G.R. No.

216920 January 13, 2016 sufficiently complied with Section 4, Rule 112 of the Rules
of Court which requires the prior written authority or
GIRLIE M. QUISAY, Petitioner, approval by, among others, the City Prosecutor, in the
filing of Informations.12
vs.
PEOPLE OF THE PHILIPPINES, Respondent. Petitioner moved for reconsideration,13 which was,
however, denied in an Order14 dated July 10, 2013.
DECISION
Aggrieved, petitioner elevated the matter to the CA via a
petition for certiorari.15
PERLAS-BERNABE, J.:
The CA Ruling
Assailed in this petition for review on certiorari1 are the
Decision2 dated October 10, 2014 and the Resolution3
In a Decision16 dated October 10, 2014, the CA affirmed
dated January 30, 2015 of the Court of Appeals (CA) in
the RTC ruling. It held that pursuant to Section 9 of RA
CA-G.R. SP No. 131968, which affirmed the denial of
10071,17 otherwise known as the "Prosecution Service Act
petitioner Girlie M. Quisay's (petitioner) Motion to Quash
of 201 O," as well as OCP-Makati Office Order No. 32, the
before the Regional Trial Court of Makati, Branch 144
City Prosecutor of Makati authorized SACP Hirang to
(RTC).
approve the issuance of, inter alia, resolutions finding
probable cause and the filing of Informations before the
The Facts
courts. As such, SACP Hirang may, on behalf of the City
Prosecutor, approve the Pasiya which found probable
On December 28, 2012, the Office of the City Prosecutor
cause to indict petitioner of violation of Section 10 of RA
of Makati City (OCP-Makati) issued a Pasiya4 or Resolution
7610.18
finding probable cause against petitioner for violation of
Section 10 of Republic Act No. (RA) 7610,5 otherwise
Further, it held that the Certification made by ACP De La
known as the "Special Protection of Children Against
Cruz in the Pabatid Sakdal clearly indicated that the same
Abuse Exploitation and Discrimination Act." Consequently,
was filed after the requisite preliminary investigation and
a Pabatid Sakdal6 or Information was filed before the RTC
with the prior written authority or approval of the City
on January 11, 2013 charging petitioner of such crime.
Prosecutor. In this regard, the CA opined that such
Certification enjoys the presumption of regularity
On April 12, 2013, petitioner moved for the quashal of the
accorded to a public officer's performance of official
Information against her on the ground of lack of authority
functions, in the absence of convincing evidence to the
of the person who filed the same before the RTC. In
contrary.19
support of her motion, petitioner pointed out that the
Pasiya issued by the OCP-Makati was penned by Assistant
Undaunted, petitioner moved for reconsideration,20 but
City Prosecutor Estefano H. De La Cruz (ACP De La Cruz)
was denied in a Resolution21 dated January 30, 2015;
and approved by Senior Assistant City Prosecutor Edgardo
hence, this petition.
G. Hirang (SACP Hirang), while the Pabatid Sakdal was
penned by ACP De La Cruz, without any approval from
The Issue Before the Court
any higher authority, albeit with a Certification claiming
that ACP De La Cruz has prior written authority or approval
The core issue for the Court's resolution is whether or not
from the City Prosecutor in filing the said Information. In this
the CA correctly held that the R TC did not gravely abuse
regard, petitioner claimed that nothing in the aforesaid
its discretion in dismissing petitioner's motion to quash.
Pasiya and Pabatid Sakdal would show that ACP De La
Cruz and/or SACP Hirang had prior written authority or
The Court's Ruling
approval from the City Prosecutor to file or approve the
filing of the Information against her. As such, the
The petition is meritorious.
Information must be quashed for being tainted with a
jurisdictional defect that cannot be cured.7
Section 4, Rule 112 of the 2000 Revised Rules on Criminal
Procedure states that the filing of a complaint or
In its Comment and Opposition,8 the OCP-Makati
information requires a prior written authority or approval of
countered that the review prosecutor, SACP Hirang, was
the named officers therein before a complaint or
authorized to approve the Pasiya pursuant to OCP-Makati
information may be filed before the courts, viz.:
Office Order No. 32.9 Further, it maintained that the
Pabatid Sakdal was filed with the prior approval of the City
SECTION 4. Resolution of investigating prosecutor and its
Prosecutor as shown in the Certification in the Information
review. - If the investigating prosecutor finds cause to hold
itself.10
the respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information
The RTC Ruling
that he, or as shown by the record, an authorized officer,
has personally examined the complainant and his
In an Order11 dated May 8, 2013, the RTC denied
witnesses; that there is reasonable ground to believe that
petitioner's motion to quash for lack of merit. It found the
a crime has been committed and that the accused is
Certification attached to the Pabatid Sakdal to have
1
probably guilty thereof; that the accused was informed of
the complaint and of the evidence submitted against him;
and that he was given an opportunity to submit
controverting evidence. Otherwise, he shall recommend
the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or
chief state prosecutor, or to the Ombudsman or his deputy
in cases of offenses cognizable by the Sandiganbayan in
the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof
and shall immediately inform the parties of such
action.1âwphi1
No complaint or information may be filed or dismissed by
an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy.
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,
2
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 Sakdal or
Information suffers from an incurable infirmity - that the
officer who filed the same before the RTC had no authority
to do so. Hence, the Pabatid Sakdal must be quashed,
resulting in the dismissal of the criminal case against
petitioner.
As a final note, it must be stressed that "[t]he Rules of Court
governs the pleading, practice, and procedure in all
courts of the Philippines. For the orderly administration of
justice, the provisions contained therein should be
followed by all litigants, but especially by the prosecution
arm of the Govemment."32
WHEREFORE, the petition is GRANTED. The Decision dated
October 10, 2014 and the Resolution dated January 30,
2015 of the Court of Appeals in CA-G.R. SP No. 131968 are
hereby REVERSED and SET ASIDE. Accordingly, the
Information against petitioner Girlie M. Quisay is QUASHED
and the criminal case against her is DISMISSED.
SO ORDERED.
3
G.R. No. 195956 March 11, 2015
ABS-CBN CORPORATION, Petitioner,
vs.
FELIPE GOZON, GILBERTO R. DUAVIT, JR., MARISSA L.
FLORES, JESSICA A. SORO, GRACE DELA PENA-REYES,
JOHN OLIVER T. MANALASTAS, JOHN DOES AND JANE
DOES, Respondents.
DECISION
LEONEN, J.:
The main issue in this case is whether there is probable
cause to charge respondents with infringement under
Republic Act No. 8293, otherwise known as the Intellectual
Property Code. The resolution of this issue requires
clarification of the concept of "copyrightable material" in
relation to material that is rebroadcast live as a news story.
We are also asked to rule on whether criminal prosecution
for infringement of copyrightable material, such as live
rebroadcast, can be negated by good faith.
ABS-CBN Corporation (ABS-CBN) filed the Petition for
Review on Certiorari1 to assail the November 9, 2010
Decision2 and the March 3, 2011 Resolution3 of the Court
of Appeals. The Court of Appeals reinstated the
Department of Justice Resolution dated August 1, 2005
that ordered the withdrawal of the Information finding
probable cause for respondents’ violation of Sections 1774
and 2115 of the Intellectual Property Code.6 Respondents
are officers and employees of GMA Network, Inc. (GMA-
7). They are: Felipe Gozon (Gozon), GMA-7 President;
Gilberto R. Duavit, Jr. (Duavit, Jr.), Executive Vice-
President; Marissa L. Flores (Flores), Vice-President for New
and Public Affairs; Jessica A. Soho (Soho), Director for
News; Grace Dela Peña-Reyes (Dela Peña-Reyes), Head
of News and Public Affairs; John Oliver Manalastas
(Manalastas), Program Manager; and others.
The controversy arose from GMA-7’s news coverage on
the homecoming of Filipino overseas worker and hostage
victim Angelo dela Cruz on July 22, 2004. As summarized
by the Court of Appeals:
Overseas Filipino worker Angelo dela Cruz was kidnapped
by Iraqi militants and as a condition for his release, a
demand was made for the withdrawal of Filipino troops in
Iraq. After negotiations, he was released by his captors
and was scheduled to return to the country in the
afternoon of 22 July 2004. Occasioned by said
homecoming and the public interest it generated, both . .
. GMA Network, Inc. . . . and [petitioner] made their
respective broadcasts and coverage of the live event.7
ABS-CBN "conducted live audio-video coverage of and
broadcasted the arrival of Angelo dela Cruz at the Ninoy
Aquino International Airport (NAIA) and the subsequent
press conference."8 ABS-CBN allowed Reuters Television
Service (Reuters) to air the footages it had taken earlier
under a special embargo agreement.9
ABS-CBN alleged that under the special embargo
agreement, any of the footages it took would be for the
"use of Reuter’s international subscribers only, and shall be
considered and treated by Reuters under ‘embargo’
against use by other subscribers in the Philippines. . . . [N]o
other Philippine subscriber of Reuters would be allowed to
use ABS-CBN footage without the latter’s consent."10
GMA-7, to which Gozon, Duavit, Jr., Flores, Soho, Dela
Peña-Reyes, and Manalastas are connected, "assigned
and stationed news reporters and technical men at the
NAIA for its live broadcast and non-live news coverage of
the arrival of dela Cruz."11 GMA-7 subscribes to both
Reuters and Cable News Network (CNN). It received a live
video feed of the coverage of Angelo dela Cruz’s arrival
from Reuters.12
GMA-7 immediately carried the live news feed in its
program "Flash Report," together with its live broadcast.13
Allegedly, GMA-7 did not receive any notice or was not
aware that Reuters was airing footages of ABS-CBN.14
GMA-7’s news control room staff saw neither the "No
Access Philippines" notice nor a notice that the video feed
was under embargo in favor of ABS-CBN.15
On August 13, 2004, ABS-CBN filed the Complaint for
copyright infringement under Sections 17716 and 21117 of
the Intellectual Property Code.18
On December 3, 2004, Assistant City Prosecutor Dindo
Venturanza issued the Resolution19 finding probable
cause to indict Dela Peña-Reyes and Manalastas.20
Consequently, the Information21 for violation of the
Intellectual Property Code was filed on December 17,
2004. It reads:
That on or about the 22nd of July 2004, in Quezon City,
Philippines, the above-named accused, conspiring
together, confederating with and mutually helping each
other, being the Head of News Operations and the
Program Manager, respectively, for the News and Public
Affairs Department of GMA Network, Inc., did then and
there, willfully, unlawfully and feloniously use and
broadcast the footage of the arrival of Angelo [d]ela Cruz
at the Ninoy Aquino International Airport of which ABS-CBN
holds the exclusive ownership and copyright by then and
there using, airing, and broadcasting the said footage in
its news program "FLASH REPORT" without first obtaining the
consent or authority of said copyright owner, to their
damage and prejudice.
Contrary to law.22
On January 4, 2005, respondents filed the Petition for
Review before the Department of Justice.23 In the
Resolution (Gonzalez Resolution) dated August 1, 2005,
Department of Justice Secretary Raul M. Gonzalez
(Secretary Gonzalez) ruled in favor of respondents and
4
held that good faith may be raised as a defense in the
case.24 The dispositive portion of the Resolution reads:
WHEREFORE, THE PETITION FOR REVIEW FILED BY GMA-7 in
I.S. No. 04-10458 is considered meritorious and is hereby
GRANTED. This case is hereby Dismissed, the resolution of
the City Prosecutor of Quezon City is hereby reversed and
the same is ordered to withdraw the information if any and
report action taken to this office within ten (10) days.25
(Emphasis in the original)
Both parties moved for reconsideration of the Gonzalez
Resolution.26
Meanwhile, on January 19, 2005, the trial court granted the
Motion to Suspend Proceedings filed earlier by Dela Peña-
Reyes and Manalastas.27 The trial court Order reads:
Perusing the motion, the court finds that a petition for
review was filed with the Department of Justice on January
5, 2005 as confirmed by the public prosecutor. Under
Section 11 (c), Rule 116 of the Rules of Criminal Procedure,
once a petition for review is filed with the Department of
Justice, a suspension of the criminal proceedings may be
allowed by the court.
Accordingly, to allow the Department of Justice the
opportunity to act on said petition for review, let the
proceedings on this case be suspended for a period of
sixty (60) days counted from January 5, 2005, the date the
petition was filed with the Department of Justice. The
arraignment of the accused on February 1, 2005 is
accordingly cancelled. Let the arraignment be
rescheduled to March 8, 2005 at 8:30 a.m. The accused
through counsel are notified in open court.
SO ORDERED.28
On June 29, 2010, Department of Justice Acting Secretary
Alberto C. Agra (Secretary Agra) issued the Resolution
(Agra Resolution) that reversed the Gonzalez Resolution
and found probable cause to charge Dela Peña-Reyes
and Manalastas for violation of the Intellectual Property
Code.29 Secretary Agra also found probable cause to
indict Gozon, Duavit, Jr., Flores, and Soho for the same
violation.30 He ruled that:
[w]hile good faith may be a defense in copyright
infringement, the same is a disputable presumption that
must be proven in a full-blown trial. Disputable
presumptions may be contradicted and overcome by
other evidence. Thus, a full-blown trial is the proper venue
where facts, issues and laws are evaluated and
considered. The very purpose of trial is to allow a party to
present evidence to overcome the disputable
presumptions involved.31
The dispositive portion of the Agra Resolution provides:
WHEREFORE, premises considered:
(a) The Motion for Reconsideration filed by appellees ABS-
CBN Broadcasting Corporation (ABS-CBN) of our
Resolution promulgated on August 1, 2005 (Resolution No.
364, Series of 2005) and the Petition for Review filed by
complainant-appellant ABS-CBN in I.S. No. 04-10458 on
April10, 2006, are GRANTED and the City Prosecutor of
Quezon City is hereby ordered to file the necessary
Information for violation of Section 177 and 211 of Republic
Act No. 8293 against GMA-7. Felipe L. Gozon, Gilberto R.
Duavit, Jr., Marissa L.Flores, Jessica A. Soho, Grace Dela
Pena-Reyes, John Oliver T. Manalastas[.]
....
SO ORDERED.32 (Emphasis in the original)
Respondents assailed the Agra Resolution through the
Petition for Certiorari with prayer for issuance of a
temporary restraining order and/or Writ of Preliminary
Injunction on September 2, 2010 before the Court of
Appeals. In the Resolution dated September 13, 2010, the
Court of Appeals granted the temporary restraining order
preventing the Department of Justice from enforcing the
Agra Resolution.33
On November 9, 2010, the Court of Appeals rendered the
Decision granting the Petition and reversing and setting
aside the Agra Resolution.34 The Court of Appeals held
that Secretary Agra committed errors of jurisdiction in
issuing the assailed Resolution. Resolving the issue of
copyright infringement, the Court of Appeals said:
Surely, private respondent has a copyright of its news
coverage. Seemingly, for airing said video feed, petitioner
GMA is liable under the provisions of the Intellectual
Property Code, which was enacted purposely to protect
copyright owners from infringement. However, it is an
admitted fact that petitioner GMA had only aired a five
(5) second footage of the disputed live video feed that it
had received from Reuters and CNN as a subscriber.
Indeed, petitioners had no notice of the right of ownership
of private respondent over the same. Without notice of the
"No Access Philippines" restriction of the live video feed,
petitioner cannot be faulted for airing a live video feed
from Reuters and CNN.
Verily, as aptly opined by Secretary Gonzalez in his earlier
Resolution, the act of petitioners in airing the five (5)
second footage was undeniably attended by good faith
and it thus serves to exculpate them from criminal liability
under the Code. While the Intellectual Property Code is a
special law, and thus generally categorized as malum
prohibitum, it bears to stress that the provisions of the Code
itself do not ipso facto penalize a person or entity for
copyright infringement by the mere fact that one had
used a copyrighted work or material.
Certainly so, in the exercise of one’s moral and economic
or copyrights, the very provisions of Part IV of the
Intellectual Property Code provide for the scope and
limitations on copyright protection under Section 184 and
in fact permit fair use of copyrighted work under Section
5
185. With the aforesaid statutory limitations on one’s
economic and copyrights and the allowable instances
where the other persons can legally use a copyrighted
work, criminal culpability clearly attaches only when the
infringement had been knowingly and intentionally
committed.35 (Emphasis supplied)
The dispositive portion of the Decision reads:
WHEREFORE, the foregoing considered, the instant petition
is hereby GRANTED and the assailed Resolution dated 29
June 2010 REVERSED and SET ASIDE. Accordingly, the
earlier Resolution dated 1 August 2005, which ordered the
withdrawal of the Information filed, if any, against the
petitioners for violation of Sections 177 and 211 of the
Intellectual Property Code, is hereby REINSTATED. No costs.
SO ORDERED.36 (Emphasis in the original)
ABS-CBN’s Motion for Reconsideration was denied.37 It
then filed its Petition for Review before this court assailing
the Decision and Resolution of the Court of Appeals.38
The issues for this court’s consideration are:
First, whether Secretary Agra committed errors of
jurisdiction in the Resolution dated June 29, 2010 and,
therefore, whether a petition for certiorari was the proper
remedy in assailing that Resolution;
Second, whether news footage is copyrightable under the
law;
Third, whether there was fair use of the broadcast material;
Fourth, whether lack of knowledge that a material is
copyrighted is a defense against copyright infringement;
Fifth, whether good faith is a defense in a criminal
prosecution for violation of the Intellectual Property Code;
and
Lastly, whether the Court of Appeals was correct in
overturning Secretary Agra’s finding of probable cause.
I
The trial court granted respondents’ Motion to Suspend
Proceedings and deferred respondents Dela Peña-Reyes
and Manalastas’ arraignment for 60 days in view of the
Petition for Review filed before the Department of Justice.
Rule 116, Section 11 (c) of the Rules of Criminal Procedure
allows
the suspension of the accused’s arraignment in certain
circumstances only:
SEC. 11. Suspension of arraignment.–Upon motion by the
proper party, the arraignment shall be suspended in the
following cases:
(a) The accused appears to be suffering from an unsound
mental condition which effectively renders him unable to
fully understand the charge against him and to plead
intelligently thereto. In such case, the court shall order his
mental examination and, if necessary, his confinement for
such purpose;
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor
is pending at either the Department of Justice, or the
Office of the President; provided, that the period of
suspension shall not exceed sixty (60) days counted from
the filing of the petition with the reviewing office. (12a)
(Emphasis supplied)
In Samson v. Daway,39 this court acknowledged the
applicability of Rule 116, Section (c) in a criminal
prosecution for infringement under the Intellectual
Property Code. However, this court emphasized the limits
of the order of deferment under the Rule:
While the pendency of a petition for review is a ground for
suspension of the arraignment, the . . . provision limits the
deferment of the arraignment to a period of 60 days
reckoned from the filing of the petition with the reviewing
office. It follows, therefore, that after the expiration of said
period, the trial court is bound to arraign the accused or
to deny the motion to defer arraignment.40
We clarify that the suspension of the arraignment should
always be within the limits allowed by law. In Crespo v.
Judge Mogul,41 this court outlined the effects of filing an
information before the trial court, which includes initiating
a criminal action and giving this court "authority to hear
and determine the case":42
The preliminary investigation conducted by the fiscal for
the purpose of determining whether a prima facie case
exists warranting the prosecution of the accused is
terminated upon the filing of the information in the proper
court. In turn, as above stated, the filing of said information
sets in motion the criminal action against the accused in
Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission
of the Court must be secured. After such reinvestigation
the finding and recommendations of the fiscal should be
submitted to the Court for appropriate action. While it is
true that the fiscal has the quasi judicial discretion to
determine whether or not a criminal case should be filed
in court or not, once the case had already been brought
to Court whatever disposition the fiscal may feel should be
proper in the case thereafter should be addressed for the
consideration of the Court, the only qualification is that the
action of the Court must not impair the substantial rights of
the accused or the right of the People to due process of
law.
Whether the accused had been arraigned or not and
whether it was due to a reinvestigation by the fiscal or a
review by the Secretary of Justice whereby a motion to
dismiss was submitted to the Court, the Court in the
6
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.43
(Emphasis supplied, citations omitted)
The doctrine in Crespo was reiterated in Mayor Balindong
v. Court of Appeals,44 where this court reminded the
Department of Justice Secretary to refrain from
entertaining petitions for review when the case is already
pending with this court:
[I]n order to avoid a situation where the opinion of the
Secretary of Justice who reviewed the action of the fiscal
may be disregarded by the trial court, the Secretary of
Justice should, as far as practicable, refrain from
entertaining a petition for review or appeal from the
action of the fiscal, when the complaint or information has
already been filed in the Court. The matter should be left
entirely for the determination of the Court.45
The trial court should have proceeded with respondents
Dela Peña-Reyes and Manalastas’ arraignment after the
60-day period from the filing of the Petition for Review
before the Department of Justice on March 8, 2005. It was
only on September 13, 2010 that the temporary restraining
order was issued by the Court of Appeals. The trial court
erred when it did not act on the criminal case during the
interim period. It had full control and direction of the case.
As Judge Mogul reasoned in denying the motion to dismiss
in Crespo, failure to proceed with the arraignment
"disregards the requirements of due process [and] erodes
the Court’s independence and integrity."46
II
According to ABS-CBN, the Court of Appeals erred in
finding that: a motion for reconsideration was not
necessary before a petition for certiorari could be filed; the
Department of Justice Secretary committed errors of
jurisdiction since the Agra Resolution was issued within its
authority and in accordance with settled laws and
jurisprudence; and respondents were not liable for
copyright infringement.
In its assailed Decision, the Court of Appeals found that
respondents committed a procedural error when they
failed to file a motion for reconsideration before filing the
Petition for Certiorari. However, the Court of Appeals held
that a motion for reconsideration was unnecessary since
the Agra Resolution was a patent nullity and it would have
been useless under the circumstances: Given that a
reading of the assailed Resolution and the instant records
readily reveals errors of jurisdiction on the part of
respondent Secretary, direct judicial recourse is warranted
under the circumstances. Aside from the fact that said
Resolution is a patent nullity having been issued in grave
abuse of discretion amounting to lack or excess of
jurisdiction, the filing of a motion for reconsideration is
evidently useless on account of the fact that the issues and
arguments before this Court have already been duly
raised and accordingly delved into by respondent
Secretary in his disposition of the petition a quo.47
(Emphasis in the original)
In Elma v. Jacobi,48 this court ruled that a petition for
certiorari under Rule 65 of the Rules of Court is proper when
assailing adverse resolutions of the Department of Justice
stemming from the determination of probable cause.49
However, grave abuse of discretion must be alleged.50
In Sanrio Company Limited v. Lim,51 this court stressed the
prosecutor’s role in determining probable cause. Judicial
review will only lie when it is shown that the prosecutor
acted with grave abuse of discretion amounting to lack or
excess of jurisdiction:
A prosecutor alone determines the sufficiency of evidence
that will establish probable cause justifying the filing of a
criminal information against the respondent. By way of
7
exception, however, judicial review is allowed where
respondent has clearly established that the prosecutor
committed grave abuse of discretion. Otherwise stated,
such review is appropriate only when the prosecutor has
exercised his discretion in an arbitrary, capricious,
whimsical or despotic manner by reason of passion or
personal hostility, patent and gross enough to amount to
an evasion of a positive duty or virtual refusal to perform a
duty enjoined by law.52 (Citations omitted)
Grave abuse of discretion refers to:
such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion
must be grave as where the power is exercised in an
arbitrary or despotic manner by reason of passion or
personal hostility and must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal
to perform the duty enjoined by or to act at all in
contemplation of law.53
Resorting to certiorari requires that there be there be "no
appeal, or any plain, speedy, and adequate remedy in
the ordinary course of law[,]"54 such as a motion for
reconsideration. Generally, "a motion for reconsideration is
a condition sine qua non before a petition for certiorari
may lie, its purpose being to grant an opportunity for the
[tribunal or officer] to correct any error attributed to it by a
re-examination of the legal and factual circumstances of
the case."55 However, exceptions to the rule exist:
(a) where the order is a patent nullity, as where the Court
a quo had no jurisdiction; (b) where the questions raised in
the certiorari proceeding have been duly raised and
passed upon by the lower court, or are the same as those
raised and passed upon in the lower court; (c) where there
is an urgent necessity for the resolution of the question and
any further delay would prejudice the interests of the
Government or of the petitioner or the subject matter of
the action is perishable; (d) where, under the
circumstances, a motion for reconsideration would be
useless; (e) where petitioner was deprived of due process
and there is extreme urgency for relief; (f) where, in a
criminal case, relief from an order of arrest is urgent and
the granting of such relief by the trial Court is improbable;
(g) where the proceedings in the lower court are a nullity
for lack of due process; (h) where the proceedings was ex
parte or in which the petitioner had no opportunity to
object; and (i) where the issue raised is one purely of law
or where public interest is involved.56 (Emphasis in the
original, citations omitted)
As argued by respondents, "[a] second motion for
reconsideration would have been useless and futile since
the D[epartment] [of] J[ustice] had already passed upon
the same issues twice."57 Equally pressing under the
circumstances was the need to resolve the matter, as the
Information’s filing would lead to respondents’ imminent
arrest.58
Moreover, Department of Justice Department Circular No.
70 dated July 3, 2000, or the 2000 NPS Rules on Appeal,
provides that no second motion for reconsideration of the
Department of Justice Secretary’s resolution shall be
entertained:
SECTION 13. Motion for reconsideration. The aggrieved
party may file a motion for reconsideration within a non-
extendible period of ten (10) days from receipt of the
resolution on appeal, furnishing the adverse party and the
Prosecution Office concerned with copies thereof and
submitting proof of such service. No second or further
motion for reconsideration shall be entertained.
The Agra Resolution was the result of respondents’ Motion
for Reconsideration assailing the Gonzalez Resolution. To
file a motion for reconsideration of the Agra Resolution
would be superfluous. Respondents were, therefore,
correct in filing the Petition for Certiorari of the Agra
Resolution before the Court of Appeals.
III
The Court of Appeals ruled that Secretary Agra committed
errors of jurisdiction, which then required the grant of the
writ of certiorari:
So viewed, by ordering the filing of information without
proof that probable cause exists to charge petitioners with
a crime, respondent Secretary clearly committed an error
of jurisdiction thus warranting the issuance of the writ of
certiorari. Surely, probable cause cannot be had when the
very provisions of the statute exculpates criminal liability in
cases classified as fair use of copyrighted materials. The
fact that they admittedly used the Reuters live video feed
is not, as a matter of course, tantamount to copyright
infringement that would justify the filing of an information
against the petitioners.59
Error of jurisdiction must be distinguished from error of
judgment:
A line must be drawn between errors of judgment and
errors of jurisdiction. An error of judgment is one which the
court may commit in the exercise of its jurisdiction. An error
of jurisdiction renders an order or judgment void or
voidable. Errors of jurisdiction are reviewable on certiorari;
errors of judgment, only by appeal.60
In People v. Hon. Sandiganbayan61:
An error of judgment is one which the court may commit
in the exercise of its jurisdiction. An error of jurisdictionis one
where the act complained of was issued by the court
without or in excess of jurisdiction, or with grave abuse of
discretion, which is tantamount to lack or in excess of
jurisdiction and which error is correctible only by the
extraordinary writ of certiorari. Certiorari will not be issued
to cure errors of the trial court in its appreciation of the
evidence of the parties, or its conclusions anchored on the
said findings and its conclusions of law.62 (Emphasis
supplied)
8
This court has adopted a deferential attitude towards
review of the executive’s finding of probable cause.63 This
is based "not only upon the respect for the investigatory
and [prosecutorial] powers granted by the Constitution to
the executive department but upon practicality as well."64
Review of the Department of Justice Secretary’s decision
or resolution will be allowed only when grave abuse of
discretion is alleged:
The full discretionary authority to determine probable
cause in a preliminary investigation to ascertain sufficient
ground for the filing of information rests with the executive
branch. Hence, judicial review of the resolution of the
Secretary of Justice is limited to a determination whether
there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction. Courts cannot substitute the
executive branch’s judgment.
....
It is only where the decision of the Justice Secretary is
tainted with grave abuse of discretion amounting to lack
or excess of jurisdiction that the Court of Appeals may take
cognizance of the case in a petition for certiorari under
Rule 65 of the Revised Rules of Civil Procedure. The Court
of Appeals decision may then be appealed to this Court
by way of a petition for review on certiorari.65 (Emphasis
supplied, citations omitted)
In this case, it must be shown that Secretary Agra
exceeded his authority when he reversed the findings of
Secretary Gonzalez. This court must determine whether
there is probable cause to file an information for copyright
infringement under the Intellectual Property Code.
IV
Probable cause pertains to "such facts as are sufficient to
engender a well-founded belief that a crime has been
committed and that respondent is probably guilty
thereof."66 Preliminary investigation is the inquiry or
proceeding to determine whether there is probable
cause.67
In Webb v. De Leon,68 this court ruled that determination
of probable cause during preliminary investigation does
not require trial-like evaluation of evidence since existence
of probable cause does not equate to guilt:
It ought to be emphasized that in determining probable
cause, the average man weighs facts and circumstances
without resorting to the calibrations of our technical rules
of evidence of which his knowledge is nil. Rather, he relies
on the calculus of common sense of which all reasonable
men have an abundance.
....
. . . A finding of probable cause merely binds over the
suspect to stand trial. It is not a pronouncement of guilt.69
In Reyes v. Pearlbank Securities, Inc.,70 finding probable
cause is not equivalent to finding with moral certainty that
the accused committed the crime:
A finding of probable cause needs only to rest on
evidence showing that more likely than not a crime has
been committed by the suspects. It need not be based on
clear and convincing evidence of guilt, not on evidence
establishing guilt beyond reasonable doubt, and definitely
not on evidence establishing absolute certainty of guilt. In
determining probable cause, the average man weighs
facts and circumstances without resorting to the
calibrations of the rules of evidence of which he has no
technical knowledge. He relies on common sense.71
During preliminary investigation, a public prosecutor does
not adjudicate on the parties’ rights, obligations, or
liabilities.72
In the recent case of Estrada v. Office of the Ombudsman,
et al.,73 we reiterated Webb on the determination of
probable cause during preliminary investigation and
traced the history of probable cause as borrowed from
American jurisprudence:
The purpose in determining probable cause is to make sure
that the courts are not clogged with weak cases that will
only be dismissed, as well as to spare a person from the
travails of a needless prosecution.
....
. . . In the United States, from where we borrowed the
concept of probable cause, the prevailing definition of
probable cause is this:
In dealing with probable cause, however, as the very
name implies, we deal with probabilities. These are not
technical; they are the factual and practical
considerations of everyday life on which reasonable and
prudent men, not legal technicians, act. The standard of
proof is accordingly correlative to what must be proved.
"The substance of all the definitions" of probable cause "is
a reasonable ground for belief of guilt." McCarthy v. De
Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll
opinion. 267 U. S. at 161. And this "means less than
evidence which would justify condemnation" or
conviction, as Marshall, C. J., said for the Court more than
a century ago in Locke v. United States, 7 Cranch 339, 348.
Since Marshall’s time, at any rate, it has come to mean
more than bare suspicion: Probable cause exists where
"the facts and circumstances within their [the officers’]
knowledge and of which they had reasonably trustworthy
information [are] sufficient in themselves to warrant a man
of reasonable caution in the belief that" an offense has
been or is being committed. Carroll v. United States, 267 U.
S. 132, 162.
These long-prevailing standards seek to safeguard citizens
from rash and unreasonable interferences with privacy
and from unfounded charges of crime. They also seek to
9
give fair leeway for enforcing the law in the community’s
protection. Because many situations which confront
officers in the course of executing their duties are more or
less ambiguous, room must be allowed for some mistakes
on their part. But the mistakes must be those of reasonable
men, acting on facts leading sensibly to their conclusions
of probability. The rule of probable cause is a practical,
non technical conception affording the best compromise
that has been found for accommodating these often
opposing interests. Requiring more would unduly hamper
law enforcement. To allow less would be to leave law-
abiding citizens at the mercy of the officers’ whim or
caprice.
In the Philippines, there are four instances in the Revised
Rules of Criminal Procedure where probable cause is
needed to be established:
(1) In Sections 1 and 3 of Rule 112: By the investigating
officer, to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof,
and should be held for trial. A preliminary investigation is
required before the filing of a complaint or information for
an offense where the penalty prescribed by law is at least
four years, two months and one day without regard to the
fine;
(2) In Sections 6 and 9 of Rule 112: By the judge, to
determine whether a warrant of arrest or a commitment
order, if the accused has already been arrested, shall be
issued and that there is a necessity of placing the
respondent under immediate custody in order not to
frustrate the ends of justice;
(3) In Section 5(b) of Rule 113:By a peace officer or a
private person making a warrantless arrest when an
offense has just been committed, and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has
committed it; and
(4) In Section 4 of Rule 126: By the judge, to determine
whether a search warrant shall be issued, and only upon
probable cause in connection with one specific offense to
be determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the
place to be searched and the things to be seized which
may be anywhere in the Philippines.
In all these instances, the evidence necessary to establish
probable cause is based only on the likelihood, or
probability, of guilt.74
Estrada also highlighted that a "[p]reliminary investigation
is not part of the criminal action. It is merely preparatory
and may even be disposed of in certain situations."75
To determine whether there is probable cause that
respondents committed copyright infringement, a review
of the elements of the crime, including the existing facts, is
required.
V An idea or event must be distinguished from the expression
ABS-CBN claims that news footage is subject to copyright
and prohibited use of copyrighted material is punishable
under the Intellectual Property Code. It argues that the
new footage is not a "newsworthy event" but "merely an
account of the arrival of Angelo dela Cruz in the
Philippines — the latter being the newsworthy event":76
To be clear, it is the event itself or the arrival of Angelo dela
Cruz which is not copyrightable because that is the
newsworthy event. However, any footage created from
the event itself, in this case the arrival of Angelo dela Cruz,
are intellectual creations which are copyrightable. Thus,
the footage created by ABS-CBN during the arrival of
Angelo dela Cruz, which includes the statements of Dindo
Amparo, are copyrightable and protected by the laws on
copyright.77
On the other hand, respondents argue that ABS-CBN’s
news footage of Angelo dela Cruz’s arrival is not
copyrightable or subject to protection:
Certainly, the arrival of Angelo [d]ela Cruz, which aroused
public attention and the consciousness of the Filipino
people with regard to their countrymen, OFWs working in
foreign countries and how the Philippine government
responds to the issues concerning them, is "news". There is
no ingenuity or inventiveness added in the said news
footage. The video footage of this "news" is not
copyrightable by any legal standard as facts of everyday
life depicted in the news and items of press information is
part of the public domain.78 (Emphasis in the original)
The news footage is copyrightable.
The Intellectual Property Code is clear about the rights
afforded to authors of various kinds of work. Under the
Code, "works are protected by the sole fact of their
creation, irrespective of their mode or form of expression,
as well as of their content, quality and purpose."79 These
include "[a]udiovisual works and cinematographic works
and works produced by a process analogous to
cinematography or any process for making audiovisual
recordings."80
Contrary to the old copyright law,81 the Intellectual
Property Code does not require registration of the work to
fully recover in an infringement suit. Nevertheless, both
copyright laws provide that copyright for a work is
acquired by an intellectual creator from the moment of
creation.82
It is true that under Section 175 of the Intellectual Property
Code, "news of the day and other miscellaneous facts
having the character of mere items of press information"
are considered unprotected subject matter.83 However,
the Code does not state that expression of the news of the
10
day, particularly when it underwent a creative process, is
not entitled to protection.
of that idea or event. An idea has been likened to a ghost
in that it "must be spoken to a little before it will explain
itself."84 It is a concept that has eluded exact legal
definition.85 To get a better grasp of the idea/expression
dichotomy, the etymology of the term "idea" is traced:
The word "idea" is derived from a Greek term, meaning "a
form, the look or appearance of a thing as opposed to its
reality, from idein, to see." In the Timaeus, Plato saw ideas
as eternal paradigms, independent objects to which the
divine demiurge looks as patterns in forming the world. This
was later modified to the religious conception of ideas as
the thoughts of God. "It is not a very long step to extend
the term ‘idea’ to cover patterns, blueprints, or plans in
anyone's mind, not only in God’s." The word entered the
French and English vernacular in the 1600s and possessed
two meanings. The first was the Platonic meaning of a
perfect exemplar or paradigm. The second, which
probably has its origin with Descartes, is of a mental
concept or image or, more broadly, any object of the
mind when it is active. Objects of thought may exist
independently. The sun exists (probably) before and after
you think of it. But it is also possible to think of things that
have never existed, such as a unicorn or Pegasus. John
Locke defined ideas very comprehensively, to include: all
objects of the mind. Language was a way of translating
the invisible, hidden ideas that make up a person’s
thoughts into the external, perceptible world of articulate
sounds and visible written symbols that others can
understand.86 (Citations omitted) There is no one legal
definition of "idea" in this jurisdiction. The term "idea" is
mentioned only once in the Intellectual Property Code.87
In Joaquin, Jr. v. Drilon,88 a television format (i.e., a dating
show format) is not copyrightable under Section 2 of
Presidential Decree No. 49;89 it is a mere concept:
P.D. No. 49, §2, in enumerating what are subject to
copyright, refers to finished works and not to concepts. The
copyright does not extend to an idea, procedure, process,
system, method of operation, concept, principle, or
discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work. Thus, the
new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES
provides:
SEC. 175. Unprotected Subject Matter.—Notwithstanding
the provisions of Sections 172 and 173, no protection shall
extend, under this law, to any idea, procedure, system,
method or operation, concept, principle, discovery or
mere data as such, even if they are expressed, explained,
illustrated or embodied in a work; news of the day and
other miscellaneous facts having the character of mere
items of press information; or any official text of a
legislative, administrative or legal nature, as well as any
official translation thereof.
What then is the subject matter of petitioners’ copyright?
This Court is of the opinion that petitioner BJPI’s copyright
covers audio-visual recordings of each episode of Rhoda
and Me, as falling within the class of works mentioned in
P.D. 49, §2(M),to wit:
Cinematographic works and works produced by a process
analogous to cinematography or any process for making
audio-visual recordings;
The copyright does not extend to the general concept or
format of its dating game show. Accordingly, by the very
nature of the subject of petitioner BJPI’s copyright, the
investigating prosecutor should have the opportunity to
compare the videotapes of the two shows.
Mere description by words of the general format of the two
dating game shows is insufficient; the presentation of the
master videotape in evidence was indispensable to the
determination of the existence of probable cause. As
aptly observed by respondent Secretary of Justice:
A television show includes more than mere words can
describe because it involves a whole spectrum of visuals
and effects, video and audio, such that no similarity or
dissimilarity may be found by merely describing the
general copyright/format of both dating game shows.90
(Emphasis supplied, citations omitted)
Ideas can be either abstract or concrete.91 It is the
concrete ideas that are generally referred to as
expression:
The words "abstract" and "concrete" arise in many cases
dealing with the idea/expression distinction. The Nichols
court, for example, found that the defendant’s film did not
infringe the plaintiff’s play because it was "too generalized
an abstraction from what plaintiff wrote . . . only a part of
her ideas." In Eichel v. Marcin, the court said that authors
may exploit facts, experiences, field of thought, and
general ideas found in another’s work, "provided they do
not substantially copy a concrete form, in which the
circumstances and ideas have been developed,
arranged, and put into shape." Judge Hand, in National
Comics Publications, Inc. v. Fawcett Publications, Inc. said
that "no one infringes, unless he descends so far into what
is concrete as to invade. . . ‘expression.’"
These cases seem to be distinguishing "abstract" ideas from
"concrete" tangible embodiments of these abstractions
that may be termed expression. However, if the concrete
form of a work means more than the literal expression
contained within it, it is difficult to determine what is meant
by "concrete." Webster's New Twentieth Century
Dictionary of the English Language provides several
meanings for the word concrete. These include: "having a
material, perceptible existence; of, belonging to, or
characterized by things or events that can be perceived
by the senses; real; actual;" and "referring to a particular;
specific, not general or abstract."92
In Pearl & Dean (Phil.), Incorporated v. Shoemart,
Incorporated,93 this court, citing the American case of
Baker v. Selden, distinguished copyright from patents and
11
illustrated how an idea or concept is different from the
expression of that idea:
In the oft-cited case of Baker vs. Selden, the United States
Supreme Court held that only the expression of an idea is
protected by copyright, not the idea itself. In that case,
the plaintiff held the copyright of a book which
expounded on a new accounting system he had
developed. The publication illustrated blank forms of
ledgers utilized in such a system. The defendant
reproduced forms similar to those illustrated in the plaintiff’s
copyrighted book. The US Supreme Court ruled that:
"There is no doubt that a work on the subject of book-
keeping, though only explanatory of well known systems,
may be the subject of a copyright; but, then, it is claimed
only as a book. x x x But there is a clear distinction between
the books, as such, and the art, which it is, intended to
illustrate. The mere statement of the proposition is so
evident that it requires hardly any argument to support it.
The same distinction may be predicated of every other art
as well as that of bookkeeping.
A treatise on the composition and use of medicines, be
they old or new; on the construction and use of ploughs or
watches or churns; or on the mixture and application of
colors for painting or dyeing; or on the mode of drawing
lines to produce the effect of perspective, would be the
subject of copyright; but no one would contend that the
copyright of the treatise would give the exclusive right to
the art or manufacture described therein. The copyright of
the book, if not pirated from other works, would be valid
without regard to the novelty or want of novelty of its
subject matter. The novelty of the art or thing described or
explained has nothing to do with the validity of the
copyright. To give to the author of the book an exclusive
property in the art described therein, when no
examination of its novelty has ever been officially made,
would be a surprise and a fraud upon the public. That is
the province of letters patent, not of copyright. The claim
to an invention of discovery of an art or manufacture must
be subjected to the examination of the Patent Office
before an exclusive right therein can be obtained; and a
patent from the government can only secure it.
The difference between the two things, letters patent and
copyright, may be illustrated by reference to the subjects
just enumerated. Take the case of medicines. Certain
mixtures are found to be of great value in the healing art.
If the discoverer writes and publishes a book on the subject
(as regular physicians generally do), he gains no exclusive
right to the manufacture and sale of the medicine; he
gives that to the public. If he desires to acquire such
exclusive right, he must obtain a patent for the mixture as
a new art, manufacture or composition of matter. He may
copyright his book, if he pleases; but that only secures to
him the exclusive right of printing and publishing his book.
So of all other inventions or discoveries.
The copyright of a book on perspective, no matter how
many drawings and illustrations it may contain, gives no
exclusive right to the modes of drawing described, though
they may never have been known or used before. By
publishing the book without getting a patent for the art,
the latter is given to the public.
....
Now, whilst no one has a right to print or publish his book,
or any material part thereof, as a book intended to convey
instruction in the art, any person may practice and use the
art itself which he has described and illustrated therein. The
use of the art is a totally different thing from a publication
of the book explaining it. The copyright of a book on
bookkeeping cannot secure the exclusive right to make,
sell and use account books prepared upon the plan set
forth in such book. Whether the art might or might not have
been patented, is a question, which is not before us. It was
not patented, and is open and free to the use of the
public. And, of course, in using the art, the ruled lines and
headings of accounts must necessarily be used as incident
to it.
The plausibility of the claim put forward by the
complainant in this case arises from a confusion of ideas
produced by the peculiar nature of the art described in
the books, which have been made the subject of
copyright. In describing the art, the illustrations and
diagrams employed happened to correspond more
closely than usual with the actual work performed by the
operator who uses the art. x x x The description of the art in
a book, though entitled to the benefit of copyright, lays no
foundation for an exclusive claim to the art itself. The
object of the one is explanation; the object of the other is
use. The former may be secured by copyright. The latter
can only be secured, if it can be secured at all, by letters
patent."94 (Emphasis supplied)
News or the event itself is not copyrightable. However, an
event can be captured and presented in a specific
medium. As recognized by this court in Joaquin, television
"involves a whole spectrum of visuals and effects, video
and audio."95 News coverage in television involves
framing shots, using images, graphics, and sound
effects.96 It involves creative process and originality.
Television news footage is an expression of the news.
In the United States, a line of cases dwelt on the possibility
of television newscasts to be copyrighted.97 Most of these
cases focused on private individuals’ sale or resale of
tapes of news broadcasts. Conflicting decisions were
rendered by its courts. Noteworthy, however, is the District
Court’s pronouncement in Pacific & Southern Co. v.
Duncan,98 which involves a News Monitoring Service’s
videotaping and sale of WXIA-TV’s news broadcasts:
It is axiomatic that copyright protection does not extend
to news "events" or the facts or ideas which are the subject
of news reports. Miller v. Universal City Studios, Inc., 650 F.2d
1365, 1368 (5th Cir. 1981); Wainwright Securities, Inc. v. Wall
Street Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977), cert.
denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978).
But it is equally well-settled that copyright protection does
extend to the reports themselves, as distinguished from the
12
substance of the information contained in the reports.
Wainwright, 558 F.2d at 95; International News Service v.
Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211
(1918); see Chicago Record-Herald Co. v. Tribune Assn.,
