility that the most guilty would be set free while his co-accused who are
less guilty in terms of participation would be penalized.50
cralawlawlib rary

Before dwelling on the parties substantive arguments, we find it necessary to first correct the rulings of the
CA that are not exactly correct.

Contrary to the CAs findings, a principal by inducement is not automatically the most guilty in a conspiracy.
The decision of the Court in People v. Baharan51 did not involve the resolution of a motion to discharge an
accused to become a state witness. Instead, the pronouncement of the Court related to the culpability of a
principal by inducement whose co-inducement act was the determining cause for the commission of the
crime.

Thus viewed, Baharan cannot be the basis of a peremptory pronouncement that a principal by inducement is
more guilty than the principal by direct participation.
In Chua v. People,52 which involved a motion to discharge an accused, the Court declared that if one induces
another to commit a crime, the influence is the determining cause of the crime. Without the inducement, the
crime would not have been committed; it is the inducer who sets into motion the execution of the criminal
act.

To place the Chua ruling in proper perspective, the Court considered the principal by inducement as the
most guilty based on the specific acts done by the two accused and bearing in mind the elements
constitutive of the crime of falsification of private documents where the element of damage arose
through the principal by inducements encashment of the falsified check. This led the Court to
declare that the principal by inducement is the most guilty (or properly, the more guilty) between the two
accused.

Thus, as a rule, for purposes of resolving a motion to discharge an accused as a state witness, what are
controlling are the specific acts of the accused in relation to the crime committed.

We cannot also agree with Jimenez argument that a principal by direct participation is more guilty than the
principal by inducement as the Revised Penal Code penalizes the principal by inducement only when the
principal by direct participation has executed the crime.

We note that the severity of the penalty imposed is part of the substantive criminal law which should not be
equated with the procedural rule on the discharge of the particeps criminis. The procedural remedy of the
discharge of an accused is based on other considerations, such as the need for giving immunity to one of
several accused in order that not all shall escape, and the judicial experience that the candid admission of
an accused regarding his participation is a guaranty that he will testify truthfully.53
cra lawlawlib rary

On the substantive issues of the present case, we affirm the CA ruling that no grave abuse of discretion
transpired when Judge Docena ruled that Montero is not the most guilty.

We draw attention to the requirement that a state witness does not need to be found to be the least guilty;
he or she should not only appear to be the most guilty.54 cralawlawli bra ry

From the evidence submitted by the prosecution in support of its motion to discharge Montero, it appears
that while Montero was part of the planning, preparation, and execution stage as most of his co-accused had
been, he had no direct participation in the actual killing of Ruby Rose.

While Lope allegedly assigned to him the execution of the killing, the records do not indicate that he had
active participation in hatching the plan to kill Ruby Rose, which allegedly came from accused Lope and
Jimenez, and in the actual killing of Ruby Rose which was executed by accused Lennard.55Monteros
participation was limited to providing the steel box where the drum containing the victims body was placed,
welding the steel box to seal the cadaver inside, operating the skip or tug boat, and, together with his co-
accused, dropping the steel box containing the cadaver into the sea.

At any rate, the discharge of an accused to be utilized as a state witness because he does not appear to be
the most guilty is highly factual in nature as it largely depends on the appreciation of who had the most
participation in the commission of the crime. The appellate courts do not interfere in the discretionary
judgment of the trial court on this factual issue except when grave abuse of discretion intervenes.56 cra lawlawlib rary

In light of these considerations, we affirm the ruling of the CA that Judge Docena did not commit grave
abuse of discretion in ruling that Montero is not the most guilty.

The discharge of Montero as a state

witness was procedurally sound

We agree with the People that Jimenez is estopped from raising the issue of lack of hearing prior to the
discharge of Montero as a state witness. Jimenez did not raise this issue when Acting Judge Almeyda denied
the motion to discharge. This denial, of course, was favorable to Jimenez. If he found no reason to complain
then, why should we entertain his hearing-related complaint now?

The People even supported its argument that Jimenez actively participated in the proceedings of the motion
to discharge such as his filing of a 20-page opposition to the motion; filing a reply to the Peoples comment;
submitting his memorandum of authorities on the qualification of Montero as state witness; and filing a
consolidated opposition on the Peoples and Monteros motion for reconsideration of Judge Almeydas
order.57 c ralawlawl ibra ry

In these lights, Jimenez cannot impute grave abuse of discretion on Judge Docena for not conducting a
hearing prior to his grant of the motion to discharge. In People v. CA and Pring,58 the Court ruled that with
both litigants able to present their sides, the lack of actual hearing is not sufficiently fatal to undermine the
court's ability to determine whether the conditions prescribed for the discharge of an accused as a state
witness have been satisfied.

Contrary to Jimenez argument, the Pring ruling is applicable in the present case. In Pring, the sworn
statements of the accused sought to be discharged (Nonilo Arile), together with the prosecutions other
evidence, were already in the possession of the court and had been challenged by the respondent in his
Opposition to Discharge Nonilo Arile and in his Petition for Bail. The issue in that case was the propriety of
the trial courts resolution of the motion to discharge Nonilo Arile without conducting a hearing pursuant
Section 9, Rule 119 of the 1985 Rules on Criminal Procedure (now Section 17, Rule 119 of the Revised Rules
of Criminal Procedure).

With Jimenez active participation in the proceeding for the motion to discharge as outlined above, the ruling
of the Court in Pring should squarely apply.

Monteros Notice of Withdrawal of

Consent is not material in the resolution
of the present case

We find no merit in Jimenez argument that Monteros submission of his notice of withdrawal of consent and
testimony of Manuel dated February 26, 2013 rendered the present case moot, since the Court cannot
consider this document in this petition.

It must be recalled that the present case involves an appellate review of the CAs decision which found no
grave abuse of discretion on the part of Judge Docena in granting the motion to discharge.

Under the present recourse now before this Court, we cannot rule on the notice of withdrawal and consider it
in ruling on the absence or presence of grave abuse of discretion in the issuance of the assailed orders. The
present case is not the proper venue for the determination of the value of the notice.

This conclusion is all the more strengthened by the fact that Montero already testified on direct examination
on June 28, 2011 and October 25, 2011. He attested and affirmed his statements in his affidavits dated May
18 and June 11, 2009; he not only narrated the grisly murder of Ruby Rose, but also revealed Jimenez
participation in the murder.

With this development, the notice may partake of the nature of a recantation, which is usually takenex
parte and is considered inferior to the testimony given in open court. It would be a dangerous rule to reject
the testimony taken before a court of justice simply because the witness who gave it later changed his/her
mind.59cra lawlawlib rary

In sum on this point, the appreciation of the notice of withdrawal properly belongs to the trial court.

Interplay between the judge and

prosecutor in the motion to discharge
an accused to become a state witness

As a last point, we find it necessary to clarify the roles of the prosecution and the trial court judge in the
resolution of a motion to discharge an accused as a state witness. This need arises from what appears to us
to be a haphazard use of the statement that the trial court judge must rely in large part on the prosecutions
suggestion in the resolution of a motion to discharge.

In the present case, the CA cited Quarto v. Marcelo60 in ruling that the trial court must rely in large part
upon the suggestions and the information furnished by the prosecuting officer, thus: ch anRoblesvi rtua lLawl ibra ry

A trial judge cannot be expected or required to inform himself with absolute certainty at the very outset of
the trial as to everything which may be developed in the course of the trial in regard to the guilty
participation of the accused in the commission of the crime charged in the complaint. If that were
practicable or possible there would be little need for the formality of a trial. He must rely in large part upon
the suggestions and the information furnished by the prosecuting officer in coming to his conclusions as to
the "necessity for the testimony of the accused whose discharge is requested"; as to the availability or non-
availability of other direct or corroborative evidence; as to which of the accused is most guilty, and the
like.

We deem it important to place this ruling in its proper context lest we create the wrong impression that the
trial court is a mere rubber stamp of the prosecution, in the manner that Jimenez now argues.

In Quarto, we emphasized that it is still the trial court that determines whether the prosecutions preliminary
assessment of the accused-witness qualifications to be a state witness satisfies the procedural norms. This
relationship is in reality a symbiotic one as the trial court, by the very nature of its role in the administration
of justice, largely exercises its prerogative based on the prosecutors findings and evaluation.61 cralawlawlib ra ry

Thus, we ruled in People v. Pring62 that in requiring a hearing in support of the discharge, the essential
objective of the law is for the court to receive evidence for or against the discharge, which evidence shall
serve as the courts tangible and concrete basis independently of the fiscal's or prosecution's persuasions
in granting or denying the motion for discharge. We emphasize, in saying this, that actual hearing is not
required provided that the parties have both presented their sides on the merits of the motion.

We likewise do not agree with Jimenez that Quarto should not apply to the present case, since the principles
laid down in that case similarly operate in the present case, specifically, on issue of the procedural processes
required in the discharge of the accused as a state witness.

G.R. No. 209215

We find the Peoples petition meritorious.

We note at the outset that the CA did not provide factual or legal support when it ordered the inhibition of
Judge Docena. Additionally, we do not find Jimenez arguments sufficiently persuasive.

The second paragraph of Section 1 of Rule 137 does not give judges the unlimited discretion to decide
whether or not to desist from hearing a case. The inhibition must be for just and valid causes. The mere
imputation of bias or partiality is likewise not enough ground for their inhibition, especially when the charge
is without basis.63
cralawlawl ibra ry

It is well-established that inhibition is not allowed at every instance that a schoolmate or classmate appears
before the judge as counsel for one of the parties. A judge, too, is not expected to automatically inhibit
himself from acting in a case involving a member of his fraternity, such as Jimenez in the present case. 64 cralawlawlib rary

In the absence of clear and convincing evidence to prove the charge of bias and prejudice, a judges
ruling not to inhibit oneself should be allowed to stand.65cralawlaw lib rary

In attributing bias and prejudice to Judge Docena, Jimenez must prove that the judge acted or conducted
himself in a manner clearly indicative of arbitrariness or prejudice so as to defeat the attributes of the cold
neutrality that an impartial judge must possess. Unjustified assumptions and mere misgivings that the judge
acted with prejudice, passion, pride and pettiness in the performance of his functions cannot overcome the
presumption that a judge shall decide on the merits of a case with an unclouded vision of its facts.66 cralawlawlibra ry

In the present case, Jimenez allegation of bias and prejudice is negated by the CA finding in its amended
decision, as affirmed by this Court, that Judge Docena did not gravely abuse his discretion in granting the
motion to discharge. We support this conclusion as the cancellation of the September 29, 2011 hearing is
not clearly indicative of bias and prejudice.

On the allegation that Judge Docenas uncontrollable temper and unexplainable attitude should be
considered as a factor, we note that the allegations and perceptions of bias from the mere tenor and
language of a judge is insufficient to show prejudgment. Allowing inhibition for these reasons would open
the floodgates to abuse. Unless there is concrete proof that a judge has a personal interest in the
proceedings, and that his bias stems from an extra-judicial source, the Court would uphold the presumption
that a magistrate shall impartially decide the merits of a case.67 cralawlawlib ra ry

WHEREFORE, we DENY the petition in G.R. No. 209195 and affirm the CAs amended decision in CA-G.R.
SP No. 121167 insofar as it found no grave abuse of discretion on the part of Judge Docena in granting the
Peoples motion to discharge Montero as a state witness.

We GRANT the petition in G.R. No. 209215 and modify the CAs amended decision in CA-G.R. SP No.
121167 in accordance with our ruling that Judge Docenas denial of the motion for inhibition was proper.

SO ORDERED. cralawred

PEOPLE OF THE PHILIPPINES, G.R. No. 187683

Appellee,
Present:

CORONA, J.,
Chairperson,
VELASCO, JR.,
- versus -
NACHURA,
PERALTA, and
MENDOZA, JJ.

VICTORIANO DELA CRUZ yLORENZO,

Promulgated:
Appellant.

February 11, 2010

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

DECISION
NACHURA, J.:

Before this Court is an Appeal,[1] seeking the reversal of the Court of Appeals (CA)
Decision[2] dated October 31, 2008, which affirmed with
modification the Decision[3] of theRegional Trial Court (RTC) of Malolos,
Bulacan, Branch 11, dated August 15, 2005, convicting appellant Victoriano dela
Cruz y Lorenzo[4] (Victoriano) of the crime of Parricide.

The Facts

Victoriano was charged with the crime of Parricide in an Information[5] dated

January 2, 2003, which reads:

That on or about the 18th day of August, 2002, in the municipality of Malolos, province
of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, with intent to kill his wife Anna Liza Caparas-dela Cruz, with whom he
was united in lawful wedlock, did then and there willfully, unlawfully and feloniously
attack, assault, use personal violence and stab the said Anna Liza Caparas-dela Cruz,
hitting the latter on her trunk and on the different parts of her body, thereby inflicting
upon her serious physical injuries which directly caused her death.

Contrary to law.

Upon arraignment, Victoriano, with the assistance of counsel, pleaded not guilty to
the offense charged.[6] Thereafter, trial on the merits ensued. In the course of the
trial, two varying versions arose.
Version of the Prosecution

Joel Song (Joel) testified that between 3:30 and 4:00 p.m. on August 18, 2002, he
and two others, including the aunt of Victoriano, were playing a card game known
as tong-its just three to four arms length away from the latters house.
While playing, Joel saw Victoriano punching and kicking his wife, herein victim Anna
Liza Caparas-dela Cruz[7] (Anna), in front of their house. Joel knew the wifes name
as Joan. Victoriano then dragged Anna inside the house by pulling the latter's hair,
then slammed the door. Joel overheard the couple shouting while they were
already inside the house.[8]
Suddenly, Victoriano and Anna came out of the house, together with their young
daughter. Victoriano was behind Anna, with his arms wrapped around her. He
asked for Joels help. Joel noticed blood spurting out of Annas mouth. He took the
couples daughter and gave her to Victoriano's aunt. He then went with them to
the Bulacan Provincial Hospital(hospital) on board a tricycle. However, Anna
died.[9]

On the same day, at about 6:30 p.m., Senior Police Officers 1 Condrado Umali and
Eligio Jose, responding to the call of duty, went to the hospital for investigation.
There, Victoriano was turned over to the police officers by the hospital's security
guard on duty.[10]

The Certificate of Death,[11] prepared by Police Senior Inspector and Medico-Legal

Officer, Dr. Ivan Richard Viray (Dr. Viray), showed that Victorianos wife died
ofhemorrhagic shock as a result of a stab wound, trunk. Moreover, in his Medico-
Legal Report[12] dated August 21, 2002, Dr. Viray had the following findings:
HEAD and NECK:
1) Hematoma, frontal region, measuring 3 x 3 cm, 3 cm right of the anterior midline.
2) Hematoma, left orbital region, measuring 2 x 2 cm, 3 cm from the anterior midline.

CHEST and ABDOMEN:

1) Stab wound, penetrating, right shoulder region, measuring 2 x .5 cm, 2 cm right of
the posterior midline, about 12 cm deep, directed lateralwards and slightly
downwards, piercing the underlying tissues and muscle, lacerating the upper lobe of
the right lungs.
xxxx
> There are about 2000 cc of blood and blood clots at the thoracic cavity.

UPPER and LOWER EXTREMITIES:

1) Hematoma, distal 3rd of the left forearm, measuring 7 x 4 cm, bisected by its
posterior midline, with superimposed abrasion, measuring 1.5 x 7 cm, along its
anterior midline.

Version of the Defense

Victoriano testified that, at around 6:30 p.m. on August 18, 2002, he came home
very drunk from a friend's house. Before he could enter their house, his wife, Anna,
started nagging him saying, Hindi ka naman pala namamasada, nakipag-inuman
ka pa. He asked her to go inside their house but she refused. Thus, Victoriano
slapped Anna and dragged her inside their house.