275 F. 797 (7th Cir.1921); 1 Nimmer on Copyright § 2.11[B]
(1983). Copyright protects the manner of expression of
news reports, "the particular form or collocation of words
in which the writer has communicated it." International
News Service, 248 U.S. at 234, 39 S.Ct. at 70. Such
protection extends to electronic news reports as well as
written reports. See17 U.S.C. § 102(a) (5), (6), and (7); see
also Iowa State University Research Foundations, Inc. v.
American Broadcasting Cos., 621 F.2d 57, 61 (2d Cir.
1980).99 (Emphasis supplied)
The idea/expression dichotomy has long been subject to
debate in the field of copyright law. Abolishing the
dichotomy has been proposed, in that non-protectibility of
ideas should be re-examined, if not stricken, from decisions
and the law:
If the underlying purpose of the copyright law is the dual
one expressed by Lord Mansfield, the only excuse for the
continuance of the idea-expression test as a judicial
standard for determining protectibility would be that it was
or could be a truly useful method of determining the
proper balance between the creator’s right to profit from
his work and the public's right that the "progress of the arts
not be retarded."
. . . [A]s used in the present-day context[,] the dichotomy
has little or no relationship to the policy which it should
effectuate. Indeed, all too often the sweeping language
of the courts regarding the non-protectibility of ideas gives
the impression that this is of itself a policy of the law, instead
of merely a clumsy and outdated tool to achieve a much
more basic end.100
The idea/expression dichotomy is a complex matter if one
is trying to determine whether a certain material is a copy
of another.101 This dichotomy would be more relevant in
determining, for instance, whether a stage play was an
infringement of an author’s book involving the same
characters and setting. In this case, however, respondents
admitted that the material under review — which is the
subject of the controversy — is an exact copy of the
original. Respondents did not subject ABS-CBN’s footage
to any editing of their own. The news footage did not
undergo any transformation where there is a need to track
elements of the original.
Having established the protectible nature of news
footage, we now discuss the concomitant rights accorded
to authors. The authors of a work are granted several rights
in relation to it, including copyright or economic rights:
SECTION 177. Copyright or Economic Rights. — Subject to
the provisions of Chapter VIII, copyright or economic rights
shall consist of the exclusive right to carry out, authorize or
prevent the following acts:
177.1. Reproduction of the work or substantial portion of
the work;
177.2. Dramatization, translation, adaptation, abridgment,
arrangement or other transformation of the work;
177.3. The first public distribution of the original and each
copy of the work by sale or other forms of transfer of
ownership;
177.4. Rental of the original or a copy of an audiovisual or
cinematographic work, a work embodied in a sound
recording, a computer program, a compilation of data
and other materials or a musical work in graphic form,
irrespective of the ownership of the original or the copy
which is the subject of the rental; (n)
177.5. Public display of the original or a copy of the work;
177.6. Public performance of the work; and
177.7. Other communication to the public of the
work.(Sec. 5, P. D. No. 49a) (Emphasis supplied)
Under Section 211 of the Intellectual Property Code,
broadcasting organizations are granted a more specific
set of rights called related or neighboring rights:
SECTION 211. Scope of Right. — Subject to the provisions of
Section 212, broadcasting organizations shall enjoy the
exclusive right to carry out, authorize or prevent any of the
following acts:
211.1. The rebroadcasting of their broadcasts;
211.2. The recording in any manner, including the making
of films or the use of video tape, of their broadcasts for the
purpose of communication to the public of television
broadcasts of the same; and
211.3. The use of such records for fresh transmissions or for
fresh recording. (Sec. 52, P.D. No. 49) (Emphasis supplied)
Section 212 of the Code provides:
CHAPTER XV
LIMITATIONS ON PROTECTION
Section 212. Limitations on Rights. - Sections 203, 208 and
209 shall not apply where the acts referred to in those
Sections are related to:
212.1. The use by a natural person exclusively for his own
personal purposes;
212.2. Using short excerpts for reporting current events;
212.3. Use solely for the purpose of teaching or for scientific
research; and
212.4. Fair use of the broadcast subject to the conditions
under Section 185. (Sec. 44, P.D. No. 49a)
13
The Code defines what broadcasting is and who
broadcasting organizations include:
202.7. "Broadcasting" means the transmission by wireless
means for the public reception of sounds or of images or
of representations thereof; such transmission by satellite is
also "broadcasting" where the means for decrypting are
provided to the public by the broadcasting organization
or with its consent;
202.8. "Broadcasting organization" shall include a natural
person or a juridical entity duly authorized to engage in
broadcasting[.]
Developments in technology, including the process of
preserving once ephemeral works and disseminating
them, resulted in the need to provide a new kind of
protection as distinguished from copyright.102 The
designation "neighboring rights" was abbreviated from the
phrase "rights neighboring to copyright."103 Neighboring
or related rights are of equal importance with copyright as
established in the different conventions covering both
kinds of rights.104
Several treaties deal with neighboring or related rights of
copyright.105 The most prominent of these is the
"International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting
Organizations" (Rome Convention).106
The Rome Convention protects the rights of broadcasting
organizations in relation to their broadcasts. Article XIII of
the Rome Convention enumerates the minimum rights
accorded to broadcasting organizations:
Article 13
Minimum Rights for Broadcasting Organizations
Broadcasting organisations shall enjoy the right to
authorize or prohibit:
(a) the rebroadcasting of their broadcasts;
(b) the fixation of their broadcasts;
(c) the reproduction:
(i) of fixations, made without their consent, of their
broadcasts;
(ii) of fixations, made in accordance with the provisions of
Article 15, of their broadcasts, if the reproduction is made
for purposes different from those referred to in those
provisions;
(d) the communication to the public of their television
broadcasts if such communication is made in places
accessible to the public against payment of an entrance
fee; it shall be a matter for the domestic law of the State
where protection of this right is claimed to determine the
conditions under which it may be exercised.
With regard to the neighboring rights of a broadcasting
organization in this jurisdiction, this court has discussed the
difference between broadcasting and rebroadcasting:
Section 202.7 of the IP Code defines broadcasting as "the
transmission by wireless means for the public reception of
sounds or of images or of representations thereof; such
transmission by satellite is also ‘broadcasting’ where the
means for decrypting are provided to the public by the
broadcasting organization or with its consent."
On the other hand, rebroadcasting as defined in Article
3(g) of the International Convention for the Protection of
Performers, Producers of Phonograms and Broadcasting
Organizations, otherwise known as the 1961 Rome
Convention, of which the Republic of the Philippines is a
signatory, is "the simultaneous broadcasting by one
broadcasting organization of the broadcast of another
broadcasting organization."
....
Under the Rome Convention, rebroadcasting is "the
simultaneous broadcasting by one broadcasting
organization of the broadcast of another broadcasting
organization." The Working Paper prepared by the
Secretariat of the Standing Committee on Copyright and
Related Rights defines broadcasting organizations as
"entities that take the financial and editorial responsibility
for the selection and arrangement of, and investment in,
the transmitted content."107 (Emphasis in the original,
citations omitted)
Broadcasting organizations are entitled to several rights
and to the protection of these rights under the Intellectual
Property Code. Respondents’ argument that the subject
news footage is not copyrightable is erroneous. The Court
of Appeals, in its assailed Decision, correctly recognized
the existence of ABS-CBN’s copyright over the news
footage:
Surely, private respondent has a copyright of its news
coverage. Seemingly, for airing said video feed, petitioner
GMA is liable under the provisions of the Intellectual
Property Code, which was enacted purposely to protect
copyright owners from infringement.108
News as expressed in a video footage is entitled to
copyright protection. Broadcasting organizations have not
only copyright on but also neighboring rights over their
broadcasts. Copyrightability of a work is different from fair
use of a work for purposes of news reporting.
VI
ABS-CBN assails the Court of Appeals’ ruling that the
footage shown by GMA-7 falls under the scope of Section
212.2 and 212.4 of the Intellectual Property Code:
14
The evidence on record, as well as the discussions above,
show that the footage used by[respondents] could
hardlybe characterized as a short excerpt, as it was aired
over one and a half minutes.
Furthermore, the footage used does not fall under the
contemplation of Section 212.2 of the Intellectual Property
Code. A plain reading of the provision would reveal that
copyrighted material referred to in Section 212 are short
portions of an artist’s performance under Section 203, or a
producer’s sound recordings under Sections 208 and 209.
Section 212 does not refer to actual use of video footage
of another as its own.
The Angelo dela Cruz footage does not fall under the rule
on Section 212.4 of the Intellectual Property Code on fair
use of the broadcast.
....
In determining fair use, several factors are considered,
including the nature of the copyrighted work, and the
amount and substantiality of the person used in relation to
the copyrighted work as a whole.
In the business of television news reporting, the nature of
the copyrighted work or the video footages, are such that,
footage created, must be a novelty to be a good report.
Thus, when the . . . Angelo dela Cruz footage was used by
[respondents], the novelty of the footage was clearly
affected.
Moreover, given that a substantial portion of the Angelo
dela Cruz footage was utilized by GMA-7 for its own, its use
can hardly be classified as fair use.
Hence, [respondents] could not be considered as having
used the Angelo dela Cruz [footage] following the
provisions on fair use.
It is also worthy to note that the Honorable Court of
Appeals seem to contradict itself when it relied on the
provisions of fair use in its assailed rulings considering that it
found that the Angelo dela Cruz footage is not
copyrightable, given that the fair use presupposes an
existing copyright. Thus, it is apparent that the findings of
the Honorable Court of Appeals are erroneous and based
on wrong assumptions.109 (Underscoring in the original)
On the other hand, respondents counter that GMA-7’s use
of ABS-CBN’s news footage falls under fair use as defined
in the Intellectual Property Code. Respondents, citing the
Court of Appeals Decision, argue that a strong statutory
defense negates any finding of probable cause under the
same statute.110 The Intellectual Property Code provides
that fair use negates infringement.
Respondents point out that upon seeing ABS-CBN’s
reporter Dindo Amparo on the footage, GMA-7
immediately shut off the broadcast. Only five (5) seconds
passed before the footage was cut. They argue that this
shows that GMA-7 had no prior knowledge of ABS-CBN’s
ownership of the footage or was notified of it. They claim
that the Angelo dela Cruz footage is considered a short
excerpt of an event’s "news" footage and is covered by
fair use.111
Copyright protection is not absolute.112 The Intellectual
Property Code provides the limitations on copyright:
CHAPTER VIII
LIMITATIONS ON COPYRIGHT
Section 184. Limitations on Copyright. - 184.1.
Notwithstanding the provisions of Chapter V, the following
acts shall not constitute infringement of copyright:
....
184.2. The provisions of this section shall be interpreted in
such a way as to allow the work to be used in a manner
which does not conflict with the normal exploitation of the
work and does not unreasonably prejudice the right
holder's legitimate interests.
....
CHAPTER XV
LIMITATIONS ON PROTECTION
Section 212. Limitations on Rights. - Sections 203, 208 and
209 shall not apply where the acts referred to in those
Sections are related to:
....
212.2. Using short excerpts for reporting current events;
....
212.4. Fair use of the broadcast subject to the conditions
under Section 185.(Sec. 44, P.D. No. 49a) (Emphasis
supplied)
The determination of what constitutes fair use depends on
several factors. Section 185 of the Intellectual Property
Code states:
SECTION 185. Fair Use of a Copyrighted Work. —
185.1. The fair use of a copyrighted work for criticism,
comment, news reporting, teaching including multiple
copies for classroom use, scholarship, research, and similar
purposes is not an infringement of copyright. . . . In
determining whether the use made of a work in any
particular case is fair use, the factors to be considered shall
include:
a. The purpose and character of the use, including
whether such use is of a commercial nature or is for non-
profit educational purposes;
b. The nature of the copyrighted work;
15
c. The amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
d. The effect of the use upon the potential market for or
value of the copyrighted work. Respondents allege that
the news footage was only five (5) seconds long, thus
falling under fair use. ABS-CBN belies this contention and
argues that the footage aired for two (2) minutes and 40
seconds.113 According to the Court of Appeals, the
parties admitted that only five (5) seconds of the news
footage was broadcasted by GMA-7.114
This court defined fair use as "aprivilege to use the
copyrighted material in a reasonable manner without the
consent of the copyright owner or as copying the theme
or ideas rather than their expression."115 Fair use is an
exception to the copyright owner’s monopoly of the use
of the work to avoid stifling "the very creativity which that
law is designed to foster."116
Determining fair use requires application of the four-factor
test. Section 185 of the Intellectual Property Code lists four
(4) factors to determine if there was fair use of a
copyrighted work:
a. The purpose and character of the use, including
whether such use is of a commercial nature or is for non-
profit educational purposes;
b. The nature of the copyrighted work;
c. The amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
d. The effect of the use upon the potential market for or
value of the copyrighted work.
First, the purpose and character of the use of the
copyrighted material must fall under those listed in Section
185, thus: "criticism, comment, news reporting, teaching
including multiple copies for classroom use, scholarship,
research, and similar purposes."117 The purpose and
character requirement is important in view of copyright’s
goal to promote creativity and encourage creation of
works. Hence, commercial use of the copyrighted work
can be weighed against fair use.
The "transformative test" is generally used in reviewing the
purpose and character of the usage of the copyrighted
work.118 This court must look into whether the copy of the
work adds "new expression, meaning or message" to
transform it into something else.119 "Meta-use" can also
occur without necessarily transforming the copyrighted
work used.120
Second, the nature of the copyrighted work is significant
in deciding whether its use was fair. If the nature of the
work is more factual than creative, then fair use will be
weighed in favor of the user.
Third, the amount and substantiality of the portion used is
important to determine whether usage falls under fair use.
An exact reproduction of a copyrighted work, compared
to a small portion of it, can result in the conclusion that its
use is not fair. There may also be cases where, though the
entirety of the copyrighted work is used without consent,
its purpose determines that the usage is still fair.121 For
example, a parody using a substantial amount of
copyrighted work may be permissible as fair use as
opposed to a copy of a work produced purely for
economic gain. Lastly, the effect of the use on the
copyrighted work’s market is also weighed for or against
the user. If this court finds that the use had or will have a
negative impact on the copyrighted work’s market, then
the use is deemed unfair.
The structure and nature of broadcasting as a business
requires assigned values for each second of broadcast or
airtime. In most cases, broadcasting organizations
generate revenue through sale of time or timeslots to
advertisers, which, in turn, is based on market share:122
Once a news broadcast has been transmitted, the
broadcast becomes relatively worthless to the station. In
the case of the aerial broadcasters, advertising sales
generate most of the profits derived from news reports.
Advertising rates are, in turn, governed by market share.
Market share is determined by the number of people
watching a show at any particular time, relative to total
viewers at that time. News is by nature time-limited, and so
re-broadcasts are generally of little worth because they
draw few viewers. Newscasts compete for market share by
presenting their news in an appealing format that will
capture a loyal audience. Hence, the primary reason for
copyrighting newscasts by broadcasters would seem to
be to prevent competing stations from rebroadcasting
current news from the station with the best coverage of a
particular news item, thus misappropriating a portion of
the market share.
Of course, in the real world there are exceptions to this
perfect economic view. However, there are also many
caveats with these exceptions. A common exception is
that some stations rebroadcast the news of others. The
caveat is that generally, the two stations are not
competing for market share. CNN, for example, often
makes news stories available to local broadcasters. First,
the local broadcaster is often not affiliated with a network
(hence its need for more comprehensive programming),
confining any possible competition to a small
geographical area. Second, the local broadcaster is not
in competition with CNN. Individuals who do not have
cable TV (or a satellite dish with decoder) cannot receive
CNN; therefore there is no competition. . . . Third, CNN sells
the right of rebroadcast to the local stations. Ted Turner,
owner of CNN, does not have First Amendment freedom
of access argument foremost on his mind. (Else he would
give everyone free cable TV so everyone could get CNN.)
He is in the business for a profit. Giving away resources
does not a profit make.123 (Emphasis supplied)
The high value afforded to limited time periods is also seen
in other media. In social media site Instagram, users are
allowed to post up to only 15 seconds of video.124 In short-
video sharing website Vine,125 users are allowed a shorter
16
period of six (6) seconds per post. The mobile application
1 Second Everyday takes it further by capturing and
stitching one (1) second of video footage taken daily over
a span of a certain period.126
Whether the alleged five-second footage may be
considered fair use is a matter of defense. We emphasize
that the case involves determination of probable cause at
the preliminary investigation stage. Raising the defense of
fair use does not automatically mean that no infringement
was committed. The investigating prosecutor has full
discretion to evaluate the facts, allegations, and evidence
during preliminary investigation. Defenses raised during
preliminary investigation are subject to further proof and
evaluation before the trial court. Given the insufficiency of
available evidence, determination of whether the Angelo
dela Cruz footage is subject to fair use is better left to the
trial court where the proceedings are currently pending.
GMA-7’s rebroadcast of ABS-CBN’s news footage without
the latter’s consent is not an issue. The mere act of
rebroadcasting without authority from the owner of the
broadcast gives rise to the probability that a crime was
committed under the Intellectual Property Code.
I
Respondents cannot invoke the defense of good faith to
argue that no probable cause exists.
Respondents argue that copyright infringement is malum
in se, in that "[c]opying alone is not what is being
prohibited, but its injurious effect which consists in the lifting
from the copyright owners’ film or materials, that were the
result of the latter’s creativity, work and productions and
without authority, reproduced, sold and circulated for
commercial use to the detriment of the latter."127
Infringement under the Intellectual Property Code is
malum prohibitum. The Intellectual Property Code is a
special law. Copyright is a statutory creation:
Copyright, in the strict sense of the term, is purely a
statutory right. It is a new or independent right granted by
the statute, and not simply a pre-existing right regulated
by the statute. Being a statutory grant, the rights are only
such as the statute confers, and may be obtained and
enjoyed only with respect to the subjects and by the
persons, and on terms and conditions specified in the
statute.128
The general rule is that acts punished under a special law
are malum prohibitum.129 "An act which is declared
malum prohibitum, malice or criminal intent is completely
immaterial."130
In contrast, crimes mala in seconcern inherently immoral
acts:
Not every criminal act, however, involves moral turpitude.
It is for this reason that "as to what crime involves moral
turpitude, is for the Supreme Court to determine". In
resolving the foregoing question, the Court is guided by
one of the general rules that crimes mala in se involve
moral turpitude, while crimes mala prohibita do not, the
rationale of which was set forth in "Zari v. Flores," to wit:
It (moral turpitude) implies something immoral in itself,
regardless of the fact that it is punishable by law or not. It
must not be merely mala prohibita, but the act itself must
be inherently immoral. The doing of the act itself, and not
its prohibition by statute fixes the moral turpitude. Moral
turpitude does not, however, include such acts as are not
of themselves immoral but whose illegality lies in their being
positively prohibited. (Emphasis supplied)
[These] guidelines nonetheless proved short of providing a
clear cut solution, for in International Rice Research
Institute v. NLRC, the Court admitted that it cannot always
be ascertained whether moral turpitude does or does not
exist by merely classifying a crime as malum in se or as
malum prohibitum. There are crimes which are mala in se
and yet but rarely involve moral turpitude and there are
crimes which involve moral turpitude and are mala
prohibita only. In the final analysis, whether or not a crime
involves moral turpitude is ultimately a question of fact and
frequently depends on all the circumstances surrounding
the violation of the statue.131 (Emphasis in the original)
"Implicit in the concept of mala in se is that of mens
rea."132 Mens reais defined as "the nonphysical element
which, combined with the act of the accused, makes up
the crime charged. Most frequently it is the criminal intent,
or the guilty mind[.]"133
Crimes mala in sepre suppose that the person who did the
felonious act had criminal intent to do so, while crimes
mala prohibita do not require knowledge or criminal
intent:
In the case of mala in se it is necessary, to constitute a
punishable offense, for the person doing the act to have
knowledge of the nature of his act and to have a criminal
intent; in the case of mala prohibita, unless such words as
"knowingly" and "willfully" are contained in the statute,
neither knowledge nor criminal intent is necessary. In other
words, a person morally quite innocent and with every
intention of being a law abiding citizen becomes a
criminal, and liable to criminal penaltes, if he does an act
prohibited by these statutes.134 (Emphasis supplied)
Hence, "[i]ntent to commit the crime and intent to
perpetrate the act must be distinguished. A person may
not have consciously intended to commit a crime; but he
did intend to commit an act, and that act is, by the very
nature of things, the crime itself[.]"135 When an act is
prohibited by a special law, it is considered injurious to
public welfare, and the performance of the prohibited act
is the crime itself.136
Volition, or intent to commit the act, is different from
criminal intent. Volition or voluntariness refers to
knowledge of the act being done. On the other hand,
criminal intent — which is different from motive, or the
moving power for the commission of the crime137 — refers
17
to the state of mind beyond voluntariness. It is this intent
that is being punished by crimes mala in se.
Unlike other jurisdictions that require intent for a criminal
prosecution of copyright infringement, the Philippines does
not statutorily support good faith as a defense. Other
jurisdictions provide in their intellectual property codes or
relevant laws that mens rea, whether express or implied, is
an element of criminal copyright infringement.138
In Canada, criminal offenses are categorized under three
(3) kinds: "the full mens rea offence, meaning the
accused’s actual or subjective state of mind has to be
proved; strict liability offences where no mens rea has to
be proved but the accused can avoid liability if he can
prove he took all reasonable steps to avoid the particular
event; [and] absolute liability offences where Parliament
has made it clear that guilt follows proof of the prescribed
act only."139 Because of the use of the word "knowingly" in
Canada’s Copyright Act, it has been held that copyright
infringement is a full mens rea offense.140
In the United States, willful intent is required for criminal
copyright infringement.141 Before the passage of the No
Electronic Theft Act, "civil copyright infringements were
violations of criminal copyright laws only if a defendant
willfully infringed a copyright ‘for purposes of commercial
advantage or private financial gain.’"142 However, the No
Electronic Theft Act now allows criminal copyright
infringement without the requirement of commercial gain.
The infringing act may or may not be for profit.143
There is a difference, however, between the required
liability in civil copyright infringement and that in criminal
copyright infringement in the United States. Civil copyright
infringement does not require culpability and employs a
strict liability regime144 where "lack of intention to infringe
is not a defense to an action for infringement."145
In the Philippines, the Intellectual Property Code, as
amended, provides for the prosecution of criminal actions
for the following violations of intellectual property rights:
Repetition of Infringement of Patent (Section 84); Utility
Model (Section 108); Industrial Design (Section 119);
Trademark Infringement (Section 155 in relation to Section
170); Unfair Competition (Section 168 in relation to Section
170); False Designations of Origin, False Description or
Representation (Section 169.1 in relation to Section 170);
infringement of copyright, moral rights, performers’ rights,
producers’ rights, and broadcasting rights (Section 177,
193, 203, 208 and 211 in relation to Section 217); and other
violations of intellectual property rights as may be defined
by law.
The Intellectual Property Code requires strict liability for
copyright infringement whether for a civil action or a
criminal prosecution; it does not require mens rea or
culpa:146
SECTION 216. Remedies for Infringement. —
216.1. Any person infringing a right protected under this
law shall be liable:
a. To an injunction restraining such infringement. The court
may also order the defendant to desist from an
infringement, among others, to prevent the entry into the
channels of commerce of imported goods that involve an
infringement, immediately after customs clearance of
such goods.
b. Pay to the copyright proprietor or his assigns or heirs such
actual damages, including legal costs and other
expenses, as he may have incurred due to the
infringement as well as the profits the infringer may have
made due to such infringement, and in proving profits the
plaintiff shall be required to prove sales only and the
defendant shall be required to prove every element of
cost which he claims, or, in lieu of actual damages and
profits, such damages which to the court shall appear to
be just and shall not be regarded as penalty.
c. Deliver under oath, for impounding during the
pendency of the action, upon such terms and conditions
as the court may prescribe, sales invoices and other
documents evidencing sales, all articles and their
packaging alleged to infringe a copyright and implements
for making them.
d. Deliver under oath for destruction without any
compensation all infringing copies or devices, as well as all
plates, molds, or other means for making such infringing
copies as the court may order.
e. Such other terms and conditions, including the payment
of moral and exemplary damages, which the court may
deem proper, wise and equitable and the destruction of
infringing copies of the work even in the event of acquittal
in a criminal case.
216.2. In an infringement action, the court shall also have
the power to order the seizure and impounding of any
article which may serve as evidence in the court
proceedings. (Sec. 28, P.D. No. 49a)
SECTION 217. Criminal Penalties. — 217.1. Any person
infringing any right secured by provisions of Part IV of this
Actor aiding or abetting such infringement shall be guilty
of a crime punishable by:
a. Imprisonment of one (1) year to three (3) years plus a
fine ranging from Fifty thousand pesos (₱50,000) to One
hundred fifty thousand pesos (₱150,000) for the first
offense.
b. Imprisonment of three (3) years and one (1) day to six
(6) years plus a fine ranging from One hundred fifty
thousand pesos (₱150,000) to Five hundred thousand
pesos (₱500,000) for the second offense.
c. Imprisonment of six (6) years and one (1) day to nine (9)
years plus a fine ranging from Five hundred thousand
18
pesos (₱500,000) to One million five hundred thousand
pesos (₱1,500,000) for the third and subsequent offenses.
d. In all cases, subsidiary imprisonment in cases of
insolvency.
217.2. In determining the number of years of imprisonment
and the amount of fine, the court shall consider the value
of the infringing materials that the defendant has
produced or manufactured and the damage that the
copyright owner has suffered by reason of the
infringement.
217.3. Any person who at the time when copyright subsists
in a work has in his possession an article which he knows,
or ought to know, to be an infringing copy of the work for
the purpose of: a. Selling, letting for hire, or by way of trade
offering or exposing for sale, or hire, the article;
b. Distributing the article for purpose of trade, or for any
other purpose to an extent that will prejudice the rights of
the copyright owner in the work; or
c. Trade exhibit of the article in public, shall be guilty of an
offense and shall be liable on conviction to imprisonment
and fine as above mentioned. (Sec. 29, P.D. No. 49a)
(Emphasis supplied)
The law is clear. Inasmuch as there is wisdom in prioritizing
the flow and exchange of ideas as opposed to rewarding
the creator, it is the plain reading of the law in conjunction
with the actions of the legislature to which we defer. We
have continuously "recognized the power of the legislature
. . . to forbid certain acts in a limited class of cases and to
make their commission criminal without regard to the
intent of the doer. Such legislative enactments are based
on the experience that repressive measures which
depend for their efficiency upon proof of the dealer’s
knowledge or of his intent are of little use and rarely
accomplish their purposes."147
Respondents argue that live broadcast of news requires a
different treatment in terms of good faith, intent, and
knowledge to commit infringement. To argue this point,
they rely on the differences of the media used in Habana
et al. v. Robles, Columbia Pictures v. Court of Appeals, and
this case:
Petitioner ABS-CBN argues that lack of notice that the
Angelo dela Cruz was under embargo is not a defense in
copyright infringement and cites the case of Columbia
Pictures vs. Court of Appeals and Habana et al. vs.
Robles(310 SCRA 511). However, these cases refer to film
and literary work where obviously there is "copying" from
an existing material so that the copier knew that he is
copying from an existing material not owned by him. But,
how could respondents know that what they are "copying
was not [theirs]" when they were not copying but merely
receiving live video feed from Reuters and CNN which
they aired? What they knew and what they aired was the
Reuters live video feed and the CNN feed which GMA-7 is
authorized to carry in its news broadcast, it being a
subscriber of these companies[.]
It is apt to stress that the subject of the alleged copyright
infringement is not a film or literary work but live broadcast
of news footage. In a film or literary work, the infringer is
confronted face to face with the material he is allegedly
copying and therefore knows, or is presumed to know, that
what he is copying is owned by another. Upon the other
hand, in live broadcast, the alleged infringer is not
confronted with the fact that the material he airs or re-
broadcasts is owned by another, and therefore, he
cannot be charged of knowledge of ownership of the
material by another. This specially obtains in the Angelo
dela Cruz news footage which GMA-7 received from
Reuters and CNN. Reuters and CNN were beaming live
videos from the coverage which GMA-7 received as a
subscriber and, in the exercise of its rights as a subscriber,
GMA-7 picked up the live video and simultaneously re-
broadcast it. In simultaneously broadcasting the live video
footage of Reuters, GMA-7 did not copy the video
footage of petitioner ABS-CBN[.]148 (Emphasis in the
original)
Respondents’ arguments must fail.
Respondents are involved and experienced in the
broadcasting business. They knew that there would be
consequences in carrying ABS-CBN’s footage in their
broadcast. That is why GMA-7 allegedly cut the feed from
Reuters upon seeing ABS-CBN’s ogo and reporter. To admit
a different treatment for broadcasts would mean
abandonment of a broadcasting organization’s minimum
rights, including copyright on the broadcast material and
the right against unauthorized rebroadcast of copyrighted
material. The nature of broadcast technology is precisely
why related or neighboring rights were created and
developed. Carving out an exception for live broadcasts
would go against our commitments under relevant
international treaties and agreements, which provide for
the same minimum rights.149
Contrary to respondents’ assertion, this court in
Habana,150 reiterating the ruling in Columbia Pictures,151
ruled that lack of knowledge of infringement is not a valid
defense. Habana and Columbia Pictures may have
different factual scenarios from this case, but their rulings
on copyright infringement are analogous. In Habana,
petitioners were the authors and copyright owners of
English textbooks and workbooks. The case was anchored
on the protection of literary and artistic creations such as
books. In Columbia Pictures, video tapes of copyrighted
films were the subject of the copyright infringement suit.
In Habana, knowledge of the infringement is presumed
when the infringer commits the prohibited act:
The essence of intellectual piracy should be essayed in
conceptual terms in order to underscore its gravity by an
appropriate understanding thereof. Infringement of a
copyright is a trespass on a private domain owned and
occupied by the owner of the copyright, and, therefore,
19
protected by law, and infringement of copyright, or
piracy, which is a synonymous term in this connection,
consists in the doing by any person, without the consent of
the owner of the copyright, of anything the sole right to do
which is conferred by statute on the owner of the
copyright.
....
A copy of a piracy is an infringement of the original, and it
is no defense that the pirate, in such cases, did not know
whether or not he was infringing any copyright; he at least
knew that what he was copying was not his, and he
copied at his peril.
....
In cases of infringement, copying alone is not what is
prohibited. The copying must produce an "injurious effect".
Here, the injury consists in that respondent Robles lifted
from petitioners’ book materials that were the result of the
latter’s research work and compilation and
misrepresented them as her own. She circulated the book
DEP for commercial use and did not acknowledge
petitioners as her source.152 (Emphasis supplied)
Habana and Columbia Pictures did not require knowledge
of the infringement to constitute a violation of the
copyright. One does not need to know that he or she is
copying a work without consent to violate copyright law.
Notice of fact of the embargo from Reuters or CNN is not
material to find probable cause that respondents
committed infringement. Knowledge of infringement is
only material when the person is charged of aiding and
abetting a copyright infringement under Section 217 of the
Intellectual Property Code.153
We look at the purpose of copyright in relation to criminal
prosecutions requiring willfulness: Most importantly, in
defining the contours of what it means to willfully infringe
copyright for purposes of criminal liability, the courts should
remember the ultimate aim of copyright. Copyright is not
primarily about providing the strongest possible protection
for copyright owners so that they have the highest possible
incentive to create more works. The control given to
copyright owners is only a means to an end: the promotion
of knowledge and learning. Achieving that underlying
goal of copyright law also requires access to copyrighted
works and it requires permitting certain kinds of uses of
copyrighted works without the permission of the copyright
owner. While a particular defendant may appear to be
deserving of criminal sanctions, the standard for
determining willfulness should be set with reference to the
larger goals of copyright embodied in the Constitution and
the history of copyright in this country.154
In addition, "[t]he essence of intellectual piracy should be
essayed in conceptual terms in order to underscore its
gravity by an appropriate understanding thereof.
Infringement of a copyright is a trespass on a private
domain owned and occupied by the owner of the
copyright, and, therefore, protected by law, and
infringement of copyright, or piracy, which is a
synonymous term in this connection, consists in the doing
by any person, without the consent of the owner of the
copyright, of anything the sole right to do which is
conferred by statute on the owner of the copyright."155
Intellectual property rights, such as copyright and the
neighboring right against rebroadcasting, establish an
artificial and limited monopoly to reward creativity.
Without these legally enforceable rights, creators will have
extreme difficulty recovering their costs and capturing the
surplus or profit of their works as reflected in their markets.
This, in turn, is based on the theory that the possibility of
gain due to creative work creates an incentive which may
improve efficiency or simply enhance consumer welfare or
utility. More creativity redounds to the public good.
These, however, depend on the certainty of enforcement.
Creativity, by its very nature, is vulnerable to the free rider
problem. It is easily replicated despite the costs to and
efforts of the original creator. The more useful the creation
is in the market, the greater the propensity that it will be
copied. The most creative and inventive individuals are
usually those who are unable to recover on their creations.
Arguments against strict liability presuppose that the
Philippines has a social, historical, and economic climate
similar to those of Western jurisdictions. As it stands, there is
a current need to strengthen intellectual property
protection.
Thus, unless clearly provided in the law, offenses involving
infringement of copyright protections should be
considered malum prohibitum. It is the act of infringement,
not the intent, which causes the damage. To require or
assume the need to prove intent defeats the purpose of
intellectual property protection.
Nevertheless, proof beyond reasonable doubt is still the
standard for criminal prosecutions under the Intellectual
Property Code.
VIII
Respondents argue that GMA-7’s officers and employees
cannot be held liable for infringement under the
Intellectual Property Code since it does not expressly
provide direct liability of the corporate officers. They
explain that "(i) a corporation may be charged and
prosecuted for a crime where the penalty is fine or both
imprisonment and fine, and if found guilty, may be fined;
or (ii) a corporation may commit a crime but if the statute
prescribes the penalty therefore to be suffered by the
corporate officers, directors or employees or other
persons, the latter shall be responsible for the offense."156
Section 217 of the Intellectual Property Code states that
"any person" may be found guilty of infringement. It also
imposes the penalty of both imprisonment and fine:
Section 217. Criminal Penalties. - 217.1. Any person
infringing any right secured by provisions of Part IV of this
20
Act or aiding or abetting such infringement shall be guilty
of a crime punishable by:
(a) Imprisonment of one (1) year to three (3) years plus a
fine ranging from Fifty thousand pesos (₱50,000) to One
hundred fifty thousand pesos (₱150,000) for the first
offense.
(b) Imprisonment of three (3) years and one (1) day to six
(6) years plus a fine ranging from One hundred fifty
thousand pesos (₱150,000) to Five hundred thousand
pesos (₱500,000) for the second offense.
(c) Imprisonment of six (6) years and one (1) day to nine
(9) years plus a fine ranging from five hundred thousand
pesos (₱500,000) to One million five hundred thousand
pesos (₱1,500,000) for the third and subsequent offenses.
(d) In all cases, subsidiary imprisonment in cases of
insolvency. (Emphasis supplied) Corporations have
separate and distinct personalities from their officers or
directors.157 This court has ruled that corporate officers
and/or agents may be held individually liable for a crime
committed under the Intellectual Property Code:158
Petitioners, being corporate officers and/or directors,
through whose act, default or omission the corporation
commits a crime, may themselves be individually held
answerable for the crime. . . . The existence of the
corporate entity does not shield from prosecution the
corporate agent who knowingly and intentionally caused
the corporation to commit a crime. Thus, petitioners
cannot hide behind the cloak of the separate corporate
personality of the corporation to escape criminal liability.
A corporate officer cannot protect himself behind a
corporation where he is the actual, present and efficient
actor.159
However, the criminal liability of a corporation’s officers or
employees stems from their active participation in the
commission of the wrongful act:
The principle applies whether or not the crime requires the
consciousness of wrongdoing. It applies to those
corporate agents who themselves commit the crime and
to those, who, by virtue of their managerial positions or
other similar relation to the corporation, could be deemed
responsible for its commission, if by virtue of their
relationship to the corporation, they had the power to
prevent the act. Moreover, all parties active in promoting
a crime, whether agents or not, are principals. Whether
such officers or employees are benefited by their delictual
acts is not a touchstone of their criminal liability. Benefit is
not an operative fact.160 (Emphasis supplied) An
accused’s participation in criminal acts involving violations
of intellectual property rights is the subject of allegation
and proof. The showing that the accused did the acts or
contributed in a meaningful way in the commission of the
infringements is certainly different from the argument of
lack of intent or good faith. Active participation requires a
showing of overt physical acts or intention to commit such
acts. Intent or good faith, on the other hand, are
inferences from acts proven to have been or not been
committed.
We find that the Department of Justice committed grave
abuse of discretion when it resolved to file the Information
against respondents despite lack of proof of their actual
participation in the alleged crime.
Ordering the inclusion of respondents Gozon, GMA-7
President; Duavit, Jr., Executive Vice-President; Flores,
Vice-President for News and Public Affairs; and Soho,
Director for News, as respondents, Secretary Agra
overturned the City Prosecutor’s finding that only
respondents Dela Peña-Reyes and Manalastas are
responsible for the crime charged due to their duties.161
The Agra Resolution reads:
Thus, from the very nature of the offense and the penalty
involved, it is necessary that GMA-7’s directors, officers,
employees or other officers thereof responsible for the
offense shall be charged and penalized for violation of the
Sections 177 and 211 of Republic Act No. 8293. In their
complaint for libel, respondents Felipe L Gozon, Gilberto R.
Duavit, Jr., Marissa L. Flores, Jessica A.Soho, Grace Dela
Pena-Reyes, John Oliver T. Manalastas felt they were
aggrieved because they were "in charge of the
management, operations and production of news and
public affairs programs of the network" (GMA-7). This is
clearly an admission on respondents’ part. Of course,
respondents may argue they have no intention to infringe
the copyright of ABS-CBN; that they acted in good faith;
and that they did not directly cause the airing of the
subject footage, but again this is preliminary investigation
and what is required is simply probable cause. Besides,
these contentions can best be addressed in the course of
trial.162 (Citation omitted)
In contrast, the Office of the City Prosecutor, in the
Resolution dated December 3, 2004, found that
respondents Gozon, Duavit, Jr., Flores, and Soho did not
have active participation in the commission of the crime
charged:
This Office, however, does not subscribe to the view that
respondents Atty. Felipe Gozon, Gilberto Duavit, Marissa
Flores and Jessica Soho should be held liable for the said
offense. Complainant failed to present clear and
convincing evidence that the said respondents conspired
with Reyes and Manalastas. No evidence was adduced to
prove that these respondents had an active participation
in the actual commission of the copyright infringement or
they exercised their moral ascendancy over Reyes and
Manalastas in airing the said footage. It must be stressed
that, conspiracy must be established by positive and
conclusive evidence. It must be shown to exist as clearly
and convincingly as the commission of the offense
itself.163 (Emphasis supplied, citations omitted)
The City Prosecutor found respondents Dela Peña-Reyes
and Manalastas liable due to the nature of their work and
responsibilities. He found that:
21
[t]his Office however finds respondents Grace Dela Peña-
Reyes and John Oliver T. Manalastas liable for copyright
infringement penalized under Republic Act No. 8293. It is
undisputed that complainant ABSCBN holds the exclusive
ownership and copyright over the "Angelo [d]ela Cruz
news footage". Hence, any airing and re-broadcast of the
said footage without any consent and authority from ABS-
CBN will be held as an infringement and violation of the
intellectual property rights of the latter. Respondents
Grace Dela Peña-Reyes as the Head of the News
Operation and John Oliver T. Manalastas as the Program
Manager cannot escape liability since the news control
room was under their direct control and supervision.
Clearly, they must have been aware that the said footage
coming from Reuters or CNN has a "No Access Philippines"
advisory or embargo thus cannot be re-broadcast. We
find no merit to the defense of ignorance interposed by
the respondents. It is simply contrary to human experience
and logic that experienced employees of an established
broadcasting network would be remiss in their duty in
ascertaining if the said footage has an embargo.164
(Emphasis supplied)
We agree with the findings as to respondents Dela Peña-
Reyes and Manalastas. Both respondents committed acts
that promoted infringement of ABS-CBN’s footage. We
note that embargoes are common occurrences in and
between news agencies and/or broadcast
organizations.165 Under its Operations Guide, Reuters has
two (2) types of embargoes: transmission embargo and
publication embargo.166 Under ABS-CBN’s service
contract with Reuters, Reuters will embargo any content
contributed by ABS-CBN from other broadcast subscribers
within the same geographical location:
4a. Contributed Content
You agree to supply us at our request with news and sports
news stories broadcast on the Client Service of up to three
(3) minutes each for use in our Services on a non-exclusive
basis and at a cost of US$300.00 (Three Hundred United
States Dollars) per story. In respect of such items we agree
to embargo them against use by other broadcast
subscribers in the Territory and confirm we will observe all
other conditions of usage regarding Contributed Content,
as specified in Section 2.5 of the Reuters Business Principles
for Television Services. For the purposes of clarification, any
geographical restriction imposed by you on your use of
Contributed Content will not prevent us or our clients from
including such Contributed Content in online transmission
services including the internet. We acknowledge
Contributed Content is your copyright and we will not
acquire any intellectual property rights in the Contributed
Content.167 (Emphasis supplied)
Respondents Dela Peña-Reyes and Manalastas merely
denied receiving the advisory sent by Reuters to its clients,
including GMA-7. As in the records, the advisory reads:
ADVISORY - - +++LIVE COVER PLANS+++
PHILIPPINES: HOSTAGE RETURN
**ATTENTION ALL CLIENTS**
PLEASE BE ADVISED OF THE FOLLOWING LIVE COVER
PLANNED FOR THURSDAY, JULY 22:
....
SOURCE: ABS-CBN TV AND WEB RESTRICTIONS: NO ACCESS
PHILIPPINES.168
There is probable cause that respondents Dela Peña-
Reyes and Manalastas directly committed copyright
infringement of ABS-CBN’s news footage to warrant
piercing of the corporate veil. They are responsible in airing
the embargoed Angelo dela Cruz footage. They could
have prevented the act of infringement had they been
diligent in their functions as Head of News Operations and
Program Manager.
Secretary Agra, however, committed grave abuse of
discretion when he ordered the filing of the Information
against all respondents despite the erroneous piercing of
the corporate veil. Respondents Gozon, Duavit, Jr., Flores,
and Soho cannot be held liable for the criminal liability of
the corporation.
Mere membership in the Board or being President per se
does not mean knowledge, approval, and participation in
the act alleged as criminal. There must be a showing of
active participation, not simply a constructive one.
Under principles of criminal law, the principals of a crime
are those "who take a direct part in the execution of the
act; [t]hose who directly force or induce others to commit
it; [or] [t]hose who cooperate in the commission of the
offense by another act without which it would not have
been accomplished."169 There is conspiracy "when two or
more persons come to an agreement concerning the
commission of a felony and decide to commit it":170
In sum, the trial court erred in failing to resume the
proceedings after the designated period. The Court of
Appeals erred when it held that Secretary Agra
committed errors of jurisdiction despite its own
pronouncement that ABS-CBN is the owner of the
copyright on the news footage. News should be
differentiated from expression of the news, particularly
when the issue involves rebroadcast of news footage. The
Court of Appeals also erroneously held that good faith, as.
well as lack of knowledge of infringement, is a defense
against criminal prosecution for copyright and
neighboring rights infringement. In its current form, the
Intellectual Property Code is malum prohibitum and
prescribes a strict liability for copyright infringement. Good
faith, lack of knowledge of the copyright, or lack of intent
to infringe is not a defense against copyright infringement.
Copyright, however, is subject to the rules of fair. use and
will be judged on a case-to-case basis. Finding probable
cause includes a determination of the defendant's active
participation, particularly when the corporate veil is
pierced in cases involving a corporation's criminal liability.
WHEREFORE, the Petition is partially GRANTED. The
Department of Justice Resolution dated June 29, 2010
ordering the filing of the Information is hereby REINSTATED
as to respondents Grace Dela Pena-Reyes and John Oliver
T. Manalastas. Branch 93 of the Regional Trial Court of
Quezon City is directed to continue with the proceedings
in Criminal Case No. Q-04-131533.
SO ORDERED.

Conspiracy is not presumed. Like the physical acts

constituting the crime itself, the elements of conspiracy
must be proven beyond reasonable doubt.1âwphi1 While
conspiracy need not be established by direct evidence,
for it may be inferred from the conduct of the accused
before, during and after the commission of the crime, all
taken together, however, the evidence must be strong
enough to show the community of criminal design. For
conspiracy to exist, it is essential that there must be a
conscious design to commit an offense. Conspiracy is the
product of intentionality on the part of the cohorts.

It is necessary that a conspirator should have performed

some overt act as a direct or indirect contribution to the
execution of the crime committed. The overt act may
consist of active participation in the actual commission of
the crime itself, or it may consist of moral assistance to his
co-conspirators by being present at the commission of the
crime or by exerting moral ascendancy over the other co-
conspirators[.]171 (Emphasis supplied, citations omitted)

22

G.R. No. 178947 June 26, 2013
VIRGINIA DE LOS SANTOS-DIO, as authorized
representative of H.S. EQUITIES, LTD., and WESTDALE
ASSETS, LTD., Petitioner,
vs.
THE HONORABLE COURT OF APPEALS, JUDGE RAMON
S. CAGUIOA, in his capacity as Presiding Judge of
Branch 74, Regional Trial Court, Olongapo City, and
TIMOTHY J. DESMOND, Respondents.
x-----------------------x
G.R. No. 179079
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
TIMOTHY J. DESMOND, Respondent.
DECISION
PERLAS-BERNABE, J.:
Before the Court are consolidated petitions for review on
certiorari1 assailing the November 8, 2006 Decision2 and
July 19, 2007 Resolution3 of the Court of Appeals (CA) in
CA-G.R. SP No. 88285, upholding the validity of the trial
court’s dismissal of separate criminal informations for
estafa against private respondent Timothy J. Desmond
(Desmond) due to lack of probable cause.
The Facts
In 2001, petitioner Virginia De Los Santos-Dio (Dio), the
majority stockholder of H.S. Equities, Ltd. (HS Equities) and
authorized representative of Westdale Assets, Ltd.
(Westdale),4 was introduced to Desmond, the Chairman
and Chief Executive Officer (CEO) of the Subic Bay Marine
Exploratorium, Inc. (SBMEI), and the authorized
representative of Active Environments, Inc. and JV China,
Inc. (JV China), the majority shareholder of SBMEI.5 After
some discussion on possible business ventures, Dio, on
behalf of HS Equities, decided to invest a total of
US$1,150,000.006 in SBMEI’s Ocean Adventure Marine Park
(Ocean Adventure), a theme park to be constructed at
the Subic Bay Freeport Zone which, when operational,
would showcase live performances of false-killer whales
and sea lions. In this relation, Dio claimed that Desmond
led her to believe that SBMEI had a capital of
US$5,500,000.00, inclusive of the value of the marine
mammals to be used in Ocean Adventure,7 and also
guaranteed substantial returns on investment.8 Desmond
even presented a Business Plan, indicating that: (a) Ocean
Adventure’s "attendance will rise from 271,192 in 2001 to
just over 386,728 in 2006, with revenues rising from
US$4,420,000.00 million to US$7,290,000.00 million in the
same time frame"; (b) "early investors are expected to
reap an annual return of 23% in 2001, rising to 51% in 2006";
and (c) "fully priced shares would yield a 19% return] in
23
2001, rising to 42% in 2006."9 Thus, on January 18, 2002, a
Subscription Agreement10 was executed by Desmond, as
representative of SBMEI and JV China, and Dio, as
representative of HS Equities.
While no Certificate of Stock was issued either to HS
Equities or to Dio, HS Equities was expressly granted minority
protection rights in a subsequent Subscription and
Shareholders Agreement11 dated March 12, 2002, stating
that there shall be "a nominee of the Subscriber to be
elected as Treasurer/Chief Financial Officer, who may not
be removed by the Board of Directors without the
affirmative vote of the Subscriber."12 Accordingly, Dio was
elected as a member of SBMEI’s Board of Directors and
further appointed as its Treasurer.13 The parties later
executed two (2) Investor’s Convertible Promissory Notes –
one dated April 4, 200114 and another dated May 8,
200115 – covering HS Equities’ infusion of a total of
US$1,000,000.00 for the purpose of purchasing machinery,
equipment, accessories, and materials to be used for the
construction of Ocean Adventure.
In June 2002, Dio, this time on behalf of Westdale, invested
another US$1,000,000.0016 in a separate business venture,
called the Miracle Beach Hotel Project (Miracle Beach),
which involved the development of a resort owned by
Desmond adjoining Ocean Adventure. They agreed that
the said investment would be used to settle SBMEI’s
₱40,000,000.00 loan obligation to First Metro Investment
Corporation and for the construction of 48 lodging
units/cabanas.17 However, when the corresponding
subscription agreement was presented to Dio by SBMEI for
approval, it contained a clause stating that the "funds in
the Subscription Bank Account" were also to be used for
the "funding of Ocean Adventure’s Negative Cash Flow
not exceeding US$200,000.00."18 This was in conflict with
the exclusive purpose and intent of Westdale’s investment
in Miracle Beach and as such, Dio refused to sign the
subscription agreement.
Dio further claimed that she found out that, contrary to
Desmond’s representations, SBMEI actually had no
capacity to deliver on its guarantees, and that in fact, as
of 2001, it was incurring losses amounting to
₱62,595,216.00.19 She likewise claimed to have discovered
false entries in the company’s books and financial
statements – specifically, its overvaluation of the marine
animals and its non-disclosure of the true amount of JV
China’s investment20 – which prompted her to call for an
audit investigation. Consequently, Dio discovered that,
without her knowledge and consent, Desmond made
certain disbursements from Westdale’s special account,
meant only for Miracle Beach expenditures (special
account), and diverted a total of US$72,362.78 therein for
the operating expenses of Ocean Adventure.21 When
Desmond refused to execute an undertaking to return the
diverted funds, Dio, in her capacity as Treasurer of SBMEI,
suspended the release of the remaining funds in the
aforesaid special account.22
Eventually, after Dio was ousted as Director and Treasurer
of SBMEI,23 she filed, on April 19, 2004, two (2) criminal
complaints24 (subject criminal complaints) for estafa (a)
through false pretenses under Article 315(1)(b)25 of the
Revised Penal Code26 (RPC); and (b) with unfaithfulness
or abuse of confidence through misappropriation or
conversion under Article 315(2)(a)27 of the RPC, both
against Desmond before the Olongapo City Prosecutor’s
Office (City Prosecutor’s Office), docketed as IS Nos. 04-M-
992 and 04-M-993.
In defense, Desmond maintained that his representation
of himself as Chairman and CEO of SBMEI was not a sham
and that Dio has not even proven that he did not have the
expertise and qualifications to double her investment.
Among others, he also denied having been fired from
Beijing Landa Aquarium Co. Ltd. for his supposed
incompetence and mismanagement. He further asserted
that it was not deceitful to value the marine mammals at
US$3,720,000.00 as equity contribution of JV China in
SBMEI, notwithstanding the fact that two (2) false killer
whales had already perished before the company could
start operations. This is because the said valuation, in any
case, would be based on the collective income-earning
capacity of the entire animal operating system derived
from revenues generated by marine park attendance and
admission fees.28
In reply, Dio insisted that SBMEI, at the outset, never had
sufficient assets or resources of its own because, contrary
to Desmond’s claims, the total amount of US$2,300,000.00
it purportedly invested in buildings and equipment actually
came from the investments Dio’s company made in
SBMEI.29
After the preliminary investigation, the City Prosecutor
issued a Resolution30 dated August 26, 2004, finding
probable cause against Desmond for the
abovementioned crimes, to wit:
The foregoing clearly applies in the instant two (2) cases as
borne out by the following facts, to with [sic]: (1) Desmond,
as the Chairman and Chief Executive Office of SBMEI and
in order to persuade Dio to invest, represented that he
possessed the necessary influence, expertise and
resources (in terms of credit and property) for the project
knowing the same to be false as he never had the capital
for the project as borne out by his correspondences with
Dio; and (2) Dio fell for these misrepresentations and the
lure of profit offered by Desmond, thereby being induced
to invest the amounts of $1,150,000.00 and $1,000,000.00 to
the damage and prejudice of her company.
The elements of the crimes charged were thus established
in these cases, namely Dio parted with her money upon
the prodding and enticement of respondent on the false
pretense that he had the capacity and resources for the
proposed project. In the end, Dio was not able to get her
money back, thus causing her damage and prejudice.
Moreover, such defraudation or misappropriation having
been committed by Desmond through his company SBMEI
involving funds solicited from Dio as a member of the
general public in contravention of the public interest, the
probable cause clearly exists to indict Desmond for the
24
crime of Estafa under Article 315 (1)(b) and (2)(a) of the
Revised Penal Code in relation to PD No. 1689.31
In view of the foregoing, corresponding criminal
informations32 (subject informations) were filed with the
Regional Trial Court of Olongapo City, Branch 74 (RTC),
docketed as Criminal Case Nos. 516-2004 and 515-2004.
The accusatory portions thereof read as follows:
Criminal Case No. 516-200433
That in or about and sometime in early 2001, in Olongapo
City, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, being the
officer of Subic Bay Marine Exploration, Inc. (SBMEI), acting
as a syndicate and by means of deceit, did then and
there, willfully, unlawfully and feloniously defraud H.S.
EQUITIES LIMITED, represented in this case by Virginia S.
Delos Santos-Dio in the following manner, to wit: the said
accused by means of false manifestations and fraudulent
representations which he made to said Virginia S. Delos
Santos-Dio to the effect that he had the expertise and
qualifications, as well as the resources, influence, credit
and business transaction with the Subic Bay Metropolitan
Authority (SBMA) and other financing institutions to ensure
the viability of the Subic Bay Marine Exploration Ocean
Adventure Project (SBMEOA), which he represented to be
a qualified and legally existing investment enterprise with
capacity to solicit investment from the general public, by
submitting documents for the purpose, which
representations he knew to be false and fraudulent and
the supporting documents are similarly spurious and were
only made in order to induce said Virginia S. Delos Santos-
Dio to invest and deliver as in fact she invested and
delivered a total amount of One Million One Hundred Fifty
Thousand US Dollars ($1,150,000.00) to the said accused on
the strength of said manifestations and representations
and supporting documents, and said accused, once in
possession of the said amount, misapplied, converted and
misappropriated the same to his own personal use and
benefit, to the damage and prejudice of H.S. Equities
Limited in the amount of US $1,150,000.00 or
Php57,500,000.00 Pesos, the dollar computed at the rate
of Php 50.00 to [US]$1.00 which was the prevailing rate of
exchange of a dollar to peso at the time of the commission
of the offense.
CONTRARY TO LAW.
Criminal Case No. 515-200434
That in or about and sometime during the period from
June 2002 to July 2002, in Olongapo City, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, did then and there, willfully, unlawfully
and feloniously defraud Westdale Assets, Limited
represented in this case by Virginia S. Delos Santos-Dio in
the following manner to wit: the said accused received in
trust and for administration from the said Virginia S. Delos
Santos-Dio the amount of One Million US Dollars
($1,000,000.00) under the express obligation of using the
same to pay the loan facility of the Subic Bay Marine
Exploration, Inc. (SBMEI) with First Metro Investment
Corporation and to fund the construction and
development of the Miracle Beach Project but the said
accused, once in possession of the said amount, with
grave abuse of confidence and with intent to defraud,
misapplied, misappropriated and converted the same for
his own use and benefit by devoting it to a purpose or use
different from that agreed upon and despite repeated
demands made upon him to account for and to return the
said amount, he failed and refused and still fails and
refuses to do so, to the damage and prejudice of the said
Westdale Assets, Limited in the amount of US $1,000,000.00
or its equivalent to FIFTY MILLION (Php 50,000,000.00) Pesos,
Philippine Currency, the dollar being computed at the rate
of Php50.00 to $ 1.00 which was the prevailing rate of
exchange at the commission of the offense, to the
damage and prejudice of the latter in the
aforementioned amount.
CONTRARY TO LAW.
Aggrieved, Desmond filed a Motion for Reconsideration,35
as well as a Motion to Withdraw Filed Informations.36 He
also filed before the RTC a Motion to Defer Further
Proceedings and to Defer Issuance of Warrant of Arrest37
but subsequently withdrew the same and filed, instead, a
Motion for Judicial Determination of Probable Cause.38
The RTC Ruling
In an Order39 dated October 21, 2004, the RTC ruled in
favor of Desmond and declared that no probable cause
exists for the crimes charged against him since the
elements of estafa were not all present, to wit:
First, the element of misrepresentation or deceit found in
par. 2 (a) Article 315 of the Revised Penal Code is absent.
It must be emphasized that the promises allegedly made
to the complainant by the accused that her company’s
investment will significantly increase, clearly appeared in
the Subic Bay Marine Exploration, Inc.’s ("SBMEI", for
brevity) printed business plan dated January 12, 2001
(Annex "A", Complaint-Affidavit dated 19 April 2004).
Verily, this is SBMEI’s representation or "come on" to would-
be investors and not a personal assurance of the accused.
The fact that accused was the company’s Chief Executive
Officer and Chairman of the Board of Directors is of no
moment in the absence of any evidence to show that
accused personally prepared the business plan thereby
making the alleged "rosy picture" his own personal
enticements to the complainant. Therefore, there being a
dearth of evidence pointing to the accused as author of
the SBMEI’s business plan, any misrepresentation or deceit
committed cannot be personally attributed to him.
Furthermore, the court cannot find any sufficient evidence
that the accused personally assured the complainant
about his so-called power, influence and credit with the
SBMA and other financial institutions that would
supposedly insure the viability and profitability of the
project. Note that nowhere in the Complaint-Affidavit of
the private complainant are there specific factual
25
allegations that would show that the accused had
personal business meetings with the SBMA and said
financial institutions. As to how and in what manner and
scope accused exercised such alleged power, influence
and credit over these juridical entities remain a bare and
self-serving averment in the absence of any factual detail
or account.
Finally, it cannot be gainsaid [sic] that accused was the
one who personally valuated the marine mammals
contributed by JV China Incorporated to the Subic Bay
Marine Exploration, Inc. as capital amounting to US$3.724
Million. Evidence clearly point to an independent
valuation done by a third party namely Beijing Landa
Aquarium that valued the marine mammals under the
Buy-Out Agreement dated September 9, 1998. Needless to
state, the onus is on complainant to controvert this
valuation. Again, however, no adequate proof was
adduced along this line.
Second, the element of personal misappropriation by the
accused under par. 1(b) Article 315 of the Revised Penal
Code is likewise not present. While it may be conceded
that there was money utilized to pay salaries of expatriates
and staff as well as the cost of utilities amounting to
US$72,272.00 complainant failed to show that said money
was taken from her companies’ investments in SBMEI. It
must be pointed out that other than complainant’s bare
allegation, there was no document presented
categorically stating that the investment of complainant’s
companies were earmark for a particular payment or
project. Hence, when the investment entered SBMEI’s
financial coffers, the same presumably were co-mingled
with other monies of the corporation.
Moreover and more revealing, is the fact that again there
was no showing that it was accused who personally
caused the payment of these expenses allegedly in
violation of the objective of the investment. It must be
noted that SBMEI is a corporation and not a single
proprietorship. Being a corporation, expenses paid of such
a kind as utilities and salaries are not authorized personally
and solely by the President nor the Chief Executive Officer
nor even by the Chairman of the Board for that matter.
These are corporate acts that are passed through board
resolutions. Hence, these corporate acts can in no way be
considered personal acts of the accused. Yet, he was
singled out among all 5 members of the Board of Directors
who presumably, in the ordinary course of business,
approved by resolution the payments of such utilities and
salaries. Consequently, there is again insufficiency of
evidence that the accused alone caused the payment of
these salaries and utilities for the sole purpose of pocketing
the money thereby using the same for personal gain.40
Consequently, the RTC denied the issuance of a warrant
of arrest and hold departure order against Desmond and
ordered the dismissal of the cases against him:
WHEREFORE, foregoing considered, the subject motion for
judicial determination of probable cause is favorably
granted. There being no probable cause, the cases
against the accused must be dismissed as they are hereby
DISMISSED. The motions to issue warrant of arrest and Hold
Departure Order as well as the prayer for provisional
remedy are necessarily DENIED.
SO ORDERED.41
Given the RTC’s dismissal of the foregoing criminal cases,
the City Prosecutor’s Office filed motion for
reconsideration which was, however, denied. As such, it
filed a petition for certiorari and mandamus42 before the
CA on the ground of grave abuse of discretion. Relatedly,
Dio also filed a petition-in-intervention43 before the CA,
praying for the reinstatement of the subject criminal
complaints.
The CA Ruling
In its November 8, 2006 Decision,44 the CA upheld the
RTC’s authority to dismiss a criminal case if in the process
of determining probable cause for issuing a warrant of
arrest, it also finds the evidence on record insufficient to
establish probable cause. It explained that such dismissal
is an exercise of judicial discretion sanctioned under
Section 6(a), Rule 112 of the Revised Rules of Criminal
Procedure. On this score, the CA evaluated the evidence
presented and agreed with the RTC’s conclusions that
there was no sufficient basis showing that Desmond
committed estafa by means of false pretenses. Neither
was it established that the money sourced from petitioner
Dio was converted by respondent Desmond for some
other purpose other than that for which it was intended.
Pertinent portions of the CA Decision restated the RTC’s
observations in this wise:
In the instant case, the alleged false representations by
Desmond which allegedly induced private complainants
H.S. Equities, Ltd. ("H.S. Equities") and Dio, to part with their
money are not supported by the facts on record. First, the
alleged false representation employed by Desmond with
respect to his expertise and qualifications in the form of
influence, credit and business transactions with the Subic
Bay Metropolitan Authority (SBMA) and financial
institutions and such resources to enable private
complainants to double its investment with SBMEI has not
been shown to be false.
Indeed, nowhere in the documentary evidence presented
by private complainants that allegedly contained the
above false representations does it show that it was private
respondent himself who made such representation.
Notably, the SBMEI’s Business Plan dated January 12, 2001
to which private complainants anchor such allegation
does not indicate that the representations made therein
came personally from Desmond. In addition, neither does
it appear from such document that the statements therein
were used as a form of a personal assurance coming from
Desmond that private complainants would indeed double
the amount they had invested with SBMEI. If at all, we
agree with the trial court that statements made in the said
business plan were merely a form of enticement to
26
encourage would-be investors from [sic] investing in such
kind of business undertaking.
Moreover, we likewise agree with the trial court that no
factual allegations were made by private complainants as
to how such false pretense of power and influence was
made upon them by Desmond and which convinced
private complainants to part with their money. It bears
stressing that the allegations of false pretense of power
and influence in a case of estafa are mere conclusions of
law which must be substantiated at the very least by
circumstances which would show that the person
accused of committing estafa did indeed commit acts of
false representations. As the records show, there was no
misrepresentation on the part of Desmond that he is the
Chairman and Chief Executive Officer of SBMEI which is a
corporation engaged in the business of developing
marine parks. Significantly, the records likewise show that
SBMEI did indeed build and develop a marine park in Subic
Bay (Ocean Adventure) for the purposes stated in its
business plan and had entered into a long-term lease
agreement with SBMA. Documentary evidence in the form
of the Report of Independent Auditors to SBMEI shows the
amount of investment the corporation had invested in the
said business undertaking. For instance, the corporation
had invested the amount of ₱106,788,219.00 in buildings
and equipment alone. It has also assets consisting of
marine mammals which are necessary for the operation of
the marine park. In this respect, we cannot subscribe to
private complainants’ contention that there was
misrepresentation on the part of private respondent that
he had overvalued the worth of the marine mammals it
had purchased from Beijing Landa Aquarium Co., Ltd. of
the Republic of China. This claim of private complainants
of the deceitful acts employed by Desmond in overpricing
the value of the marine animals for US$3.724 Million when
in fact the sea animals were only valued for one U.S. dollar
was not corroborated by the evidence on hand.
xxxx
In the same manner, the facts in the case at bar that
would allegedly constitute a criminal charge of estafa
under par. 1(b) are wanting. Be it noted that under the said
paragraph, estafa with unfaithfulness or abuse of
confidence through misappropriation or conversion of the
money, goods or any other personal property must be
received in trust, on commission, for administration, or
under any other obligation which involves the duty to
make delivery thereof or to return the same. It is not amiss
to note that a perusal of private complainants’ Complaint-
Affidavit shows that subject money in the amount of
US$1,000,000.00 to be used for the Miracle Beach Project
was placed in a special account with Equitable-PCI Bank.
As the records show, the said funds were placed by Dio
under the control of Fatima Paglicawan, an employee of
Westdale, such that, no money can be withdrawn from
the special account without the signature of the said
employee, Desmond and a certain John Corcoran.
Therefore, at such time, it cannot be said that the funds
were received for administration or already under the
juridical possession of Desmond. Meanwhile, we would like
to emphasize that to constitute conversion, it presupposes
that the thing has been devoted to a purpose or use
different from that agreed upon. Verily, a facial
examination of the Journal Voucher and Check Voucher
pertaining to the withdrawals made on such account
clearly shows that the disbursements were not only
authorized by Paglicawan but likewise indicated that the
purpose for such withdrawals was to cover payments for
BIR taxes and the salaries of local employees and
expatriates.
To repeat, these withdrawals as well as the purpose
thereof were known to Paglicawan when [sic] she
authorized the disbursements. Paglicawan, who was
designated by private complainant Dio to control the
release of the said funds is presumed to have acted under
the latter’s authority. Such miscommunication between
Dio and Paglicawan with respect to the purpose of the
funds does not make out a case of estafa there being no
abuse of confidence or conversion to speak of taking into
account that the said funds were released under the
presumed authority of private complainants through
Paglicawan, and which were indeed used for the purpose
for which it was withdrawn. That being the case, there can
be no damage or prejudice to Westdale and Dio as there
was no disturbance in the property rights of Westdale and
Dio in the said funds since the same were used for the
purpose for which it was disbursed.
Then again, we agree with the trial court that there is no
sufficient evidence adduced to support the criminal
charges of estafa against Desmond. As pointed out by the
trial court, while private respondent is the Chairman and
Chief Executive Officer of SBMEI, there is no showing that
he had personally and solely authorized the application of
the above funds for the payment of expenses not directly
connected with the Miracle Beach Project. Nor does it
appear that as Chairman and Chief Executive Officer,
Desmond has been appointed to execute, on his own,
such corporate acts.45 (Citations omitted)
The City Prosecutor and Dio filed their respective motions
for reconsideration which were both denied in a
Resolution46 dated July 19, 2007.
Hence, the instant petitions.
The Issue Before the Court
The primordial issue in this case is whether or not the CA
erred in finding no grave abuse of discretion on the part of
the RTC when it dismissed the subject informations for lack
of probable cause.
The Court’s Ruling
The petitions are meritorious.
Determination of probable cause may be either executive
or judicial.
27
The first is made by the public prosecutor, during a
preliminary investigation, where he is given broad
discretion to determine whether probable cause exists for
the purpose of filing a criminal information in court.
Whether or not that function has been correctly
discharged by the public prosecutor, i.e., whether or not
he has made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial court
itself does not and may not be compelled to pass upon.47
The second is one made by the judge to ascertain whether
a warrant of arrest should be issued against the accused.
In this respect, the judge must satisfy himself that, on the
basis of the evidence submitted, there is a necessity for
placing the accused under custody in order not to
frustrate the ends of justice. If the judge, therefore, finds no
probable cause, the judge cannot be forced to issue the
arrest warrant.48 Notably, since the judge is already duty-
bound to determine the existence or non-existence of
probable cause for the arrest of the accused immediately
upon the filing of the information, the filing of a motion for
judicial determination of probable cause becomes a
mere superfluity,49 if not a deliberate attempt to cut short
the process by asking the judge to weigh in on the
evidence without a full-blown trial.
In the case of Co v. Republic,50 the Court emphasized the
settled distinction between an executive and a judicial
determination of probable cause, viz:51
We reiterate that preliminary investigation should be
distinguished as to whether it is an investigation for the
determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of
a probable cause for the issuance of a warrant of arrest.
The first kind of preliminary investigation is executive in
nature. It is part of the prosecution's job.1âwphi1 The
second kind of preliminary investigation which is more
properly called preliminary examination is judicial in nature
and is lodged with the judge.
On this score, it bears to stress that a judge is not bound by
the resolution of the public prosecutor who conducted the
preliminary investigation and must himself ascertain from
the latter’s findings and supporting documents whether
probable cause exists for the purpose of issuing a warrant
of arrest. This prerogative is granted by no less than the
Constitution which provides that "no warrant of arrest shall
issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce."52
While a judge’s determination of probable cause is
generally confined to the limited purpose of issuing arrest
warrants, Section 5(a),53 Rule 112 of the Revised Rules of
Criminal Procedure explicitly states that a judge may
immediately dismiss a case if the evidence on record
clearly fails to establish probable cause,54 viz:
SEC. 5. When warrant of arrest may issue. – (a) By the
Regional Trial Court. – Within ten (10) days from the filing of
the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the
case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue
a warrant of arrest, or a commitment order if the accused
had already been arrested, pursuant to a warrant issued
by the judge who conducted preliminary investigation or
when the complaint or information was filed pursuant to
Section 7 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to
present additional evidence within five (5) days from
notice and the issue must be resolved by the court within
thirty (30) days from the filing of the complaint or
information. (Emphasis and underscoring supplied)
In this regard, so as not to transgress the public
prosecutor’s authority, it must be stressed that the judge’s
dismissal of a case must be done only in clear-cut cases
when the evidence on record plainly fails to establish
probable cause – that is when the records readily show
uncontroverted, and thus, established facts which
unmistakably negate the existence of the elements of the
crime charged. On the contrary, if the evidence on record
shows that, more likely than not, the crime charged has
been committed and that respondent is probably guilty of
the same, the judge should not dismiss the case and
thereon, order the parties to proceed to trial. In doubtful
cases, however, the appropriate course of action would
be to order the presentation of additional evidence.55
In other words, once the information is filed with the court
and the judge proceeds with his primordial task of
evaluating the evidence on record, he may either: (a)
issue a warrant of arrest, if he finds probable cause; (b)
immediately dismiss the case, if the evidence on record
clearly fails to establish probable cause; and (c) order the
prosecutor to submit additional evidence, in case he
doubts the existence of probable cause.56
probable cause can be clearly inferred from the evidence
presented and not when its existence is simply doubtful.
After all, it cannot be expected that upon the filing of the
information in court the prosecutor would have already
presented all the evidence necessary to secure a
conviction of the accused, the objective of a previously-
conducted preliminary investigation being merely to
determine whether there is sufficient ground, to engender
a well-founded belief that a crime has been committed
and that the respondent is probably guilty thereof and
should be held for trial.59 In this light, given that the lack of
probable cause had not been clearly established in this
case, the CA erred, and the RTC gravely abused its
discretion, by ruling to dismiss Criminal Case Nos. 515-2004
and 516-2004. Indeed, these cases must stand the muster
of a full-blown trial where the parties could be given, as
they should be given, the opportunity to ventilate their
respective claims and defenses, on the basis of which the
court a quo can properly resolve the factual disputes
therein.
WHEREFORE, the petitions are GRANTED. The November 8,
2006 Decision and July 19, 2007 Resolution of the Court of
Appeals in CA G.R. SP No. 88285 which affirmed the
October 21, 2004 Order of Dismissal issued by the Regional
Trial Court of Olongapo City, Branch 74 are SET ASIDE. The
two (2) criminal informations for estafa against respondent
Timothy J. Desmond in Criminal Case Nos. 515-2004 and
516-2004 are hereby REINSTATED. Accordingly, the trial
court is directed to proceed with the arraignment of the
accused and the trial of the case with dispatch.
SO ORDERED.