Due to the continuous nagging of Anna, Victoriano pushed her aside so he could
go out of the house. However, she fell on a jalousie window, breaking it in the
process. When he helped her stand up, Victoriano noticed that her back was
punctured by a piece of shattered glass of the jalousie. He brought her outside
immediately and asked the help of his neighbors who were playing tong-its nearby.
Victoriano admitted that Joel accompanied him and his wife to the hospital.
At the hospital, Victoriano was taken into custody by policemen for questioning. It
was only in the following morning that Victoriano learned of his wifes passing.

Victoriano also testified that he does not usually drink; that he consumed hard
liquor at the time of the incident; that Anna was not immediately treated in the
hospital; that he loved his wife; and that he did not intentionally hurt her.[13]
The Lower Courts Ruling

On August 15, 2005, the RTC rendered a Decision, the dispositive portion of which
reads:

WHEREFORE, this Court finds the accused Victoriano L. dela Cruz Guilty beyond
reasonable doubt of Parricide under Art. 246 of the Revised Penal Code and hereby
sentences him to suffer the penalty of Reclusion Perpetua and to pay the heirs of the late
Anna Liza Caparas-dela Cruz the following sums of money, to wit:

1. P60,000.00 as civil liability

2. P50,000.00 as moral damages, and

3. P30,000.00 as exemplary damages.

SO ORDERED.[14]

Aggrieved, Victoriano appealed to the CA.[15]

On October 31, 2008, the CA affirmed with modification the findings of the RTC,
thus:
WHEREFORE, the Decision dated 15 August 2005 of the Regional Trial Court, Third Judicial
Region, Malolos, Bulacan, Branch 11, is hereby AFFIRMED with MODIFICATIONS. The
 award of civil indemnity is reduced to P50,000.00 and the award of exemplary damages
is deleted.

SO ORDERED.[16]

Hence, this appeal.

In its Manifestation[17] filed before this Court, appellee, People of the Philippines, as
represented by the Office of the Solicitor General, intimated that it was no longer
filing any Supplemental Brief in support of its position.

Meanwhile, in his Supplemental Brief,[18] Victoriano, as represented by the Public

Attorney's Office, claimed that the CA erred in appreciating Joel's testimony, since
the latter merely testified on the non-mortal wounds that Anna suffered when the
couple were outside the house. Insofar as the actual killing was concerned, Joel's
testimony was merely circumstantial. Moreover, Victoriano averred that he did not
intend to commit so grave a wrong against his wife, evident from the facts that he
carried the injured body of his wife; that he sought for help after the accident; and
that he brought her to the hospital for medical treatment. Furthermore, Victoriano
asseverated that he was very drunk at the time. Thus, he prayed that these
mitigating circumstances be appreciated in his favor.

Our Ruling
The instant appeal is bereft of merit.

The crime of Parricide is defined and punished under Article 246 of the Revised
Penal Code (RPC), to wit:
 Art. 246. Parricide. Any person who shall kill his father, mother, or child, whether
legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be
guilty of parricide and shall be punished by the penalty of reclusion perpetua to death.

It is committed when: (1) a person is killed; (2) the deceased is killed by the accused;
and (3) the deceased is the father, mother, or child, whether legitimate or
illegitimate, or a legitimate other ascendant or other descendant, or the legitimate
spouse of the accused. The key element in Parricide other than the fact of killing
is the relationship of the offender to the victim. In the case of Parricide of a
spouse, the best proof of the relationship between the accused and the deceased
would be the marriage certificate. In this case, the testimony of the accused that
he was married to the victim, in itself, is ample proof of such relationship as the
testimony can be taken as an admission against penal interest.[19]Clearly, then, it
was established that Victoriano and Anna were husband and wife.

Victoriano claims that Joel's testimony coincides with his own, which refers to the
slapping incident that occurred outside their house. It does not at all point to him
as the actual perpetrator of the crime. Thus, Victoriano submits that Joels
testimony is merely circumstantial.

But circumstantial evidence is sufficient for conviction, as we ruled in People v.

Castillo:[20]

Direct evidence of the commission of the offense is not the only matrix wherefrom a trial
court may draw its conclusions and finding of guilt. Conviction can be had on the basis of
circumstantial evidence provided that: (1) there is more than one circumstance; (2) the
facts from which the inferences are derived are proven; and (3) the combination of all
the circumstances is such as to produce a conviction beyond reasonable doubt. While no
general rule can be laid down as to the quantity of circumstantial evidence which will
suffice in a given case, all the circumstances proved must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and at the same time
inconsistent with the hypothesis that he is innocent, and with every other rational
hypothesis except that of guilt. The circumstances proved should constitute an unbroken
 chain which leads to only one fair and reasonable conclusion that the accused, to the
exclusion of all others, is the guilty person. Proof beyond reasonable doubt does not
mean the degree of proof excluding the possibility of error and producing absolute
certainty. Only moral certainty or "that degree of proof which produces conviction in an
unprejudiced mind" is required.[21]

In this case, we note the presence of the requisites for circumstantial evidence to
sustain a conviction. First, immediately preceding the killing, Victoriano physically
maltreated his wife, not merely by slapping her as he claimed, but by repeatedly
punching and kicking her. Second, it was Victoriano who violently dragged the
victim inside their house, by pulling her hair. Third, in Dr. Viray's Report, Anna
sustained injuries in different parts of her body due to Victoriano's acts of physical
abuse. Fourth, the location and extent of the wound indicated Victoriano's intent
to kill the victim. The Report revealed that the victim sustained a fatal stab wound,
lacerating the upper lobe of her right lung, a vital organ. The extent of the physical
injury inflicted on the deceased manifests Victoriano's intention to extinguish life.
Fifth, as found by both the RTC and the CA, only Victoriano and Anna were inside
the house, other than their young daughter. Thus, it can be said with certitude that
Victoriano was the lone assailant. Sixth, we have held that the act of carrying the
body of a wounded victim and bringing her to the hospital as Victoriano did
does not
manifest innocence. It could merely be an indication of repentance or contrition on
his part.[22]

The foregoing circumstances are proven facts, and the Court finds no reason to
discredit Joels testimony and Dr. Viray's Report. Besides, well-entrenched is the
rule that the trial court's assessment of the credibility of witnesses is accorded
great respect and will not be disturbed on appeal, inasmuch as the court below
was in a position to observe the demeanor of the witnesses while testifying. The
Court does not find any arbitrariness or
error on the part of the RTC as would warrant a deviation from this well-
entrenched rule.[23]
Even if, for the sake of argument, we consider Victorianos claim that the injury
sustained by his wife was caused by an accident, without fault or intention of
causing it, it is clear that Victoriano was not performing a lawful act at the time of
the incident. Before an accused may be exempted from criminal liability by the
invocation of Article 12 (paragraph 4) of the RPC, the following elements must
concur: (1) a person is performing a lawful act (2) with due care, and (3) he causes
an injury to another by mere accident and (4) without any fault or intention of
causing it. For an accident to become an exempting circumstance, the act that
causes the injury has to be lawful.[24] Victoriano's act of physically maltreating his
spouse is definitely not a lawful act. To say otherwise would be a travesty -- a gross
affront to our existing laws on violence against women. Thus, we fully agree with
the apt findings of the CA, to wit:

With the foregoing avowal, We find that the death of appellants wife was not caused by
mere accident. An accident is an occurrence that happens outside the sway of our will,
and although it comes about through some act of our will, lies beyond the bounds of
humanly foreseeable consequences. It connotes the absence of criminal intent. Intent is
a mental state, the existence of which is shown by a persons overt acts.

In the case at bench, evidence disclosed that appellant started beating his wife outside
their house and was even the one who dragged her inside. This, to Our mind, contradicts
his theory that he only pushed her so as to go out of the house to avoid any further
quarrel. Such incongruity whittles down appellants defense that he did not deliberately
kill his wife.[25]

Finally, a person pleading intoxication to mitigate penalty must present proof of

having taken a quantity of alcoholic beverage prior to the commission of the crime,
sufficient to produce the effect of obfuscating reason.[26] In short, the defense must
show that the intoxication is not habitual, and not subsequent to a plan to commit
a felony, and that the accused's drunkenness affected his mental faculties. In this
case, the absence of any independent proof that his alcohol intake affected his
mental faculties militate against Victorianos claim that he was so intoxicated at the
time he committed the crime to mitigate his liability.[27]

In sum, Victoriano failed to sufficiently show that the CA committed any reversible
error in its assailed Decision. His guilt was sufficiently established by circumstantial
evidence.

The penalty of reclusion perpetua was correctly imposed, considering that there
was neither any mitigating nor aggravating circumstance. The heirs of the victim
are entitled to a civil indemnity ex delicto of P50,000.00, which is mandatory upon
proof of the fact of death of the victim and the culpability of the accused for such
death. Likewise, moral damages, in the amount of P50,000.00, should be awarded
even in the absence of allegation and proof of the emotional suffering of the
victim's heirs, because certainly the family suffered emotional pain brought about
by Anna's death.

However, the CA erred when it deleted the award of exemplary damages. In line
with current jurisprudence, it is but fitting that exemplary damages, in the sum
of P30,000.00, be awarded, considering that the qualifying circumstance of
relationship is present, this being a case of Parricide.[28]
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR HC No. 01575,
finding appellant, Victoriano dela Cruz y Lorenzo, guilty beyond reasonable doubt
of the crime of Parricide, is hereby AFFIRMED WITH MODIFICATION. Appellant is
sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of the
victim, Anna Liza Caparas-dela Cruz, the amounts of P50,000.00 as civil
indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary damages.
No costs.

SO ORDERED.
Rule 116

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

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of the Ombudsman,
NATIONAL BUREAU OF INVESTIGATION and ATTY. LEVITO D. BALIGOD, Respondents.

DECISION

CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-
examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of
Court expressly provides that the respondent shall only have the right to submit a counter-affidavit,
to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be
present but without the right to examine or crossexamine.

- Paderanga v. Drilon1

This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary restraining order
and/or Writ of Preliminary Injunction enjoining respondents Office of the Ombudsman (Ombudsman),
Field Investigation Office (FIO) of the Ombudsman, National Bureau of Investigation (NBI), and Atty.
Levito D. Baligod (Atty. Baligod) (collectively, respondents), from conducting further proceedings in
OMB-CC-13-03013 and OMB-C-C-13-0397 until the present Petition has been resolved with finality;
and (2) this Courts declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen. Estrada)was
denied due process of law, and that the Order of the Ombudsman dated 27 March 2014 and the
proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to and affected by the
issuance of the challenged 27 March 2014 Order are void.

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D. Baligod v. Jose
"Jinggoy" P. Ejercito Estrada, et al.,refers to the complaint for Plunder as defined under Republic Act
(RA) No. 7080, while OMB-C-C-13-0397,4 entitled Field Investigation Office, Office of the
Ombudsman v. Jose "Jinggoy" P. Ejercito-Estrada, et al., refers to the complaint for Plunder as
defined underRA No. 7080 and for violation of Section 3(e) of RA No. 3019 (Anti-Graft and Corrupt
Practices Act).

The Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-
C-C-13-0313, filed by the NBI and Atty. Baligod, which prayed, among others, that criminal
proceedings for Plunder as defined in RA No. 7080 be conducted against Sen. Estrada. Sen.
Estrada filed his counter-affidavit inOMB-C-C-13-0313 on 9 January 2014.
On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-
C-C-13-0397, filed by the FIO of the Ombudsman, which prayed, among others, that criminal
proceedings for Plunder, as defined in RA No. 7080, and for violation of Section 3(e) of RA No.
3019, be conducted against Sen. Estrada. Sen. Estrada filed his counter affidavit in OMB-C-C-13-
0397 on 16 January 2014.

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

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

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

(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);

(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);

(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);

(e) Consolidated Reply of complainant NBI, if one had been filed; and

(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or

additional witnesses for the Complainants.6

Sen. Estradas request was made "[p]ursuant to the right of a respondent to examine the evidence
submitted by the complainant which he may not have been furnished (Section 3[b], Rule 112 of the
Rules of Court) and to have access to the evidence on record (Section 4[c], Rule II of the Rules of
Procedure of the Office of the Ombudsman)."7

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313. The pertinent
portions of the assailed Order read:

This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b], Rule
112 of the Rules of Court and Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman] do not entitle respondent [Sen. Estrada]to be furnished all the filings of the
respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:

(a) The complaintshall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause

xxx xxx xxx

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter
 affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to the complainant.

Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure of
the Office of the Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on April 10,
1990]:

a) If the complaint is not under oath or is based only on official reports, the investigating
officer shall require the complainant or supporting witnesses to execute affidavits to
substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the complainant. The complainant
may file reply affidavits within ten (10) days after service of the counter-affidavits.

It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen.
Estrada] a copy of the Complaint and its supporting affidavits and documents; and this Office
complied with this requirement when it furnished [Sen. Estrada] with the foregoing documents
attached to the Orders to File Counter-Affidavit dated 19 November 2013 and 25 November 2013.

It is to be noted that there is noprovision under this Offices Rules of Procedure which entitles
respondent to be furnished all the filings by the other parties, e.g. the respondents. Ruby Tuason,
Dennis Cunanan, Gondelina G. Amata and Mario L. Relampagos themselves are all respondents in
these cases. Under the Rules of Court as well as the Rules of Procedure of the Office of the
Ombudsman, the respondents are only required to furnish their counter-affidavits and controverting
evidence to the complainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary investigation
depend on the rights granted to him by law and these cannot be based on whatever rights he
believes [that] he is entitled to or those that may be derived from the phrase "due process of law."
Thus, this Office cannot grant his motion to be furnished with copies of all the filings by the other
parties. Nevertheless, he should be furnished a copy of the Reply of complainant NBI as he is
entitled thereto under the rules; however, as of this date, no Reply has been filed by complainant
NBI.

WHEREFORE, respondent [Sen.] Estradas Request to be Furnished with Copies of Counter-

Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filingsis DENIED. He is
nevertheless entitled to be furnished a copy of the Reply if complainant opts to file such
pleading.8 (Emphases in the original)

On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint

Resolution9which found probable cause to indict Sen. Estrada and his co-respondents with one
count of plunder and 11 counts of violation of Section 3(e) of RA No. 3019. Sen. Estrada filed a
Motion for Reconsideration (of the Joint Resolution dated 28 March 2014) dated 7 April 2014. Sen.
Estrada prayed for the issuance of a new resolution dismissing the charges against him. Without
filing a Motion for Reconsideration of the Ombudsmans 27 March 2014 Order denying his Request,
Sen. Estrada filed the present Petition for Certiorari under Rule 65 and sought to annul and set aside
the 27 March 2014 Order.

THE ARGUMENTS
Sen. Estrada raised the following grounds in his Petition:

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED 27

MARCH 2014, ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.10 Sen.
Estrada also claimed that under the circumstances, he has "no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law, except through this Petition."11 Sen. Estrada
applied for the issuance of a temporary restraining order and/or writ of preliminary injunction to
restrain public respondents from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-
C-13-0397. Finally, Sen. Estrada asked for a judgment declaring that (a) he has been denied due
process of law, and as a consequence thereof, (b) the Order dated 27 March 2014, as well as the
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to and affected bythe
issuance of the 27 March 2014 Order, are void.12

On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and OMB-C-C-13-
0397 a Joint Order furnishing Sen. Estrada with the counter-affidavits of Tuason, Cunanan, Amata,
Relampagos, Francisco Figura, Gregoria Buenaventura, and Alexis Sevidal, and directing him to
comment thereon within a non-extendible period of five days fromreceipt of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend proceedings in
OMB-C-C-13-0313 and OMB-C-C-13-0397 because the denial of his Request to be furnished copies
of counter-affidavits of his co-respondents deprived him of his right to procedural due process, and
he has filed the present Petition before thisCourt. The Ombudsman denied Sen. Estradas motion to
suspend in an Order dated 15 May 2014. Sen. Estrada filed a motion for reconsideration of the
Order dated 15 May 2014 but his motion was denied in an Order dated 3 June 2014.