Applying these principles, the Court finds that the RTC’s

immediate dismissal, as affirmed by the CA, was improper
as the standard of clear lack of probable cause was not
observed. In this case, records show that certain essential
facts – namely, (a) whether or not Desmond committed
false representations that induced Dio to invest in Ocean
Adventure; and (b) whether or not Desmond utilized the
funds invested by Dio solely for the Miracle Beach Project
for purposes different from what was agreed upon –
remain controverted. As such, it cannot be said that the
absence of the elements of the crime of estafa under
Article 315(2)(a)57 and 315(1) (b)58 of the RPC had
already been established, thereby rendering the RTC’s
immediate dismissal of the case highly improper.

Lest it be misconceived, trial judges will do well to

remember that when a perceived gap in the evidence
leads to a "neither this nor that" conclusion, a purposeful
resolution of the ambiguity is preferable over a doubtful
dismissal of the case. Verily, a judge's discretion to dismiss
a case immediately after the filing of the information in
court is appropriate only when the failure to establish

28
G.R. No. 197293 April 21, 2014
ALFREDO C. MENDOZA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC.,
Respondents.
DECISION
LEONEN, J.:
While the determination of probable cause to charge a
person of a crime is the sole function of the. prosecutor,
the trial court may, in the protection of one's fundamental
right to liberty, dismiss the case if, upon a personal
assessment of the evidence, it finds that the evidence
does not establish probable cause.
This is a petition for review on certiorari1 assailing the Court
of Appeals' decision2 dated January 14, 2011, which
reversed the Regional Trial Court's dismissal of the
complaint against petitioner Alfredo C. Mendoza for
qualified theft and estafa.
This case stems from a complaint-affidavit filed by Juno
Cars, Inc. through its representative, Raul C. Evangelista,
on January 8, 2008 for qualified theft and estafa against
Alfredo.3
In the complaint-affidavit, Juno Cars alleged that on June
2, 2007, it hired Alfredo as Trade-In/Used Car Supervisor. On
November 19, 2007, its Dealer/Operator, Rolando Garcia,
conducted a partial audit of the used cars and discovered
that five (5) cars had been sold and released by Alfredo
without Rolando’s or the finance manager’s permission.4
The partial audit showed that the buyers of the five cars
made payments, but Alfredo failed to remit the payments
totalling ₱886,000.00. It was further alleged that while there
were 20 cars under Alfredo’s custody, only 18 were
accounted for. Further investigation revealed that Alfredo
failed to turn over the files of a 2001 Hyundai Starex and a
Honda City 1.5 LXI. Juno Cars alleged that taking into
account the unremitted amounts and the acquisition cost
of the Honda City, Alfredo pilfered a total amount of
₱1,046,000.00 to its prejudice and damage.5
In his counter-affidavit, Alfredo raised, among others, Juno
Cars’ supposed failure to prove ownership over the five (5)
cars or its right to possess them with the purported
unremitted payments. Hence, it could not have suffered
damage.6
On March 4, 2008, Provincial Prosecutor Rey F. Delgado
issued a Resolution7 finding probable cause and
recommending the filing of an information against Alfredo
for qualified theft and estafa.
Alfredo moved for reconsideration, but the motion was
denied.8 He then filed a petition for review with the
Department of Justice on May 16, 2008.9
29
While Alfredo’s motion for reconsideration was still pending
before the Office of the City Prosecutor of Mandaluyong,
two informations for qualified theft10 and estafa11 were
filed before the Regional Trial Court, Branch 212,
Mandaluyong City. On March 31, 2008, Alfredo filed a
motion for determination of probable cause12 before the
trial court. On April 28, 2008, he also filed a motion to defer
arraignment.
Several clarificatory hearings were scheduled but were
not conducted.13 On February 4, 2009, the parties agreed
to submit all pending incidents, including the clarificatory
hearing, for resolution.14
On March 3, 2009, the trial court, through Presiding Judge
Rizalina Capco-Umali, issued an order15 dismissing the
complaint, stating that:
After conducting an independent assessment of the
evidence on record which includes the assailed Resolution
dated 04 March 2008, the court holds that the evidence
adduced does not support a finding of probable cause for
the offenses of qualified theft and estafa. x x x.16
Juno Cars filed a motion for reconsideration, which the trial
court denied on July 3, 2009.17
Juno Cars then filed a petition for certiorari with the Court
of Appeals, arguing that the trial court acted without or in
excess of its jurisdiction and with grave abuse of discretion
when it dismissed the complaint. It argued that "the
determination of probable cause and the decision
whether or not to file a criminal case in court, rightfully
belongs to the public prosecutor."18
On January 14, 2011, the Court of Appeals rendered a
decision,19 reversed the trial court, and reinstated the
case. In its decision, the appellate court ruled that the trial
court acted without or in excess of its jurisdiction "in
supplanting the public prosecutor’s findings of probable
cause with her own findings of insufficiency of evidence
and lack of probable cause."20
Aggrieved, Alfredo filed a petition for review under Rule 45
before this court. In essence, he argued that the trial court
was correct in finding that there was no probable cause
as shown by the evidence on record. He argued that
"judicial determination of probable cause is broader than
[the] executive determination of probable cause"21 and
that "[i]t is not correct to say that the determination of
probable cause is exclusively vested on the prosecutor x x
x."22
In its comment,23 Juno Cars argued that Alfredo
presented questions, issues, and arguments that were a
mere rehash of those already considered and passed
upon by the appellate court.
The Office of the Solicitor General, arguing for public
respondent, stated in its comment24 that the appellate
court correctly sustained the public prosecutor in his
findings of probable cause against Alfredo. Since there
was no showing of grave abuse of discretion on the part
of Prosecutor Rey F. Delgado, the trial court should respect
his determination of probable cause.
In his reply,25 Alfredo reiterated that "judicial
determination of probable cause[,] while not a superior
faculty[,] covers a broader encompassing perspective in
the disposition of the issue on the existence of probable
cause."26 He argued that the findings of the trial court
should be accorded greater weight than the appellate
court’s. It merely reviewed the findings of the trial court.
The primordial issue is whether the trial court may dismiss
an information filed by the prosecutor on the basis of its
own independent finding of lack of probable cause.
Time and again, this court has been confronted with the
issue of the difference between the determination of
probable cause by the prosecutor on one hand and the
determination of probable cause by the judge on the
other. We examine these two concepts again.
Juno Cars filed a complaint against Alfredo for qualified
theft27 and estafa under Article 315, fourth paragraph, no.
3(c)28 of the Revised Penal Code. Since qualified theft is
punishable by reclusion perpetua, a preliminary
investigation must first be conducted "to determine
whether there is sufficient ground to engender a well-
founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held
for trial," in accordance with Rule 112, Section 1 of the
Rules on Criminal Procedure.
At this stage, the conduct of the preliminary investigation
and the subsequent determination of the existence of
probable cause lie solely within the discretion of the public
prosecutor.29 If upon evaluation of the evidence, the
prosecutor finds sufficient basis to find probable cause, he
or she shall then cause the filing of the information with the
court.
Once the information has been filed, the judge shall then
"personally evaluate the resolution of the prosecutor and
its supporting evidence"30 to determine whether there is
probable cause to issue a warrant of arrest. At this stage,
a judicial determination of probable cause exists.
In People v. Castillo and Mejia,31 this court has stated:
There are two kinds of determination of probable cause:
executive and judicial. The executive determination of
probable cause is one made during preliminary
investigation. It is a function that properly pertains to the
public prosecutor who is given a broad discretion to
determine whether probable cause exists and to charge
those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise
stated, such official has the quasi-judicial authority to
determine whether or not a criminal case must be filed in
court. Whether or not that function has been correctly
discharged by the public prosecutor, i.e., whether or not
he has made a correct ascertainment of the existence of
30
probable cause in a case, is a matter that the trial court
itself does not and may not be compelled to pass upon.
The judicial determination of probable cause, on the other
hand, is one made by the judge to ascertain whether a
warrant of arrest should be issued against the accused.
The judge must satisfy himself that based on the evidence
submitted, there is necessity for placing the accused
under custody in order not to frustrate the ends of justice.
If the judge finds no probable cause, the judge cannot be
forced to issue the arrest warrant.32
The difference is clear: The executive determination of
probable cause concerns itself with whether there is
enough evidence to support an Information being filed.
The judicial determination of probable cause, on the other
hand, determines whether a warrant of arrest should be
issued. In People v. Inting:33
x x x Judges and Prosecutors alike should distinguish the
preliminary inquiry which determines probable cause for
the issuance of a warrant of arrest from the preliminary
investigation proper which ascertains whether the
offender should be held for trial or released. Even if the two
inquiries are conducted in the course of one and the same
proceeding, there should be no confusion about the
objectives. The determination of probable cause for the
warrant of arrest is made by the Judge. The preliminary
investigation proper—whether or not there is reasonable
ground to believe that the accused is guilty of the offense
charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of
trial—is the function of the Prosecutor.34 (Emphasis
supplied)
While it is within the trial court’s discretion to make an
independent assessment of the evidence on hand, it is
only for the purpose of determining whether a warrant of
arrest should be issued. The judge does not act as an
appellate court of the prosecutor and has no capacity to
review the prosecutor’s determination of probable cause;
rather, the judge makes a determination of probable
cause independent of the prosecutor’s finding.
People v. Court of Appeals and Jonathan Cerbo35
discussed the rationale. In that case, Jonathan Cerbo
allegedly shot Rosalinda Dy in the presence of his father,
Billy Cerbo. An information for murder was filed against
Jonathan Cerbo. The daughter of Rosalinda Dy, as private
complainant, executed a complaint-affidavit charging
Billy Cerbo with conspiracy. The prosecutor then filed a
motion to amend the information, which was granted by
the court. The information was then amended to include
Billy Cerbo as one of the accused, and a warrant of arrest
was issued against him.
Billy Cerbo filed a motion to quash the warrant arguing
that it was issued without probable cause. The trial court
granted this motion, recalled the warrant, and dismissed
the case against him. The Court of Appeals affirmed this
dismissal. This court, however, reversed the Court of
Appeals and ordered the reinstatement of the amended
information against Billy Cerbo, stating that:
In granting this petition, we are not prejudging the criminal
case or the guilt or innocence of Private Respondent Billy
Cerbo. We are simply saying that, as a general rule, if the
information is valid on its face and there is no showing of
manifest error, grave abuse of discretion or prejudice on
the part of the public prosecutor, courts should not dismiss
it for ‘want of evidence,’ because evidentiary matters
should be presented and heard during the trial. The
functions and duties of both the trial court and the public
prosecutor in "the proper scheme of things" in our criminal
justice system should be clearly understood.
The rights of the people from what could sometimes be an
"oppressive" exercise of government prosecutorial powers
do need to be protected when circumstances so require.
But just as we recognize this need, we also acknowledge
that the State must likewise be accorded due process.
Thus, when there is no showing of nefarious irregularity or
manifest error in the performance of a public prosecutor’s
duties, courts ought to refrain from interfering with such
lawfully and judicially mandated duties.
In any case, if there was palpable error or grave abuse of
discretion in the public prosecutor’s finding of probable
cause, the accused can appeal such finding to the justice
secretary and move for the deferment or suspension of the
proceedings until such appeal is resolved.36 (Emphasis
supplied)
In this case, the resolution dated March 4, 2008 of
Prosecutor Rey F. Delgado found that the facts and
evidence were "sufficient to warrant the indictment of
[petitioner] x x x."37 There was nothing in his resolution
which showed that he issued it beyond the discretion
granted to him by law and jurisprudence.
While the information filed by Prosecutor Delgado was
valid, Judge Capco-Umali still had the discretion to make
her own finding of whether probable cause existed to
order the arrest of the accused and proceed with trial.
Jurisdiction over an accused is acquired when the warrant
of arrest is served. Absent this, the court cannot hold the
accused for arraignment and trial.
Article III, Section 2 of the Constitution states:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after
examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly
describing the place to be searched and the persons or
things to be seized.
31
The Constitution prohibits the issuance of search warrants
or warrants of arrest where the judge has not personally
determined the existence of probable cause. The phrase
"upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce" allows a
determination of probable cause by the judge ex parte.
For this reason, Section 6, paragraph (a) of Rule 112 of the
Rules on Criminal Procedure mandates the judge to
"immediately dismiss the case if the evidence on record
fails to establish probable cause." Section 6, paragraph (a)
of Rule 112 reads:
Section 6. When warrant of arrest may issue. — (a) By the
Regional Trial Court. — Within ten (10) days from the filing
of the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the
case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue
a warrant of arrest, or a commitment order if the accused
has already been arrested pursuant to a warrant issued by
the judge who conducted the preliminary investigation or
when the complaint or information was filed pursuant to
section 7 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to
present additional evidence within five (5) days from
notice and the issue must be resolved by the court within
thirty (30) days from the filing of the complaint of
information.
In People v. Hon. Yadao:38
Section 6, Rule 112 of the Rules of Court gives the trial court
three options upon the filing of the criminal information: (1)
dismiss the case if the evidence on record clearly failed to
establish probable cause; (2) issue a warrant of arrest if it
finds probable cause; and (3) order the prosecutor to
present additional evidence within five days from notice in
case of doubt as to the existence of probable cause.
But the option to order the prosecutor to present
additional evidence is not mandatory.1âwphi1 The court’s
first option under the above is for it to "immediately dismiss
the case if the evidence on record clearly fails to establish
probable cause." That is the situation here: the evidence
on record clearly fails to establish probable cause against
the respondents.39 (Emphasis supplied)
It is also settled that "once a complaint or information is
filed in court, any disposition of the case, whether as to its
dismissal or the conviction or the acquittal of the accused,
rests in the sound discretion of the court."40
In this case, Judge Capco-Umali made an independent
assessment of the evidence on record and concluded
that "the evidence adduced does not support a finding of
probable cause for the offenses of qualified theft and
estafa."41 Specifically, she found that Juno Cars "failed to
prove by competent evidence"42 that the vehicles
alleged to have been pilfered by Alfredo were lawfully
possessed or owned by them, or that these vehicles were
received by Alfredo, to be able to substantiate the charge
of qualified theft. She also found that the complaint "[did]
not state with particularity the exact value of the alleged
office files or their valuation purportedly have been
removed, concealed or destroyed by the accused,"43
which she found crucial to the prosecution of the crime of
estafa under Article 315, fourth paragraph, no. 3(c) of the
Revised Penal Code. She also noted that:
x x x As a matter of fact, this court had even ordered that
this case be set for clarificatory hearing to clear out
essential matters pertinent to the offense charged and
even directed the private complainant to bring
documents relative to the same/payment as well as
affidavit of witnesses/buyers with the end view of satisfying
itself that indeed probable cause exists to commit the
present case which private complainant failed to do.44
Accordingly, with the present laws and jurisprudence on
the matter, Judge Capco-Umali correctly dismissed the
case against Alfredo.
Although jurisprudence and procedural rules allow it, a
judge must always proceed with caution in dismissing
cases due to lack of probable cause, considering the
preliminary nature of the evidence before it. It is only when
he or she finds that the evidence on hand absolutely fails
to support a finding of probable cause that he or she can
dismiss the case. On the other hand, if a judge finds
probable cause, he or she must not hesitate to proceed
with arraignment and trial in order that justice may be
served.
WHEREFORE, the petition is GRANTED. The decision dated
January 14, 2011 of the Court of Appeals in CA-G.R. SP. No.
110774 is REVERSED and SET ASIDE. Criminal Case Nos.
MC08-11604-05 against Alfredo C. Mendoza are
DISMISSED.
SO ORDERED.
32
G.R. No. 182677 August 3, 2010
JOSE ANTONIO C. LEVISTE, Petitioner,
vs.
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ,
HON. EMMANUEL Y. VELASCO, HEIRS OF THE LATE
RAFAEL DE LAS ALAS, Respondents.
DECISION
CARPIO MORALES, J.:
Jose Antonio C. Leviste (petitioner) assails via the present
petition for review filed on May 30, 2008 the August 30,
2007 Decision1 and the April 18, 2008 Resolution2 of the
Court of Appeals in CA-G.R. SP No. 97761 that affirmed the
trial court’s Orders of January 24, 31, February 7, 8, all in
2007, and denied the motion for reconsideration,
respectively.
Petitioner was, by Information3 of January 16, 2007,
charged with homicide for the death of Rafael de las Alas
on January 12, 2007 before the Regional Trial Court (RTC)
of Makati City. Branch 150 to which the case was raffled,
presided by Judge Elmo Alameda, forthwith issued a
commitment order4 against petitioner who was placed
under police custody while confined at the Makati
Medical Center.5
After petitioner posted a ₱40,000 cash bond which the trial
court approved,6 he was released from detention, and his
arraignment was set on January 24, 2007.
The private complainants-heirs of De las Alas filed, with the
conformity of the public prosecutor, an Urgent Omnibus
Motion7 praying, inter alia, for the deferment of the
proceedings to allow the public prosecutor to re-examine
the evidence on record or to conduct a reinvestigation to
determine the proper offense.
The RTC thereafter issued the (1) Order of January 24,
20078 deferring petitioner’s arraignment and allowing the
prosecution to conduct a reinvestigation to determine the
proper offense and submit a recommendation within 30
days from its inception, inter alia; and (2) Order of January
31, 20079 denying reconsideration of the first order.
Petitioner assailed these orders via certiorari and
prohibition before the Court of Appeals.
Meantime, petitioner filed an Urgent Ex-Parte
Manifestation and Motion before the trial court to defer
acting on the public prosecutor’s recommendation on the
proper offense until after the appellate court resolves his
application for injunctive reliefs, or alternatively, to grant
him time to comment on the prosecutor’s
recommendation and thereafter set a hearing for the
judicial determination of probable cause.10 Petitioner also
separately moved for the inhibition of Judge Alameda
with prayer to defer action on the admission of the
Amended Information.11
The trial court nonetheless issued the other assailed orders,
viz: (1) Order of February 7, 200712 that admitted the
Amended Information13 for murder and directed the
issuance of a warrant of arrest; and (2) Order of February
8, 200714 which set the arraignment on February 13, 2007.
Petitioner questioned these two orders via supplemental
petition before the appellate court.
The appellate court dismissed petitioner’s petition, hence,
his present petition, arguing that:
PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE
THE REINVESTIGATION OF THE CRIMINAL CASE BELOW
WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN
FILED WITH THE LOWER COURT. HENCE, THE COURT OF
APPEALS COMMITTED A GRAVE ERROR IN FINDING THAT
RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE
HAVING NO BASIS IN THE RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF
DISCRETION IN ADMITTING STATE PROSECUTOR VELASCO’S
AMENDED INFORMATION, ISSUING A WARRANT OF ARREST,
AND SETTING THE CASE BELOW FOR ARRAIGNMENT,
CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS
ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO
THE QUESTIONABLE REINVESTIGATION AND ILLEGAL
AMENDED INFORMATION[,] ARE YET TO BE RESOLVED BY
THIS HONORABLE COURT (sic); [AND]
CONSIDERING THAT PROSECUTOR VELASCO’S FINDINGS IN
HIS RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY
BASED ON MERE SPECULATIONS AND CONJECTURES,
WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE
BEING ADDUCED DURING THE REINVESTIGATION,
RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED
PETITIONER’S MOTION FOR A HEARING FOR JUDICIAL
DETERMINATION OF PROBABLE CAUSE.15 (emphasis in the
original omitted)
Records show that the arraignment scheduled on March
21, 2007 pushed through during which petitioner refused to
plead, drawing the trial court to enter a plea of "not guilty"
for him.
Prior thereto or on February 23, 2007, petitioner filed an
Urgent Application for Admission to Bail Ex Abundanti
Cautela16 which the trial court, after hearings thereon,
granted by Order of May 21, 2007,17 it finding that the
evidence of guilt for the crime of murder is not strong. It
accordingly allowed petitioner to post bail in the amount
of ₱300,000 for his provisional liberty.
The trial court, absent any writ of preliminary injunction
from the appellate court, went on to try petitioner under
the Amended Information. By Decision of January 14, 2009,
the trial court found petitioner guilty of homicide,
sentencing him to suffer an indeterminate penalty of six
years and one day of prision mayor as minimum to 12 years
and one day of reclusion temporal as maximum. From the
Decision, petitioner filed an appeal to the appellate court,
docketed as CA-G.R. CR No. 32159, during the pendency
33
of which he filed an urgent application for admission to
bail pending appeal. The appellate court denied
petitioner’s application which this Court, in G.R. No.
189122, affirmed by Decision of March 17, 2010.
The Office of the Solicitor General (OSG) later argued that
the present petition had been rendered moot since the
presentation of evidence, wherein petitioner actively
participated, had been concluded.18
Waiver on the part of the accused must be distinguished
from mootness of the petition, for in the present case,
petitioner did not, by his active participation in the trial,
waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal arrest, lack
of or irregular preliminary investigation. – An application for
or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the
warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of
the charge against him, provided that he raises them
before entering his plea. The court shall resolve the matter
as early as practicable but not later than the start of the
trial of the case.
By applying for bail, petitioner did not waive his right to
challenge the regularity of the reinvestigation of the
charge against him, the validity of the admission of the
Amended Information, and the legality of his arrest under
the Amended Information, as he vigorously raised them
prior to his arraignment. During the arraignment on March
21, 2007, petitioner refused to enter his plea since the issues
he raised were still pending resolution by the appellate
court, thus prompting the trial court to enter a plea of "not
guilty" for him.
The principle that the accused is precluded after
arraignment from questioning the illegal arrest or
the lack of or irregular preliminary
investigation applies "only if he voluntarily enters his
plea and participates during trial, without previously
invoking his objections thereto."19 There must be clear and
convincing proof that petitioner had an actual intention to
relinquish his right to question the existence of probable
cause. When the only proof of intention rests on what a
party does, his act should be so manifestly consistent with,
and indicative of, an intent to voluntarily and
unequivocally relinquish the particular right that no other
explanation of his conduct is possible.20
From the given circumstances, the Court cannot
reasonably infer a valid waiver on the part of petitioner to
preclude him from obtaining a definite resolution of the
objections he so timely invoked. Other than its allegation
of active participation, the OSG offered no clear and
convincing proof that petitioner’s participation in the trial
was unconditional with the intent to voluntarily and
unequivocally abandon his petition. In fact, on January 26,
2010, petitioner still moved for the early resolution of the
present petition.21
Whatever delay arising from petitioner’s availment of
remedies against the trial court’s Orders cannot be
imputed to petitioner to operate as a valid waiver on his
part. Neither can the non-issuance of a writ of preliminary
injunction be deemed as a voluntary relinquishment of
petitioner’s principal prayer. The non-issuance of such
injunctive relief only means that the appellate court did
not preliminarily find any exception22 to the long-standing
doctrine that injunction will not lie to enjoin a criminal
prosecution.23 Consequently, the trial of the case took its
course.
The petition is now moot, however, in view of the trial
court’s rendition of judgment.
A moot and academic case is one that ceases to present
a justiciable controversy by virtue of supervening events,
so that a declaration thereon would be of no practical use
or value.24
The judgment convicting petitioner of homicide under the
Amended Information for murder operates as a
supervening event that mooted the present petition.
Assuming that there is ground25 to annul the finding of
probable cause for murder, there is no practical use or
value in abrogating the concluded proceedings and
retrying the case under the original Information for
homicide just to arrive, more likely or even definitely, at the
same conviction of homicide. Mootness would have also
set in had petitioner been convicted of murder, for proof
beyond reasonable doubt, which is much higher than
probable cause, would have been established in that
instance.
Instead, however, of denying the petition outright on the
ground of mootness, the Court proceeds to resolve the
legal issues in order to formulate controlling principles to
guide the bench, bar and public.26 In the present case,
there is compelling reason to clarify the remedies
available before and after the filing of an information in
cases subject of inquest.
After going over into the substance of the petition and the
assailed issuances, the Court finds no reversible error on
the part of the appellate court in finding no grave abuse
of discretion in the issuance of the four trial court Orders.
In his first assignment of error, petitioner posits that the
prosecution has no right under the Rules to seek from the
trial court an investigation or reevaluation of the case
except through a petition for review before the
Department of Justice (DOJ). In cases when an accused is
arrested without a warrant, petitioner contends that the
remedy of preliminary investigation belongs only to the
accused.
The contention lacks merit.
Section 6,27 Rule 112 of the Rules of Court reads:
34
When a person is lawfully arrested without a warrant
involving an offense which requires a preliminary
investigation, the complaint or information may be filed by
a prosecutor without need of such investigation provided
an inquest has been conducted in accordance with
existing rules. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended
party or a peace officer directly with the proper court on
the basis of the affidavit of the offended party or arresting
officer or person.
Before the complaint or information is filed, the person
arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the
provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding
the waiver, he may apply for bail and the investigation
must be terminated within fifteen (15) days from its
inception.
After the filing of the complaint or information in court
without a preliminary investigation, the accused may,
within five (5) days from the time he learns of its filing, ask
for a preliminary investigation with the same right to
adduce evidence in his defense as provided in this Rule.
(underscoring supplied)
A preliminary investigation is required before the filing of a
complaint or information for an offense where the penalty
prescribed by law is at least four years, two months and
one day without regard to fine.28 As an exception, the
rules provide that there is no need for a preliminary
investigation in cases of a lawful arrest without a warrant29
involving such type of offense, so long as an inquest, where
available, has been conducted.30
Inquest is defined as an informal and summary
investigation conducted by a public prosecutor in criminal
cases involving persons arrested and detained without the
benefit of a warrant of arrest issued by the court for the
purpose of determining whether said persons should
remain under custody and correspondingly be charged in
court.31
It is imperative to first take a closer look at the predicament
of both the arrested person and the private complainant
during the brief period of inquest, to grasp the respective
remedies available to them before and after the filing of a
complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN
COURT, the private complainant may proceed in
coordinating with the arresting officer and the inquest
officer during the latter’s conduct of inquest. Meanwhile,
the arrested person has the option to avail of a 15-day
preliminary investigation, provided he duly signs a waiver
of any objection against delay in his delivery to the proper
judicial authorities under Article 125 of the Revised Penal
Code. For obvious reasons, this remedy is not available to
the private complainant since he cannot waive what he
does not have. The benefit of the provisions of Article 125,
which requires the filing of a complaint or information with
the proper judicial authorities within the applicable
period,32 belongs to the arrested person.
The accelerated process of inquest, owing to its summary
nature and the attendant risk of running against Article
125, ends with either the prompt filing of an information in
court or the immediate release of the arrested person.33
Notably, the rules on inquest do not provide for a motion
for reconsideration.34
Contrary to petitioner’s position that private complainant
should have appealed to the DOJ Secretary, such remedy
is not immediately available in cases subject of inquest.
Noteworthy is the proviso that the appeal to the DOJ
Secretary is by "petition by a proper party under such rules
as the Department of Justice may prescribe."35 The rule
referred to is the 2000 National Prosecution Service Rule on
Appeal,36 Section 1 of which provides that the Rule shall
"apply to appeals from resolutions x x x in cases subject of
preliminary investigation/ reinvestigation." In cases subject
of inquest, therefore, the private party should first avail of
a preliminary investigation or reinvestigation, if any, before
elevating the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable cause,
the private complainant may pursue the case through the
regular course of a preliminary investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT,
the rules yet provide the accused with another opportunity
to ask for a preliminary investigation within five days from
the time he learns of its filing. The Rules of Court and the
New Rules on Inquest are silent, however, on whether the
private complainant could invoke, as respondent heirs of
the victim did in the present case, a similar right to ask for
a reinvestigation.
The Court holds that the private complainant can move
for reinvestigation, subject to and in light of the ensuing
disquisition.
All criminal actions commenced by a complaint or
information shall be prosecuted under the direction and
control of the public prosecutor.37 The private
complainant in a criminal case is merely a witness and not
a party to the case and cannot, by himself, ask for the
reinvestigation of the case after the information had been
filed in court, the proper party for that being the public
prosecutor who has the control of the prosecution of the
case.38 Thus, in cases where the private complainant is
allowed to intervene by counsel in the criminal action,39
and is granted the authority to prosecute,40 the private
complainant, by counsel and with the conformity of the
public prosecutor, can file a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of
the accused, trial prosecutors must "examine the
Information vis-à-vis the resolution of the investigating
prosecutor in order to make the necessary corrections or
35
revisions and to ensure that the information is sufficient in
form and substance."41
x x x Since no evidence has been presented at that stage,
the error would appear or be discoverable from a review
of the records of the preliminary investigation. Of course,
that fact may be perceived by the trial judge himself but,
again, realistically it will be the prosecutor who can initially
determine the same. That is why such error need not be
manifest or evident, nor is it required that such nuances as
offenses includible in the offense charged be taken into
account. It necessarily follows, therefore, that the
prosecutor can and should institute remedial
measures[.]42 (emphasis and underscoring supplied)
The prosecution of crimes appertains to the executive
department of the government whose principal power
and responsibility is to see that our laws are faithfully
executed. A necessary component of this power to
execute our laws is the right to prosecute their violators.
The right to prosecute vests the prosecutor with a wide
range of discretion – the discretion of what and whom to
charge, the exercise of which depends on a smorgasbord
of factors which are best appreciated by prosecutors.43
The prosecution’s discretion is not boundless or infinite,
however.44 The standing principle is that once an
information is filed in court, any remedial measure such as
a reinvestigation must be addressed to the sound
discretion of the court. Interestingly, petitioner supports this
view.45 Indeed, the Court ruled in one case that:
The rule is now well settled that once a complaint or
information is filed in court, any disposition of the case,
whether as to its dismissal or the conviction or the acquittal
of the accused, rests in the sound discretion of the court.
Although the prosecutor retains the direction and control
of the prosecution of criminal cases even when the case is
already in court, he cannot impose his opinion upon the
tribunal. For while it is true that the prosecutor has the
quasi-judicial discretion to determine whether or not a
criminal case should be filed in court, once the case had
already been brought therein any disposition the
prosecutor may deem proper thereafter
should be addressed to the court for its consideration and
approval. The only qualification is that the action of the
court must not impair the substantial rights of the accused
or the right of the People to due process of law.
xxxx
In such an instance, before a re-investigation of the case
may be conducted by the public prosecutor, the
permission or consent of the court must be secured. If after
such re-investigation the prosecution finds a cogent basis
to withdraw the information or otherwise cause the
dismissal of the case, such proposed course of action may
be taken but shall likewise be addressed to the sound
discretion of the court.46 (underscoring supplied)
While Abugotal v. Judge Tiro47 held that to ferret out the
truth, a trial is to be preferred to a reinvestigation, the Court
therein recognized that a trial court may, where the
interest of justice so requires, grant a motion for
reinvestigation of a criminal case pending before it.
Once the trial court grants the prosecution’s motion for
reinvestigation, the former is deemed to have deferred to
the authority of the prosecutorial arm of the Government.
Having brought the case back to the drawing board, the
prosecution is thus equipped with discretion – wide and far
reaching – regarding the disposition thereof,48 subject to
the trial court’s approval of the resulting proposed course
of action.
Since a reinvestigation may entail a modification of the
criminal information as what happened in the present
case, the Court’s holding is bolstered by the rule on
amendment of an information under Section 14, Rule 110
of the Rules of Court:
A complaint or information may be amended, in form or in
substance, without leave of court, at any time before the
accused enters his plea. After the plea and during the trial,
a formal amendment may only be made with leave of
court and when it can be done without causing prejudice
to the rights of the accused.
However, any amendment before plea, which
downgrades the nature of the offense charged in or
excludes any accused from the complaint or information,
can be made only upon motion by the prosecutor, with
notice to the offended party and with leave of court. The
court shall state its reasons in resolving the motion and
copies of its order shall be furnished all parties, especially
the offended party.
If it appears at any time before judgment that a mistake
has been made in charging the proper offense, the court
shall dismiss the original complaint or information upon the
filing of a new one charging the proper offense in
accordance with section 11, Rule 119, provided the
accused would not be placed in double jeopardy. The
court may require the witnesses to give bail for their
appearance at the trial. (emphasis supplied)
In fine, before the accused enters a plea, a formal or
substantial amendment of the complaint or information
may be made without leave of court.49 After the entry of
a plea, only a formal amendment may be made but with
leave of court and only if it does not prejudice the rights of
the accused. After arraignment, a substantial amendment
is proscribed except if the same is beneficial to the
accused.50
It must be clarified though that not all defects in an
information are curable by amendment prior to entry of
plea. An information which is void ab initio cannot be
amended to obviate a ground for quashal.51 An
amendment which operates to vest jurisdiction upon the
trial court is likewise impermissible.52
36
Considering the general rule that an information may be
amended even in substance and even without leave of
court at any time before entry of plea, does it mean that
the conduct of a reinvestigation at that stage is a mere
superfluity?
It is not.
Any remedial measure springing from the reinvestigation –
be it a complete disposition or an intermediate
modification53 of the charge – is eventually addressed to
the sound discretion of the trial court, which must make an
independent evaluation or assessment of the merits of the
case. Since the trial court would ultimately make the
determination on the proposed course of action, it is for
the prosecution to consider whether a reinvestigation is
necessary to adduce and review the evidence for
purposes of buttressing the appropriate motion to be filed
in court.
More importantly, reinvestigation is required in cases
involving a substantial amendment of the information. Due
process of law demands that no substantial amendment
of an information may be admitted without conducting
another or a new preliminary investigation. In Matalam v.
The 2nd Division of the Sandiganbayan,54 the Court ruled
that a substantial amendment in an information entitles an
accused to another preliminary investigation, unless the
amended information contains a charge related to or is
included in the original Information.
The question to be resolved is whether the amendment of
the Information from homicide to murder is considered a
substantial amendment, which would make it not just a
right but a duty of the prosecution to ask for a preliminary
investigation.
The Court answers in the affirmative.
A substantial amendment consists of the recital of facts
constituting the offense charged and determinative of the
jurisdiction of the court. All other matters are merely of
form. The following have been held to be mere formal
amendments: (1) new allegations which relate only to the
range of the penalty that the court might impose in the
event of conviction; (2) an amendment which does not
charge another offense different or distinct from that
charged in the original one; (3) additional allegations
which do not alter the prosecution’s theory of the case so
as to cause surprise to the accused and affect the form of
defense he has or will assume; (4) an amendment which
does not adversely affect any substantial right of the
accused; and (5) an amendment that merely adds
specifications to eliminate vagueness in the information
and not to introduce new and material facts, and merely
states with additional precision something which is already
contained in the original information and which adds
nothing essential for conviction for the crime charged.
The test as to whether a defendant is prejudiced by the
amendment is whether a defense under the information
as it originally stood would be available after the
amendment is made, and whether any evidence
defendant might have would be equally applicable to the
information in the one form as in the other. An amendment
to an information which does not change the nature of the
crime alleged therein does not affect the essence of the
offense or cause surprise or deprive the accused of an
opportunity to meet the new averment had each been
held to be one of form and not of substance.55 (emphasis
and underscoring supplied)
Matalam adds that the mere fact that the two charges
are related does not necessarily or automatically deprive
the accused of his right to another preliminary
investigation. Notatu dignum is the fact that both the
original Information and the amended Information in
Matalam were similarly charging the accused with
violation of Section 3(e) of the Anti-Graft and Corrupt
Practices Act.
In one case,56 it was squarely held that the amendment
of the Information from homicide to murder is "one of
substance with very serious consequences."57 The
amendment involved in the present case consists of
additional averments of the circumstances of treachery,
evident premeditation, and cruelty, which qualify the
offense charged from homicide to murder. It being a new
and material element of the offense, petitioner should be
given the chance to adduce evidence on the matter. Not
being merely clarificatory, the amendment essentially
varies the prosecution’s original theory of the case and
certainly affects not just the form but the weight of defense
to be mustered by petitioner.
The Court distinguishes the factual milieus in Buhat v. CA58
and Pacoy v. Cajigal,59 wherein the amendment of the
caption of the Information from homicide to murder was
not considered substantial because there was no real
change in the recital of facts constituting the offense
charged as alleged in the body of the Information, as the
allegations of qualifying circumstances were already
clearly embedded in the original Information. Buhat
pointed out that the original Information for homicide
already alleged the use of superior strength, while Pacoy
states that the averments in the amended Information for
murder are exactly the same as those already alleged in
the original Information for homicide. None of these
peculiar circumstances obtains in the present case.
Considering that another or a new preliminary
investigation is required, the fact that what was
conducted in the present case was a reinvestigation does
not invalidate the substantial amendment of the
Information. There is no substantial distinction between a
preliminary investigation and a reinvestigation since both
are conducted in the same manner and for the same
objective of determining whether there exists sufficient
ground to engender a well-founded belief that a crime
has been committed and the respondent is probably
guilty thereof and should be held for trial.60 What is
essential is that petitioner was placed on guard to defend
himself from the charge of murder61 after the claimed
37
circumstances were made known to him as early as the
first motion.
Petitioner did not, however, make much of the opportunity
to present countervailing evidence on the proposed
amended charge. Despite notice of hearing, petitioner
opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the
reinvestigation. Mercado v. Court of Appeals states that
the rules do not even require, as a condition sine qua non
to the validity of a preliminary investigation, the presence
of the respondent as long as efforts to reach him were
made and an opportunity to controvert the complainant’s
evidence was accorded him.62
In his second assignment of error, petitioner basically
assails the hurried issuance of the last two assailed RTC
Orders despite the pendency before the appellate court
of the petition for certiorari challenging the first two trial
court Orders allowing a reinvestigation.
The Rules categorically state that the petition shall not
interrupt the course of the principal case unless a
temporary retraining order or a writ of preliminary
injunction has been issued.63 The appellate court, by
Resolution of February 15, 2007,64 denied petitioner’s
application for a temporary restraining order and writ of
preliminary injunction. Supplementary efforts to seek
injunctive reliefs proved futile.65 The appellate court thus
did not err in finding no grave abuse of discretion on the
part of the trial court when it proceeded with the case and
eventually arraigned the accused on March 21, 2007,
there being no injunction order from the appellate court.
Moreover, petitioner opted to forego appealing to the
DOJ Secretary, a post-inquest remedy that was available
after the reinvestigation and which could have suspended
the arraignment.661avvphi1
Regarding petitioner’s protestations of haste, suffice to
state that the pace in resolving incidents of the case is not
per se an indication of bias. In Santos-Concio v.
Department of Justice,67 the Court held:
Speed in the conduct of proceedings by a judicial or
quasi-judicial officer cannot per se be instantly attributed
to an injudicious performance of functions. For one’s
prompt dispatch may be another’s undue haste. The
orderly administration of justice remains as the paramount
and constant consideration, with particular regard of the
circumstances peculiar to each case.
The presumption of regularity includes the public officer’s
official actuations in all phases of work. Consistent with
such presumption, it was incumbent upon petitioners to
present contradictory evidence other than a mere tallying
of days or numerical calculation. This, petitioners failed to
discharge. The swift completion of the Investigating
Panel’s initial task cannot be relegated as shoddy or shady
without discounting the presumably regular performance
of not just one but five state prosecutors.68
There is no ground for petitioner’s protestations against the
DOJ Secretary’s sudden designation of Senior State
Prosecutor Emmanuel Velasco as Acting City Prosecutor of
Makati City for the present case69 and the latter’s
conformity to the motion for reinvestigation.
In granting the reinvestigation, Judge Alameda cannot
choose the public prosecutor who will conduct the
reinvestigation or preliminary investigation.70 There is a
hierarchy of officials in the prosecutory arm of the
executive branch headed by the Secretary of Justice71
who is vested with the prerogative to appoint a special
prosecutor or designate an acting prosecutor to handle a
particular case, which broad power of control has been
recognized by jurisprudence.72
As for the trial court’s ignoring the DOJ Secretary’s
uncontested statements to the media which aired his
opinion that if the assailant merely intended to maim and
not to kill the victim, one bullet would have sufficed — the
DOJ Secretary reportedly uttered that "the filing of the
case of homicide against ano against Leviste lintek naman
eh I told you to watch over that case… there should be a
report about the ballistics, about the paraffin, etc., then
that’s not a complete investigation, that’s why you should
use that as a ground" — no abuse of discretion, much less
a grave one, can be imputed to it.
The statements of the DOJ Secretary do not evince a
"determination to file the Information even in the absence
of probable cause."73 On the contrary, the remarks merely
underscored the importance of securing basic
investigative reports to support a finding of probable
cause. The original Resolution even recognized that
probable cause for the crime of murder cannot be
determined based on the evidence obtained "[u]nless
and until a more thorough investigation is conducted and
eyewitness/es [is/]are presented in evidence[.]"74
The trial court concluded that "the wound sustained by the
victim at the back of his head, the absence of paraffin test
and ballistic examination, and the handling of physical
evidence,"75 as rationalized by the prosecution in its
motion, are sufficient circumstances that require further
inquiry.
That the evidence of guilt was not strong as subsequently
assessed in the bail hearings does not affect the prior
determination of probable cause because, as the
appellate court correctly stated, the standard of strong
evidence of guilt which is sufficient to deny bail to an
accused is markedly higher than the standard of judicial
probable cause which is sufficient to initiate a criminal
case.76
In his third assignment of error, petitioner faults the trial
court for not conducting, at the very least, a hearing for
judicial determination of probable cause, considering the
lack of substantial or material new evidence adduced
during the reinvestigation.
Petitioner’s argument is specious.
38
There are two kinds of determination of probable cause:
executive and judicial. The executive determination of
probable cause is one made during preliminary
investigation. It is a function that properly pertains to the
public prosecutor who is given a broad discretion to
determine whether probable cause exists and to charge
those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise
stated, such official has the quasi-judicial authority to
determine whether or not a criminal case must be filed in
court. Whether that function has been correctly
discharged by the public prosecutor, i.e., whether he has
made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial court
itself does not and may not be compelled to pass upon.77
The judicial determination of probable cause is one made
by the judge to ascertain whether a warrant of arrest
should be issued against the accused. The judge must
satisfy himself that based on the evidence submitted,
there is necessity for placing the accused under custody
in order not to frustrate the ends of justice. If the judge finds
no probable cause, the judge cannot be forced to issue
the arrest warrant.78 Paragraph (a), Section 5,79 Rule 112
of the Rules of Court outlines the procedure to be followed
by the RTC.
To move the court to conduct a judicial determination of
probable cause is a mere superfluity, for with or without
such motion, the judge is duty-bound to personally
evaluate the resolution of the public prosecutor and the
supporting evidence. In fact, the task of the presiding
judge when the Information is filed with the court is first and
foremost to determine the existence or non-existence of
probable cause for the arrest of the accused.80
What the Constitution underscores is the exclusive and
personal responsibility of the issuing judge to satisfy himself
of the existence of probable cause. But the judge is not
required to personally examine the complainant and his
witnesses. Following established doctrine and procedure,
he shall (1) personally evaluate the report and the
supporting documents submitted by the prosecutor
regarding the existence of probable cause, and on the
basis thereof, he may already make a personal
determination of the existence of probable cause; and (2)
if he is not satisfied that probable cause exists, he may
disregard the prosecutor’s report and require the
submission of supporting affidavits of witnesses to aid him
in arriving at a conclusion as to the existence of probable
cause.81 (emphasis and underscoring supplied)
The rules do not require cases to be set for hearing to
determine probable cause for the issuance of a warrant of
arrest of the accused before any warrant may be
issued.82 Petitioner thus cannot, as a matter of right, insist
on a hearing for judicial determination of probable cause.
Certainly, petitioner "cannot determine beforehand how
cursory or exhaustive the [judge's] examination of the
records should be [since t]he extent of the judge’s
examination depends on the exercise of his sound
discretion as the circumstances of the case require."83 In
one case, the Court emphatically stated:
The periods provided in the Revised Rules of Criminal
Procedure are mandatory, and as such, the judge must
determine the presence or absence of probable cause
within such periods. The Sandiganbayan’s determination
of probable cause is made ex parte and is summary in
nature, not adversarial. The Judge should not be stymied
and distracted from his determination of probable cause
by needless motions for determination of probable cause
filed by the accused.84 (emphasis and underscoring
supplied)
Petitioner proceeds to discuss at length evidentiary
matters, arguing that no circumstances exist that would
qualify the crime from homicide to murder.
The allegation of lack of substantial or material new
evidence deserves no credence, because new pieces of
evidence are not prerequisites for a valid conduct of
reinvestigation. It is not material that no new matter or
evidence was presented during the reinvestigation of the
case. It should be stressed that reinvestigation, as the word
itself implies, is merely a repeat investigation of the case.
New matters or evidence are not prerequisites for a
reinvestigation, which is simply a chance for the
prosecutor to review and re-evaluate its findings and the
evidence already submitted.85
Moreover, under Rule 45 of the Rules of Court, only
questions of law may be raised in, and be subject of, a
petition for review on certiorari since this Court is not a trier
of facts. The Court cannot thus review the evidence
adduced by the parties on the issue of the absence or
presence of probable cause, as there exists no
exceptional circumstances to warrant a factual review.86
In a petition for certiorari, like that filed by petitioner before
the appellate court, the jurisdiction of the court is narrow
in scope. It is limited to resolving only errors of
jurisdiction.1avvphi1 It is not to stray at will and resolve
questions and issues beyond its competence, such as an
error of judgment.87 The court’s duty in the pertinent case
is confined to determining whether the executive and
judicial determination of probable cause was done
without or in excess of jurisdiction or with grave abuse of
discretion. Although it is possible that error may be
committed in the discharge of lawful functions, this does
not render the act amenable to correction and
annulment by the extraordinary remedy of certiorari,
absent any showing of grave abuse of discretion
amounting to excess of jurisdiction.88
WHEREFORE, the petition is DENIED. The assailed Decision
and Resolution of the Court of Appeals in CA-G.R. SP No.
97761 are AFFIRMED.
SO ORDERED.
39
G.R. No. 199082 September 18, 2012
JOSE MIGUEL T. ARROYO, Petitioner,
vs.
DEPARTMENT OF JUSTICE; COMMISSION ON
ELECTIONS; HON. LEILA DE LIMA, in her capacity as
Secretary of the Department of Justice; HON. SIXTO
BRILLANTES, .JR., in his capacity as Chairperson of the
Commission on Elections; and the JOINT DOJ-
COMELEC PRELIMINARY INVESTIGATION COMMITTEE
and FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in her capacity as Secretary of
Justice; HON. SIXTO S. BRILLANTES, JR., in his capacity
as COMELEC Chairperson; RENE V. SARMIENTO,
LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R.
YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C.
LAGMAN, in their capacity as COMELEC
COMMISSIONERS; CLARO A. ARELLANO, GEOUGE C.
DEE, JACINTO G. ANG, ROMEO B. FORTES AND
MICHAEL D. VILLARET, in their capacity as
CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITEE ON THE 2004 AND 2007 ELECTION FRAUD,
Respondents.
x-----------------------x
G.R. No.199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by
Chairperson Sixto S. Brillantes, Jr., DEPARTMENT OF
JUSTICE, represented by Secretary Leila M. De Lima,
JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and
DOJ-COMELEC FACT FINDING TEAM, Respondents.
DECISION
PERALTA, J.:
The Court is vested with the constitutional mandate to
resolve justiciable controversies by applying the rule of law
with due deference to the right to due process,
irrespective of the standing in society of the parties
involved. It is an assurance that in this jurisdiction, the
wheels of justice turn unimpeded by public opinion or
clamor, but only for the ultimate end of giving each and
every member of society his just due without distinction.