As of 2 June 2014,the date of filing of the Ombudsmans Comment to the present Petition, Sen.
Estrada had not filed a comment on the counter-affidavits furnished to him. On 4 June 2014, the
Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 denying, among
other motions filed by the other respondents, Sen. Estradas motion for reconsideration dated 7 April
2014. The pertinent portion of the 4 June 2014 Joint Order stated:

While it is true that Senator Estradas request for copies of Tuason, Cunanan, Amata, Relampagos,
Figura, Buenaventura and Sevidals affidavits was denied by Order dated 27 March 2014 and before
the promulgation of the assailed Joint Resolution, this Office thereafter reevaluated the request and
granted it byOrder dated 7 May 2014 granting his request. Copies of the requested counter-affidavits
were appended to the copy of the Order dated 7 May 2014 transmitted to Senator Estrada through
counsel.

This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this
proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7 May
2014 Order to formally respond to the above-named co-respondents claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his right to
procedural due process.13 (Emphasis supplied)

On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents), through
the Officeof the Solicitor General, filed their Comment to the present Petition. The public
respondents argued that:

I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF LAW.

 II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

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

ORDINARY COURSE OF LAW.

III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY INJUNCTION AND/OR

TEMPORARY RESTRAINING ORDER.14

On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated that
Sen. Estradas resort to a Petition for Certiorari under Rule 65 is improper. Sen. Estrada should have
either filed a motion for reconsideration of the 27 March 2014 Order or incorporated the alleged
irregularity in his motion for reconsideration of the 28 March 2014 Joint Resolution. There was also
no violation of Sen. Estradas right to due process because there is no rule which mandates that a
respondent such as Sen. Estrada be furnished with copies of the submissions of his corespondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents Comment. Sen. Estrada
insisted that he was denied due process. Although Sen. Estrada received copies of the counter-
affidavits of Cunanan, Amata, Relampagos, Buenaventura, Figura, Sevidal, as well as one of
Tuasons counter-affidavits, heclaimed that he was not given the following documents:

a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

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

e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013 (to the FIO
Complaint);

f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to the NBI
Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14 March 2014;

h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guaizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and

k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen. Estrada argues that
the Petition isnot rendered moot by the subsequent issuance of the 7 May 2014 Joint Order
because there is a recurring violation of his right to due process. Sen. Estrada also insists
that there is no forum shopping as the present Petition arose from an incident in the main
proceeding, and that he has no other plain, speedy, and adequate remedy in the ordinary
course of law. Finally, Sen. Estrada reiterates his application for the issuance of a temporary
 restraining order and/or writ of preliminary injunction to restrain public respondents from
conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.

This Courts Ruling

Considering the facts narrated above, the Ombudsmans denial in its 27 March 2014 Order of Sen.
Estradas Request did not constitute grave abuse of discretion. Indeed, the denial did not violate
Sen. Estradas constitutional right to due process.

First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies of
the counter-affidavits of his co-respondents.

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as well
as Rule II of Administrative Order No. 7, Rules of Procedure of the Office of the Ombudsman, for
ready reference.

From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3. Procedure. The preliminary investigation shall be conducted in the following manner:

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

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting affidavits and
documents. The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense. If the
evidence is voluminous, the complainant may be required to specify those which he intends
to present against the respondent, and these shall be made available for examination or
copying by the respondent at his expense.

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

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

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the investigating officer shall resolve the complaint
based on the evidence presented by the complainant.
 (e) The investigating officer may set a hearing if there are facts and issues to be clarified
from a party ora 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. Section 4. Resolution
of investigating prosecutor and its review. If the investigating prosecutor finds cause to
hold the respondent for trial, he shall prepare the resolution and information. He shall certify
under oath in the information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is reasonable ground to
believe that a crime has been committed and that the accused is probably guilty thereof; that
the accused was informed of the complaint and of the evidence submitted against him; and
that he was given an opportunity to submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.

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

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

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

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

If upon petition by a proper party under such rules as the Department of Justice may prescribe or
motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to dismiss or
move for dismissal of the complaint or information with notice to the parties. The same rule shall
apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. From
the Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7, Rule II:
Procedure in Criminal Cases

Section 1. Grounds. A criminal complaint may be brought for an offense in violation of R.A.
3019,as amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the Revised
Penal Code, and for such other offenses committed by public officers and employees in relation to
office.

Sec. 2. Evaluation. Upon evaluating the complaint, the investigating officer shall recommend
whether it may be:
 a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

Sec. 3. Preliminary investigation; who may conduct. Preliminary investigation may be conducted
by any of the following:

1) Ombudsman Investigators;

2) Special Prosecuting Officers;

3) Deputized Prosecutors;

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

5) Lawyers in the government service, so designated by the Ombudsman.

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

a) If the complaint is not under oath or is based only on official reports, the investigating
officer shall require the complainant or supporting witnesses to execute affidavits to
substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on thecomplainant. The complainant
may file reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may consider
the comment filed by him, if any, as his answer to the complaint. In any event, the
respondent shall have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion
for a bill of particulars be entertained. If respondent desires any matter in the complainants
affidavit to be clarified, the particularization thereof may be done at the time of clarificatory
questioning in the manner provided in paragraph (f) of this section.
 e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or
having been served, does not comply therewith, the complaint shall be deemed submitted for
resolution on the basis of the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts
material to the case which the investigating officer may need to be clarified on, he may
conduct a clarificatory hearing during which the parties shall be afforded the opportunity to
be present but without the right to examine or cross-examine the witness being questioned.
Where the appearance of the parties or witnesses is impracticable, the clarificatory
questioning may be conducted in writing, whereby the questions desired to be asked by the
investigating officer or a party shall be reduced into writing and served on the witness
concerned who shall be required to answer the same in writing and under oath.

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

No information may be filed and no complaint may be dismissed without the written authority or
approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the
proper Deputy Ombudsman in all other cases.

xxxx

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

Sec. 7. Motion for reconsideration. a) Only one (1) motion for reconsideration or reinvestigation of
anapproved order or resolution shall be allowed, the same to be filed within fifteen (15) days from
notice thereof with the Office of the Ombudsman, or the proper deputy ombudsman as the case may
be.

xxxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the
corresponding Information in court on the basis of the finding of probable cause in the resolution
subject of the motion. (Emphasis supplied)

Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-respondents
violates his constitutional right to due process. Sen. Estrada, however, fails to specify a law or rule
which states that it is a compulsory requirement of due process in a preliminary investigation that the
Ombudsman furnish a respondent with the counter-affidavits of his co-respondents. Neither Section
3(b), Rule 112 of the Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of
Procedure of the Office of the Ombudsman supports Sen. Estradas claim. What the Rules of
Procedure of the Office of the Ombudsman require is for the Ombudsman to furnish the respondent
with a copy of the complaint and the supporting affidavits and documents at the time the order to
submit the counter-affidavit is issued to the respondent. This is clear from Section 4(b), Rule II of the
Rules of Procedure of the Office of the Ombudsman when it states, "[a]fter such affidavits [of the
complainant and his witnesses] have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the respondent
to submit, within ten (10) days from receipt thereof, his counter-affidavits x x x." At this point, there is
still no counter-affidavit submitted by any respondent. Clearly, what Section 4(b) refers to are
affidavits of the complainant and his witnesses, not the affidavits of the co-respondents. Obviously,
the counter-affidavits of the co-respondents are not part of the supporting affidavits of the
complainant. No grave abuse of discretion can thus be attributed to the Ombudsman for the
issuance of the 27 March 2014 Order which denied Sen. Estradas Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides
that a respondent "shall have access to the evidence on record," this provision should be construed
in relation to Section 4(a) and (b) of the same Rule, as well as to the Rules of Criminal Procedure.
First, Section 4(a) states that "theinvestigating officer shall require the complainant or supporting
witnesses to execute affidavits to substantiate the complaint." The "supporting witnesses" are the
witnesses of the complainant, and do not refer to the co-respondents.

Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a
copy of the affidavits and all other supporting documents, directing the respondent" tosubmit his
counter-affidavit. The affidavits referred to in Section 4(b) are the affidavits mentioned in Section

4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant
and his supporting witnesses. The provision in the immediately succeeding Section 4(c) of the same
Rule II that a respondent shall have "access to the evidence on record" does not stand alone, but
should be read in relation to the provisions of Section 4(a and b) of the same Rule II requiring the
investigating officer to furnish the respondent with the "affidavits and other supporting documents"
submitted by "the complainant or supporting witnesses." Thus, a respondents "access to evidence
on record" in Section 4(c), Rule II of the Ombudsmans Rules of Procedure refers to the affidavits
and supporting documents of "the complainant or supporting witnesses" in Section 4(a) of the same
Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he
respondent shall have the right to examine the evidence submitted by the complainant which he may
not have been furnished and to copy them at his expense." A respondents right to examine refers
only to "the evidence submitted by the complainant."

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the
Ombudsmans Rules of Procedure, there is no requirement whatsoever that the affidavits executed
by the corespondents should be furnished to a respondent. Justice Velascos dissent relies on the
ruling in Office of the Ombudsman v. Reyes (Reyes case),15 an administrative case, in which a
different set of rules of procedure and standards apply. Sen. Estradas Petition, in contrast, involves
the preliminary investigation stage in a criminal case. Rule III on the Procedure in Administrative
Cases of the Rules of Procedure of the Office of the Ombudsman applies in the Reyes case, while
Rule II on the Procedure in Criminal Cases of the Rules of Procedure of the Office of the
Ombudsman applies in Sen. Estradas Petition. In both cases, the Rules of Court apply in a
suppletory character or by analogy.16

In the Reyescase, the complainant Acero executed an affidavit against Reyes and Pealoza, who
were both employees of the Land Transportation Office. Pealoza submitted his counter-affidavit, as
well as those of his two witnesses. Reyes adopted his counter-affidavit in another case before the
Ombudsman as it involved the same parties and the same incident. None of the parties appeared
during the preliminary conference. Pealoza waived his right to a formal investigation and was
willing to submit the case for resolution based on the evidence on record. Pealoza also submitted a
counter-affidavit of his third witness. The Ombudsman found Reyes guilty of grave misconduct and
dismissed him from the service. On the other hand, Pealoza was found guilty of simple misconduct
and penalized with suspension from office without pay for six months. This Court agreed with the
Court of Appeals finding that Reyes right to due process was indeed violated. This Court remanded
the records of the case to the Ombudsman, for two reasons: (1) Reyes should not have been meted
the penalty of dismissal from the service when the evidence was not substantial, and (2) there was
disregard of Reyes right to due process because he was not furnished a copy of the counter-
affidavits of Pealoza and of Pealozas three witnesses. In the Reyes case, failure to furnish a copy
of the counter-affidavits happened in the administrative proceedings on the merits, which resulted in
Reyes dismissal from the service. In Sen. Estradas Petition, the denial of his Request happened
during the preliminary investigation where the only issue is the existence of probable cause for the
purpose of determining whether an information should be filed, and does not prevent Sen. Estrada
from requesting a copy of the counter-affidavits of his co-respondents during the pre-trial or even
during the trial.

We should remember to consider the differences in adjudicating cases, particularly an administrative

case and a criminal case:

Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending on whether
the cases to which they are meant to apply are criminal, civil or administrative in character. In
criminal actions, proof beyond reasonable doubt is required for conviction;in civil actions and
proceedings, preponderance of evidence, as support for a judgment; and in administrative cases,
substantial evidence, as basis for adjudication. In criminal and civil actions, application of the Rules
of Court is called for, with more or less strictness. In administrative proceedings, however, the
technical rules of pleadingand procedure, and of evidence, are not strictly adhered to; they generally
apply only suppletorily; indeed, in agrarian disputes application of the Rules of Court is actually
prohibited.17

It should be underscored that the conduct of a preliminary investigation is only for the determination
of probable cause, and "probable cause merely implies probability of guilt and should be determined
in a summary manner. A preliminary investigation is not a part of the trial and it is only in a trial
where an accused can demand the full exercise of his rights, such as the right to confront and cross-
examine his accusers to establish his innocence."18Thus, the rights of a respondent in a preliminary
investigation are limited to those granted by procedural law.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining

whether there is sufficient ground to engender a well founded belief that a crime cognizable by the
Regional Trial Court has been committed and that the respondent is probably guilty thereof, and
should be held for trial. The quantum of evidence now required in preliminary investigation is such
evidence sufficient to "engender a well founded belief" as tothe fact of the commission of a crime
and the respondent's probable guilt thereof. A preliminary investigation is not the occasion for the full
and exhaustive display of the parties evidence; it is for the presentation of such evidence only as
may engender a well-grounded belief that an offense has been committed and that the accused is
probably guilty thereof. We are in accord with the state prosecutors findings in the case at bar that
there exists prima facie evidence of petitioners involvement in the commission of the crime, it being
sufficiently supported by the evidence presented and the facts obtaining therein.

Likewise devoid of cogency is petitioners argument that the testimonies of Galarion and Hanopol
are inadmissible as to him since he was not granted the opportunity of cross-examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-
examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of
Court expressly provides that the respondent shall only have the right to submit a counter-affidavit,
to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be
present but without the right to examine or cross-examine. Thus, even if petitioner was not given the
opportunity to cross-examine Galarion and Hanopol atthe time they were presented to testify during
the separate trial of the case against Galarion and Roxas, he cannot assert any legal right to cross-
examine them at the preliminary investigation precisely because such right was never available to
him. The admissibility or inadmissibility of said testimonies should be ventilated before the trial court
during the trial proper and not in the preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and
control over the conduct of a preliminary investigation. If by its very nature a preliminary investigation
could be waived by the accused, we find no compelling justification for a strict application of the
evidentiary rules. In addition, considering that under Section 8, Rule 112 of the Rules of Court, the
record of the preliminary investigation does not form part of the record of the case in the Regional
Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by the trial court if not
presented in evidence by the prosecuting fiscal. And, even if the prosecution does present such
testimonies, petitioner can always object thereto and the trial court can rule on the admissibility
thereof; or the petitioner can, during the trial, petition said court to compel the presentation of
Galarion and Hanopol for purposes of cross-examination.19 (Emphasis supplied)

Furthermore, in citing the Reyes case, Justice Velascos dissent overlooked a vital portion of the
Court of Appeals reasoning. This Court quoted from the Court of Appeals decision: "x x x
[A]dmissions made by Pealoza in his sworn statement are binding only on him. Res inter alios act a
alteri nocere non debet. The rights of a party cannot be prejudiced by an act, declaration or omission
of another." In OMB-C-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estradas co-
respondents can in no way prejudice Sen. Estrada. Even granting Justice Velascos argument that
the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-039720mentioned the
testimonies of Sen. Estradas corespondents like Tuason and Cunanan, their testimonies were
merely corroborative of the testimonies of complainants witnesses Benhur Luy, Marina Sula, and
Merlina Suas and were not mentioned in isolation from the testimonies of complainants witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada to
establish its finding of probable cause in the 28 March 2014 Joint Resolution in OMB-C-C-13-0313
and OMB-CC-13-0397 was judicially confirmed by the Sandiganbayan, when it examined the
evidence, found probable cause, and issued a warrant of arrest against Sen. Estrada on 23 June
2014.

We likewise take exception to Justice Brions assertion that "the due process standards that at the
very least should be considered in the conduct of a preliminary investigation are those that this Court
first articulated in Ang Tibay v. Court of Industrial Relations [Ang Tibay]."21 Simply put, the Ang Tibay
guidelines for administrative cases do not apply to preliminary investigations in criminal cases. An
application of the Ang Tibay guidelines to preliminary investigations will have absurd and disastrous
consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay described
as the "fundamental and essential requirements of due process in trials and investigations of an
administrative character."22 These requirements are "fundamental and essential" because without
these, there isno due process as mandated by the Constitution. These "fundamental and essential
requirements" cannot be taken away by legislation because theyare part of constitutional due
process. These "fundamental and essential requirements" are:

(1) The first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof. x x x.
 (2) Not only must the party be given an opportunity to present his case and adduce evidence
tending to establish the rights which he asserts but the tribunal must consider the evidence
presented. x x x.