Before the Court are three (3) consolidated petitions and
supplemental petitions for Certiorari and Prohibition under
Rule 65 of the Rules of Court filed by Jose Miguel T. Arroyo
(Mike Arroyo) in G.R. No. 199082, Benjamin S. Abalos, Sr.
(Abalos) in G.R. No. 199085 and Gloria Macapagal
Arroyo (GMA) in G.R. No. 199118 assailing the following: (1)
Commission on Elections (Comelec) Resolution No. 9266 "In
the Matter of the Commission on Elections and
Department of Justice Joint Investigation on the Alleged
Election Offenses Committed during the 2004 and 2007
Elections Pursuant to Law"1 dated August 2, 2011; (2) Joint
Order No. 001-2011 (Joint Order) "Creating and
Constituting a Joint DOJ-Comelec Preliminary
Investigation Committee [Joint Committee] and Fact-
Finding Team on the 2004 and 2007 National Elections
Electoral Fraud and
Manipulation Cases"2 dated August 15, 2011; (3) Rules of
Procedure on the Conduct of Preliminary Investigation on
the Alleged Election Fraud in the 2004 and 2007 National
Elections (Joint Committee Rules of Procedure)3 dated
August 23, 2011; and (4) Initial Report of the Fact-Finding
Team dated October 20, 2011.4 The consolidated petitions
and supplemental petitions likewise assail the validity of
the proceedings undertaken pursuant to the aforesaid
issuances.
The Antecedents
Acting on the discovery of alleged new evidence and the
surfacing of new witnesses indicating the occurrence of
massive electoral fraud and manipulation of election
results in the 2004 and 2007 National Elections, on August
2, 2011, the Comelec issued Resolution No. 9266 approving
the creation of a committee jointly with the Department of
Justice (DOJ), which shall conduct preliminary
investigation on the alleged election offenses and
anomalies committed during the 2004 and 2007
elections.5
On August 4, 2011, the Secretary of Justice issued
Department Order No. 6406 naming three (3) of its
prosecutors to the Joint Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint
Order No. 001-2011 creating and constituting a Joint
Committee and Fact-Finding Team on the 2004 and 2007
National Elections electoral fraud and manipulation cases.
The Joint Committee and the Fact-Finding Team are
composed of officials from the DOJ and the Comelec.
Section 2 of the Joint Order lays down the mandate of the
Joint Committee, to wit:
Section 2. Mandate. – The Committee shall conduct the
necessary preliminary investigation on the basis of the
evidence gathered and the charges recommended by
the Fact-Finding Team created and referred to in Section
4 hereof. Resolutions finding probable cause for election
offenses, defined and penalized under the Omnibus
Election Code and other election laws shall be approved
40
by the Comelec in accordance with the Comelec Rules of
Procedure. For other offenses, or those not covered by the
Omnibus Election Code and other election laws, the
corresponding criminal information may be filed directly
with the appropriate courts.7
The Fact-Finding Team,8 on the other hand, was created
for the purpose of gathering real, documentary, and
testimonial evidence which can be utilized in the
preliminary investigation to be conducted by the Joint
Committee. Its specific duties and functions as
enumerated in Section 4 of the Joint Order are as follows:
a) Gather and document reports, intelligence information,
and investigative leads from official as well as unofficial
sources and informants;
b) Conduct interviews, record testimonies, take affidavits
of witnesses, and collate material and relevant
documentary evidence, such as, but not limited to,
election documents used in the 2004 and 2007 national
elections. For security reasons, or to protect the identities
of informants, the Fact-Finding Team may conduct
interviews or document testimonies discreetly;
c) Assess and evaluate affidavits already executed and
other documentary evidence submitted or may be
submitted to the Fact-Finding Team and/or Committee;
d) Identify the offenders, their offenses and the manner of
their commission, individually or in conspiracy, and the
provisions of election and general criminal laws violated,
establish evidence for individual criminal and
administrative liability and prosecution, and prepare the
necessary documentation, such as complaints and
charge sheets for the initiation of preliminary investigation
proceedings against said individuals to be conducted by
the Committee;
e) Regularly submit to the Committee, the Secretary of
Justice and the Chairman of the Comelec periodic reports
and recommendations, supported by real, testimonial and
documentary evidence, which may then serve as the
Committee’s basis for immediately commencing
appropriate preliminary investigation proceedings, as
provided under Section 6 of this Joint Order; and
f) Upon the termination of its investigation, make a full and
final report to the Committee, the Secretary of Justice, and
the Chairman of the Comelec.9
Pursuant to Section 710 of the Joint Order, on August 23,
2011, the Joint Committee promulgated its Rules of
Procedure.
The members of the Fact-Finding Team unanimously
agreed that the subject of the Initial Report would be the
electoral fraud and manipulation of election results
allegedly committed during the May 14, 2007 elections.
Thus, in its Initial Report11 dated October 20, 2011, the
Fact-Finding Team concluded that manipulation of the
results in the May 14, 2007 senatorial elections in the
provinces of North and South Cotabato and
Maguindanao were indeed perpetrated.12 The Fact-
Finding Team recommended that petitioner Abalos and
ten (10) others13 be subjected to preliminary investigation
for electoral sabotage for conspiring to manipulate the
election results in North and South Cotabato. Twenty-six
(26)14 persons, including petitioners GMA and Abalos,
were likewise recommended for preliminary investigation
for electoral sabotage for manipulating the election results
in Maguindanao.15 Several persons were also
recommended to be charged administratively, while
others,16 including petitioner Mike Arroyo, were
recommended to be subjected to further investigation.17
The case resulting from the investigation of the Fact-
Finding Team was docketed as DOJ-Comelec Case No.
001-2011.
Meanwhile, on October 17, 2011, Senator Aquilino
Pimentel III (Senator Pimentel) filed a Complaint-
Affidavit18 for Electoral Sabotage against petitioners and
twelve others19 and several John Does and Jane Does.
The case was docketed as DOJ-Comelec Case No. 002-
2011.
On October 24, 2011, the Joint Committee issued two
subpoenas against petitioners in DOJ-Comelec Case Nos.
001-2011 and 002-2011.20 On November 3, 2011,
petitioners, through counsel, appeared before the Joint
Committee.21 On that preliminary hearing, the Joint
Committee consolidated the two DOJ-Comelec cases.
Respondents therein were likewise ordered to submit their
Counter-Affidavits by November 14, 2011.22
Thereafter, petitioners filed before the Court separate
Petitions for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) and/or
Writ of Preliminary Injunction assailing the creation of the
Joint Panel.23 The petitions were eventually consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a
Motion to Defer Proceedings24 before the Joint
Committee, in view of the pendency of his petition before
the Court. On the same day, petitioner GMA filed before
the Joint Committee an Omnibus Motion Ad Cautelam25
to require Senator Pimentel to furnish her with documents
referred to in his complaint-affidavit and for the
production of election documents as basis for the charge
of electoral sabotage. GMA contended that for the crime
of electoral sabotage to be established, there is a need to
present election documents allegedly tampered which
resulted in the increase or decrease in the number of votes
of local and national candidates.26 GMA prayed that she
be allowed to file her counter-affidavit within ten (10) days
from receipt of the requested documents.27 Petitioner
Abalos, for his part, filed a Motion to Suspend Proceedings
(Ex Abundante Ad Cautelam),28 in view of the pendency
of his petition brought before the Court.
In an Order29 dated November 15, 2011, the Joint
Committee denied the aforesaid motions of petitioners.
GMA subsequently filed a motion for reconsideration.30
41
On November 16, 2011, the Joint Committee promulgated
a Joint Resolution which was later indorsed to the
Comelec.31 On November 18, 2011, after conducting a
special session, the Comelec en banc issued a
Resolution32 approving and adopting the Joint Resolution
subject to modifications. The dispositive portion of the
Comelec Resolution reads:
WHEREFORE, premises considered, the Resolution of the
Joint DOJ-COMELEC Preliminary Investigation Committee
in DOJ-COMELEC Case No. 001-2011 and DOJ-COMELEC
Case No. 002-2011, upon the recommendation of the
COMELEC’s own representatives in the Committee, is
hereby APPROVED and ADOPTED, subject to the following
MODIFICATIONS:
1. That information/s for the crime of ELECTORAL
SABOTAGE under Section 42 (b) of R.A. 9369, amending
Section 27 (b) of R.A. 6646, be filed against GLORIA
MACAPAGAL-ARROYO, BENJAMIN ABALOS, SR., LINTANG
H. BEDOL, DATU ANDAL AMPATUAN, SR. and PETER REYES;
2. That the charges against MICHAEL C. ABAS, NICODEMO
FERRER, REUBEN BASIAO, JAIME PAZ and NORIE K. UNAS be
subjected to further investigation;
3. That the charges against JOSE MIGUEL T. ARROYO,
BONG SERRANO, ALBERTO AGRA, ANDREI BON TAGUM,
GABBY CLAUDIO, ROMY DAYDAY, JEREMY JAVIER, JOHN
DOE a.k.a BUTCH, be DISMISSED for insufficiency of
evidence to establish probable cause;
4. That the recommendation that ESTELITA B. ORBASE, ELIZA
A. GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA, MAGSAYSAY
B. MOHAMAD, SALONGA K. EDZELA, RAGAH D. AYUNAN,
SUSAN U. CANANBAN, RUSSAM H. MABANG, ASUNCION
CORAZON P. RENIEDO, NENA A. ALID, MA. SUSAN L.
ALBANO, ROHAIDA T. KHALID, ARAW M. CAO, JEEHAN S.
NUR, ALICE A. LIM, NORIJEAN P. HANGKAL, CHRISTINA
ROAN M. DALOPE, and MACEDA L. ABO be
administratively charged be subjected to further review by
this Commission to determine the appropriate charge/s
that may be filed against them;
5. That the findings of lack of probable cause against
LILIAN S. SUAN-RADAM and YOGIE G. MARTIRIZAR be
REJECTED by reason of the pendency of their respective
cases before the Regional Trial Court of Pasay (Branch 114)
and this Commission for the same offense under
consideration.
In the higher interest of justice and by reason of manifest
attempts to frustrate the government’s right to prosecute
and to obtain speedy disposition of the present case
pending before the Commission, the Law Department
and/or any COMELEC legal officers as may be authorized
by this Commission is hereby ORDERED to IMMEDIATELY
PREPARE and FILE the necessary Information/s before the
appropriate court/s
SO ORDERED.33 (Emphasis supplied.)
On even date, pursuant to the above Resolution, the
Comelec’s Law Department filed with the Regional Trial
Court (RTC), Pasay City, an Information against petitioner
GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H.
Bedol, for violation of Section 42 (b)(3) of Republic Act
(R.A.) No. 9369, amending Section 27 (b) of R.A. No. 6646,
docketed as Criminal Case No. RPSY-11-04432-CR.34 The
case was raffled to Branch 112 and the corresponding
Warrant of Arrest was issued which was served on GMA on
the same day.35
On November 18, 2011, petitioner GMA filed with the RTC
an Urgent Omnibus Motion Ad Cautelam36 with leave to
allow the Joint Committee to resolve the motion for
reconsideration filed by GMA, to defer issuance of a
warrant of arrest and a Hold Departure Order, and to
proceed to judicial determination of probable cause. She,
likewise, filed with the Comelec a Motion to Vacate Ad
Cautelam37 praying that its Resolution be vacated for
being null and void. The RTC nonetheless issued a warrant
for her arrest which was duly served. GMA thereafter filed
a Motion for Bail which was granted.
Issues
In G.R. No. 199082, petitioner Arroyo relies on the following
grounds:
A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT
ORDER IS AT WAR WITH THE DUE PROCESS AND EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION, HAVING BEEN
CREATED WITH THE SOLE END IN VIEW OF INVESTIGATING
AND PROSECUTING CERTAIN PERSONS AND INCIDENTS
ONLY, SPECIFICALLY THOSE INVOLVING THE 2004 AND 2007
ELECTIONS TO THE EXCLUSION OF OTHERS, IN VIOLATION OF
THE DOCTRINE IN BIRAOGO V. TRUTH COMMISSION AND
COMPANION CASE.
B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO
CONDUCT PRELIMINARY INVESTIGATION.
C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES
THE COMMISSION ON ELECTIONS - A CONSTITUTIONALLY
INDEPENDENT BODY - WITH THE DEPARTMENT OF JUSTICE –
A POLITICAL AGENT OF THE EXECUTIVE – DEMOLISHES THE
INDEPENDENCE OF THE COMMISSION ON ELECTIONS AS
PROVIDED IN ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C)
OF THE CONSTITUTION.
D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC
PRONOUNCEMENTS OF THE PRESIDENT, HIS
SPOKESPERSONS, THE HEADS OF THE DOJ AND THE
COMELEC, AND MEMBERS OF THE JOINT COMMITTEE THAT
CASES SHOULD BE FILED AGAINST PETITIONER AND HIS
FAMILY AND ALLEGED ASSOCIATES BY THE END OF 2011,
THE PROCEEDINGS THEREOF SHOULD BE ENJOINED FOR
BEING PERSECUTORY, PURSUANT TO ALLADO V. DIOKNO
AND RELATED CASES.
E. THE CREATION AND CONSTITUTION OF THE JOINT
COMMITTEE TRAMPLES UPON PETITIONER’S RIGHT TO A FAIR
42
PROCEEDING BY AN INDEPENDENT AND IMPARTIAL
TRIBUNAL.
F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY
CITY, HAVE ASSUMED JURISDICTION OVER THE SUBJECT
MATTER SOUGHT TO BE INVESTIGATED BY THE JOINT
COMMITTEE, TO THE EXCLUSION OF ANY BODY, INCLUDING
THE JOINT COMMITTEE.38
In G.R. No. 199085, petitioner Abalos raises the following
issues:
I.
DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT
DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATON COMMITTEE VIOLATE PETITIONER’S
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE
LAW?
II.
DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJ-
COMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATION COMMITTEE VIOLATE PETITIONER’S
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW?
III.
DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF
SEPARATION OF POWERS BY CREATING THE JOINT DOJ-
COMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATION COMMITTEE WHICH ENCROACHED UPON
THE POWERS OF THE LEGISLATURE AND THE REGIONAL TRIAL
COURT?
IV.
DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE HAVE THE
POWER AND LEGAL AUTHORITY TO CONDUCT A
PRELIMINARY INVESTIGATION OF THE SAME ELECTORAL
SABOTAGE CASES WHICH THE COMELEC HAD ALREADY
TAKEN COGNIZANCE OF?39
In G.R. No. 199118, petitioner GMA anchors her petition on
the following grounds:
I. THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ,
OSTENSIBLY ACTING "JOINTLY" WITH THE COMELEC, HAS
ACTED BEYOND THE LIMITS OF THE CONSTITUTION, IN THAT IT
HAS COMPROMISED THE INDEPENDENCE OF THE
COMELEC.
II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS
CONSTITUTIONAL MANDATE "TO INVESTIGATE AND, WHERE
APPROPRIATE, PROSECUTE CASES OF VIOLATIONS OF
ELECTION LAWS, INCLUDING ACTS OR OMISSIONS
CONSTITUTING ELECTION FRAUDS, OFFENSES, AND
MALPRACTICES" (ARTICLE IX-C, SECTION 26, 1987
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES) IN
FAVOR OF THE EXECUTIVE DEPARTMENT, ACTING THROUGH
RESPONDENT JUSTICE SECRETARY DE LIMA.
III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE
JOINT COMMITTEE RULES HAVE NOT BEEN PUBLISHED
PURSUANT TO TAÑADA V. TUVERA, G.R. No. L-63915 (29
DECEMBER 1986). AFTER ALL, AS THE HONORABLE COURT
LIKEWISE DECLARED IN REPUBLIC V. PILIPINAS SHELL
PETROLEUM CORPORATION, G.R. No. 173918 (08 APRIL
2008), (SIC)40
We deferred the resolution of petitioners’ Motion for the
Issuance of a TRO and, instead, required the respondents
to comment on the petitions.41
We likewise scheduled the consolidated cases for oral
argument for which the parties were directed to limit their
respective discussions to the following issues:
I. Whether or not Joint Order No. 001-2011 "Creating and
Constituting a Joint DOJ-COMELEC Preliminary
Investigation Committee and Fact-Finding Team on the
2004 and 2007 National Elections Electoral Fraud and
Manipulation Cases" is constitutional in light of the
following:
A. The due process clause of the 1987 Constitution
B. The equal protection clause of the 1987 Constitution
C. The principle of separation of powers
D. The independence of the COMELEC as a constitutional
body
II. Whether or not the COMELEC has jurisdiction under the
law to conduct preliminary investigation jointly with the
DOJ.
A. Whether or not due process was observed by the Joint
DOJ-COMELEC Fact-Finding Team and Preliminary
Investigation Committee, and the COMELEC in the
conduct of the preliminary investigation and approval of
the Joint Panel’s Resolution.42
The Court, thereafter, required the parties to submit their
respective Memoranda.43
The Court’s Ruling
Procedural Issues
Respondents claim that Mike Arroyo’s petition is moot and
that of GMA is moot and academic. They explain that the
Mike Arroyo petition presents no actual controversy that
necessitates the exercise by the Court of its power of
judicial review, considering that he was not among those
indicted for electoral sabotage in the 2007 national
elections as the Comelec dismissed the case against him
for insufficiency of evidence.44 Anent the 2004 national
elections, the Fact-Finding Team is yet to complete its
investigation so Mike Arroyo’s apprehensions are merely
43
speculative and anticipatory.45 As to the GMA petition,
respondents aver that any judgment of the Court will have
no practical legal effect because an Information has
already been filed against her in Branch 112, RTC of Pasay
City.46 With the filing of the Information, the RTC has
already acquired jurisdiction over the case, including all
issues relating to the constitutionality or legality of her
preliminary investigation.47 Respondents also claim that
the issues relating to the constitutionality and validity of the
conduct of the preliminary investigation of GMA are best
left to the trial court, considering that it involves questions
of fact.48 Respondents add that considering that the RTC
has concurrent jurisdiction to determine a constitutional
issue, it will be practical for the Court to allow the RTC to
determine the constitutional issues in this case.49
We do not agree.
Mootness
It cannot be gainsaid that for a court to exercise its power
of adjudication, there must be an actual case or
controversy, that is, one which involves a conflict of legal
rights, an assertion of opposite legal claims susceptible of
judicial resolution.50 The case must not be moot or
academic or based on extra-legal or other similar
considerations not cognizable by a court of justice.51
A case becomes moot and academic when it ceases to
present a justiciable controversy so that a declaration on
the issue would be of no practical use or value.52
However, a case should not be dismissed simply because
one of the issues raised therein had become moot and
academic by the onset of a supervening event, whether
intended or incidental, if there are other causes which
need to be resolved after trial.53
Here, the consolidated cases are not rendered moot and
academic by the promulgation of the Joint Resolution by
the Joint Committee and the approval thereof by the
Comelec. It must be recalled that the main issues in the
three petitions before us are the constitutionality and
legality of the creation of the Joint Committee and the
Fact-Finding Team as well as the proceedings undertaken
pursuant thereto. The assailed Joint Order specifically
provides that the Joint Committee was created for
purposes of investigating the alleged massive electoral
fraud during the 2004 and 2007 national elections.
However, in the Fact-Finding Team’s Initial Report, the
team specifically agreed that the report would focus on
the irregularities during the 2007 elections. Also, in its
November 18, 2011 Resolution, the Comelec, while
directing the filing of information against petitioners Abalos
and GMA, ordered that further investigations be
conducted against the other respondents therein.
Apparently, the Fact-Finding Team’s and Joint
Committee’s respective mandates have not been fulfilled
and they are, therefore, bound to continue discharging
their duties set forth in the assailed Joint Order. Moreover,
petitioners question the validity of the proceedings
undertaken by the Fact-Finding Team and the Joint
Committee leading to the filing of information, on
constitutional grounds. We are not, therefore, barred from
deciding on the petitions simply by the occurrence of the
supervening events of filing an information and dismissal of
the charges.
Jurisdiction over the validity of the
conduct of the preliminary investigation
This is not the first time that the Court is confronted with the
issue of jurisdiction to conduct preliminary investigation
and at the same time with the propriety of the conduct of
preliminary investigation. In Cojuangco, Jr. v. Presidential
Commission on Good Government (PCGG),54 the Court
resolved two issues, namely: (1) whether or not the PCGG
has the power to conduct a preliminary investigation of
the anti-graft and corruption cases filed by the Solicitor
General against Eduardo Conjuangco, Jr. and other
respondents for the alleged misuse of coconut levy funds;
and (2) on the assumption that it has jurisdiction to
conduct such a preliminary investigation, whether or not
its conduct constitutes a violation of petitioner’s right to
due process and equal protection of the law.55 The Court
decided these issues notwithstanding the fact that
Informations had already been filed with the trial court.
In Allado v. Diokno,56 in a petition for certiorari assailing
the propriety of the issuance of a warrant of arrest, the
Court could not ignore the undue haste in the filing of the
information and the inordinate interest of the government
in filing the same. Thus, this Court took time to determine
whether or not there was, indeed, probable cause to
warrant the filing of information. This, notwithstanding the
fact that information had been filed and a warrant of
arrest had been issued. Petitioners therein came directly to
this Court and sought relief to rectify the injustice that they
suffered.
Hierarchy of courts
Neither can the petitions be dismissed solely because of
violation of the principle of hierarchy of courts. This
principle requires that recourse must first be made to the
lower-ranked court exercising concurrent jurisdiction with
a higher court.57 The Supreme Court has original
jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus. While this
jurisdiction is shared with the Court of Appeals and the
RTC, a direct invocation of this Court’s jurisdiction is
allowed when there are special and important reasons
therefor, clearly and especially set out in the petition, as in
the present case.58 In the consolidated petitions,
petitioners invoke exemption from the observance of the
rule on hierarchy of courts in keeping with the Court’s duty
to determine whether or not the other branches of
government have kept themselves within the limits of the
Constitution and the laws, and that they have not abused
the discretion given to them.59
It is noteworthy that the consolidated petitions assail the
constitutionality of issuances and resolutions of the DOJ
and the Comelec. The general rule is that this Court shall
44
exercise only appellate jurisdiction over cases involving the
constitutionality of a statute, treaty or regulation.
However, such rule is subject to exception, that is, in
circumstances where the Court believes that resolving the
issue of constitutionality of a law or regulation at the first
instance is of paramount importance and immediately
affects the social, economic, and moral well-being of the
people.60
This case falls within the exception. An expeditious
resolution of the issues raised in the petitions is necessary.
Besides, the Court has entertained a direct resort to the
Court without the requisite motion for reconsideration filed
below or without exhaustion of administrative remedies
where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the
interests of the government or of the petitioners and when
there is an alleged violation of due process, as in the
present case.61 We apply the same relaxation of the Rules
in the present case and, thus, entertain direct resort to this
Court.
Substantive Issues
Bases for the Creation of the
Fact-Finding Team and Joint Committee
Section 2, Article IX-C of the 1987 Constitution enumerates
the powers and functions of the Comelec. Paragraph (6)
thereof vests in the Comelec the power to:
(6) File, upon a verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of voters;
investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
This was an important innovation introduced by the 1987
Constitution, because the above-quoted provision was
not in the 1935 and 1973 Constitutions.62
The grant to the Comelec of the power to investigate and
prosecute election offenses as an adjunct to the
enforcement and administration of all election laws is
intended to enable the Comelec to effectively insure to
the people the free, orderly, and honest conduct of
elections. The failure of the Comelec to exercise this power
could result in the frustration of the true will of the people
and make a mere idle ceremony of the sacred right and
duty of every qualified citizen to vote.63
The constitutional grant of prosecutorial power in the
Comelec was reflected in Section 265 of Batas Pambansa
Blg. 881, otherwise known as the Omnibus Election Code,
to wit:
Section 265. Prosecution. The Commission shall, through its
duly authorized legal officers, have the exclusive power to
conduct preliminary investigation of all election offenses
punishable under this Code, and to prosecute the same.
The Commission may avail of the assistance of other
prosecuting arms of the government: Provided, however,
That in the event that the Commission fails to act on any
complaint within four months from his filing, the
complainant may file the complaint with the office of the
fiscal [public prosecutor], or with the Ministry Department
of Justice for proper investigation and prosecution, if
warranted.
Under the above provision of law, the power to conduct
preliminary investigation is vested exclusively with the
Comelec. The latter, however, was given by the same
provision of law the authority to avail itself of the assistance
of other prosecuting arms of the government.64 Thus,
under Section 2,65 Rule 34 of the Comelec Rules of
Procedure, provincial and city prosecutors and their
assistants are given continuing authority as deputies to
conduct preliminary investigation of complaints involving
election offenses under election laws and to prosecute the
same. The complaints may be filed directly with them or
may be indorsed to them by the petitioner or its duly
authorized representatives.66
Thus, under the Omnibus Election Code, while the
exclusive jurisdiction to conduct preliminary investigation
had been lodged with the Comelec, the prosecutors had
been conducting preliminary investigations pursuant to
the continuing delegated authority given by the
Comelec. The reason for this delegation of authority has
been explained in Commission on Elections v. Español:67
The deputation of the Provincial and City Prosecutors is
necessitated by the need for prompt investigation and
dispensation of election cases as an indispensable part of
the task of securing fine, orderly, honest, peaceful and
credible elections. Enfeebled by lack of funds and the
magnitude of its workload, the petitioner does not have a
sufficient number of legal officers to conduct such
investigation and to prosecute such cases.68
Moreover, as we acknowledged in People v. Basilla,69 the
prompt and fair investigation and prosecution of election
offenses committed before or in the course of nationwide
elections would simply not be possible without the
assistance of provincial and city fiscals prosecutors and
their assistants and staff members, and of the state
prosecutors of the DOJ.70
Section 265 of the Omnibus Election Code was amended
by Section 43 of R.A. No. 9369,71 which reads:
Section 43. Section 265 of Batas Pambansa Blg. 881 is
hereby amended to read as follows:
SEC. 265. Prosecution. – The Commission shall, through its
duly authorized legal officers, have the power, concurrent
with the other prosecuting arms of the government, to
conduct preliminary investigation of all election offenses
punishable under this Code, and to prosecute the same.72
As clearly set forth above, instead of a mere delegated
authority, the other prosecuting arms of the government,
such as the DOJ, now exercise concurrent jurisdiction with
45
the Comelec to conduct preliminary investigation of all
election offenses and to prosecute the same.
It is, therefore, not only the power but the duty of both the
Comelec and the DOJ to perform any act necessary to
ensure the prompt and fair investigation and prosecution
of election offenses. Pursuant to the above constitutional
and statutory provisions, and as will be explained further
below, we find no impediment for the Comelec and the
DOJ to create the Joint Committee and Fact-Finding
Team for the purpose of conducting a thorough
investigation of the alleged massive electoral fraud and
the manipulation of election results in the 2004 and 2007
national elections relating in particular to the presidential
and senatorial elections.73
Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee
and Fact-Finding Team is in violation of the equal
protection clause of the Constitution because its sole
purpose is the investigation and prosecution of certain
persons and incidents. They argue that there is no
substantial distinction between the allegations of massive
electoral fraud in 2004 and 2007, on the one hand, and
previous and subsequent national elections, on the other
hand; and no substantial distinction between petitioners
and the other persons or public officials who might have
been involved in previous election offenses. They insist that
the Joint Panel was created to target only the Arroyo
Administration as well as public officials linked to the
Arroyo Administration. To bolster their claim, petitioners
explain that Joint Order No. 001-2011 is similar to Executive
Order No. 1 (creating the Philippine Truth Commission)
which this Court had already nullified for being
violative of the equal protection clause.
Respondents, however, refute the above contentions and
argue that the wide array of the possible election offenses
and broad spectrum of individuals who may have
committed them, if any, immediately negate the assertion
that the assailed orders are aimed only at the officials of
the Arroyo Administration.
We agree with the respondents.
The equal protection clause is enshrined in Section 1,
Article III of the Constitution which reads:
Section 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person
be denied the equal protection of the laws.74
The concept of equal protection has been laid down in
Biraogo v. Philippine Truth Commission of 2010:75
One of the basic principles on which this government was
founded is that of the equality of right which is embodied
in Section 1, Article III of the 1987 Constitution. The equal
protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the
requirements of justice and fair play. It has been
embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue
favoritism or hostility from the government. Arbitrariness in
general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes
of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.
According to a long line of decisions, equal protection
simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and
responsibilities imposed. It requires public bodies and
institutions to treat similarly-situated individuals in a similar
manner. The purpose of the equal protection clause is to
secure every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether
occasioned by the express terms of a statute or by its
improper execution through the state's duly-constituted
authorities. In other words, the concept of equal justice
under the law requires the state to govern impartially, and
it may not draw distinctions between individuals solely on
differences that are irrelevant to a legitimate
governmental objective.76
Unlike the matter addressed by the Court’s ruling in
Biraogo v. Philippine Truth Commission of 2010, Joint Order
No. 001-2011 cannot be nullified on the ground that it
singles out the officials of the Arroyo Administration and,
therefore, it infringes the equal protection clause. The
Philippine Truth Commission of 2010 was expressly created
for the purpose of investigating alleged graft and
corruption during the Arroyo Administration since
Executive Order No. 177 specifically referred to the
"previous administration"; while the Joint Committee was
created for the purpose of conducting preliminary
investigation of election offenses during the 2004 and 2007
elections. While GMA and Mike Arroyo were among those
subjected to preliminary investigation, not all respondents
therein were linked to GMA as there were public officers
who were investigated upon in connection with their acts
in the performance of their official duties. Private
individuals were also subjected to the investigation by the
Joint Committee.
The equal protection guarantee exists to prevent undue
favor or privilege. It is intended to eliminate discrimination
and oppression based on inequality. Recognizing the
existence of real differences among men, it does not
demand absolute equality. It merely requires that all
persons under like circumstances and conditions shall be
treated alike both as to privileges conferred and liabilities
enforced.78
We once held that the Office of the Ombudsman is
granted virtually plenary investigatory powers by the
Constitution and by law and thus may, for every particular
investigation, whether commenced by complaint or on its
own initiative, decide how best to pursue each
investigation. Since the Office of the Ombudsman is
46
granted such latitude, its varying treatment of similarly
situated investigations cannot by itself be considered a
violation of any of the parties’ rights to the equal
protection of the laws.79 This same doctrine should likewise
apply in the present case.
Thus, as the constitutional body granted with the broad
power of enforcing and administering all laws and
regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall,80 and tasked
to ensure free, orderly, honest, peaceful, and credible
elections,81 the Comelec has the authority to determine
how best to perform such constitutional mandate.
Pursuant to this authority, the Comelec issues various
resolutions prior to every local or national elections setting
forth the guidelines to be observed in the conduct of the
elections. This shows that every election is distinct and
requires different guidelines in order to ensure that the rules
are updated to respond to existing circumstances.
Moreover, as has been practiced in the past, complaints
for violations of election laws may be filed either with the
Comelec or with the DOJ. The Comelec may even initiate,
motu proprio, complaints for election offenses.82
Pursuant to law and the Comelec’s own Rules,
investigations may be conducted either by the Comelec
itself through its law department or through the
prosecutors of the DOJ. These varying procedures and
treatment do not, however, mean that respondents are
not treated alike. Thus, petitioners’ insistence of
infringement of their constitutional right to equal
protection of the law is misplaced.
B. Due Process
Petitioners claim that the Joint Panel does not possess the
required cold neutrality of an impartial judge because it is
all at once the evidence-gatherer, prosecutor and judge.
They explain that since the Fact-Finding Team has found
probable cause to subject them to preliminary
investigation, it is impossible for the Joint Committee to
arrive at an opposite conclusion. Petitioners likewise
express doubts of any possibility that the Joint Committee
will be fair and impartial to them as Secretary De Lima and
Chairman Brillantes had repeatedly expressed
prejudgment against petitioners through their statements
captured by the media.
For their part, respondents contend that petitioners failed
to present proof that the President of the Philippines,
Secretary of Justice, and Chairman of the Comelec
actually made the statements allegedly prejudging their
case and in the context in which they interpreted them.
They likewise contend that assuming that said statements
were made, there was no showing that Secretary De Lima
had tried to intervene in the investigation to influence its
outcome nor was it proven that the Joint Committee itself
had prejudged the case. Lastly, they point out that Joint
Order No. 001-2011 created two bodies, the Fact-Finding
Team and the Joint Committee, with their respective
mandates. Hence, they cannot be considered as one.

We find for respondents.
It is settled that the conduct of preliminary investigation is,
like court proceedings, subject to the requirements of both
substantive and procedural due process.83 Preliminary
investigation is considered as a judicial proceeding
wherein the prosecutor or investigating officer, by the
nature of his functions, acts as a quasi-judicial officer.84
The authority of a prosecutor or investigating officer duly
empowered to preside over or to conduct a preliminary
investigation is no less than that of a municipal judge or
even an RTC Judge.85 Thus, as emphasized by the Court
in Ladlad v. Velasco:86
x x x We cannot emphasize too strongly that prosecutors
should not allow, and should avoid, giving the impression
that their noble office is being used or prostituted, wittingly
or unwittingly, for political ends, or other purposes alien to,
or subversive of, the basic and fundamental objective of
serving the interest of justice evenhandedly, without fear
or favor to any and all litigants alike, whether rich or poor,
weak or strong, powerless or mighty. Only by strict
adherence to the established procedure may public's
perception of the impartiality of the prosecutor be
enhanced.87
In this case, as correctly pointed out by respondents, there
was no showing that the statements claimed to have
prejudged the case against petitioners were made by
Secretary De Lima and Chairman Brillantes or were in the
prejudicial context in which petitioners claimed the
statements were made. A reading of the statements
allegedly made by them reveals that they were just
responding to hypothetical questions in the event that
probable cause would eventually be found by the Joint
Committee.
More importantly, there was no proof or even an
allegation that the Joint Committee itself, tasked to
conduct the requisite preliminary investigation against
petitioners, made biased statements that would convey to
the public that the members were favoring a particular
party. Neither did the petitioners show that the President of
the Philippines, the Secretary of Justice or the Chairman of
the Comelec intervened in the conduct of the preliminary
investigation or exerted undue pressure on their
subordinates to tailor their decision with their public
declarations and adhere to a pre-determined result.88
Moreover, insofar as the Comelec is concerned, it must be
emphasized that the constitutional body is collegial. The
act of the head of a collegial body cannot be considered
as that of the entire body itself.89 In equating the alleged
bias of the above-named officials with that of the Joint
Committee, there would be no arm of the government
credible enough to conduct a preliminary investigation.90
It must also be emphasized that Joint Order No. 001-2011
created two bodies, namely: (1) the Fact-Finding Team
tasked to gather real, documentary and testimonial
evidence which can be utilized in the preliminary
investigation to be conducted by the Joint Committee;
47
and (2) the Joint Committee mandated to conduct
preliminary investigation. It is, therefore, inaccurate to say
that there is only one body which acted as evidence-
gatherer, prosecutor and judge.
C. Separation of powers
Petitioners claim that the Joint Panel is a new public office
as shown by its composition, the creation of its own Rules
of Procedure, and the source of funding for its operation.
It is their position that the power of the DOJ to investigate
the commission of crimes and the Comelec’s
constitutional mandate to investigate and prosecute
violations of election laws do not include the power to
create a new public office in the guise of a joint
committee. Thus, in creating the Joint Panel, the DOJ and
the Comelec encroached upon the power of the
Legislature to create public office.
Respondents dispute this and contend that the Joint
Committee and Fact-Finding Team are not new public
offices, but merely collaborations between two existing
government agencies sharing concurrent jurisdiction. This
is shown by the fact that the members of the Joint Panel
are existing officers of the DOJ and the Comelec who
exercise duties and functions that are already vested in
them.
Again, we agree with respondents.
As clearly explained above, the Comelec is granted the
power to investigate, and where appropriate, prosecute
cases of election offenses. This is necessary in ensuring free,
orderly, honest, peaceful and credible elections. On the
other hand, the DOJ is mandated to administer the
criminal justice system in accordance with the accepted
processes thereof consisting in the investigation of the
crimes, prosecution of offenders and administration of the
correctional system.91 It is specifically empowered to
"investigate the commission of crimes, prosecute offenders
and administer the probation and correction system."92
Also, the provincial or city prosecutors and their assistants,
as well as the national and regional state prosecutors, are
specifically named as the officers authorized to conduct
preliminary investigation.93 Recently, the Comelec,
through its duly authorized legal offices, is given the power,
concurrent with the other prosecuting arms of the
government such as the DOJ, to conduct preliminary
investigation of all election offenses.94
Undoubtedly, it is the Constitution, statutes, and the Rules
of Court and not the assailed Joint Order which give the
DOJ and the Comelec the power to conduct preliminary
investigation. No new power is given to them by virtue of
the assailed order. As to the members of the Joint
Committee and Fact-Finding Team, they perform such
functions that they already perform by virtue of their
current positions as prosecutors of the DOJ and legal
officers of the Comelec. Thus, in no way can we consider
the Joint Committee as a new public office.
D. Independence of the Comelec