(3) "While the duty to deliberatedoes not impose the obligation to decide right, it does imply a
necessity which cannot be disregarded, namely, that of having something to support its
decision. A decision with absolutely nothing to support it is a nullity, x x x."

(4) Not only must there be some evidence to support a finding or conclusion, but the
evidence must be "substantial." "Substantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply accept the
views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision
in sucha manner that the parties to the proceeding can know the various issues involved,
and the reasons for the decisions rendered. The performance of this duty is inseparable from
the authority conferred upon it.23

The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA24 (GSIS): "what Ang Tibay
failed to explicitly state was, prescinding from the general principles governing due process, the
requirement of an impartial tribunalwhich, needless to say, dictates that one called upon to resolve a
dispute may not sit as judge and jury simultaneously, neither may he review his decision on
appeal."25 The GSIS clarification affirms the non applicability of the Ang Tibay guidelines to
preliminary investigations in criminal cases: The investigating officer, which is the role that the Office
of the Ombudsman plays in the investigation and prosecution of government personnel, will never be
the impartial tribunal required in Ang Tibay, as amplified in GSIS. The purpose of the Office of the
Ombudsman in conducting a preliminary investigation, after conducting its own factfinding
investigation, is to determine probable cause for filing an information, and not to make a final
adjudication of the rights and obligations of the parties under the law, which is the purpose of the
guidelines in Ang Tibay. The investigating officer investigates, determines probable cause, and
prosecutes the criminal case after filing the corresponding information.

The purpose in determining probable cause is to make sure that the courts are not clogged with
weak cases that will only be dismissed, as well as to spare a person from the travails of a needless
prosecution.26 The Ombudsman and the prosecution service under the control and supervision of the
Secretary of the Department of Justice are inherently the fact-finder, investigator, hearing officer,
judge and jury of the respondent in preliminary investigations. Obviously, this procedure cannot
comply with Ang Tibay, as amplified in GSIS. However, there is nothing unconstitutional with this
procedure because this is merely an Executive function, a part of the law enforcement process
leading to trial in court where the requirements mandated in Ang Tibay, as amplified in GSIS, will
apply. This has been the procedure under the 1935, 1973 and 1987 Constitutions. To now rule that
Ang Tibay, as amplified in GSIS, should apply to preliminary investigations will mean that all past
and present preliminary investigations are in gross violation of constitutional due process.
Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case when he
filed his Request, is not yet an accused person, and hence cannot demand the full exercise of the
rights of an accused person:

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed and was committed by the suspects. Probable cause need not be based on
clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable
doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar
v. United States, while probable cause demands more than "bare suspicion," it requires "less than
evidence which would justify . . . conviction." A finding of probable cause merely binds over the
suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause,
wealso hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI
witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is
addressed to the sound discretion of the investigator and the investigator alone. If the evidence on
hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To
repeat, probable cause merely implies probability of guilt and should be determined in a summary
manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can
demand the full exercise of his rights, such as the right to confront and cross-examine his accusers
to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough
evidence had been adduced to establish probable cause and clarificatory hearing was
unnecessary.27

Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v. Hernandez,28 that the
"rights conferred upon accused persons to participate in preliminary investigations concerning
themselves depend upon the provisions of law by which such rights are specifically secured, rather
than upon the phrase due process of law." This reiterates Justice Jose P. Laurels oft-quoted
pronouncement in Hashim v. Boncan29 that "the right to a preliminary investigation is statutory, not
constitutional." In short, the rights of a respondent ina preliminary investigation are merely statutory
rights, not constitutional due process rights. An investigation to determine probable cause for the
filing of an information does not initiate a criminal action so as to trigger into operation Section 14(2),
Article III of the Constitution.30 It is the filing of a complaint or information in court that initiates a
criminal action.31

The rights to due process in administrative cases as prescribed in Ang Tibay,as amplified in GSIS,
are granted by the Constitution; hence, these rights cannot be taken away by merelegislation. On
the other hand, as repeatedly reiterated by this Court, the right to a preliminary investigation is
merely a statutory right,32 not part of the "fundamental and essential requirements" of due process as
prescribed in Ang Tibay and amplified in GSIS. Thus, a preliminary investigation can be taken away
by legislation. The constitutional right of an accused to confront the witnesses against him does not
apply in preliminary investigations; nor will the absence of a preliminary investigation be an
infringement of his right to confront the witnesses against him.33 A preliminary investigation may be
done away with entirely without infringing the constitutional right of an accused under the due
process clause to a fair trial.34

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the
evidenceneeded in a preliminary investigation to establish probable cause, or to establish the
existence of a prima facie case that would warrant the prosecution of a case. Ang Tibay refers to
"substantial evidence," while the establishment of probable cause needs "only more than bare
suspicion, or less than evidence which would justify . . . conviction." In the United States, from
where we borrowed the concept of probable cause,35 the prevailing definition of probable cause is
this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities.These
are not technical; they are the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly
correlative to what must be proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt."
McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at
161. And this "means less than evidence which would justify condemnation" or conviction, as
Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339,
348. Since Marshalls time, at any rate, it has come to mean more than bare suspicion: Probable
cause exists where "the facts and circumstances within their [the officers] knowledge and of which
they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United
States, 267 U. S. 132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway
for enforcing the law in the communitys protection. Because many situations which confront officers
in the course of executing their duties are more or less ambiguous, room must be allowed for some
mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading
sensibly to their conclusions of probability. The rule of probable cause is a practical, non technical
conception affording the best compromise that has been found for accommodating these often
opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be
to leave law-abiding citizens at the mercy of the officers whim or caprice.36

In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where
probable cause is needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there
is sufficient ground to engender a well-founded belief that a crime has been committed and
the respondent is probably guilty thereof, and should be held for trial. A preliminary
investigation is required before the filing of a complaint or information for an offense where
the penalty prescribed by law is at least four years, two months and one day without regard
to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or
a commitment order, if the accused has already been arrested, shall be issued and that there
is a necessity of placing the respondent under immediate custody in order not to frustrate the
ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless
arrest when an offense has just been committed, and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be
issued, and only upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of the
 complainant and the witnesses he may produce, and particularly describing the place to be
searched and the things to be seized which may be anywhere in the Philippines.

In all these instances, the evidence necessary to establish probable cause is based only on the
likelihood, or probability, of guilt. Justice Brion, in the recent case of Unilever Philippines, Inc. v.
Tan37 (Unilever), stated:

The determination of probable cause needs only to rest on evidence showing that more likely than
not, a crime has been committed and there is enough reason to believe that it was committed by the
accused. It need not be based on clear and convincing evidence of guilt, neither on evidence
establishing absolute certainty of guilt. What is merely required is "probability of guilt." Its
determination, too, does not call for the application of rules or standards of proof that a judgment of
conviction requires after trial on the merits. Thus, in concluding that there is probable cause, it
suffices that it is believed that the act or omission complained of constitutes the very offense
charged.

It is also important to stress that the determination of probable cause does not depend on the validity
or merits of a partys accusation or defense or on the admissibility or veracity of testimonies
presented. As previously discussed, these matters are better ventilated during the trial proper of the
case. As held in Metropolitan Bank & Trust Company v. Gonzales:

Probable cause has been defined as the existence of such facts and circumstances as would excite
the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was prosecuted. x x x. The term does not mean
"actual or positive cause" nor does it import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence
of the prosecution in support of the charge. (Bold facing and italicization supplied)

Justice Brions pronouncement in Unilever that "the determination of probable cause does not
depend on the validity or merits of a partys accusation or defense or on the admissibility or veracity
of testimonies presented" correctly recognizes the doctrine in the United States that the
determination of probable cause can rest partially, or even entirely, on hearsay evidence, as long as
the person making the hearsay statement is credible. In United States v. Ventresca,38 the United
States Supreme Court held:

While a warrant may issue only upon a finding of "probable cause," this Court has long held that "the
term probable cause . . . means less than evidence which would justify condemnation," Locke v.
United States, 7 Cranch 339, 11 U.S. 348, and that a finding of "probable cause" may rest upon
evidence which is not legally competent in a criminal trial. Draper v. United States, 358 U.S. 307,
358 U.S. 311. As the Court stated in Brinegar v. United States, 338 U.S. 160, 173, "There is a large
difference between the two things tobe proved (guilt and probable cause), as well as between the
tribunals which determine them, and therefore a like difference in the quanta and modes of proof
required to establish them." Thus, hearsay may be the basis for issuance of the warrant "so long as
there . . . [is] a substantial basis for crediting the hearsay." Jones v. United States, supra, at 362 U.S.
272. And, in Aguilar, we recognized that "an affidavit may be based on hearsay information and
need not reflect the direct personal observations of the affiant," so long as the magistrate is
"informed of some of the underlying circumstances" supporting the affiants conclusions and his
belief that any informant involved "whose identity need not be disclosed . . ." was "credible" or his
information "reliable." Aguilar v. Texas, supra, at 378 U.S. 114. (Emphasis supplied)
Thus, probable cause can be established with hearsay evidence, as long as there is substantial
basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a
preliminary investigation because such investigation is merely preliminary, and does not finally
adjudicate rights and obligations of parties. However, in administrative cases, where rights and
obligations are finally adjudicated, what is required is "substantial evidence" which cannot rest
entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial
evidence because substantial evidence excludes hearsay evidence while substantial basis can
include hearsay evidence. To require the application of Ang Tibay, as amplified in GSIS, in
preliminary investigations will change the quantum of evidence required in determining probable
cause from evidence of likelihood or probability of guilt to substantial evidence of guilt.

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an

accused and the right to a preliminary investigation. To treat them the same will lead toabsurd and
disastrous consequences.

All pending criminal cases in all courts throughout the country will have to be remanded to the
preliminary investigation level because none of these will satisfy Ang Tibay, as amplified in GSIS.
Preliminary investigations are conducted by prosecutors, who are the same officials who will
determine probable cause and prosecute the cases in court. The prosecutor is hardly the impartial
tribunal contemplated in Ang Tibay, as amplified in GSIS. A reinvestigation by an investigating officer
outside of the prosecution service will be necessary if Ang Tibay, as amplified in GSIS, were to be
applied. This will require a new legislation. In the meantime, all pending criminal cases in all courts
will have to be remanded for reinvestigation, to proceed only when a new law is in place. To require
Ang Tibay, as amplified in GSIS, to apply to preliminary investigation will necessarily change the
concept of preliminary investigation as we know it now. Applying the constitutional due process in
Ang Tibay, as amplified in GSIS, to preliminary investigation will necessarily require the application
of the rights of an accused in Section 14(2), Article III of the 1987 Constitution. This means that the
respondent can demand an actual hearing and the right to cross-examine the witnesses against him,
rights which are not afforded at present toa respondent in a preliminary investigation.

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

Second. Sen. Estradas present Petition for Certiorari is premature.

Justice Velascos dissent prefers thatSen. Estrada not "be subjected to the rigors of a criminal
prosecution incourt" because there is "a pending question regarding the Ombudsmans grave abuse
of its discretion preceding the finding of a probable cause to indict him." Restated bluntly, Justice
Velascos dissent would like this Court to conclude that the mere filing of the present Petition for
Certiorari questioning the Ombudsmans denial of Sen. Estradas Request should have, by itself,
voided all proceedings related to the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen. Estradas Request,
the Ombudsman subsequently reconsidered its Order. On 7 May 2014, the same date that Sen.
Estrada filed the present Petition, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and
OMB-C-C-13-0397 that furnishedSen. Estrada with the counter-affidavits of Ruby Tuason, Dennis
Cunanan, Gondelina Amata, Mario Relampagos, Francisco Figura, Gregoria Buenaventura, and
AlexisSevidal, and directed him to comment within a non-extendible period of five days from receipt
of said Order. Sen. Estrada did not file any comment, as noted in the 4 June 2014 Joint Order of the
Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estradas Motion for
Reconsideration ofits 28 March 2014 Joint Resolution which found probable cause toindict Sen.
Estrada and his corespondents with one count of plunder and 11 counts of violation of Section 3(e),
Republic Act No. 3019. In this 4 June 2014 Joint Order, the Ombudsman stated that "[t]his Office, in
fact, held in abeyance the disposition of motions for reconsideration in this proceeding in light of its
grant to Senator Estrada a period of five days from receipt of the 7 May 2014 Order to formally
respond to the above-named respondents claims."

We underscore Sen. Estradas procedural omission. Sen. Estrada did not file any pleading, much
less a motion for reconsideration, to the 27 March 2014 Order inOMB-C-C-13-0313. Sen. Estrada
immediately proceeded to file this Petition for Certiorari before this Court. Sen. Estradas resort to a
petitionfor certiorari before this Court stands in stark contrast to his filing of his 7 April 2014 Motion
for Reconsideration of the 28 March 2014 Joint Resolution finding probable cause. The present
Petition for Certiorari is premature.

A motion for reconsideration allows the public respondent an opportunity to correct its factual and
legal errors. Sen. Estrada, however, failed to present a compelling reason that the present Petition
falls under the exceptions41to the general rule that the filing of a motion for reconsideration is required
prior to the filing of a petition for certiorari. This Court has reiterated in numerous decisions that a
motion for reconsideration is mandatory before the filing of a petition for certiorari.42

Justice Velascos dissent faults the majority for their refusal to apply the Reyes case to the present
Petition. Justice Velascos dissent insists that "this Court cannot neglect to emphasize that, despite
the variance in the quanta of evidence required, a uniform observance of the singular concept of due
process is indispensable in all proceedings."

As we try to follow Justice Velascos insistence, we direct Justice Velasco and those who join him in
his dissent to this Courts ruling in Ruivivar v. Office of the Ombudsman (Ruivivar),43 wherein we
stated that "[t]he law can no longer help one who had been given ample opportunity to be heard but
who did not take full advantage of the proffered chance."

The Ruivivar case, like the Reyes44 case, was also an administrative case before the Ombudsman.
The Ombudsman found petitioner Rachel Beatriz Ruivivar administratively liable for discourtesy in
the course of her official functions and imposed on her the penalty of reprimand. Petitioner filed a
motion for reconsideration of the decision on the ground that she was not furnished copies of the
affidavits of the private respondents witnesses. The Ombudsman subsequently ordered that
petitioner be furnished with copies of the counter-affidavits of private respondents witnesses, and
that petitioner should "file, within ten (10) days from receipt of this Order, such pleading which she
may deem fit under the circumstances." Petitioner received copies of the affidavits, and simply filed a
manifestation where she maintained that her receipt of the affidavits did not alter the deprivation of
her right to due process or cure the irregularity in the Ombudsmans decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondents witnesses afterthe
Ombudsman rendered a decision against her. We disposed of petitioners deprivation of due
process claim in this manner:
The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to
exhaust all the administrative remedies available to her before the Ombudsman. This ruling is
legallycorrect as exhaustion of administrative remedies is a requisite for the filing of a petition for
certiorari. Other than this legal significance, however, the ruling necessarily carries the direct and
immediate implication that the petitioner has been granted the opportunity to be heard and has
refused to avail of this opportunity; hence, she cannot claim denial of due process. In the words of
the CA ruling itself: "Petitioner was given the opportunity by public respondent to rebut the affidavits
submitted by private respondent. . . and had a speedy and adequate administrative remedy but she
failed to avail thereof for reasons only known to her."

For a fuller appreciation of our above conclusion, we clarify that although they are separate and
distinct concepts, exhaustion of administrative remedies and due process embody linked and related
principles. The "exhaustion" principle applies when the ruling court or tribunal is not given the
opportunity tore-examine its findings and conclusions because of an available opportunity that a
party seeking recourse against the court or the tribunals ruling omitted to take. Under the concept of
"due process," on the other hand, a violation occurs when a court or tribunal rules against a party
without giving him orher the opportunity to be heard. Thus, the exhaustion principle is based on the
perspective of the ruling court or tribunal, while due process is considered from the point of view of
the litigating party against whom a ruling was made. The commonality they share is in the
same"opportunity" that underlies both. In the context of the present case, the available opportunity to
consider and appreciate the petitioners counter-statement offacts was denied the Ombudsman;
hence, the petitioner is barred from seeking recourse at the CA because the ground she would
invoke was not considered at all at the Ombudsman level. At the same time, the petitioner who
had the same opportunity to rebut the belatedly-furnished affidavits of the private respondents
witnesses was not denied and cannot now claim denial of due process because she did not take
advantage of the opportunity opened to her at the Ombudsman level.