Petitioners claim that in creating the Joint Panel, the
Comelec has effectively abdicated its constitutional
mandate to investigate and, where appropriate, to
prosecute cases of violation of election laws including acts
or omissions constituting election frauds, offenses, and
malpractices in favor of the Executive Department acting
through the DOJ Secretary. Under the set- up, the
Comelec personnel is placed under the supervision and
control of the DOJ. The chairperson is a DOJ official. Thus,
the Comelec has willingly surrendered its independence
to the DOJ and has acceded to share its exercise of
judgment and discretion with the Executive Branch.
We do not agree.
Section 1,95 Article IX-A of the 1987 Constitution expressly
describes all the Constitutional Commissions as
independent. Although essentially executive in nature,
they are not under the control of the President of the
Philippines in the discharge of their respective functions.96
The Constitution envisions a truly independent Comelec
committed to ensure free, orderly, honest, peaceful, and
credible elections and to serve as the guardian of the
people’s sacred right of suffrage – the citizenry’s vital
weapon in effecting a peaceful change of government
and in achieving and promoting political stability.97
Prior to the amendment of Section 265 of the Omnibus
Election Code, the Comelec had the exclusive authority
to investigate and prosecute election offenses. In the
discharge of this exclusive power, the Comelec was given
the right to avail and, in fact, availed of the assistance of
other prosecuting arms of the government such as the
prosecutors of the DOJ. By virtue of this continuing
authority, the state prosecutors and the provincial or city
prosecutors were authorized to receive the complaint for
election offense and delegate the conduct of
investigation to any of their assistants. The investigating
prosecutor, in turn, would make a recommendation either
to dismiss the complaint or to file the information. This
recommendation is subject to the approval of the state,
provincial or city prosecutor, who himself may file the
information with the proper court if he finds sufficient cause
to do so, subject, however, to the accused’s right to
appeal to the Comelec.98
Moreover, during the past national and local elections, the
Comelec issued Resolutions99 requesting the Secretary of
Justice to assign prosecutors as members of Special Task
Forces to assist the Comelec in the investigation and
prosecution of election offenses. These Special Task Forces
were created because of the need for additional lawyers
to handle the investigation and prosecution of election
offenses.
Clearly, the Comelec recognizes the need to delegate to
the prosecutors the power to conduct preliminary
investigation. Otherwise, the prompt resolution of alleged
election offenses will not be attained. This delegation of
power, otherwise known as deputation, has long been
recognized and, in fact, been utilized as an effective
48
means of disposing of various election offense cases.
Apparently, as mere deputies, the prosecutors played a
vital role in the conduct of preliminary investigation, in the
resolution of complaints filed before them, and in the filing
of the informations with the proper court.
As pointed out by the Court in Barangay Association for
National Advancement and Transparency (BANAT) Party-
List v. Commission on Elections,100 the grant of exclusive
power to investigate and prosecute cases of election
offenses to the Comelec was not by virtue of the
Constitution but by the Omnibus Election Code which was
eventually amended by Section 43 of R.A. 9369. Thus, the
DOJ now conducts preliminary investigation of election
offenses concurrently with the Comelec and no longer as
mere deputies. If the prosecutors had been allowed to
conduct preliminary investigation and file the necessary
information by virtue only of a delegated authority, they
now have better grounds to perform such function by
virtue of the statutory grant of authority. If deputation was
justified because of lack of funds and legal officers to
ensure prompt and fair investigation and prosecution of
election offenses, the same justification should be cited to
justify the grant to the other prosecuting arms of the
government of such concurrent jurisdiction.
In view of the foregoing disquisition, we find no
impediment for the creation of a Joint Committee. While
the composition of the Joint Committee and Fact-Finding
Team is dominated by DOJ officials, it does not necessarily
follow that the Comelec is inferior. Under the Joint Order,
resolutions of the Joint Committee finding probable cause
for election offenses shall still be approved by the
Comelec in accordance with the Comelec Rules of
Procedure. This shows that the Comelec, though it acts
jointly with the DOJ, remains in control of the proceedings.
In no way can we say that the Comelec has thereby
abdicated its independence to the executive
department.
The text and intent of the constitutional provision granting
the Comelec the authority to investigate and prosecute
election offenses is to give the Comelec all the necessary
and incidental powers for it to achieve the objective of
holding free, orderly, honest, peaceful, and credible
elections.101 The Comelec should be allowed
considerable latitude in devising means and methods that
will insure the accomplishment of the great objective for
which it was created.102 We may not agree fully with its
choice of means, but unless these are clearly illegal or
constitute gross abuse of discretion, this Court should not
interfere.103 Thus, Comelec Resolution No. 9266,
approving the creation of the Joint Committee and Fact-
Finding Team, should be viewed not as an abdication of
the constitutional body’s independence but as a means
to fulfill its duty of ensuring the prompt investigation and
prosecution of election offenses as an adjunct of its
mandate of ensuring a free, orderly, honest, peaceful and
credible elections.
Although it belongs to the executive department, as the
agency tasked to investigate crimes, prosecute offenders,
and administer the correctional system, the DOJ is likewise
not barred from acting jointly with the Comelec. It must be
emphasized that the DOJ and the Comelec exercise
concurrent jurisdiction in conducting preliminary
investigation of election offenses. The doctrine of
concurrent jurisdiction means equal jurisdiction to deal
with the same subject matter.104 Contrary to the
contention of the petitioners, there is no prohibition on
simultaneous exercise of power between two coordinate
bodies. What is prohibited is the situation where one files a
complaint against a respondent initially with one office
(such as the Comelec) for preliminary investigation which
was immediately acted upon by said office and the re-
filing of substantially the same complaint with another
office (such as the DOJ). The subsequent assumption of
jurisdiction by the second office over the cases filed will not
be allowed. Indeed, it is a settled rule that the body or
agency that first takes cognizance of the complaint shall
exercise jurisdiction to the exclusion of the others.105 As
cogently held by the Court in Department of Justice v.
Hon. Liwag:106
To allow the same complaint to be filed successively
before two or more investigative bodies would promote
multiplicity of proceedings. It would also cause undue
difficulties to the respondent who would have to appear
and defend his position before every agency or body
where the same complaint was filed. This would lead
hapless litigants at a loss as to where to appear and plead
their cause or defense.
There is yet another undesirable consequence. There is the
distinct possibility that the two bodies exercising jurisdiction
at the same time would come up with conflicting
resolutions regarding the guilt of the respondents.
Finally, the second investigation would entail an
unnecessary expenditure of public funds, and the use of
valuable and limited resources of Government, in a
duplication of proceedings already started with the
Ombudsman.107
None of these problems would likely arise in the present
case. The Comelec and the DOJ themselves agreed that
they would exercise their concurrent jurisdiction jointly.
Although the preliminary investigation was conducted on
the basis of two complaints – the initial report of the Fact-
Finding Team and the complaint of Senator Pimentel –
both complaints were filed with the Joint Committee.
Consequently, the complaints were filed with and the
preliminary investigation was conducted by only one
investigative body. Thus, we find no reason to disallow the
exercise of concurrent jurisdiction jointly by those given
such authority. This is especially true in this case given the
magnitude of the crimes allegedly committed by
petitioners. The joint preliminary investigation also serves to
maximize the resources and manpower of both the
Comelec and the DOJ for the prompt disposition of the
cases.
Citing the principle of concurrent jurisdiction, petitioners
insist that the investigation conducted by the Comelec
49
involving Radam and Martirizar bars the creation of the
Joint Committee for purposes of conducting another
preliminary investigation. In short, they claim that the
exercise by the Comelec of its jurisdiction to investigate
excludes other bodies such as the DOJ and the Joint
Committee from taking cognizance of the case.
Petitioners add that the investigation should have been
conducted also by the Comelec as the 2007 cases of
Radam and Martirizar include several John Does and Jane
Does.
We do not agree.
While the Comelec conducted the preliminary
investigation against Radam, Martirizar and other
unidentified persons, it only pertains to election offenses
allegedly committed in North and South Cotabato. On the
other hand, the preliminary investigation conducted by
the Joint Committee (involving GMA) pertains to election
offenses supposedly committed in Maguindanao. More
importantly, considering the broad power of the Comelec
to choose the means of fulfilling its duty of ensuring the
prompt investigation and prosecution of election offenses
as discussed earlier, there is nothing wrong if the Comelec
chooses to work jointly with the DOJ in the conduct of said
investigation. To reiterate, in no way can we consider this
as an act abdicating the independence of the Comelec.
Publication Requirement
In the conduct of preliminary investigation, the DOJ is
governed by the Rules of Court, while the Comelec is
governed by the 1993 Comelec Rules of Procedure. There
is, therefore, no need to promulgate new Rules as may be
complementary to the DOJ and Comelec Rules.
As earlier discussed, considering that Joint Order No. 001-
2011 only enables the Comelec and the DOJ to exercise
powers which are already vested in them by the
Constitution and other existing laws, it need not be
published for it to be valid and effective. A close
examination of the Joint Committee’s Rules of Procedure,
however, would show that its provisions affect the public.
Specifically, the following provisions of the Rules either
restrict the rights of or provide remedies to the affected
parties, to wit: (1) Section 1 provides that "the Joint
Committee will no longer entertain complaints from the
public as soon as the Fact-Finding Team submits its final
report, except for such complaints involving offenses
mentioned in the Fact-Finding Team’s Final Report"; (2)
Section 2 states that "the Joint Committee shall not
entertain a Motion to Dismiss"; and (3) Section 5 provides
that a Motion for Reconsideration may be availed of by
the aggrieved parties against the Joint Committee’s
Resolution. Consequently, publication of the Rules is
necessary.
The publication requirement covers not only statutes but
administrative regulations and issuances, as clearly
outlined in Tañada v. Tuvera:108 effectivity, which shall
begin fifteen days after publication unless a different
effectivity date is fixed by the legislature. Covered by this
rule are presidential decrees and executive orders
promulgated by the President in the exercise of legislative
powers whenever the same are validly delegated by the
legislature or, at present, directly conferred by the
Constitution. Administrative rules and regulations must also
be published if their purpose is to enforce or implement
existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be
published. Neither is publication required of the so called
letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.109
As opposed to Honasan II v. The Panel of Investigating
Prosecutors of the Department of Justice,110 where the
Court held that OMB-DOJ Joint Circular No. 95-001 is only
an internal arrangement between the DOJ and the Office
of the Ombudsman outlining the authority and
responsibilities among prosecutors of both offices in the
conduct of preliminary investigation, the assailed Joint
Committee’s Rules of Procedure regulate not only the
prosecutors of the DOJ and the Comelec but also the
conduct and rights of persons, or the public in general. The
publication requirement should, therefore, not be ignored.
Publication is a necessary component of procedural due
process to give as wide publicity as possible so that all
persons having an interest in the proceedings may be
notified thereof.111 The requirement of publication is
intended to satisfy the basic requirements of due process.
It is imperative for it will be the height of injustice to punish
or otherwise burden a citizen for the transgressions of a law
or rule of which he had no notice whatsoever.112
Nevertheless, even if the Joint Committee’s Rules of
Procedure is ineffective for lack of publication, the
proceedings undertaken by the Joint Committee are not
rendered null and void for that reason, because the
preliminary investigation was conducted by the Joint
Committee pursuant to the procedures laid down in Rule
112 of the Rules on Criminal Procedure and the 1993
Comelec Rules of Procedure.
Validity of the Conduct of
Preliminary Investigation
In her Supplemental Petition,113 GMA outlines the
incidents that took place after the filing of the instant
petition, specifically the issuance by the Joint Committee
of the Joint Resolution, the approval with modification of
such resolution by the Comelec and the filing of
information and the issuance of a warrant of arrest by the
RTC. With these supervening events, GMA further assails
the validity of the proceedings that took place based on
the following additional grounds: (1) the undue and
unbelievable haste attending the Joint Committee’s
conduct of the preliminary investigation, its resolution of
the case, and its referral to and approval by the Comelec,
taken in conjunction with the statements from the Office
of the President, demonstrate a deliberate and
50
reprehensible pattern of abuse of inalienable rights and a
blatant disregard of the envisioned integrity and
independence of the Comelec; (2) as it stands, the
creation of the Joint Committee was for the singular
purpose of railroading the proceedings in the prosecution
of the petitioner and in flagrant violation of her right to due
process and equal protection of the laws; (3) the
proceedings of the Joint Committee cannot be
considered impartial and fair, considering that
respondents have acted as law enforcers, who
conducted the criminal investigation, gathered evidence
and thereafter ordered the filing of complaints, and at the
same time authorized preliminary investigation based on
the complaints they caused to be filed; (4) the Comelec
became an instrument of oppression when it hastily
approved the resolution of the Joint Committee even if
two of its members were in no position to cast their votes
as they admitted to not having yet read the voluminous
records of the cases; and (5) flagrant and repeated
violations of her right to due process at every stage of the
proceedings demonstrate a deliberate attempt to single
out petitioner through the creation of the Joint
Committee.114
In their Supplement to the Consolidated Comment,115
respondents accuse petitioners of violating the rule
against forum shopping. They contend that in filing the
Supplemental Petition before the Court, the Urgent
Omnibus Motion Ad Cautelam with the RTC, and the
Motion to Vacate Ad Cautelam with the Comelec, GMA
raises the common issue of whether or not the
proceedings before the Joint Committee and the
Comelec are null and void for violating the Constitution.
Respondents likewise claim that the issues raised in the
supplemental petition are factual which is beyond the
power of this Court to decide.
We cannot dismiss the cases before us on the ground of
forum shopping.
Forum shopping is the act of a party against whom an
adverse judgment has been rendered in one forum, of
seeking another and possibly favorable opinion in another
forum other than by appeal or the special civil action of
certiorari.116 There can also be forum shopping when a
party institutes two or more suits in different courts, either
simultaneously or successively, in order to ask the courts to
rule on the same and related causes and/or to grant the
same or substantially the same reliefs on the supposition
that one or the other court would make a favorable
disposition or increase a party’s chances of obtaining a
favorable decision or action.117
Indeed, petitioner GMA filed a Supplemental Petition
before the Court, an Urgent Omnibus Motion Ad
Cautelam before the RTC, and a Motion to Vacate Ad
Cautelam before the Comelec, emphasizing the
unbelievable haste committed by the Joint Committee
and the Comelec in disposing of the cases before them.
However, a plain reading of the allegations in GMA’s
motion before the RTC would show that GMA raised the
issue of undue haste in issuing the Joint Resolution only in
support of her prayer for the trial court to hold in abeyance
the issuance of the warrant of arrest, considering that her
motion for reconsideration of the denial of her motion to
be furnished copies of documents was not yet acted upon
by the Joint Committee. If at all the constitutional issue of
violation of due process was raised, it was merely
incidental. More importantly, GMA raised in her motion
with the RTC the finding of probable cause as she sought
the judicial determination of probable cause which is not
an issue in the petitions before us. GMA’s ultimate prayer is
actually for the court to defer the issuance of the warrant
of arrest. Clearly, the reliefs sought in the RTC are different
from the reliefs sought in this case. Thus, there is no forum
shopping.
With respect to the Motion to Vacate Ad Cautelam filed
with the Comelec, while the issues raised therein are
substantially similar to the issues in the supplemental
petition which, therefore, strictly speaking, warrants
outright dismissal on the ground of forum shopping, we
cannot do so in this case in light of the due process issues
raised by GMA.118 It is worthy to note that the main issues
in the present petitions are the constitutionality of the
creation of the Joint Panel and the validity of the
proceedings undertaken pursuant thereto for alleged
violation of the constitutional right to due process. In
questioning the propriety of the conduct of the preliminary
investigation in her Supplemental Petition, GMA only raises
her continuing objection to the exercise of jurisdiction of
the Joint Committee and the Comelec. There is, therefore,
no impediment for the Court to rule on the validity of the
conduct of preliminary investigation.
In Uy v. Office of the Ombudsman,119 the Court explained
the nature of preliminary investigation, to wit:
A preliminary investigation is held before an accused is
placed on trial to secure the innocent against hasty,
malicious, and oppressive prosecution; to protect him from
an open and public accusation of a crime, as well as from
the trouble, expenses, and anxiety of a public trial. It is also
intended to protect the state from having to conduct
useless and expensive trials. While the right is statutory
rather than constitutional, it is a component of due process
in administering criminal justice. The right to have a
preliminary investigation conducted before being bound
for trial and before being exposed to the risk of
incarceration and penalty is not a mere formal or
technical right; it is a substantive right. To deny the
accused's claim to a preliminary investigation is to deprive
him of the full measure of his right to due process.120
A preliminary investigation is the crucial sieve in the
criminal justice system which spells for an individual the
difference between months if not years of agonizing trial
and possibly jail term, on the one hand, and peace of
mind and liberty, on the other hand. Thus, we have
characterized the right to a preliminary investigation as not
a mere formal or technical right but a substantive one,
forming part of due process in criminal justice.121
51
In a preliminary investigation, the Rules of Court guarantee
the petitioners basic due process rights such as the right to
be furnished a copy of the complaint, the affidavits, and
other supporting documents, and the right to submit
counter-affidavits, and other supporting documents in her
defense.122 Admittedly, GMA received the notice
requiring her to submit her counter-affidavit. Yet, she did
not comply, allegedly because she could not prepare her
counter-affidavit. She claimed that she was not furnished
by Senator Pimentel pertinent documents that she
needed to adequately prepare her counter-affidavit.
In her Omnibus Motion Ad Cautelam123 to require Senator
Pimentel to furnish her with documents referred to in his
complaint-affidavit and for production of election
documents as basis for the charge of electoral sabotage,
GMA prayed that the Joint Committee issue an Order
directing the Fact-Finding Team and Senator Pimentel to
furnish her with copies of the following documents:
a. Complaint-affidavit and other relevant documents of
Senator Aquilino Pimentel III filed before the Commission
on Elections against Attys. Lilia Suan-Radam and Yogie
Martirizar, as well as the Informations filed in the Regional
Trial Court of Pasay City, Branch 114 in Criminal Case Nos.
R-PSU-11-03190-CR to R-PSU-11-03200-CR.
b. Records in the petitions filed by complainant Pimentel
before the National Board of Canvassers, specifically in
NBC Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161 and
07-163.
c. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Maguindanao."
d. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Lanao del Norte."
e. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Shariff Kabunsuan."
f. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Lanao del Sur."
g. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Sulu."
h. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Basilan."
i. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Sultan Kudarat."124
GMA likewise requested the production of election
documents used in the Provinces of South and North
Cotabato and Maguindanao.125
The Joint Committee, however, denied GMA’s motion
which carried with it the denial to extend the filing of her
counter-affidavit. Consequently, the cases were
submitted for resolution sans GMA’s and the other
petitioners’ counter-affidavits. This, according to GMA,
violates her right to due process of law.
We do not agree.
GMA’s insistence of her right to be furnished the above-
enumerated documents is based on Section 3 (b), Rule
112 of the Rules on Criminal Procedure, which reads:
(b) x x x
The respondent shall have the right to examine the
evidence submitted by the complainant which he may
not have been furnished and to copy them at his expense.
If the evidence is voluminous, the complainant may be
required to specify those which he intends to present
against the respondent, and these shall be made
available for examination or copying by the respondent at
his expense,
Objects as evidence need not be furnished a party but
shall be made available for examination, copying or
photographing at the expense of the requesting party.126
Section 6 (a), Rule 34 of the Comelec Rules of Procedure
also grants the respondent such right of examination, to
wit:
Sec. 6. Conduct of preliminary investigation. – (a) If on the
basis of the complaint, affidavits and other supporting
evidence, the investigating officer finds no ground to
continue with the inquiry, he shall recommend the
dismissal of the complaint and shall follow the procedure
prescribed in Sec. 8 (c) of this Rule. Otherwise, he shall issue
a subpoena to the respondent, attaching thereto a copy
of the complaint, affidavits and other supporting
documents giving said respondent ten (10) days from
receipt within which to submit counter-affidavits and other
supporting documents. The respondent shall have the right
to examine all other evidence submitted by the
complainant.127
Clearly from the above-quoted provisions, the subpoena
issued against respondent therein should be
accompanied by a copy of the complaint and the
supporting affidavits and documents. GMA also has the
right to examine documents but such right of examination
is limited only to the documents or evidence submitted by
the complainants (Senator Pimentel and the Fact-Finding
Team) which she may not have been furnished and to
copy them at her expense.
While it is true that Senator Pimentel referred to certain
election documents which served as bases in the
52
allegations of significant findings specific to the protested
municipalities involved, there were no annexes or
attachments to the complaint filed.128 As stated in the
Joint Committee’s Order dated November 15, 2011
denying GMA’s Omnibus Motion Ad Cautelam, Senator
Pimentel was ordered to furnish petitioners with all the
supporting evidence129 However, Senator Pimentel
manifested that he was adopting all the affidavits
attached to the Fact-Finding Team’s Initial Report.130
Therefore, when GMA was furnished with the documents
attached to the Initial Report, she was already granted the
right to examine as guaranteed by the Comelec Rules of
Procedure and the Rules on Criminal Procedure. Those
were the only documents submitted by the complainants
to the Committee. If there are other documents that were
referred to in Senator Pimentel’s complaint but were not
submitted to the Joint Committee, the latter considered
those documents unnecessary at that point (without
foreclosing the relevance of other evidence that may later
be presented during the trial)131 as the evidence
submitted before it were considered adequate to find
probable cause against her.132 Anyway, the failure of the
complainant to submit documents supporting his
allegations in the complaint may only weaken his claims
and eventually works for the benefit of the respondent as
these merely are allegations unsupported by independent
evidence.
We must, however, emphasize at this point that during the
preliminary investigation, the complainants are not
obliged to prove their cause beyond reasonable doubt. It
would be unfair to expect them to present the entire
evidence needed to secure the conviction of the
accused prior to the filing of information.133 A preliminary
investigation is not the occasion for the full and exhaustive
display of the parties’ respective evidence but the
presentation only of such evidence as may engender a
well-grounded belief that an offense has been committed
and that the accused is probably guilty thereof and should
be held for trial.134 Precisely there is a trial to allow the
reception of evidence for the prosecution in support of the
charge.135
With the denial of GMA’s motion to be furnished with and
examine the documents referred to in Senator Pimentel’s
complaint, GMA’s motion to extend the filing of her
counter-affidavit and countervailing evidence was
consequently denied. Indeed, considering the nature of
the crime for which GMA was subjected to preliminary
investigation and the documents attached to the
complaint, it is incumbent upon the Joint Committee to
afford her ample time to examine the documents
submitted to the Joint Committee in order that she would
be able to prepare her counter-affidavit. She cannot,
however, insist to examine documents not in the
possession and custody of the Joint Committee nor
submitted by the complainants. Otherwise, it might cause
undue and unnecessary delay in the disposition of the
cases. This undue delay might result in the violation of the
right to a speedy disposition of cases as enshrined in
Section 16, Article III of the Constitution which states that
"all persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or
administrative bodies." The constitutional right to speedy
disposition of cases is not limited to the accused in criminal
proceedings but extends to all parties in all cases,
including civil and administrative cases, and in all
proceedings, including judicial and quasi-judicial
hearings.136 Any party to a case has the right to demand
on all officials tasked with the administration of justice to
expedite its disposition.137 Society has a particular interest
in bringing swift prosecutions, and the society’s
representatives are the ones who should protect that
interest.138
Even assuming for the sake of argument that the denial of
GMA’s motion to be furnished with and examine the
documents referred to in Senator Pimentel’s complaint
carried with it the denial to extend the filing of her counter-
affidavit and other countervailing evidence rendering the
preliminary investigation irregular, such irregularity would
not divest the RTC of jurisdiction over the case and would
not nullify the warrant of arrest issued in connection
therewith, considering that Informations had already been
filed against petitioners, except Mike Arroyo. This would
only compel us to suspend the proceedings in the RTC and
remand the case to the Joint Committee so that GMA
could submit her counter-affidavit and other
countervailing evidence if she still opts to. However, to do
so would hold back the progress of the case which is
anathema to the accused’s right to speedy disposition of
cases.
It is well settled that the absence or irregularity of
preliminary investigation does not affect the court’s
jurisdiction over the case. Nor does it impair the validity of
the criminal information or render it defective. Dismissal is
not the remedy.139 Neither is it a ground to quash the
information or nullify the order of arrest issued against the
accused or justify the release of the accused from
detention.140 The proper course of action that should be
taken is to hold in abeyance the proceedings upon such
information and to remand the case for the conduct of
preliminary investigation.141
In the landmark cases of Cojuangco, Jr. v. Presidential
Commission on Good Government (PCGG)142 and
Allado v. Diokno,143 we dismissed the criminal cases and
set aside the informations and warrants of arrest. In
Cojuangco, we dismissed the criminal case because the
information was filed by the PCGG which we declared to
be unauthorized to conduct the preliminary investigation
and, consequently, file the information as it did not possess
the cold neutrality of an impartial judge. In Allado, we set
aside the warrant of arrest issued against petitioners
therein and enjoined the trial court from proceeding
further for lack of probable cause. For one, there was
serious doubt on the reported death of the victim in that
case since the corpus delicti had not been established nor
had his remains been recovered;and based on the
evidence submitted, there was nothing to incriminate
petitioners therein. In this case, we cannot reach the same
conclusion because the Information filed before the RTC
of Pasay City was filed by the Comelec en banc which
53
had the authority to file the information for electoral
sabotage and because the presence or absence of
probable cause is not an issue herein. As can be gleaned
from their assignment of errors/issues, petitioners did not
question the finding of probable cause in any of their
supplemental petitions. It was only in GMA’s memorandum
where she belatedly included a discussion on the
"insufficiency" of the evidence supporting the finding of
probable cause for the filing of the Information for
electoral sabotage against her.144 A closer look at her
arguments, however, would show that they were included
only to highlight the necessity of examining the election
documents GMA requested to see before she could file
her counter-affidavit. At any rate, since GMA failed to
submit her counter-affidavit and other countervailing
evidence within the period required by the Joint
Committee, we cannot excuse her from non-compliance.
There might have been overzealousness on the part of the
Joint Committee in terminating the investigation,
endorsing the Joint Resolution to the Comelec for
approval, and in filing the information in court. However,
speed in the conduct of proceedings by a judicial or
quasi-judicial officer cannot per se be instantly attributed
to an injudicious performance of functions.145 The orderly
administration of justice remains the paramount
consideration with particular regard to the peculiar
circumstances of each case.146 To be sure, petitioners
were given the opportunity to present countervailing
evidence. Instead of complying with the Joint
Committee’s directive, several motions were filed but were
denied by the Joint Committee. Consequently,
petitioners’ right to submit counter-affidavit and
countervailing evidence was forfeited. Taking into
account the constitutional right to speedy disposition of
cases and following the procedures set forth in the Rules
on Criminal Procedure and the Comelec Rules of
Procedure, the Joint Committee finally reached its
conclusion and referred the case to the Comelec. The
latter, in turn, performed its task and filed the information
in court. Indeed, petitioners were given the opportunity to
be heard. They even actively participated in the
proceedings and in fact filed several motions before the
Joint Committee. Consistent with the constitutional
mandate of speedy disposition of cases, unnecessary
delays should be avoided.
Finally, we take judicial notice that on February 23, 2012,
GMA was already arraigned and entered a plea of "not
guilty" to the charge against her and thereafter filed a
Motion for Bail which has been granted. Considering that
the constitutionality of the creation of the Joint Panel is
sustained, the actions of the Joint Committee and Fact-
Finding Team are valid and effective. As the information
was filed by the Commission authorized to do so, its validity
is sustained. Thus, we consider said entry of plea and the
Petition for Bail waiver on the part of GMA of her right to
submit counter-affidavit and countervailing evidence
before the Joint Committee, and recognition of the
validity of the information against her. Her act indicates
that she opts to avail of judicial remedies instead of the
executive remedy of going back to the Joint Committee
for the submission of the counter-affidavit and
countervailing evidence. Besides, as discussed earlier, the
absence or irregularity of preliminary investigation does
not affect the court’s jurisdiction over the case nor does it
impair the validity of the criminal information or render it
defective.
It must be stressed, however, that this supervening event
does not render the cases before the Court moot and
academic as the main issues raised by petitioners are the
constitutionality of the creation of the Joint Committee
and the Fact-Finding Team and the validity of the
proceedings undertaken pursuant to their respective
mandates.
The Court notes that the Joint Committee and the
Comelec have not disposed of the cases of the other
respondents subjects of the preliminary investigation as
some of them were subjected to further investigation. In
order to remove the cloud of doubt that pervades that
petitioners are being singled out, it is to the best interest of
all the parties concerned that the Joint Committee and
the Comelec terminate the proceedings as to the other
respondents therein and not make a piecemeal
disposition of the cases.
A peripheral issue which nonetheless deserves our
attention is the question about the credibility of the
Comelec brought about by the alleged professional
relationship between Comelec Chairman Brillantes on one
hand and the complainant Senator Pimentel and
Fernando Poe, Jr. (FPJ), GMA’s rival in the 2004 elections,
on the other hand; and by the other Commissioners’147
reasons for their partial inhibition. To be sure, Chairman
Brillantes’ relationship with FPJ and Senator Pimentel is not
one of the grounds for the mandatory disqualification of a
Commissioner. At its most expansive, it may be considered
a ground for voluntary inhibition which is indeed
discretionary as the same was primarily a matter of
conscience and sound discretion on the part of the
Commissioner judge based on his or her rational and
logical assessment of the case.148 Bare allegations of bias
and prejudice are not enough in the absence of clear and
convincing evidence to overcome the presumption that a
judge will undertake his noble role to dispense justice
according to law and evidence without fear or favor.149
It being discretionary and since Commissioner Brillantes
was in the best position to determine whether or not there
was a need to inhibit from the case, his decision to
participate in the proceedings, in view of higher interest of
justice, equity and public interest, should be respected.
While a party has the right to seek the inhibition or
disqualification of a judge (or prosecutor or Commissioner)
who does not appear to be wholly free, disinterested,
impartial, and independent in handling the case, this right
must be weighed with his duty to decide cases without
fear of repression.150
Indeed, in Javier v. Comelec,151 the Court set aside the
Comelec’s decision against Javier when it was disclosed
that one of the Commissioners who had decided the case
was a law partner of Javier’s opponent and who had
54
refused to excuse himself from hearing the case. Javier,
however, is not applicable in this case. First, the cited case
involves the Comelec’s exercise of its adjudicatory
function as it was called upon to resolve the propriety of
the proclamation of the winner in the May 1984 elections
for Batasang Pambansa of Antique. Clearly, the grounds
for inhibition/disqualification were applicable. Second, the
case arose at the time where the purity of suffrage has
been defiled and the popular will scorned through the
confabulation of those in authority.152 In other words, the
controversy arose at the time when the public confidence
in the Comelec was practically nil because of its
transparent bias in favor of the administration.153 Lastly, in
determining the propriety of the decision rendered by the
Comelec, the Court took into consideration not only the
relationship (being former partners in the law firm)
between private respondents therein, Arturo F.
Pacificador, and then Comelec Commissioner Jaime
Opinion (Commissioner Opinion) but also the general
attitude of the Comelec toward the party in power at that
time. Moreover, the questioned Comelec decision was
rendered only by a division of the Comelec. The Court thus
concluded in Javier that Commissioner Opinion’s refusal to
inhibit himself divested the Comelec’s Second Division of
the necessary vote for the questioned decision and
rendered the proceedings null and void.154
On the contrary, the present case involves only the
conduct of preliminary investigation and the questioned
resolution is an act of the Comelec En Banc where all the
Commissioners participated and more than a majority
(even if Chairman Brillantes is excluded) voted in favor of
the assailed Comelec resolution. Unlike in 1986, public
confidence in the Comelec remains. The Commissioners
have already taken their positions in light of the claim of
"bias and partiality" and the causes of their partial
inhibition. Their positions should be respected confident
that in doing so, they had the end in view of ensuring that
the credibility of the Commission is not seriously affected.
To recapitulate, we find and so hold that petitioners failed
to establish any constitutional or legal impediment to the
creation of the Joint DOJ-Comelec Preliminary
Investigation Committee and Fact-Finding Team.
First, while GMA and Mike Arroyo were among those
subjected to preliminary investigation, not all respondents
therein were linked to GMA; thus, Joint Order No. 001-2011
does not violate the equal protection clause of the
Constitution.
Second, the due process clause is likewise not infringed
upon by the alleged prejudgment of the case as
petitioners failed to prove that the Joint Panel itself showed
such bias and partiality against them. Neither was it shown
that the Justice Secretary herself actually intervened in the
conduct of the preliminary investigation. More importantly,
considering that the Comelec is a collegial body, the
perceived prejudgment of Chairman Brillantes as head of
the Comelec cannot be considered an act of the body
itself.
Third, the assailed Joint Order did not create new offices
because the Joint Committee and Fact-Finding Team
perform functions that they already perform by virtue of
the Constitution, the statutes, and the Rules of
Court.1âwphi1
Fourth, in acting jointly with the DOJ, the Comelec cannot
be considered to have abdicated its independence in
favor of the executive branch of government. Resolution
No. 9266 was validly issued by the Comelec as a means to
fulfill its duty of ensuring the prompt investigation and
prosecution of election offenses as an adjunct of its
mandate of ensuring a free, orderly, honest, peaceful, and
credible elections. The role of the DOJ in the conduct of
preliminary investigation of election offenses has long
been recognized by the Comelec because of its lack of
funds and legal officers to conduct investigations and to
prosecute such cases on its own. This is especially true after
R.A. No. 9369 vested in the Comelec and the DOJ the
concurrent jurisdiction to conduct preliminary
investigation of all election offenses. While we uphold the
validity of Comelec Resolution No. 9266 and Joint Order
No. 001-2011, we declare the Joint Committee’s Rules of
Procedure infirm for failure to comply with the publication
requirement. Consequently, Rule 112 of the Rules on
Criminal Procedure and the 1993 Comelec Rules of
Procedure govern.
Fifth, petitioners were given the opportunity to be heard.
They were furnished a copy of the complaint, the
affidavits, and other supporting documents submitted to
the Joint Committee and they were required to submit
their counter-affidavit and countervailing evidence. As to
petitioners Mike Arroyo and Abalos, the pendency of the
cases before the Court does not automatically suspend
the proceedings before the Joint Committee nor excuse
them from their failure to file the required counter-
affidavits. With the foregoing disquisitions, we find no
reason to nullify the proceedings undertaken by the Joint
Committee and the Comelec in the electoral sabotage
cases against petitioners.
WHEREFORE, premises considered, the petitions and
supplemental petitions are DISMISSED. Comelec Resolution
No. 9266 dated August 2, 2011, Joint Order No. 001-2011
dated August 15, 2011, and the Fact-Finding Team’s Initial
Report dated October 20, 2011, are declared VALID.
However, the Rules of Procedure on the Conduct of
Preliminary Investigation on the Alleged Election Fraud in
the 2004 and 2007 National Elections is declared
INEFFECTIVE for lack of publication.
In view of the constitutionality of the Joint Panel and the
proceedings having been conducted in accordance with
Rule 112 of the Rules on Criminal Procedure and Rule 34 of
the Comelec Rules of Procedure, the conduct of the
preliminary investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay
City, Branch 112, where the criminal cases for electoral
sabotage against petitioners GMA and Abalos are
pending, proceed with dispatch. SO ORDERED.
55
G.R. Nos. 162144-54 November 13, 2012
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
HON. MA. THERESA L. DELA TORRE- YADAO, in her
capacity as Presiding Judge, Branch 81, Regional
Trial Court of Quezon City, HON. MA. NATIVIDAD M.
DIZON, in her capacity as Executive Judge of the
Regional Trial Court of Quezon City, PANFILO M.
LACSON, JEWEL F. CANSON, ROMEO M. ACOP,
FRANCISCO G. ZUBIA, JR., MICHAEL RAY B. AQUINO,
CEZAR O. MANCAO II, ZOROBABEL S. LAURELES,
GLENN G. DUMLAO, ALMARIO A. HILARIO, JOSE
ERWIN T. VILLACORTE, GIL C. MENESES, ROLANDO
ANDUYAN, JOSELITO T. ESQUIVEL, RICARDO G.
DANDAN, CEASAR TANNAGAN, VICENTE P. ARNADO,
ROBERTO T. LANGCAUON, ANGELITO N. CAISIP,
ANTONIO FRIAS, CICERO S. BACOLOD, WILLY NUAS,
JUANITO B. MANAOIS, VIRGILIO V. PARAGAS,
ROLANDO R. JIMENEZ, CECILIO T. MORITO, REYNALDO
C. LAS PINAS, WILFREDO G CUARTERO, ROBERTO O.
AGBALOG, OSMUNDO B. CARINO, NORBERTO
LASAGA, LEONARDO GLORIA, ALEJANDRO G
LIWANAG, ELMER FERRER and ROMY CRUZ,
Respondents.
DECISION
ABAD, J.:
This case, which involves the alleged summary execution
of suspected members of the Kuratong Bale/eng Gang, is
once again before this Court this time questioning, among
other things, the trial qmrt's determination of the absence
of probable cause and its dismissal of the criminal
actions.1
The Facts and the Case
In the early morning of May 18, 1995, the combined forces
of the Philippine National Police's Anti-Bank Robbery and
Intelligence Task Group (PNP ABRITG) composed of Task
Force Habagat (then headed by Police Chief
Superintendent Panfilo M. Lacson), Traffic Management
Command ([TMC] led by then Police Senior
Superintendent Francisco G. Zubia, Jr.), Criminal
Investigation Command (led by then Police Chief
Superintendent Romeo M. Acop ), and National Capital
Region Command (headed by then Police Chief
Superintendent Jewel F. Canson) killed 11 suspected
members of the Kuratong Baleleng Gang2 along
Commonwealth Avenue in Quezon City.
Subsequently, SPO2 Eduardo Delos Reyes of the Criminal
Investigation Command told the press that it was a
summary execution, not a shoot-out between the police
and those who were slain. After investigation, the Deputy
Ombudsman for Military Affairs absolved all the police
officers involved, including respondents Panfilo M. Lacson,
Jewel F. Canson, Romeo M. Acop, Francisco G. Zubia, Jr.,
Michael Ray B. Aquino, Cezar O. Mancao II, and 28 others
(collectively, the respondents).3 On review, however, the
Office of the Ombudsman reversed the finding and filed
charges of murder against the police officers involved
before the Sandiganbayan in Criminal Cases 23047 to 57,
except that in the cases of respondents Zubia, Acop, and
Lacson, their liabilities were downgraded to mere
accessory. On arraignment, Lacson pleaded not guilty.
Upon respondents’ motion, the Sandiganbayan ordered
the transfer of their cases to the Regional Trial Court (RTC)
of Quezon City on the ground that none of the principal
accused had the rank of Chief Superintendent or higher.
Pending the resolution of the Office of the Special
Prosecutor’s motion for reconsideration of the transfer
order, Congress passed Republic Act (R.A.) 8249 that
expanded the Sandiganbayan’s jurisdiction by deleting
the word "principal" from the phrase "principal accused" to
apply to all pending cases where trial had not begun. As
a result of this new law, the Sandiganbayan opted to
retain and try the Kuratong Baleleng murder cases.
Respondent Lacson challenged the constitutionality of
R.A. 8249 in G.R. 1280964 but this Court upheld its validity.
Nonetheless, the Court ordered the transfer of the trial of
the cases to the RTC of Quezon City since the amended
informations contained no allegations that respondents
committed the offenses charged in relation to, or in the
discharge of, their official functions as required by R.A.
8249.
Before the RTC of Quezon City, Branch 81, then presided
over by Judge Wenceslao Agnir, Jr., could arraign
respondents in the re-docketed Criminal Cases Q-99-81679
to 89, however, SPO2 Delos Reyes and the other
prosecution witnesses recanted their affidavits. Some of
the victims’ heirs also executed affidavits of desistance.
These prompted the respondents to file separate motions
for the determination of probable cause before the
issuance of warrants of arrests.
On March 29, 1999 the RTC of Quezon City ordered the
provisional dismissal of the cases for lack of probable
cause to hold the accused for trial following the
recantation of the principal prosecution witnesses and the
desistance of the private complainants.
Two years later or on March 27, 2001 PNP Director Leandro
R. Mendoza sought to revive the cases against
respondents by requesting the Department of Justice
(DOJ) to conduct another preliminary investigation in their
cases on the strength of the affidavits of P/Insp. Ysmael S.
Yu and P/S Insp. Abelardo Ramos. In response, then DOJ
Secretary Hernando B. Perez constituted a panel of
prosecutors to conduct the requested investigation.
Invoking their constitutional right against double jeopardy,
Lacson and his co-accused filed a petition for prohibition
with application for temporary restraining order and writ of
preliminary injunction before the RTC of Manila in Civil
Case 01-100933. In an Order dated June 5, 2001, that court
denied the plea for temporary restraining order. Thus, on
56
June 6, 2001 the panel of prosecutors found probable
cause to hold Lacson and his co-accused liable as
principals for 11 counts of murder, resulting in the filing of
separate informations against them in Criminal Cases 01-
101102 to 12 before the RTC of Quezon City, Branch 81,
now presided over by respondent Judge Ma. Theresa L.
Yadao.
On the same day, respondent Lacson filed a petition for
certiorari before the Court of Appeals (CA), assailing the
RTC of Manila’s order which allowed the renewed
preliminary investigation of the murder charges against
him and his co-accused. Lacson also filed with the RTC of
Quezon City a motion for judicial determination of
probable cause. But on June 13, 2001 he sought the
suspension of the proceedings in that court.
In the meantime, the CA issued a temporary restraining
order enjoining the RTC of Quezon City from issuing
warrants of arrest or conducting any proceeding in
Criminal Cases 01-101102 to 12 before it. On August 24,
2001 the CA rendered a Decision, granting Lacson’s
petition on the ground of double jeopardy since, although
the dismissal of Criminal Cases Q-99-81679 to 89 was
provisional, such dismissal became permanent two years
after when they were not revived.
Upon the prosecution’s appeal to this Court in G.R.
149453,5 the Court ruled that, based on the record, Lacson
failed to prove compliance with the requirements of
Section 8, Rule 117 governing provisional dismissals. The
records showed that the prosecution did not file a motion
for provisional dismissal and, for his part, respondent
Lacson had merely filed a motion for judicial
determination of probable cause. Nowhere did he agree
to some proposal for a provisional dismissal of the cases.
Furthermore, the heirs of the victims had no notice of any
motion for such provisional dismissal.
The Court thus set aside the CA Decision of August 24, 2001
and directed the RTC of Quezon City to try the cases with
dispatch. On motion for reconsideration by respondent
Lacson, the Court ordered the re-raffle of the criminal
cases to a heinous crimes court. Upon re-raffle, however,
the cases still went to Branch 81, which as already stated
was now presided over by Judge Yadao.
On October 12, 2003 the parents of two of the victims
submitted birth certificates showing that they were minors.
Apparently reacting to this, the prosecution amended the
informations to show such minority and asked respondent
Executive Judge Ma. Natividad M. Dizon to recall the
assignment of the cases to Branch 81 and re-raffle them to
a family court. The request for recall was denied.
On October 20, 2003 the prosecution filed an omnibus
motion before Branch 81, praying for the re-raffle of
Criminal Cases 01-101102 to12 to the family courts in view
of the changes in the two informations. On October 24,
2003 the prosecution also filed its consolidated comment
ex-abundanti cautela on the motions to determine
probable cause.
On November 12, 20036 Judge Yadao issued an order,
denying the prosecution’s motion for re-raffle to a family
court on the ground that Section 5 of R.A. 8369 applied
only to living minors. She also granted the motions for
determination of probable cause and dismissed the cases
against the respondents since the affidavits of the
prosecution witnesses were inconsistent with those they
submitted in the preliminary investigations before the
Ombudsman for the crime of robbery.
On November 25, 2003 the prosecution filed a verified
motion to recuse or disqualify Judge Yadao and for
reconsideration of her order. It also filed an administrative
complaint against her for dishonesty, conduct prejudicial
to the best interests of the service, manifest partiality, and
knowingly rendering an unjust judgment.7 On January 14,
2004, the prosecution filed an urgent supplemental motion
for compulsory disqualification with motion for
cancellation of the hearing on motion for reconsideration.
On January 21, 2004 Judge Yadao issued an order,
denying the motion to recuse her, prompting the
prosecution to appeal from that order. Further, on January
22, 2004 Judge Yadao issued another order, denying the
prosecution’s motion for reconsideration of the Order
dated November 12, 2003 that dismissed the action
against the respondents. In response, the prosecution filed
a notice of appeal from the same. Finally, on January 26,
2004 Judge Yadao issued an order, denying the
prosecution’s motion for reconsideration of its January 16,
2004 Order not only for lack of merit but also for having
become moot and academic.
On February 16, 2004 the prosecution withdrew ex-
abundanti cautela the notices of appeal that it filed in the
cases. Subsequently, on March 3, 2004 it filed the present
special civil action of certiorari.
The Issues Presented
The prosecution presents the following issues:
1. Whether or not Executive Judge Dizon gravely abused
her discretion in allowing Criminal Cases 01-101102 to 12 to
be re-raffled to other than among the RTC of Quezon
City’s family courts.
2. Whether or not Judge Yadao gravely abused her
discretion when she took cognizance of Criminal Cases 01-
101102 to 12 contrary to the prosecution’s view that such
cases fell under the jurisdiction of family courts.
3. Whether or not Judge Yadao gravely abused her
discretion when she did not inhibit and disqualify herself
from taking cognizance of the cases.
4. Whether or not Judge Yadao gravely abused her
discretion when she dismissed the criminal actions on the
ground of lack of probable cause and barred the
presentation of additional evidence in support of the
prosecution’s motion for reconsideration.
57
5. Whether or not Judge Yadao gravely abused her
discretion when she adopted certain policies concerning
the conduct of hearings in her court.
The Court’s Rulings
Before addressing the above issues, the Court notes
respondents’ contention that the prosecution’s resort to
special civil action of certiorari under Rule 65 is improper.
Since the trial court dismissed the criminal actions against
respondents, the prosecution’s remedy was to appeal to
the CA from that order of dismissal.
Ordinarily, the proper remedy from an order dismissing an
action is an appeal.8 Here, the prosecution in fact filed a
notice of appeal from such an order issued in the subject
cases. But it reconsidered its action and withdrew that
notice, believing that appeal was not an effective,
speedy, and adequate remedy.9 In other words, the
prosecution’s move was not a case of forgotten remedy
but a conscious resort to another based on a belief that
respondent Judge Yadao gravely abused her discretion in
issuing her various orders and that certiorari under Rule 65
was the proper and all-encompassing remedy for the
prosecution. The Court is not prepared to say that the
remedy is altogether implausible as to throw out the
petition outright.
Still, the Court notes that the prosecution skipped the CA
and filed its action directly with this Court, ignoring the
principle of judicial hierarchy of courts. Although the
Supreme Court, the CA, and the RTCs have concurrent
jurisdiction to issue a writ of certiorari, such concurrence
does not give the People the unrestricted freedom of
choice of forum.10 In any case, the immense public
interest in these cases, the considerable length of time that
has passed since the crime took place, and the numerous
times these cases have come before this Court probably
warrant a waiver of such procedural lapse.
1. Raffle of the Cases
The prosecution points out that the RTC of Quezon City
Executive Judge gravely abused her discretion when she
placed Criminal Cases 01-101102 to 12 under a separate
category which did not restrict their raffle to the city’s
special criminal and family courts in accordance with SC
Administrative Order 36-96. Further, the prosecution points
out that she violated Administrative Order 19-98 when
Branches 219 and 102 were left out of the raffle. The
presiding judges of these two branches, both heinous
crimes courts eligible to receive cases by raffle, had just
been appointed to the CA.
The records of the cases show nothing irregular in the
conduct of the raffle of the subject cases. The raffle
maintained a separate list for criminal and civil cases.
Criminal cases cognizable by special criminal courts were
separately listed. Criminal Cases 01-101102 to 12 were
given a separate heading, "Re-Raffle," but there was
nothing irregular in this since it merely indicated that the
cases were not being raffled for the first time.
The Executive Judge did not err in leaving out Branches
219 and 102 from raffle since these branches remained
without regularly appointed judges. Although the pairing
judges of these branches had authority to act on
incidental, interlocutory, and urgent matters, this did not
mean that such branches should already be included in
the raffle of cases.
Parenthetically, the prosecution was represented during
the raffle yet it did not then object to the manner by which
it was conducted. The prosecution raised the question only
when it filed this petition, a clear afterthought.
2. Jurisdiction of Family Courts
The prosecution points out that, although this Court’s
October 7, 2003 Resolution directed a re-raffle of the cases
to a heinous crimes court, the prosecution in the meantime
amended the informations to reflect the fact that two of
the murder victims were minors. For this reason, the
Executive Judge should have raffled the cases to a family
court pursuant to Section 5 of R.A. 8369.
The Court is not impervious to the provisions of Section 5 of
R.A. 8369, that vests in family courts jurisdiction over
violations of R.A. 7610, which in turn covers murder cases
where the victim is a minor. Thus:
Sec. 5. Jurisdiction of Family Courts. – The Family Courts
shall have exclusive original jurisdiction to hear and decide
the following cases:
a) Criminal cases where one or more of the accused is
below eighteen (18) years of age but not less than nine (9)
years of age, or where one or more of the victims is a minor
at the time of the commission of the offense: Provided,
That if the minor is found guilty, the court shall promulgate
sentence and ascertain any civil liability which the
respondent may have incurred. (Emphasis supplied)
Undoubtedly, in vesting in family courts exclusive original
jurisdiction over criminal cases involving minors, the law but
seeks to protect their welfare and best interests. For this
reason, when the need for such protection is not
compromised, the Court is able to relax the rule. In several
cases,11 for instance, the Court has held that the CA
enjoys concurrent jurisdiction with the family courts in
hearing petitions for habeas corpus involving minors.
Here, the two minor victims, for whose interests the people
wanted the murder cases moved to a family court, are
dead. As respondents aptly point out, there is no living
minor in the murder cases that require the special
attention and protection of a family court. In fact, no minor
would appear as party in those cases during trial since the
minor victims are represented by their parents who had
become the real private offended parties.
3. Inhibition of Judge Yadao
58
The prosecution claims that Judge Yadao committed
grave abuse of discretion in failing to inhibit herself from
hearing the cases against the respondents.
The rules governing the disqualification of judges are
found, first, in Section 1, Rule 137 of the Rules of Court,
which provides:
Sec. 1. Disqualification of judges. – No judge or judicial
officer shall sit in any case in which he, or his wife or child,
is pecuniarily interested as heir, legatee, creditor or
otherwise, or in which he is related to either party within the
sixth degree of consanguinity or affinity, or to counsel
within the fourth degree, computed according to the rules
of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he
has presided in any inferior court when his ruling or decision
is the subject of review, without the written consent of all
parties in interest, signed by them and entered upon the
record.
A judge may, in the exercise of his sound discretion,
disqualify himself from sitting in a case, for just or valid
reasons other than those mentioned above.
and in Rule 3.12, Canon 3 of the Code of Judicial Conduct,
which states:
Rule 3.12. – A judge should take no part in a proceeding
where the judge’s impartiality might reasonably be
questioned. These cases include among others,
proceedings where:
(a) the judge has personal knowledge of disputed
evidentiary facts concerning the proceeding;
xxxx
(e) the judge knows the judge’s spouse or child has a
financial interest, as heir, legatee, creditor, fiduciary, or
otherwise, in the subject matter in controversy or in a party
to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding.
In every instance, the judge shall indicate the legal reason
for inhibition.
The first paragraph of Section 1, Rule 137 and Rule 3.12,
Canon 3 provide for the compulsory disqualification of a
judge while the second paragraph of Section 1, Rule 137
provides for his voluntary inhibition.
The matter of voluntary inhibition is primarily a matter of
conscience and sound discretion on the part of the judge
since he is in a better position to determine whether a
given situation would unfairly affect his attitude towards
the parties or their cases. The mere imputation of bias,
partiality, and prejudgment is not enough ground, absent
clear and convincing evidence that can overcome the
presumption that the judge will perform his duties
according to law without fear or favor. The Court will not
disqualify a judge based on speculations and surmises or
the adverse nature of the judge’s rulings towards those
who seek to inhibit him.12
Here, the prosecution contends that Judge Yadao should
have inhibited herself for improperly submitting to a public
interview on the day following her dismissal of the criminal
cases against the respondents. But the Court finds nothing
basically reprehensible in such interview. Judge Yadao’s
dismissal of the multiple murder cases aroused natural
public interest and stirred the media into frenzy for correct
information. Judge Yadao simply accommodated, not
sought, the requests for such an interview to clarify the
basis of her order. There is no allegation that she gave out
false information. To be sure, the prosecution never once
accused her of making public disclosures regarding the
merits of those cases prior to her order dismissing such
cases.
The prosecution also assails as constituting bias Judge
Yadao’s statement that a very close relative stood to be
promoted if she was to issue a warrant of arrest against the
respondents. But this statement merely shows that she
cannot be dissuaded by some relative who is close to her.
How can this constitute bias? Besides, there is no evidence
that the close relative she referred to was her spouse or
child which would be a mandatory ground for
disqualification.
Further, the prosecution claims that Judge Yadao
prejudged its motion for reconsideration when she said in
her comment to the administrative complaint against her
that such motion was merely the prosecution’s stubborn
insistence on the existence of probable cause against the
respondents. The comment could of course not be
regarded as a prejudgment of the issue since she had
precisely already issued an order holding that the
complainant’s evidence failed to establish probable
cause against the respondents. And there is nothing wrong
about characterizing a motion for reconsideration as a
"stubborn" position taken by the party who filed it. Judge
Yadao did not characterize the motion as wholly
unjustified at the time she filed her comment.
4. Dismissal of the Criminal Cases
The prosecution claims that Judge Yadao gravely abused
her discretion when she set the motions for determination
of probable cause for hearing, deferred the issuance of
warrants of arrest, and allowed the defense to mark its
evidence and argue its case. The prosecution stresses that
under Section 6, Rule 112 of the Rules of Court Judge
Yadao’s duty was to determine probable cause for the
purpose of issuing the arrest warrants solely on the basis of
the investigating prosecutor’s resolution as well as the
informations and their supporting documents. And, if she
had some doubts as to the existence of probable cause,
the rules required her to order the investigating prosecutor
to present additional evidence to support the finding of
probable cause within five days from notice.
Rather than take limited action, said the prosecution,
Judge Yadao dug up and adopted the Ombudsman’s
59
findings when the latter conducted its preliminary
investigation of the crime of robbery in 1996. Judge Yadao
gave weight to the affidavits submitted in that earlier
preliminary investigation when such documents are
proper for presentation during the trial of the cases. The
prosecution added that the affidavits of P/S Insp. Abelardo
Ramos and SPO1 Wilmor B. Medes reasonably explained
the prior inconsistent affidavits they submitted before the
Ombudsman.
The general rule of course is that the judge is not required,
when determining probable cause for the issuance of
warrants of arrests, to conduct a de novo hearing. The
judge only needs to personally review the initial
determination of the prosecutor finding a probable cause
to see if it is supported by substantial evidence.13
But here, the prosecution conceded that their own
witnesses tried to explain in their new affidavits the
inconsistent statements that they earlier submitted to the
Office of the Ombudsman. Consequently, it was not
unreasonable for Judge Yadao, for the purpose of
determining probable cause based on those affidavits, to
hold a hearing and examine the inconsistent statements
and related documents that the witnesses themselves
brought up and were part of the records. Besides, she
received no new evidence from the respondents.14
The public prosecutor submitted the following affidavits
and documents along with the criminal informations to
enable Judge Yadao to determine the presence of
probable cause against the respondents:
1. P/Insp. Ysmael S. Yu’s affidavit of March 24, 200115 in
which he said that on May 17, 1995 respondent Canson,
NCR Command Head, ordered him to form two teams that
would go after suspected Kuratong Baleleng Gang
members who were seen at the Superville Subdivision in
Parañaque City. Yu headed the assault team while Marlon
Sapla headed the perimeter defense. After the police
team apprehended eight men inside the safe house, it
turned them over to their investigating unit. The following
day, Yu just learned that the men and three others were
killed in a shoot-out with the police in Commonwealth
Avenue in Quezon City.
2. P/S Insp. Abelardo Ramos’ affidavit of March 24, 200116
in which he said that he was part of the perimeter defense
during the Superville operation. After the assault team
apprehended eight male suspects, it brought them to
Camp Crame in two vans. Ramos then went to the office
of respondent Zubia, TMC Head, where he saw
respondents Lacson, Acop, Laureles, Villacorte and other
police officers.
According to Ramos, Zubia said that the eight suspects
were to be brought to Commonwealth Avenue and killed
in a supposed shoot-out and that this action had been
cleared with higher authorities, to which remark Lacson
nodded as a sign of approval. Before Ramos left the
meeting, Lacson supposedly told him, "baka may
mabuhay pa diyan." Ramos then boarded an L-300 van
with his men and four male suspects. In the early morning
of May 18, 1995, they executed the plan and gunned
down the suspects. A few minutes later, P/S Insp. Glenn G.
Dumlao and his men arrived and claimed responsibility for
the incident.
3. SPO1 Wilmor B. Medes’ affidavit of April 24, 200117 in
which he corroborated Ramos’ statements. Medes said
that he belonged to the same team that arrested the
eight male suspects. He drove the L-300 van in going to
Commonwealth Avenue where the suspects were killed.
4. Mario C. Enad’s affidavit of August 8, 199518 in which he
claimed having served as TMC civilian agent. At around
noon of May 17, 1995, he went to Superville Subdivision
together with respondents Dumlao, Tannagan, and Nuas.
Dumlao told Enad to stay in the car and observe what
went on in the house under surveillance. Later that night,
other police officers arrived and apprehended the men in
the house. Enad went in and saw six men lying on the floor
while the others were handcuffed. Enad and his
companions left Sucat in the early morning of May 18,
1995. He fell asleep along the way but was awaken by
gunshots. He saw Dumlao and other police officers fire
their guns at the L-300 van containing the apprehended
suspects.
5. SPO2 Noel P. Seno’s affidavit of May 31, 200119 in which
he corroborated what Ramos said. Seno claimed that he
was part of the advance party in Superville Subdivision
and was also in Commonwealth Avenue when the
suspected members of the Kuratong Baleleng Gang were
killed.
6. The PNP ABRITG After Operations Report of May 31,
199520 which narrated the events that took place on May
17 and 18, 1995. This report was submitted by Lacson,
Zubia, Acop and Canson.
7. The PNP Medico-Legal Reports21 which stated that the
suspected members of the Kuratong Baleleng Gang
tested negative for gunpowder nitrates.
The Court agrees with Judge Yadao that the above
affidavits and reports, taken together with the other
documents of record, fail to establish probable cause
against the respondents.
First. Evidently, the case against respondents rests on the
testimony of Ramos, corroborated by those of Medes,
Enad, and Seno, who supposedly heard the commanders
of the various units plan the killing of the Kuratong Baleleng
Gang members somewhere in Commonwealth Avenue in
Quezon City and actually execute such plan. Yu’s
testimony is limited to the capture of the gang members
and goes no further. He did not see them killed.
Second. Respecting the testimonies of Ramos, Medes,
Enad, and Seno, the prosecution’s own evidence—the
PNP ABRITG’s After Operations Report of May 31, 1995—
shows that these men took no part in the operations
against the Kuratong Baleleng Gang members. The report
60
included a comprehensive list of police personnel from
Task Force Habagat (Lacson), Traffic Management
Command (Zubia), Criminal Investigation Command
(Acop), and National Capital Region Command (Canson)
who were involved. The names of Ramos, Medes, Enad,
and Seno were not on that list. Notably, only Yu’s name,
among the new set of witnesses, was on that list. Since an
after-battle report usually serves as basis for
commendations and promotions, any omitted name
would hardly have gone unchallenged.
Third. Ramos, whose story appeared to be the most
significant evidence against the respondents, submitted in
the course of the preliminary investigation that the Office
of the Ombudsman conducted in a related robbery
charge against the police officers involved a counter-
affidavit. He claimed in that counter-affidavit that he was
neither in Superville Subdivision nor Commonwealth
Avenue during the Kuratong Baleleng operations since he
was in Bulacan on May 17, 1995 and at his home on May
18.22 Notably, Medes claimed in a joint counter-affidavit
that he was on duty at the TMC headquarters at Camp
Crame on May 17 and 18.23
Fourth. The Office of the Ombudsman, looking at the
whole picture and giving credence to Ramos and Medes’
statements, dismissed the robbery case. More, it excluded
Ramos from the group of officers that it charged with the
murder of the suspected members of the Kuratong
Baleleng Gang. Under the circumstances, the Court
cannot be less skeptical than Judge Yadao was in
doubting the sudden reversal after six years of testimony of
these witnesses.
Of course, Yu may have taken part in the subject
operation but, as he narrated, his role was limited to
cornering and arresting the suspected Kuratong Baleleng
Gang members at their safe house in Superville
Subdivision. After his team turned the suspects over to an
investigating unit, he no longer knew what happened to
them.
Fifth. True, the PNP Medico-Legal Reports showed that the
Kuratong Baleleng Gang members tested negative for
gunpowder nitrates. But this finding cannot have any legal
significance for the purpose of the preliminary
investigation of the murder cases against the respondents
absent sufficient proof that they probably took part in
gunning those gang members down.
The prosecution points out that, rather than dismiss the
criminal action outright, Judge Yadao should have
ordered the panel of prosecutors to present additional
evidence pursuant to Section 6, Rule 112 of the Rules of
Court which provides:
Sec. 6. When warrant of arrest may issue. – (a) By the
Regional Trial Court. – Within ten (10) days from the filing of
the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the
case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue
a warrant of arrest, or a commitment order if the accused
has already been arrested pursuant to a warrant issued by
the judge who conducted the preliminary investigation or
when the complaint or information was filed pursuant to
section 7 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to
present additional evidence within five (5) days from
notice and the issue must be resolved by the court within
thirty (30) days from the filing of the complaint of
information.
Section 6, Rule 112 of the Rules of Court gives the trial court
three options upon the filing of the criminal information: (1)
dismiss the case if the evidence on record clearly failed to
establish probable cause; (2) issue a warrant of arrest if it
finds probable cause; and (3) order the prosecutor to
present additional evidence within five days from notice in
case of doubt as to the existence of probable cause.24
But the option to order the prosecutor to present
additional evidence is not mandatory. The court’s first
option under the above is for it to "immediately dismiss the
case if the evidence on record clearly fails to establish
probable cause." That is the situation here: the evidence
on record clearly fails to establish probable cause against
the respondents.
It is only "in case of doubt on the existence of probable
cause" that the judge may order the prosecutor to present
additional evidence within five days from notice. But that
is not the case here. Discounting the affidavits of Ramos,
Medes, Enad, and Seno, nothing is left in the record that
presents some doubtful probability that respondents
committed the crime charged. PNP Director Leandro
Mendoza sought the revival of the cases in 2001, six years
after it happened. It would have been ridiculous to
entertain the belief that the police could produce new
witnesses in the five days required of the prosecution by
the rules.
In the absence of probable cause to indict respondents
for the crime of multiple murder, they should be insulated
from the tribulations, expenses and anxiety of a public
trial.25
5. Policies Adopted for Conduct of Court Hearing
The prosecution claims that Judge Yadao arbitrarily
recognized only one public prosecutor and one private
prosecutor for all the offended parties but allowed each
of the counsels representing the individual respondents to
be heard during the proceedings before it. She also
unjustifiably prohibited the prosecution’s use of tape
recorders.
But Section 5, Rule 135 of the Rules of Court gives the trial
court ample inherent and administrative powers to
effectively control the conduct of its proceedings. Thus:
Sec. 5. Inherent powers of court. — Every court shall have
power:
61
xxxx
(b) To enforce order in proceedings before it, or before a
person or persons empowered to conduct a judicial
investigation under its authority;
xxxx
(d) To control, in furtherance of justice, the conduct of its
ministerial officers, and of all other persons in any manner
connected with a case before it, in every manner
appertaining thereto;
xxxx
(g) To amend and control its process and orders so as to
make them conformable to law and justice;
xxxx
There is nothing arbitrary about Judge Yadao’s policy of
allowing only one public prosecutor and one private
prosecutor to address the court during the hearing for
determination of probable cause but permitting counsels
representing the individual accused to do so. A criminal
action is prosecuted under the direction and control of the
public prosecutor.26 The burden of establishing probable
cause against all the accused is upon him, not upon the
private prosecutors whose interests lie solely in their clients’
damages claim. Besides, the public and the private
prosecutors take a common position on the issue of
probable cause. On the other hand, each of the accused
is entitled to adopt defenses that are personal to him.
As for the prohibition against the prosecution’s private
recording of the proceedings, courts usually disallows such
recordings because they create an unnecessary
distraction and if allowed, could prompt every lawyer,
party, witness, or reporter having some interest in the
proceeding to insist on being given the same privilege.
Since the prosecution makes no claim that the official
recording of the proceedings by the court’s stenographer
has been insufficient, the Court finds no grave abuse of
discretion in Judge Yadao’s policy against such
extraneous recordings.
WHEREFORE, the Court DISMISSES this petition and AFFIRMS
the following assailed Orders of the Regional Trial Court of
Quezon City, Branch 81 in Criminal Cases 01-101102 to 12:
1. the Order dated November 12, 2003 which denied the
prayer for re-raffle, granted the motions for determination
of probable cause, and dismissed the criminal cases;
2. the Order dated January 16, 2004 which granted the
motion of the respondents for the immediate resolution of
the three pending incidents before the court;
3. the Order dated January 21, 2004 which denied the
motion to recuse and the urgent supplemental motion for
compulsory disqualification;
 Adm. Case No. 7549 August 29, 2008
4. the Order dated January 22, 2004 which denied the
motion for reconsideration of the Order dated November AURELIO M. SIERRA, complainant,
12, 2003; and
vs.
5. the Order dated January 26, 2004 which denied the
JHOSEP Y. LOPEZ, City Prosecutor of Manila,
motion for reconsideration of the January 16, 2004 Order. EUFROCINO SULLA, 1st Assistant City Prosecutor
(ACP), ACP ALEXANDER T. YAP, ACP MARLO
SO ORDERED. CAMPANILLA, and ACP ARMANDO VELASCO,
respondents.