The records show that the petitioner duly filed a motion for reconsideration on due process grounds
(i.e., for the private respondents failure to furnish her copies of the affidavits of witnesses) and on
questions relating to the appreciation of the evidence on record. The Ombudsman acted on this
motion by issuing its Order of January 17, 2003 belatedly furnishing her with copies of the private
respondents witnesses, together with the "directive to file, within ten (10) days from receipt of this
Order, such pleading which she may deem fit under the circumstances."

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to file a
"Manifestation" where she took the position that "The order of the Ombudsman dated 17 January
2003 supplying her with the affidavits of the complainant does not cure the 04 November 2002
order," and on this basis prayed that the Ombudsmans decision "be reconsidered and the complaint
dismissed for lack of merit."

For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration dated
27 January 2003 and prayed for the denial of the petitioners motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioners motion for reconsideration
after finding no basis to alter or modify its ruling. Significantly, the Ombudsman fully discussed in this
Order the due process significance of the petitioners failure to adequately respond to the belatedly-
furnished affidavits. The Ombudsman said:

"Undoubtedly, the respondent herein has been furnished by this Office with copies of the affidavits,
which she claims she has not received. Furthermore, the respondent has been given the opportunity
to present her side relative thereto, however, she chose not to submit countervailing evidence
orargument. The respondent, therefore (sic), cannot claim denial of due process for purposes of
assailing the Decision issued in the present case. On this score, the Supreme Court held in the case
of People v. Acot, 232 SCRA 406, that "a party cannot feign denial of due process where he had the
opportunity to present his side". This becomes all the more important since, as correctly pointed out
by the complainant, the decision issued in the present case is deemed final and unappealable
pursuant to Section 27 of Republic Act 6770, and Section 7, Rule III of Administrative Order No. 07.
Despite the clear provisions of the law and the rules, the respondent herein was given the
opportunity not normally accorded, to present her side, but she opted not to do so which is evidently
fatal to her cause." [emphasis supplied].

Under these circumstances, we cannot help but recognize that the petitioners cause is a lost one,
not only for her failure to exhaust her available administrative remedy, but also on due process
grounds. The law can no longer help one who had been given ample opportunity to be heard but
who did not take full advantage of the proffered chance.45

Ruivivar applies with even greater force to the present Petition because here the affidavits of Sen.
Estradas co-respondents were furnished to him beforethe Ombudsman rendered her 4 June 2014
Joint Order. In Ruivivar, the affidavits were furnished after the Ombudsman issued a decision.

Justice Velascos dissent cites the cases of Tatad v. Sandiganbayan46 (Tatad) and Duterte v.
Sandiganbayan47(Duterte) in an attempt to prop up its stand. A careful reading of these cases,
however, would show that they do not stand on all fours with the present case. In Tatad, this Court
ruled that "the inordinate delay in terminating the preliminary investigation and filing the information
[by the Tanodbayan] in the present case is violative of the constitutionally guaranteed right of the
petitioner to due process and to a speedy disposition of the cases against him."48 The Tanod bayan
took almost three years to terminate the preliminary investigation, despite Presidential Decree No.
911s prescription of a ten-day period for the prosecutor to resolve a case under preliminary
investigation. We ruled similarly in Duterte, where the petitioners were merely asked to comment
and were not asked to file counter-affidavits as isthe proper procedure in a preliminary investigation.
Moreover, in Duterte, the Ombudsman took four years to terminate its preliminary investigation.

As we follow the reasoning in Justice Velascos dissent, it becomes more apparent that Sen.
Estradas present Petition for Certiorari is premature for lack of filing of a motion for reconsideration
before the Ombudsman. When the Ombudsman gave Sen. Estrada copies of the counter-affidavits
and even waited for the lapse of the given period for the filing of his comment, Sen. Estrada failed to
avail of the opportunity to be heard due to his own fault. Thus, Sen. Estradas failure cannot in any
way be construed as violation of due process by the Ombudsman, much less of grave abuse of
discretion. Sen. Estrada has not filed any comment, and still chooses not to.

Third. Sen. Estradas present Petition for Certiorari constitutes forum shopping and should be
summarily dismissed.

In his verification and certification of non-forum shopping in the present petition filed on 7 May 2014,
Sen. Estrada stated:

3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in OMB-C-
C-13-0313 and OMB-CC-13-0397, raising as sole issuethe finding of probable cause in the Joint
Resolution dated 28 March 2014.

Such Motion for Reconsideration has yet to be resolved by the Office of the
Ombudsman.49 (Emphasis supplied)
Sen. Estradas Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed that the
Ombudsman reconsider and issue a new resolution dismissing the charges against him. However, in
this Motion for Reconsideration, Sen. Estrada assailed the Ombudsmans 27 March 2014 Joint
Order denying his Request, and that such denial is a violation of his right to due process.

8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112, Section 4 of
the Rules of Court] and principles. A reading of the Joint Resolution will reveal that various pieces of
evidence which Senator Estrada was not furnished with hence, depriving him of the opportunity to
controvert the same were heavily considered by the Ombudsman in finding probable cause to
charge him with Plunder and with violations of Section 3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be Furnished with
Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings," pursuant to the right of a respondent "to examine the evidence submitted by the
complainant which he may not have been furnished" (Section 3[b], Rule 112 of the Rules of Court),
and to "have access to the evidence on record" (Section 4[c], Rule II of the Rules of Procedure of the
Office of the Ombudsman).

However, notwithstanding the gravity of the offenses leveled against Senator Estrada and the laws
vigilance in protecting the rights of an accused, the Special Panel of Investigators, in an Order dated
27 March 2014, unceremoniously denied the request on the ground that "there is no provision under
this Offices Rules of Procedure which entitles respondent to be furnished all the filings by the other
parties x x x x." (Order dated 27 March 2013, p. 3)

As such, Senator Estrada was not properly apprised of the evidence offered against him, which were
eventually made the bases of the Ombudsmans finding of probable cause.50

The Ombudsman denied Sen. Estradas Motion for Reconsideration in its 4 June 2014 Joint Order.
Clearly, Sen. Estrada expressly raised in his Motion for Reconsideration with the Ombudsman the
violation of his right to due process, the same issue he is raising in this petition. In the verification
and certification of non-forum shopping attached to his petition docketed as G.R. Nos. 212761-62
filed on 23 June 2014, Sen. Estrada disclosed the pendency of the present petition, as well as those
before the Sandiganbayan for the determination of the existence of probable cause. In his petition in
G.R. Nos. 212761-62, Sen. Estrada again mentioned the Ombudsmans 27 March 2014 Joint Order
denying his Request.

17. Sen. Estrada was shocked not only at the Office of the Ombudsmans finding of probable cause,
which he maintains is without legal or factual basis, but also thatsuch finding of probable cause was
premised on evidence not disclosed tohim, including those subject of his Request to be Furnished
with Copiesof Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings dated 20 March 2014.

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

i. Alexis G. Sevidals Counter-Affidavits dated 15 January and 24 February 2014;

ii. Dennis L. Cunanans Counter-Affidavits both dated 20 February 2014;

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

iv. Ruby Tuasons Counter-Affidavits both dated 21 February 2014;

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

vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy upstages
Napoles in Senate Hearing" by Norman Bordadora and TJ Borgonio, published on 06 March
2014, none of which were ever furnished Sen. Estrada prior to the issuance of the
challenged Joint Resolution, despite written request.

xxxx

II

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT RESOLUTION

DATED 28 MARCH 2014 AND CHALLENGED JOINT ORDER DATED 04 JUNE 2014, NOT ONLY
ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, BUT ALSO VIOLATED
SEN. ESTRADAS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND TO EQUAL
PROTECTION OF THE LAWS.

xxxx

2.17 x x x x

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even arbitrarily limited
the filing of Sen. Estradas comment to the voluminous documents comprisingthe documents it
furnished Sen. Estrada to a "non-extendible" period offive (5) days, making it virtually impossible for
Sen. Estrada to adequately study the charges leveled against him and intelligently respond to them.
The Joint Order also failed to disclose the existence of other counter-affidavits and failed to furnish
Sen. Estrada copies of such counter-affidavits.51

Sen. Estrada has not been candid with this Court. His claim that the finding of probable cause was
the "sole issue" he raised before the Ombudsman in his Motion for Reconsideration dated 7 April
2014 is obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsmans 4 June 2014
Joint Order which denied his motion for reconsideration of the 28 March 2014 Joint Resolution, Sen.
Estrada did not mention that the 4 June 2014 Joint Order stated that the Ombudsman "held in
abeyance the disposition of the motions for reconsideration in this proceeding in light of its grant to
[Sen. Estrada] a period of five days from receipt of the 7 May 2014 [Joint] Order to formally respond
to the abovenamed co-respondents claims."

Sen. Estrada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited tothe fulfillment of the requisites of litis pendentia.52 To
determine whether a party violated the rule against forum shopping, the most important factor to ask
is whether the elements of litis pendentia are present, or whether a final judgment in one case will
amount to res judicatain another.53Undergirding the principle of litis pendentia is the theory that a
party isnot allowed to vex another more than once regarding the same subject matter and for the
same cause of action. This theory is founded on the public policy that the same matter should not be
the subject of controversy in court more than once in order that possible conflicting judgments may
be avoided, for the sake of the stability in the rights and status of persons.54

x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a recourse that in
the usual course and because of its nature and purpose is not covered by the rule on forum
shopping. The exception from the forum shopping rule, however, is true only where a petition for
certiorari is properly or regularly invoked in the usual course; the exception does not apply when the
relief sought, through a petition for certiorari, is still pending with or has as yet to be decided by the
respondent court, tribunal or body exercising judicial or quasi-judicial body, e.g., a motion for
reconsideration of the order assailed via a petition for certiorari under Rule 65, as in the present
case. This conclusion is supported and strengthened by Section 1, Rule 65 of the Revised Rules of
Court which provides that the availability of a remedy in the ordinary course of law precludes the
filing of a petition for certiorari; under this rule, the petitions dismissal is the necessary consequence
if recourse to Rule 65 is prematurely taken.

To be sure, the simultaneous remedies the petitioners sought could result in possible conflicting
rulings, or at the very least, to complicated situations, between the RTC and the Court of Appeals.
An extreme possible result is for the appellate court to confirm that the RTC decision is meritorious,
yet the RTC may at the same time reconsider its ruling and recall its order of dismissal. In this
eventuality, the result is the affirmation of the decision that the court a quo has backtracked on.
Other permutations depending on the rulings of the two courts and the timing of these rulings are
possible. In every case, our justice system suffers as this kind of sharp practice opens the system to
the possibility of manipulation; to uncertainties when conflict of rulings arise; and at least to vexation
for complications other than conflict of rulings. Thus, it matters not that ultimately the Court of
Appeals may completely agree with the RTC; what the rule on forum shopping addresses are the
possibility and the actuality of its harmful effects on our judicial system.55

Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of due
process by the Ombudsman even as his Motion for Reconsideration raising the very same issue
remained pending with the Ombudsman. This is plain and simple forum shopping, warranting
outright dismissal of this Petition.

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits
and documents, fully complied with Sections 3 and 4 of Rule 112 of the Revised Rules of Criminal
Procedure, and Section 4, Rule II of the Rules of Procedure of the Office of the Ombudsman,
Administrative Order No. 7. Both the Revised Rules of Criminal Procedure and the Rules of
Procedure of the Office of the Ombudsman require the investigating officer to furnish the respondent
with copies of the affidavits of the complainant and affidavits of his supporting witnesses. Neither of
these Rules require the investigating officer to furnish the respondent with copies of the affidavits of
his co-respondents. The right of the respondent is only "to examine the evidence submitted by the
complainant," as expressly stated in Section 3(b), Rule 112 of the Revised Rules of Criminal
Procedure. This Court has unequivocally ruled in Paderanga that "Section 3, Rule 112 of the
Revised Rules of Criminal Procedure expressly provides that the respondent shall only have the
right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and,
where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to
be afforded an opportunity to be present but without the right to examine or cross-examine."
Moreover, Section 4 (a, b and c) of Rule II of the Ombudsmans Rule of Procedure, read together,
only require the investigating officer to furnish the respondent with copies of the affidavits of the
complainant and his supporting witnesses. There is no law or rule requiring the investigating officer
1wphi1

to furnish the respondent with copies of the affidavits of his co-respondents.

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even furnished Sen.
Estrada with copies of the counter-affidavits of his co-respondents whom he specifically named, as
well as the counteraffidavits of some of other co-respondents. In the 4 June 2014 Joint Order, the
Ombudsman even held in abeyancethe disposition of the motions for reconsideration because the
Ombudsman granted Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to formally
respond to the claims made by his co-respondents. The Ombudsman faithfully complied with the
existing Rules on preliminary investigation and even accommodated Sen. Estrada beyond what the
Rules required. Thus, the Ombudsman could not be faulted with grave abuse of discretion. Since
this is a Petition for Certiorari under Rule 65, the Petition fails in the absence of grave abuse of
discretion on the part of the Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are not
applicable to preliminary investigations which are creations of statutory law giving rise to mere
statutory rights. A law can abolish preliminary investigations without running afoul with the
constitutional requirements of dueprocess as prescribed in Ang Tibay, as amplified in GSIS. The
present procedures for preliminary investigations do not comply, and were never intended to comply,
with Ang Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate with finality rights
and obligations of parties, while administrative investigations governed by Ang Tibay, as amplified in
GSIS, so adjudicate. Ang Tibay,as amplified in GSIS, requires substantial evidencefor a decision
against the respondent in the administrative case.In preliminary investigations, only likelihood or
probability of guiltis required. To apply Ang Tibay,as amplified in GSIS,to preliminary investigations
will change the quantum of evidence required to establish probable cause. The respondent in an
administrative case governed by Ang Tibay,as amplified in GSIS,has the right to an actual hearing
and to cross-examine the witnesses against him. In preliminary investigations, the respondent has
no such rights.

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer
must be impartial and cannot be the fact-finder, investigator, and hearing officer atthe same time. In
preliminary investigations, the same public officer may be the investigator and hearing officer at the
same time, or the fact-finder, investigator and hearing officer may be under the control and
supervisionof the same public officer, like the Ombudsman or Secretary of Justice. This explains
why Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations. To now declare
that the guidelines in Ang Tibay, as amplified in GSIS, are fundamental and essential requirements
in preliminary investigations will render all past and present preliminary investigations invalid for
violation of constitutional due process. This will mean remanding for reinvestigation all criminal
cases now pending in all courts throughout the country. No preliminary investigation can
proceeduntil a new law designates a public officer, outside of the prosecution service, to determine
probable cause. Moreover, those serving sentences by final judgment would have to be released
from prison because their conviction violated constitutional due process. Sen. Estrada did not file a
Motion for Reconsideration of the 27 March 2014 Order in OMB-C-C-13-0313 denying his Request,
which is the subject of the present Petition. He should have filed a Motion for R econsideration, in
the same manner that he filed a Motion for Reconsideration of the 15 May 2014 Order denying his
motion to suspend proceedings. The unquestioned rule in this jurisdiction is that certiorari will lie only
if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law
against the acts of the public respondent.56 The plain, speedy and adequate remedy expressly
provided by law is a Motion for Reconsideration of the 27 March 2014 Order of the Ombudsman.
Sen. Estrada's failure to file a Motion for Reconsideration renders this Petition premature.

Sen. Estrada also raised in this Petition the same issue he raised in his Motion for Reconsideration
of the 28 March 2014 Joint Resolution of the Ombudsman finding probable cause. While his Motion
for Reconsideration of the 28 March 2014 Joint Resolution was pending, Sen. Estrada did not wait
for the resolution of the Ombudsman and instead proceeded to file the present Petition for Certiorari.
The Ombudsman issued a Joint Order on 4 June 2014 and specifically addressed the issue that
Sen. Estrada is raising in this Petition. Thus, Sen. Estrada's present Petition for Certiorari is not only
premature, it also constitutes forum shopping. WHEREFORE, we DISMISS the Petition for Certiorari
in G.R. Nos. 212140-41.

SO ORDERED.

DOLORES ADORA G.R. No. 156375

MACASLANG,
Petitioner, Present:

CARPIOMORALES, Chairperson,
BRION,
-versus - BERSAMIN,
VILLARAMA, and
SERENO, JJ.

Promulgated:
RENATO AND
MELBAZAMORA,
Respondents. May 30, 2011
x-----------------------------------------------------------------------------------------x

DECISION

BERSAMIN, J.:

The Regional Trial Court (RTC) is not limited in its review of the decision of
the Municipal Trial Court (MTC) to the issues assigned by the appellant, but can
decide on the basis of the entire records of the proceedings of the trial court and such
memoranda or briefs as may be submitted by the parties or required by the RTC.

The petitioner appeals the decision promulgated on July 3, 2002, [1] whereby
the Court of Appeals (CA) reversedfor having no basis in fact and in law the decision
rendered on May 18, 2000[2] by the Regional Trial Court, Branch 25, in Danao City
(RTC) thathad dismissed the respondents action
for ejectment against the petitioner, andreinstated the decision dated September 13,
1999 of the Municipal Trial Court in Cities (MTCC) of DanaoCity (ordering the
petitioner as defendant to vacate the premises and to pay attorneys fees
of P10,000.00 and monthly rental of P5,000.00 starting December 1997 until they
vacated the premises).[3]

We grant the petition for review and rule that contrary to the CAs conclusion,
the RTCas an appellate court properly considered and resolved issues even if not
raised in the appeal from the decisionrendered in an ejectment case by the MTCC.

ANTECEDENTS

On March 10, 1999, the respondents filed a complaint for unlawful detainer in the
MTCC, alleging that the [petitioner] sold to [respondents] a residential land located
in Sabang,DanaoCity and that the [petitioner] requested to be allowed to live in the
house with a promise to vacate as soon as she would be able to find a new residence.
They further alleged thatdespitetheir demand after a year, the petitioner failed or
refused to vacate the premises.

Despite the due service of the summons and copy of the complaint, the
petitioner did not file heranswer. The MTCC declared her in defaultupon the
respondents motion to declare her in default, and proceeded to receivethe
respondentsoral testimony and documentary evidence. Thereafter, on September 13,
1999, the MTCC rendered judgment against her, disposing:
WHEREFORE, considering the foregoing, Judgment is hereby rendered in
favor [of] plaintiffs (sic) spouses Renato Zamora and Melba Zamora and against
defendant Dolores AdoraMacaslang, ordering defendant to vacate the properties in
question, to pay to plaintiffs Attorneys Fees in the sum of P10,000.00 and monthly
rental of P5,000.00 starting December, 1997 until the time the defendant shall have
vacated the properties in question.

SO ORDERED.[4]
The petitioner appealed to the RTC, averring the following as reversible errors,
namely:

1. Extrinsic Fraud was practiced upon defendant-appellant which ordinary

prudence could not have guarded against and by reason of which she has been
impaired of her rights.

2. Defendant-Appellant has a meritorious defense in that there was no actual sale

considering that the absolute deed of sale relied upon by the plaintiff-appell[ees]
is a patent-nullity as her signature therein was procured through fraud and
trickery.[5]

and praying through her appeal memorandum as follows:

Wherefore, in view of the foregoing, it is most respectfully prayed for that judgment
be rendered in favor of defendant-appellant ordering that this case be remanded
back to the Court of Origin, Municipal Trial Court of Danao City, for further
proceedings to allow the defendant to present her evidence, and thereafter, to render
a judgment anew.[6]

On May 18, 2000, the RTC resolved the appeal, to wit:[7]

WHEREFORE,judgment is hereby rendered dismissing the complaint for

failure to state a cause of action.

The same may, however, be refiled in the same Court, by alleging plaintiffs
cause of action, if any.

Plaintiffs Motion for Execution of Judgment of the lower court is rendered

moot by this judgment.

SO ORDERED.

The respondents appealed to the CA, assailing the RTCs decision for disregarding
the allegations in the complaint in determining the existence or non-existence of a
cause of action.
 On July 3, 2002, the CA reversed and set aside the RTCs decision and
reinstated the MTCCs decision in favor of the respondents, disposing:

WHEREFORE,foregoing premises considered, the Petition is hereby GIVEN DUE

COURSE. Resultantly, the impugned decision of the Regional Trial Court is hereby
REVERSED and SET ASIDE for having no basis in fact and in law, and the
Decision of the Municipal Trial Court in Cities REINSTATED and AFFIRMED.
No costs.

SO ORDERED.[8]

The petitionersmotion for reconsideration was denied onNovember 19, 2002.

ISSUES

Hence, the petitioner appeals the CAs adverse decision, submitting legal issues, as
follows:

1. Whether or not the Regional Trial Court in the exercise of its Appellate
Jurisdiction is limited to the assigned errors in the Memorandum or brief filed
before it or whether it can decide the case based on the entire records of the
case, as provided for in Rule 40, Sec. 7. This is a novel issue which, we
respectfully submit, deserves a definitive ruling by this Honorable Supreme
Court since it involves the application of a new provision, specifically
underlined now under the 1997 Revised Rules on Civil procedure.

2. Whether or not in an action for unlawful detainer, where there was no prior
demand to vacate and comply with the conditions of the lease made, a valid
cause of action exists?

3. Whether or not in reversing the Regional Trial Court Decision and reinstating
and affirming the decision of the Municipal Circuit Trial Court, which was tried
and decided by the MCTC in violation of the Rules on Summary Procedure, the
Court of Appeals sanctioned a gross departure from the usual course of judicial
proceedings?[9]
The issues that this Court has to resolve are stated thuswise:

1. Whether or not the CA correctly found that the RTC committed

reversible error in ruling on issues not raised by the petitioner in her
appeal;
 2. Whether or not the CA correctly found that the complaint stated a
valid cause of action;

3. Whether or not the CA erred in finding that there was a valid

demand to vacate made by the respondents on the petitioner; and

4. Whether or not the petitioners defense of ownership was

meritorious.

RULING

We grant the petition for review.

A.
As an appellate court, RTC may rule
upon an issue notraised on appeal

In its decision, the CA ruled that the RTC could not resolve issues that were
not assigned by the petitioner in her appeal memorandum, explaining:

Indeed(,) We are rather perplexed why the Regional Trial Court, in arriving at its
decision, discussed and ruled on issues or grounds which were never raised,
assigned, or argued on by the Defendant-appellee in her appeal to the former. A
careful reading of the Defendant-appellees appeal memorandum clearly shows that
it only raised two (2) grounds, namely (a) alleged extrinsic fraud, (b) meritorious
defenses based on nullity of the Deed of Sale Instrument. And yet the Trial Court,
in its decision, ruled on issues not raised such as lack of cause of action and no prior
demand to vacate having been made.

Only errors assigned and properly argued on the brief and those necessarily related
thereto, may be considered by the appellate court in resolving an appeal in a civil
case. Based on said clear jurisprudence, the court a quo committed grave abuse of
discretion amounting to lack of jurisdiction when it resolved Defendant-appellees
appeal based on grounds or issues not raised before it, much less assigned by
Defendant-appellee as an error.

Not only that. It is settled that an issue which was not raised during the Trial in the
court below would not be raised for the first time on appeal as to do so would be
offensive to the basic rules of fair play, justice and due process (Victorias Milling
Co., Inc. vs. CA, 333 SCRA 663). We can therefore appreciate Plaintiffs-appellants
 dismay caused by the Regional Trial Courts blatant disregard of a basic and
fundamental right to due process.[10]

The petitioner disagrees with the CA and contends that the RTC as an
appellate courtcould rule on the failure of the complaint to state a cause of action
and the lack of demand to vacate even if not assigned in the appeal.

We concur with the petitioners contention.

The CA might have been correct had the appeal been a first appeal from the
RTC to the CA or another proper superior court, in which instance Section 8 of Rule
51, which applies to appeals from the RTC to the CA,imposesthe express limitation
of the review to only those specified in the assignment of errorsor closely related to
or dependent on an assigned error and properly argued in the appellants brief, viz:

Section 8. Questions that may be decided. No error which does not affect the
jurisdiction over the subject matter or the validity of the judgment appealed from
or the proceeding therein will be considered unless stated in the assignment of
errors, or closely related to or dependent on an assigned error and properly
argued in the brief, save as the court may pass upon plain errors and clerical errors.

Butthe petitioners appeal herein,being taken from the decision of the MTCC
to the RTC, was governed by a different rule, specifically Section 18 of Rule 70 of
the Rules of Court, to wit:

Section 18. xxx

xxx
The judgment or final order shall be appealable to the appropriate
Regional Trial Court which shall decide the same on the basis of the entire
record of the proceedings had in the court of origin and such memoranda
and/or briefs as may be submitted by the parties or required by the Regional
Trial Court. (7a)
As such,the RTC, in exercising appellate jurisdiction,was not limited to the
errors assigned in the petitioners appeal memorandum, but coulddecide on the basis
of the entire record of the proceedingshad in the trial court and such memoranda
and/or briefs as may be submitted by the parties or required by the RTC.

The difference between the procedures for deciding on review is traceable to

Section 22 of Batas PambansaBlg. 129,[11]which provides:
 Section 22. Appellate Jurisdiction. Regional Trial Courts shall exercise
appellate jurisdiction over all cases decided by Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts in their respective
territorial jurisdictions.Such cases shall be decided on the basis of the entire
record of the proceedings had in the court of origin [and] such memoranda
and/or briefs as may be submitted by the parties or required by the Regional
Trial Courts. The decision of the Regional Trial Courts in such cases shall be
appealable by petition for review to the Court of Appeals which may give it due
course only when the petition shows prima facie that the lower court has committed
an error of fact or law that will warrant a reversal or modification of the decision or
judgment sought to be reviewed.[12]

As its compliance with the requirement of Section 36 of Batas PambansaBlg.

129to adopt special rules or procedures applicable to such cases in order to achieve
an expeditious and inexpensive determination thereof without regard to technical
rules, the Court promulgated the 1991 Revised Rules on Summary
Procedure, whereby it institutionalized the summary procedure for all the first level
courts. Section 21 of the 1991 Revised Rules on Summary Procedurespecifically
stated:

Section 21. Appeal. Thejudgment or final order shall be appealable to the

appropriate Regional Trial Court which shall decide the same in accordance
with Section 22 of Batas PambansaBlg. 129. The decision of the Regional Trial
Court in civil cases governed by this Rule, including forcible entry and unlawful
detainer shall be immediately executory, without prejudice to a further appeal that
may be taken therefrom. Section 10 of Rule 70 shall be deemed repealed.

Later on, the Court promulgated the 1997 Rules of Civil Procedure, effective
on July 1, 1997, and incorporated in Section 7 of Rule 40 thereof the directive to the
RTC todecide appealed caseson the basis of the entire record of the proceedings had
in the court of origin and such memoranda as are filed,viz:

Section 7. Procedure in the Regional Trial Court.

(a) Upon receipt of the complete record or the record on appeal, the clerk of
court of the Regional Trial Court shall notify the parties of such fact.

(b) Within fifteen (15) days from such notice, it shall be the duty of the
appellant to submit a memorandum which shall briefly discuss the errors imputed
to the lower court, a copy of which shall be furnished by him to the adverse party.
 Within fifteen (15) days from receipt of the appellants memorandum, the appellee
may file his memorandum. Failure of the appellant to file a memorandum shall be
a ground for dismissal of the appeal.

(c) Upon the filing of the memorandum of the appellee, or the expiration of
the period to do so, the case shall be considered submitted for decision. The
Regional Trial Court shall decide the case on the basis of the entire record of
the proceedings had in the court of origin and such memoranda as are filed.
(n)

As a result, the RTC presently decides all appeals from the MTC based on the
entire record of the proceedings had in the court of origin and such memoranda or
briefs as are filed in the RTC.

Yet, even withoutthe differentiation in the procedures of deciding appeals,

thelimitation of the review to onlythe errors assigned and properly argued in the
appeal brief or memorandum and the errors necessarily related to such assigned
errorsought not to have obstructed the CA from resolving the unassigned issues by
virtue of their coming under one or several of the following recognized exceptions
to the limitation, namely:

(a) When the question affectsjurisdiction over the subject matter;

(b) Matters that are evidently plain or clerical errors within

contemplation of law;

(c) Matters whose consideration is necessary in arriving at a just

decision and complete resolution of the case or in serving the
interests of justice or avoiding dispensing piecemeal justice;

(d) Matters raised in the trial court and are of record having some
bearing on the issue submitted that the parties failed to raise or that
the lower court ignored;

(e) Matters closely related to an error assigned; and

(f) Matters upon which the determination of a question properly

assigned is dependent.[13]
 Consequently, the CA improperly disallowed the consideration and resolution
of the two errors despite their being: (a)necessary in arriving at a just decision and
acomplete resolution of the case; and (b) matters of record having some bearing on
the issues submitted that the lower court ignored.

B.
CA correctly delved into and determined
whether or not complaint stateda cause of action

The RTC opined that the complaint failed to state a cause of action because
the evidence showed that there was no demand to vacate made upon the petitioner.

The CA disagreed, observingin its appealed decision:

But what is worse is that a careful reading of Plaintiffs-appellants Complaint would

readily reveal that they have sufficiently established (sic) a cause of action against
Defendant-appellee. It is undisputed that as alleged in the complaint and testified
to by Plaintiffs-appellants, a demand to vacate was made before the action for
unlawful detainer was instituted.

A complaint for unlawful detainer is sufficient if it alleges that the withholding of

possession or the refusal is unlawful without necessarily employing the
terminology of the law (Jimenez vs. Patricia, Inc., 340 SCRA 525). In the case at
bench, par. 4 of the Complaint alleges, thus:

4. After a period of one (1) year living in the aforementioned

house, Plaintiff demanded upon defendant to vacate but she failed
and refused;

From the foregoing allegation, it cannot be disputed that a demand to vacate has
not only been made but that the same was alleged in the complaint. How the
Regional Trial Court came to the questionable conclusion that Plaintiffs-appellants
had no cause of action is beyond Us.[14]

We concur with the CA.

A complaint sufficiently alleges a cause of action for unlawful detainer if it

states the following:
 (a)Initially, the possession of the property by the defendant was by
contract with or by tolerance of the plaintiff;

(b)Eventually, such possession became illegal upon notice by the

plaintiff to the defendant about the termination of the latters right
of possession;

(c)Thereafter, the defendant remained in possession of the property and

deprived the plaintiff of its enjoyment; and

(d)Within one year from the making of the last demand to vacate the
propertyon the defendant, the plaintiff instituted the complaint for
ejectment.[15]

In resolving whether the complaint states a cause of actionor not, only the
facts alleged in the complaint are considered. The test is whether the court can
render a valid judgment on the complaint based on the facts alleged and the prayer
asked for.[16] Only ultimate facts, not legal conclusions or evidentiary facts, are
considered for purposes of applying the test.[17]

To resolve the issue, therefore, a look at the respondents complaint is helpful:

2. On September 10, 1997, defendant sold to plaintiffs a residential

land located in Sabang, Danao City, covered by Tax Dec.0312417 RB with an area
of 400 square meters, including a residential house where defendant was then living
covered by Tax Dec. 0312417 RB, a copy of the deed of absolute [sale] of these
properties is hereto attached as Annex A;

3. After the sale, defendant requested to be allowed to live in the

house which plaintiff granted on reliance of defendants promise to vacate as
soon as she would be able to find a new residence;

4. After a period of one (1) year living in the aforementioned house, plaintiffs
demanded upon defendant to vacate but she failed or refused.

5. Plaintiffs sought the aid of the barangay Lupon of Sabang, Danao City for
arbitration but no settlement was reached as shown by a certification to file action
hereto attached as Annex B;

6. Plaintiffs were compelled to file this action and hire counsel for P10,000
by way of attorneys fee;
 7. Defendant agreed to pay plaintiffs a monthly rental of P5,000 for the period
of time that the former continued to live in the said house in question.

WHEREFORE, it is respectfully prayed of this Honorable Court to render

judgment ordering the defendant to vacate the properties in question, ordering the
defendant to pay plaintiffs attorneys fees in the sum of P10,000, ordering the
defendant to pay the plaintiffs a monthly rental of P5,000 starting in October 1997,
until the time that defendant vacates the properties in question. Plaintiffs pray for
such other refiefs consistent with justice and equity.[18]

Based on its allegations, the complaintsufficiently stated a cause of action for

unlawful detainer. Firstly, it averred that the petitioner possessed the property by the
mere tolerance of the respondents. Secondly, the respondents demanded that the
petitioner vacate the property, thereby rendering her possession illegal. Thirdly,she
remained in possession of the property despite the demand to vacate. And, fourthly,
the respondents instituted the complaint on March 10, 1999,which was well within
a year after the demand to vacate was made around September of 1998 or later.

Yet, even as we rule that the respondents complaint stated a cause of action,
we must find and hold that both the RTC and the CA erroneously appreciatedthe real
issue to be about the complaints failure to state a cause of action. It certainly was not
so, butthe respondents lack of cause of action. Their erroneous
appreciationexpectedly prevented the correct resolution of the action.

Failure to state a cause of action and lack of cause of action are really different
from each other.On the one hand, failure to state a cause of actionrefers to the
insufficiency of the pleading, and is a ground for dismissal under Rule 16 of
the Rules of Court. On the other hand, lack of cause action refers to a situation where
the evidence does not prove the cause of action alleged in the pleading. Justice
Regalado, a recognized commentator on remedial law, has explained the
distinction:[19]

xxx What is contemplated, therefore, is a failure to state a cause of action

which is provided in Sec. 1(g) of Rule 16. This is a matter of insufficiency of
the pleading. Sec. 5 of Rule 10, which was also included as the last mode for raising
the issue to the court, refers to the situation where the evidence does not prove a
cause of action. This is, therefore, a matter of insufficiency of evidence. Failure to
state a cause of action is different from failure to prove a cause of action. The
remedy in the first is to move for dismissal of the pleading, while the remedy in the
 second is to demur to the evidence, hence reference to Sec. 5 of Rule 10 has been
eliminated in this section. The procedure would consequently be to require the
pleading to state a cause of action, by timely objection to its deficiency; or, at the
trial, to file a demurrer to evidence, if such motion is warranted.

A complaint states a cause of action if it avers the existence of the three

essential elements of a cause of action, namely:

(a) The legal right of the plaintiff;

(b) The correlative obligation of the defendant; and

(c) The act or omission of the defendant in violation of said legal right.

If the allegations of the complaint do not aver the concurrence of these

elements, the complaint becomes vulnerable to a motion to dismiss on the ground of
failure to state a cause of action.Evidently, it is not the lack or absence of a cause of
action that is a ground for the dismissal of the complaint but the fact that the
complaint states no cause of action.Failure to state a cause of action may be raised
at the earliest stages of an action through a motion to dismiss, but lack of cause of
action may be raised at any time after the questions of fact have been resolved on
the basis of the stipulations, admissions, or evidence presented.[20]

Having found that neither Exhibit C nor Exhibit E was a proper demand to
vacate,[21] considering that Exhibit C (the respondents letter dated February 11,
1998)demanded the payment of P1,101,089.90, and Exhibit E (theirletter dated
January 21, 1999) demandedthe payment of P1,600,000.00, the RTC concluded that
the demand alleged in the complaint did not constitute a demand to pay rent and to
vacate the premises necessary in an action for unlawful detainer. It was this
conclusion that caused the RTC to confuse the defect as failure of the complaint to
state a cause of action for unlawful detainer.

The RTCerred even in that regard.

To begin with, it was undeniable that Exhibit D (the respondents letter dated
April 28, 1998) constitutedthedemand to vacate that validly supported their action
for unlawful detainer, because of its unmistakable tenor as a demand to vacate, which
the following portion indicates:[22]

This is to give notice that since the mortgage to your property has long expired
and that since the property is already in my name, I will be taking over the
occupancy of said property two (2) months from date of this letter.

Exhibit D, despite not explicitly using the wordvacate, relayed to the

petitionerthe respondents desire to take over the possession of the property by
givingher no alternative exceptto vacate.The word vacate,according toGolden Gate
Realty Corporation v. Intermediate Appellate Court,[23]is not a talismanic word that
must be employed in all notices to vacate.The tenantsin Golden Gate Realty
Corporationhad defaulted in the payment of rents, leading theirlessorto notify them
to pay with a warning that a case of ejectment would be filed against themshould
they not do so. The Court held that the lessor had thereby given strong notice that
you either pay your unpaid rentals or I will file a court case to have you thrown out
of my property,for therewas no other interpretation of the import of the notice due
to the alternatives being clear cut, in that the tenants must pay rentals that had been
fixed and had become payable in the past, failing in which they must move out.[24]
Also, the demand not being to pay rent and to vacate did not render the cause
of action deficient. Based on the complaint, the petitioners possession was allegedly
based on the respondents tolerance, not on any contract between them. Hence,
thedemand to vacate sufficed.

C.
Ejectment was not proper due
to defense of ownership being established

The respondents cause of action for unlawful detainer was based on their
supposed right to possession resulting from their having acquired it through sale.

The RTCdismissed the complaint based on its following findings, to wit:

In the case at bench, there is conflict between the allegation of the complaint
and the document attached thereto.
 Simply stated, plaintiff alleged that she bought the house of the defendant
for P100,000.00 on September 10, 1997 as stated in an alleged Deed of Absolute
Sale marked as Exhibit A to the complaint. Insofar as plaintiff is concerned, the
best evidence is the said Deed of Absolute Sale.

The Court is surprised why in plaintiffs letter dated February 11, 1998,
marked as Exhibit C and attached to the same complaint, she demanded from the
defendant the whooping sum ofP1,101,089.90. It must be remembered that this
letter was written five (5) months after the deed of absolute sale was executed.

The same letter (Exhibit C) is not a letter of demand as contemplated by law

and jurisprudence. The plaintiff simply said that she will appreciate payment per
notarized document. There is no explanation what this document is.

Plaintiffs letter dated April 28, 1998 (Exhibit D) contradicts her allegation
that she purchased the house and lot mentioned in the complaint. Exhibit D, which
is part of the pleading and a judicial admission clearly shows that the house and lot
of the defendant was not sold but mortgaged.

Again, for purposes of emphasis and clarity, a portion of the letter (Exhibit
D) reads:

This is to give notice that since the mortgage to your property has
long expired and that since the property is already in my name, I will
be taking over the occupancy of said property two (2) months from
date of this letter.

x xxx

Exhibit E, which is a letter dated January 21, 1999, shows the real transaction
between the parties in their case. To reiterate, the consideration in the deed of sale
(Exhibit A) is P100,000.00 but in their letter (Exhibit E) she is already demanding
the sum of P1,600,000.00 because somebody was going to buy it
for P2,000,000.00.

There are indications that point out that the real transaction between the
parties is one of equitable mortgage and not sale.[25]

Despite holding herein that the respondents demand to vacate sufficed, we

uphold the result of the RTC decision in favor of the petitioner. This we do,because
therespondents Exhibit Cand Exhibit E, by demandingpayment from the petitioner,
respectively,of P1,101,089.90 and P1,600,000.00, revealedthe true nature of the
transaction involving the property in question as one of equitable mortgage, not a
sale.

Our upholding of the result reached by the RTC rests on the following
circumstancesthat tended to show that the petitioner had not really sold the property
to the respondents, contrary to the latters averments, namely:

(a)The petitioner, as the vendor, was paid the amount of

only P100,000.00,[26] a price too inadequate in comparison with the
sum of P1,600,000.00 demanded in Exhibit E;[27]

(b) The petitioner retained possession of the property despite the

supposed sale; and

(c) The deed of sale wasexecuted as a result or by reason of the loan the
respondents extended to the petitioner,because they still allowed
the petitioner to redeem the property by paying her obligation
under the loan.[28]

Submissions of the petitioner further supported the findings of the RTCon the
equitable mortgage. Firstly, there was the earlier dated instrument (deed of pactode
retro)involving the same property, albeit the consideration was only P480,000.00,
executed between the petitioner as vendor a retro and the respondent Renato Zamora
as vendeea retro.[29] Secondly, there were two receipts for the payments the
petitioner had made to the respondentstotaling P300,000.00.[30] And, thirdly, the
former secretary of respondent Melba Zamora executed an affidavit acknowledging
that the petitioner had already paid a total of P500,000.00 to the respondents.[31] All
these confirmed the petitioners claim that she remained the owner of the property
and was still entitled to its possession.

Article 1602 of the Civil Codeenumerates the instances when a contract,

regardless of its nomenclature, may be presumed to be an equitable mortgage,
namely:

(a) When the price of a sale with right to repurchase is unusually

inadequate;
 (b) When the vendor remains in possession as lessee or otherwise;

(c) When upon or after the expiration of the right to repurchase another
instrument extending the period of redemption or granting a new
period is executed;

(d)When the purchaser retains for himself a part of the purchase price;

(e)When the vendor binds himself to pay the taxes on the thing sold;
and,

(f) In any other case where it may be fairly inferred that the real
intention of the parties is that the transaction shall secure the
payment of a debt or the performance of any other obligation.

The circumstances earlier mentioned were, indeed, badges of an equitable

mortgage within the context ofArticle 1602 of the Civil Code.

Nonetheless, the findingsfavorable to the petitioners ownership are

neitherfinally determinative of the title in the property, nor conclusive in any other
proceeding where ownership of the property involved herein may be more fittingly
adjudicated.Verily, where the cause of action in an ejectment suit is based on
ownership of the property, the defense that the defendantretainedtitle or ownership
is a proper subject for determination by the MTC but only for the purpose of
adjudicating the rightful possessor of the property.[32]This is based on Rule 70 of
the Rules of Court, viz:

Section 16. Resolving defense of ownership. When the defendant raises the
defense of ownership in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession.(4a)

D.
MTC committed procedural lapses
that must be noted and corrected
 The Court seizes theopportunity to note and to correctseveralnoticeable
procedural lapses on the part of the MTCC, to avoid the impression that the Court
condones or tolerates the lapses.

The first lapse wasthe MTCCs granting of the respondents motion to declare
the petitioner in default following her failure to file an answer. The proper
procedurewas not for the plaintiffs to move for the declaration in default of the
defendant who failed to file the answer. Such a motion to declare in default has been
expressly prohibited under Section 13, Rule 70 of
theRules of Court.[33]Instead, the trial court, either motuproprio or on motion of the
plaintiff, should render judgment as the facts alleged in the complaint might
warrant.[34]In other words, the defendants failure to file an answer under Rule 70 of
the Rules of Courtmight result to a judgment by default, not to a declaration of
default.

The second lapse wasthe MTCCsreception of the oral testimony of respondent

Melba Zamora. Rule 70 of the Rules of Courthas envisioned the submission only of
affidavits of the witnesses (not oral testimony) and other proofs on the factual issues
defined in the order issued within five days from the termination of the preliminary
conference;[35]and has permittedthe trial court, should it find the need to clarify
material facts, to thereafterissue an order during the 30-day period from submission
of the affidavits and other proofs specifying the matters to be clarified, and requiring
the parties to submit affidavits or other evidence upon such matters within ten days
from receipt of the order.[36]

The procedural lapses committed in this case are beyond comprehension.The

MTCC judge could not have been unfamiliar with the prevailing procedure,
considering that therevised version of Rule 70, although taking effect only on July
1, 1997,was derived from the 1991 Revised Rule on Summary Procedure, in effect
since November 15, 1991. It was not likely, therefore, that the MTCC judge
committed the lapses out of his unfamiliarity with the relevant rule. We discern
thatthe cause of the lapses was his lack of enthusiasm in implementingcorrect
procedures in this case. If that was the true reason, the Court can only be alarmed
and concerned, for a judge should not lack enthusiasm in applying the rules of
procedure lest the worthy objectives of their promulgation be unwarrantedly
sacrificed and brushed aside. The MTCC judge should not forget that the rules of
procedure were always meant to be implemented deliberately, not casually, and their
non-compliance should only be excused in the higher interest of the administration
of justice.

It is timely, therefore, to remind all MTC judges to display full and

enthusiastic compliance with all the rules of procedure, especially those intended for
expediting proceedings.

WHEREFORE,we grant the petition for review on certiorari; set aside the
decision promulgated on July 3, 2002 by the Court of Appeals; and dismiss the
complaint for unlawful detainer for lack of a cause of action.

The respondents shall pay the costs of suit.

SO ORDERED.

Rule 121

Rule 122
TRUST INTERNATIONAL PAPER G.R. No. 164871
CORPORATION,
Petitioner,
Present:
PANGANIBAN, C.J.
Chairperson,
 YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

MARILOU R. PELAEZ,
Promulgated:
Respondent.

August 22, 2006

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

DECISION

CHICO-NAZARIO, J.:

This Petition for Review under Rule 45 of the Rules of Court with an Urgent
Application for the Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction, seeks to set aside the Resolutions of the Court of Appeals in
CA-G.R. SP No. 73356 entitled, Marilou R. Pelaez v. National Labor Relations
Commission, et al.dated 13 February 2004[1] and 29 July 2004, respectively. The
first Resolution denied petitioner Trust International Paper Corporations (TIPCO)
Petition for Relief from Judgment, while the second denied its motion seeking
reconsideration thereof.

Respondent Marilou R. Pelaez started her employment with petitioner as

Secretary. She earned various promotions, the last of which was her appointment
as Corporate Cashier in 1993.
 After undergoing substantial business losses for the fiscal year 1996-1997,
petitioner implemented cost-cutting and streamlining programs to alleviate its
financial predicament. In the course of carrying out the said programs, several
positions were abolished and declared redundant, one of which was the position
of Corporate Cashier. Thus, on 24 December 1997, respondent received a
memorandum from Jose Reyes, petitioners Chief Financial Officer, informing her
that her services were terminated. She accepted her severance from the employ of
petitioner and turned over her accountabilities to the different departments which
absorbed her responsibilities. Thereafter, she was no longer required to report for
work.

Sometime in January 1998, respondent found out the creation of the

position of Treasury Clerk in petitioners plantilla which has the same job
description and responsibilities as that of Corporate Cashier. Feeling deceived,
respondent immediately filed on 6 January 1998 a Complaint for illegal dismissal,
non-payment/underpayment of salaries, separation pay, retirement benefits,
service incentive leave and sick leave benefits, and damages against
petitioner, Elon Ting, the president of TIPCO, Efren TanLapco, the Chief Operating
Officer of TIPCO and Jose E. Reyes, the Chief Financial Officer of TIPCO before the
Arbitration Branch of the DOLE-NCR.

On 12 January 1998, respondent received her separation benefits from

petitioner in the amount of P539,974.20 and correspondingly signed a Deed of
Release and Quitclaim.

In a Decision dated 21 September 1999, the Labor Arbiter found petitioner

guilty of illegal dismissal and awarded to respondent backwages, separation pay
and damages.The decretal portion of the Decision reads:

CONFORMABLY WITH THE FOREGOING, judgment is hereby rendered finding

complainant to have been illegally retrenched by respondents. Consequently, they are
ordered to pay in solidumcomplainant as follows:
 a) Backwages as of August 29 August, 1999 Php 484,000.00

b) Separation Pay Php 459,800.00

c) Moral Damages Php 300,000.00

d) Exemplary Damages Php 100,000.00

e) Vacation and sick leaves Php 55,974.20

f) 5% of the awarded money claims as attorneys fees.

The sum of Php 539,974.20 should be deducted from the awards granted to
complainant.[2]

On 22 October 1999, petitioner appealed to the National Labor Relations

Commission (NLRC).

In a Decision dated 31 May 2002, the NLRC reversed the findings and rulings
of the Labor Arbiter. It affirmed the validity of petitioners redundancy program,
which was the ground for the termination of respondents
employment. The dispositive portion of the Decision provides:

WHEREFORE, the decision appealed from is hereby VACATED and SET ASIDE and
a new one entered DISMISSING the complaint for lack of merit.[3]

On 5 July 2002, respondent filed a Motion for Reconsideration which the

NLRC denied in a Resolution dated 31 July 2002.
Unfazed with the setback, respondent filed a special civil action
for certiorari under Rule 65 of the Rules of Court with the Court of Appeals arguing
that grave abuse of discretion was committed by the NLRC in setting aside the
Labor Arbiters Decision despite having been duly supported by the facts and the
law.
 In due time, the Court of Appeals rendered a Decision in favor of respondent
on the ground that respondents dismissal due to redundancy did not meet the
requirements of law; hence, the same was illegal. The Court of Appeals decreed:

WHEREFORE, premises considered, the instant petition is GRANTED. The decision

of public respondent NLRC in NLRC NCR CA No. 021691-99, as well as its subsequent
resolution denying petitioners motion for reconsideration, are hereby ANNULLED AND
SET ASIDE and the decision of the labor arbiter a quo REINSTATED.[4]

The Decision of the Court of Appeals became final and executory as no

appeal or motion for reconsideration was filed by either party.

Hence, on 25 July 2003, an Entry of Judgment was issued by the Court of

Appeals.

On 29 December 2003, petitioner filed a Petition for Relief from Judgment

with the Court of Appeals. Petitioner anchored its petition on the excusable
negligence of its counsel Siguion Reyna, Montecillo & Ongsiakos (Siguion Reyna)
law firm and the gross negligence of Atty. Elena C. Cardinez (Atty. Cardinez), a
newly hired junior associate of the Siguion Reyna law firm, who allegedly handled
the case for petitioner. Petitioner revealed that the instant case was assigned to
Atty. Cardinez in June 2003 and that all notices, orders and legal processes in
connection with the instant case were immediately forwarded to her for
appropriate action.

Petitioner contended that the Siguion Reyna law firm was never remiss in its
duty to follow up the status of the case with Atty. Cardinez. In fact, it was the law
firm itself, through Atty. Cardinezs supervising lawyers and co-counsels, Attys.
Carla E. Santamaria-Sea, Cheryll Ann L. Pea and Rean Mayo D. Javier, who had to
elicit reports from her.When asked about the developments of the case,
Atty. Cardinez supposedly informed the law firm that everything was in order
regarding petitioners defense, when in fact, it was not. Eventually,
Atty. Cardinez never reported to work and that she was nowhere to be found
despite the law firms diligent efforts to search for her. She did not turn over the
case files in her possession, including the Court of Appeals file folders of the instant
case.

Petitioner maintained that the acts of Atty. Cardinez in misrepresenting to

the law firm that everything was in order regarding its defense, when in fact, it
was not, and the fact that she took the files with her constitute gross negligence
and should not bind petitioner. Corollarily, petitioner argues that
the Siguion Reyna law firms fault can only be categorized as an excusable neglect
for it was not remiss in making follow-ups about the status of the case with
Atty. Cardinez. It acknowledged that the law firms mistake was that it put faith in
the assurances of Atty. Cardinez, who repeatedly gave her word that nothing was
amiss in the defense of petitioners position in the instant case.

Unconvinced, the Court of Appeals, in a Resolution dated 13 February 2004,

denied petitioners Petition for Relief from Judgment, ratiocinating as follows:

There is no use arguing that the instant case was unloaded by Attys. Pea and
Javier, to a certain Atty. Elena C. Cardinez, as it is the responsibility of the law firm
of Siguion Reyna Montecillo andOngsiako Law Office itself, to prepare and submit the
appropriate relief or remedy of its client. The negligence or failure of its partners or
associates to perform its duties and tasks is not excusable negligence that could merit
relief under Rule 38 of the Rules of Court.

The doctrinal rule is that the negligence of the counsel binds the client because,
otherwise, there would never be an end to a suit so long as counsel could allege its own
fault or negligence to support the clients case and obtain remedies and relief already lost
by the operation of law.[5]

Subsequently, petitioner filed a Motion for Reconsideration which was

denied by the Court of Appeals in a Resolution dated 29 July 2004.
 Hence, the instant Petition.

In its Memorandum, petitioner submitted the following issues:

A.

WHETHER THE COURT OF APPEALS COMMITTED GRAVE ERROR WHEN IT FAILED

TO RECOGNIZE THE GROSS AND PALPABLE NEGLIGENCE, BORDERING ON FRAUD,
COMMITTED BY PETITIONERS FORMER HANDLING COUNSEL, ATTY. CARDINEZ, WHOSE
NEGLIGENCE AND ACTIVE MISREPRESENTATION PREVENTED PETITIONER FROM
EXHAUSTING ALL THE LEGAL REMEDIES AVAILABLE TO IT, PARTICULARLY, THE REMEDY
OF APPEAL TO THE SUPREME COURT.

B.

WHETHER THE COURT OF APPEALS COMMITTED SERIOUS ERROR WHEN IT STRICTLY

APPLIED THE TECHNICAL RULES OF PROCEDURE TO THE DETRIMENT OF SUBSTANTIAL
JUSTICE.

C.

WHETHER THE COURT OF APPEALS COMMITTED GRAVE ERROR WHEN IT FAILED TO TAKE
INTO CONSIDERATION PETITIONERS GOOD AND SUBSTANTIAL DEFENSE, WHICH MUST BE
FULLY VENTILATED, CONSIDERING THAT IT STANDS TO LOSE THE STAGGERING SUM OF
MORE THAN TWO MILLION PESOS (P2,000,000.00)[6]

At the onset, it must be pointed out that the present petition seeking the
setting aside of the Court of Appeals Resolutions dated 13 February 2004 and 29
July 2004, denying petitioners petition for relief from judgment, is a petition for
review on certiorari under Rule 45 of the Rules of Court.
 Section 1(b) of Rule 41 of the Rules of Court, however, provides:

SECTION 1. Subject of appeal. An appeal may be taken from a judgment or final order that
completely disposes of the case, or of a particular matter therein when declared by these
Rules to beappealable.

No appeal may be taken from:

xxxx
(b) An order denying a petition for relief or any similar motion
seeking relief from judgment.

xxxx

In all the above instances where the judgment or final order is not appealable, the
aggrieved party may file an appropriate special civil action under Rule 65.

Thus, in Azucena v. Foreign Manpower Services,[7] it was held:

Neither may petitioner seek to set aside the Court of Appeals April 26, 2001 Resolution
denying his petition for relief from judgment through the same mode of review (petition
for review on certiorari), for under Section 1(b) of Rule 41 of the Rules of Court, the denial
of a petition for relief from judgment is subject only to a special civil action for certiorari
under Rule 65. (Emphasis supplied.)

Based on the foregoing, the denial of a petition for relief from judgment can
only be assailed before this Court via a special civil action under Rule 65 and not
through a petition for review on certiorari under Rule 45. In availing of a petition
for review on certiorari under Rule 45 to obtain the reversal of the Court of Appeals
Resolutions denying its petition for relief from judgment, petitioner certainly has
made use of the wrong remedy.
 Even if this Court was to treat the instant petition as a special civil action
for certiorari under Rule 65, the same would still have to be dismissed.

In Mercury Drug Corporation v. Court of Appeals,[8] the Court clarified the

nature of a petition for relief from judgment:

A petition for relief from judgment is an equitable remedy that is allowed only in
exceptional cases when there is no other available or adequate remedy. When a party
has another remedy available to him, which may be either a motion for new trial or appeal
from an adverse decision of the trial court, and he was not prevented by fraud, accident,
mistake or excusable negligence from filing such motion or taking such appeal, he cannot
avail himself of this petition. x x x.

This Court likewise ruled:

Indeed, relief will not be granted to a party who seeks avoidance from the effects of the
judgment when the loss of the remedy at law was due to his own negligence; otherwise
the petition for relief can be used to revive the right to appeal which had been lost thru
inexcusable negligence.[9]

In the present case, petitioner posits that the Court of Appeals committed
grave error when it failed to recognize the gross and palpable negligence, bordering
on fraud, committed by Atty. Cardinez, whose negligence prevented petitioner
from exhausting all the legal remedies available to it.

It is undisputed that the counsel of record of petitioner is the Siguion Reyna

law firm. The law firm failed to notify petitioner of the adverse decision of the Court
of Appeals to enable it to file a motion for reconsideration or to appeal from the
said decision. The law firms failure to inform petitioner of the decision is
inexcusable negligence which cannot be a ground for relief from judgment. This is
in line with jurisprudence that notice sent to counsel of record is binding upon the
client, and the neglect or failure of counsel to inform his client of an adverse
judgment resulting in the loss of right to appeal will not justify the setting aside of
a judgment that is valid and regular on its face.[10]

The negligence of Atty. Cardinez, the law firms new associate, apparent in
her mishandling of the cause of petitioner likewise constitutes inexcusable
negligence. Negligence, to be excusable, must be one which ordinary diligence and
prudence could have not guarded against.

It must be pointed out that Atty. Cardinezs name did not appear in any of the
pleadings filed by petitioner before the Labor Arbiter, the NLRC, and the Court of
Appeals. It was only in the petition for relief filed before the Court of Appeals that
the name of Atty. Cardinez appeared for the first time. In the petition for relief,
Atty. Cardinez was blamed by petitioner and its counsel, the Siguion Reyna law
firm, for squandering petitioners opportunity to appeal the Court of Appeals
decision. What appears on the records is that the Comment and Memorandum of
petitioner before the Court of Appeals were signed by Attys. Carla E. Santamaria-
Sea, Cheryll Ann L. Pea and Rean Mayo D. Javier.

From the foregoing, it is apparent that the handling lawyers of the law firm
were putting the blame on Atty. Cardinez when they lost the case and forgot to file
the appeal.Besides, if the case was, indeed, unloaded to Atty. Cardinez, the
supervising lawyers would have detected the omission of the former considering
that it is a common practice in a law firm that when it hires a new associate, his or
her work is ordinarily reviewed by the more senior associate of the law firm. If the
supervising lawyers of Atty. Cardinez, namely, Attys. Sea, Pea and Javier, were not
remiss in their duty to follow up the status of the case, they would have known that
they have not received or reviewed any pleadings from Atty. Cardinez pertaining to
the case under consideration. Simply, petitioners counsel, the Siguion Reyna law
firm itself, was guilty of inexcusable neglect in handling petitioners case before the
Court of Appeals.
 Petitioner insists that its case is an exception to the general rule that the
negligence of counsel binds the client. Petitioner invokes this Courts ruling
in Peoples Homesite and Housing Operation v. Workmens Compensation
Commission,[11] Somoso v. Court of Appeals,[12] Apex Mining, Inc. v. Court of
Appeals,[13] Salazar v. Court of Appeals,[14] Sarraga, Sr. v. Banco Filipino Savings and
Mortgage Bank,[15] and Heirs of Pael v. Court of Appeals,[16] where this Court
departed from the general rule that the client is bound by the mistakes of his lawyer
considering that, in said cases, the lawyers were grossly negligent in their duty to
maintain their clients cause and such amounted to a deprivation of their clients
property without due process of law. In said cases, the petitions for relief from
judgment were given due course. However, we find that the ruling in said cases do
not apply in the instant case.

In Peoples Homesite, the counsel failed to apprise the petitioners therein of the
hearing and the case was heard in their absence. The counsel also did not inform
the petitioners that he had received a copy of the decision and neither did he file a
motion for reconsideration or a petition to set aside judgment to protect the
interests of his clients. When asked to explain, the counsel merely said that he did
not inform the petitioners because the case escaped his attention. On account of
these attendant facts, this Court found that there was something fishy and
suspicious with the actions of counsel. The Court therein, in allowing the petition
for relief from judgment and in remanding the case to the court of origin, had, in
mind, the attending probability that petitioners counsel colluded with the adverse
party, which is utterly wanting in the present case.

In the case at bar, petitioners counsel was able to actively defend its case
before the Labor Arbiter, the NLRC and the Court of Appeals. In fact,
the Siguion Reyna law firm was able to obtain a favorable decision for petitioner
before the NLRC. The instant case is clearly at variance with
the Peoples Homesite case.

In Somoso, the counsel of spouses Somoso informed them that he was

withdrawing his appearance as counsel of the case. A decision dated 8 March
1985 was issued by the trial court against the spouses. The counsel received the
decision on 15 August 1985, but the spouses came to know of the decision only
on 27 September 1985, the day they received the letter from their counsel
informing them of such decision. On 27 September 1985, the counsel belatedly
filed in court his motion to withdraw as counsel which was dated 10 June 1985. This
Court granted spouses petition for relief from judgment as they were able to prove
that they were entitled thereto considering that their counsel had earlier informed
them of his intention to withdraw from the case, but belatedly filed the formal
withdrawal.

In the present case, it has been Attys. Santamaria-Sea, Pea and Javier who
participated in the proceedings before the Court of Appeals. They did not notify the
Court of Appeals that they had withdrawn from the case. There was completely no
reason for them not to file an appeal, being the handling counsel of record during
the pendency of the case before the Court of Appeals.

The case of Apex Mining, Inc. invoked by petitioner is not on all fours with the
instant case. In Apex, petitioners counsel did not attend the scheduled hearing for
the reception of the evidence. The law firm did not even bother to inform its client
of the scheduled hearing, as a result of which both counsel and petitioners were
unable to attend the same. After the trial court issued an order declaring
petitioners in default for having waived their right to present evidence, their
counsel did not take steps to have the same set aside. In addition, the negligent
counsel deliberately misrepresented in the progress report that the case was still
pending with Court of Appeals when the same was dismissed months earlier.These
circumstances are absent in the case under consideration because at no time was
petitioner was deprived of its right to submit evidence to support its argument.
Neither can the case of Salazar be applied in the case under consideration. In the
former, petitioners were deprived of their right to present evidence at the trial
through the gross and palpable mistake of their counsel who agreed to submit the
case for decision without fully substantiating their defense. In the instant case,
petitioner was able to ventilate its defense though various pleadings and
documentary evidence before the Labor Arbiter, the NLRC and the Court of
Appeals.
In Sarraga, the petition for relief from judgment was granted due to the attending
circumstance where the counsel of record was grossly negligent in defending the
cause of the client. On the other hand, in the present case, petitioner is placing the
blame on the alleged gross negligence of an attorney who was not even been
shown to have participated in the proceedings of the case.

In Heirs of Antonio Pael, this Court found that there was a showing of badges of
fraud displayed by the counsel of the unsuccessful party when he resorted to two
clearly inconsistent remedies, namely appeal and motion for new trial. In contrast,
the instant case merely illustrates a scenario where a counsel committed a simple
and inexcusable negligence to the prejudice of the client.
In sum, this is not a case where the negligence of counsel is one that is so
gross, palpable, pervasive and reckless which deprives the party of his or her day in
court. For this reason, the Court need no longer concern itself with the propriety of
the ruling of the Court of Appeals reinstating the decision of the Labor Arbiter. The
Court is bound by the Court of Appeals ruling which had become final
and executory due to the simple and inexcusable negligence of petitioners counsel
in allowing the reglementary period to lapse without perfecting an appeal.

WHEREFORE, the petition is DENIED. The Resolutions of

the Court of Appeals dated 13 February 2004 and 29 July 2004 in CA-G.R. SP

No. 73356 denying petitioners petition for relief from judgment,

are AFFIRMED. Costs against petitioner.

SO ORDERED.