DECISION

NACHURA, J.:

The instant controversy arose from a complaint for

dereliction of duty and gross ignorance of the law by
Aurelio M. Sierra against City Prosecutor of Manila Jhosep
Y. Lopez, 1st Assistant City Prosecutor (ACP) Eufrocino Sulla,
Assistant City Prosecutors Alexander Yap, Marlo
Campanilla and Armando Velasco.

The facts of the case are as follows:

On July 27, 2006 and August 1, 2006, complainant Aurelio

M. Sierra filed several cases before the Office of the City
Prosecutor of Manila for Misrepresentation through Deceit
and Syndicated Large Scale Fraud in Land Titling with
Conspiracy, Land Grabbing, Falsification of Public
Document and Economic Sabotage.

These cases were first assigned to ACP Alexander T. Yap.

The principal respondents therein, namely: Alfredo C.
Ramos, Presentacion Ramos, George S.K. Ty, Atty.
Emmanuel Leonardo, and a certain Mr. Cayaban, did not
appear during the scheduled hearing. However, Alfredo
and Presentacion Ramos appeared in the morning of that
day ahead of the complainant in which they submitted
their respective counter-affidavits, subscribed and sworn
to before ACP Yap. The respondents asked that they be
allowed to submit their counter-affidavits ahead of the
scheduled hearing because they had an urgent matter to
attend to in the afternoon. In the case of George S.K. Ty
and Mr. Cayaban, their respective counter-affidavits were
submitted by their lawyers during the scheduled hearing in
the afternoon, already subscribed and sworn to before a
Pasig Prosecutor. Atty. Leonardo did not submit any
counter-affidavit.

Because of ACP Yap’s failure to require the presence of

respondents in said cases simultaneously with the
complainant, Mr. Sierra asked for the prosecutor’s
inhibition. The cases were then re-raffled to the respondent
ACP Marlo Campanilla who likewise did not require the
presence of the respondents in the preliminary
investigation. Because of this, he too was asked to inhibit
from the cases by complainant.

The cases were then re-raffled to ACP Armando Velasco

who also handled the cases in the same manner as the
two other prosecutors before him. City Prosecutor Jhosep
Y. Lopez and 1st ACP Eufrocino A. Sulla affirmed the

62
correctness of the manner in which their investigating
prosecutors handled the cases.
On April 26, 2007, Sierra filed a complaint with the Supreme
Court for dereliction of duty and gross ignorance of the
law against City Prosecutor Lopez, 1st ACP Sulla, ACP Yap,
ACP Campanilla, and ACP Velasco.
In his complaint, Sierra raises the following questions of law:
(1) whether the parties must appear together before the
investigating prosecutor during preliminary investigation;
(2) whether the counter-affidavits of the respondents
should be sworn to only before the investigating
prosecutor; and (3) whether the investigating prosecutor
erred in denying the request of the complainant for
clarificatory questioning.
The Supreme Court Third Division then issued a Resolution
dated July 25, 2008 requiring respondents to comment on
the complaint.
In compliance with the Honorable Court’s order,
respondents filed their Comment dated March 7, 2008
stating that they handled the cases properly and in
accordance with what was provided by law. They also
argued that they had not committed any dereliction of
duty and gross ignorance of the law.
We find no merit in the complaint.
Rule 112, particularly Section 3 of the Rules of Court, lays
down the basic procedure in preliminary investigation, as
follows:
Sec. 3. Procedure. – The preliminary investigation shall be
conducted in the following manner:
(a) The complaint shall state the address of the respondent
and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting
documents to establish probable cause. They shall be in
such number of copies as there are respondents, plus two
(2) copies for the official file. The affidavits shall be
subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in
their absence or unavailability, before a notary public,
each of whom must certify that he personally examined
the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss it if he finds no
ground to continue with the investigation, or issue a
subpoena to the respondent attaching to it a copy of the
complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the
evidence submitted by the complainant which he may
not have been furnished and to copy them at his expense.
If the evidence is voluminous, the complainant may be
required to specify those which he intends to present
against the respondent, and these shall be made
63
available for examination or copying by the respondent at
his expense.
Objects as evidence need not be furnished a party but
shall be made available for examination, copying, or
photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with
the complaint and supporting affidavits and documents,
the respondent shall submit his counter-affidavit and that
of his witnesses and other supporting documents relied
upon for his defense. The counter-affidavits, shall be
subscribed and sworn to and certified as provided in
paragraph (a) of this section, with copies thereof furnished
by him to the complainant. The respondent shall not be
allowed to file a motion to dismiss in lieu of a counter-
affidavit.
(d) If the respondent cannot be subpoenaed, or if
subpoenaed, does not submit counter-affidavits within the
ten (10) day period, the investigating officer shall resolve
the complaint based on the evidence presented by the
complainant.
(e) The investigating officer may set a hearing if there are
facts and issues to be clarified from a party or a witness.
The parties can be present at the hearing but without the
right to examine or cross-examine. They may, however,
submit to the investigating officer questions which may be
asked to the party or witness concerned.
The hearing shall be held within ten (10) days from
submission of the counter-affidavits and other documents
or from the expiration of the period for their submission. It
shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the
investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial.
This provision of the Rules does not require a confrontation
between the parties. Preliminary investigation is ordinarily
conducted through submission of affidavits and
supporting documents, through the exchange of
pleadings.
In Rodis, Sr. v. Sandiganbayan1 we ruled that -
(the New Rules on Criminal Procedure) do not require as a
condition sine qua non to the validity of the proceedings (
in the preliminary investigation) the presence of the
accused for as long as efforts to reach him were made,
and an opportunity to controvert evidence of the
complainant is accorded him. The obvious purpose of the
rule is to block attempts of unscrupulous respondents to
thwart the prosecution of offenses by hiding themselves or
by employing dilatory tactics.
Since confrontation between the parties is not imperative,
it follows that it is not necessary that the counter-affidavit
of respondent be sworn to before the investigating
prosecutor himself. It can be sworn to before another
prosecutor. In fact, this is specifically provided in
paragraph (c) of Sec. 3, which states that the "counter-
affidavit shall be subscribed and sworn to and certified as
provided in paragraph (a) of this section x x x"; and
paragraph (a), provides:
the affidavits shall be subscribed and sworn to before any
prosecutor or government official or in their absence or
unavailability, before a notary public x x x.
Lastly, we hold that the investigating prosecutors did not
abuse their discretion when they denied the request of the
complainant for the conduct of clarificatory questioning.
Under paragraph (e) of Section 3 above, the conduct of
clarificatory questioning is discretionary upon the
prosecutor. Indeed, we already held in Webb v. De Leon2
that the decision to call witnesses for clarificatory questions
is addressed to the sound discretion of the investigator,
and the investigator alone.
WHEREFORE, premises considered, the complaint is DENIED
for lack of merit.
SO ORDERED.
64
G.R. No. 168380 February 8, 2007
MANUEL V. BAVIERA, Petitioner,
vs.
ESPERANZA PAGLINAWAN, in her capacity as
Department of Justice State Prosecutor; LEAH C.
TANODRA-ARMAMENTO, In her capacity as Assistant
Chief State Prosecutor and Chairwoman of Task
Force on Business Scam; JOVENCITO R. ZUNO, in his
capacity as Department of Justice Chief State
Prosecutor; STANDARD CHARTERED BANK, PAUL
SIMON MORRIS, AJAY KANWAL, SRIDHAR RAMAN,
MARIVEL GONZALES, CHONA REYES, MARIA ELLEN
VICTOR, and ZENAIDA IGLESIAS, Respondents.
x-----------------------------x
G.R. No. 170602 February 8, 2007
MANUEL V. BAVIERA, Petitioner,
vs.
STANDARD CHARTERED BANK, BRYAN K. SANDERSON,
THE RIGHT HONORABLE LORD STEWARTBY, EVAN
MERVYN DAVIES, MICHAEL BERNARD DENOMA,
CHRISTOPHER AVEDIS KELJIK, RICHARD HENRY
MEDDINGS, KAI NARGOLWALA, PETER ALEXANDER
SANDS, RONNIE CHI CHUNG CHAN, SIR CK CHOW,
BARRY CLARE, HO KWON PING, RUDOLPH HAROLD
PETER ARKHAM, DAVID GEORGE MOIR, HIGH EDWARD
NORTON, SIR RALPH HARRY ROBINS, ANTHONY
WILLIAM PAUL STENHAM (Standard Chartered Bank
Chairman, Deputy Chairman, and Members of the
Board), SHERAZAM MAZARI (Group Regional Head
for Consumer Banking), PAUL SIMON MORRIS, AJAY
KANWAL, SRIDHAR RAMAN, MARIVEL GONZALES,
CHONA REYES, ELLEN VICTOR, RAMONA H. BERNAD,
DOMINGO CARBONELL, JR., and ZENAIDA IGLESIAS
(Standard Chartered Bank-Philippines Branch
Heads/Officers), Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us are two consolidated Petitions for Review on
Certiorari assailing the Decisions of the Court of Appeals in
CA-G.R. SP No. 873281 and in CA-G.R. SP No. 85078.2
The common factual antecedents of these cases as
shown by the records are:
Manuel Baviera, petitioner in these cases, was the former
head of the HR Service Delivery and Industrial Relations of
Standard Chartered Bank-Philippines (SCB), one of herein
respondents. SCB is a foreign banking corporation duly
licensed to engage in banking, trust, and other fiduciary
business in the Philippines. Pursuant to Resolution No. 1142
dated December 3, 1992 of the Monetary Board of the
Bangko Sentral ng Pilipinas (BSP), the conduct of SCB’s
business in this jurisdiction is subject to the following
conditions:
1. At the end of a one-year period from the date the SCB
starts its trust functions, at least 25% of its trust accounts
must be for the account of non-residents of the Philippines
and that actual foreign exchange had been remitted into
the Philippines to fund such accounts or that the
establishment of such accounts had reduced the
indebtedness of residents (individuals or corporations or
government agencies) of the Philippines to non-residents.
At the end of the second year, the above ratio shall be
50%, which ratio must be observed continuously
thereafter;
2. The trust operations of SCB shall be subject to all existing
laws, rules and regulations applicable to trust services,
particularly the creation of a Trust Committee; and
3. The bank shall inform the appropriate supervising and
examining department of the BSP at the start of its
operations.
Apparently, SCB did not comply with the above
conditions. Instead, as early as 1996, it acted as a stock
broker, soliciting from local residents foreign securities
called "GLOBAL THIRD PARTY MUTUAL FUNDS" (GTPMF),
denominated in US dollars. These securities were not
registered with the Securities and Exchange Commission
(SEC). These were then remitted outwardly to SCB-Hong
Kong and SCB-Singapore.
SCB’s counsel, Romulo Mabanta Buenaventura Sayoc
and Delos Angeles Law Office, advised the bank to
proceed with the selling of the foreign securities although
unregistered with the SEC, under the guise of a
"custodianship agreement;" and should it be questioned, it
shall invoke Section 723 of the General Banking Act
(Republic Act No.337).4 In sum, SCB was able to sell GTPMF
securities worth around ₱6 billion to some 645 investors.
However, SCB’s operations did not remain unchallenged.
On July 18, 1997, the Investment Capital Association of the
Philippines (ICAP) filed with the SEC a complaint alleging
that SCB violated the Revised Securities Act,5 particularly
the provision prohibiting the selling of securities without
prior registration with the SEC; and that its actions are
potentially damaging to the local mutual fund industry.
In its answer, SCB denied offering and selling securities,
contending that it has been performing a "purely
informational function" without solicitations for any of its
investment outlets abroad; that it has a trust license and
the services it renders under the "Custodianship
Agreement" for offshore investments are authorized by
Section 726 of the General Banking Act; that its clients
were the ones who took the initiative to invest in securities;
and it has been acting merely as an agent or "passive
order taker" for them.
65
On September 2, 1997, the SEC issued a Cease and Desist
Order against SCB, holding that its services violated
Sections 4(a)7 and 198 of the Revised Securities Act.
Meantime, the SEC indorsed ICAP’s complaint and its
supporting documents to the BSP.
On October 31, 1997, the SEC informed the Secretary of
Finance that it withdrew GTPMF securities from the market
and that it will not sell the same without the necessary
clearances from the regulatory authorities.
Meanwhile, on August 17, 1998, the BSP directed SCB not
to include investments in global mutual funds issued
abroad in its trust investments portfolio without prior
registration with the SEC.
On August 31, 1998, SCB sent a letter to the BSP confirming
that it will withdraw third-party fund products which could
be directly purchased by investors.
However, notwithstanding its commitment and the BSP
directive, SCB continued to offer and sell GTPMF securities
in this country. This prompted petitioner to enter into an
Investment Trust Agreement with SCB wherein he
purchased US$8,000.00 worth of securities upon the bank’s
promise of 40% return on his investment and a guarantee
that his money is safe. After six (6) months, however,
petitioner learned that the value of his investment went
down to US$7,000.00. He tried to withdraw his investment
but was persuaded by Antonette de los Reyes of SCB to
hold on to it for another six (6) months in view of the
possibility that the market would pick up.
Meanwhile, on November 27, 2000, the BSP found that SCB
failed to comply with its directive of August 17, 1998.
Consequently, it was fined in the amount of ₱30,000.00.
The trend in the securities market, however, was bearish
and the worth of petitioner’s investment went down further
to only US$3,000.00.
On October 26, 2001, petitioner learned from Marivel
Gonzales, head of the SCB Legal and Compliance
Department, that the latter had been prohibited by the
BSP to sell GPTMF securities. Petitioner then filed with the
BSP a letter-complaint demanding compensation for his
lost investment. But SCB denied his demand on the ground
that his investment is "regular."
On July 15, 2003, petitioner filed with the Department of
Justice (DOJ), represented herein by its prosecutors, public
respondents, a complaint charging the above-named
officers and members of the SCB Board of Directors and
other SCB officials, private respondents, with syndicated
estafa, docketed as I.S. No. 2003-1059.
For their part, private respondents filed the following as
counter-charges against petitioner: (1) blackmail and
extortion, docketed as I.S. No. 2003-1059-A; and blackmail
and perjury, docketed as I.S. No. 2003-1278.
On September 29, 2003, petitioner also filed a complaint
for perjury against private respondents Paul Simon Morris
and Marivel Gonzales, docketed as I.S. No. 2003-1278-A.
On December 4, 2003, the SEC issued a Cease and Desist
Order against SCB restraining it from further offering,
soliciting, or otherwise selling its securities to the public until
these have been registered with the SEC.
Subsequently, the SEC and SCB reached an amicable
settlement.1awphi1.net
On January 20, 2004, the SEC lifted its Cease and Desist
Order and approved the ₱7 million settlement offered by
SCB. Thereupon, SCB made a commitment not to offer or
sell securities without prior compliance with the
requirements of the SEC.
On February 7, 2004, petitioner filed with the DOJ a
complaint for violation of Section 8.19 of the Securities
Regulation Code against private respondents, docketed
as I.S. No. 2004-229.
On February 23, 2004, the DOJ rendered its Joint
Resolution10 dismissing petitioner’s complaint for
syndicated estafa in I.S. No. 2003-1059; private
respondents’ complaint for blackmail and extortion in I.S.
No. 2003-1059-A; private respondents’ complaint for
blackmail and perjury in I.S. No. 2003-1278; and petitioner’s
complaint for perjury against private respondents Morris
and Gonzales in I.S. No. 2003-1278-A.
Meanwhile, in a Resolution11 dated April 4, 2004, the DOJ
dismissed petitioner’s complaint in I.S. No. 2004-229
(violation of Securities Regulation Code), holding that it
should have been filed with the SEC.
Petitioner’s motions to dismiss his complaints were denied
by the DOJ. Thus, he filed with the Court of Appeals a
petition for certiorari, docketed as CA-G.R. SP No. 85078.
He alleged that the DOJ acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in
dismissing his complaint for syndicated estafa.
He also filed with the Court of Appeals a separate petition
for certiorari assailing the DOJ Resolution dismissing I.S. No.
2004-229 for violation of the Securities Regulation Code.
This petition was docketed as CA-G.R. SP No. 87328.
Petitioner claimed that the DOJ acted with grave abuse
of discretion tantamount to lack or excess of jurisdiction in
holding that the complaint should have been filed with the
SEC.
On January 7, 2005, the Court of Appeals promulgated its
Decision dismissing the petition.1avvphi1.net It sustained
the ruling of the DOJ that the case should have been filed
initially with the SEC.
Petitioner filed a motion for reconsideration but it was
denied in a Resolution dated May 27, 2005.
66
Meanwhile, on February 21, 2005, the Court of Appeals
rendered its Decision in CA-G.R. SP No. 85078 (involving
petitioner’s charges and respondents’ counter charges)
dismissing the petition on the ground that the purpose of a
petition for certiorari is not to evaluate and weigh the
parties’ evidence but to determine whether the assailed
Resolution of the DOJ was issued with grave abuse of
discretion tantamount to lack of jurisdiction. Again,
petitioner moved for a reconsideration but it was denied
in a Resolution of November 22, 2005.
Hence, the instant petitions for review on certiorari.
For our resolution is the fundamental issue of whether the
Court of Appeals erred in concluding that the DOJ did not
commit grave abuse of discretion in dismissing petitioner’s
complaint in I.S. 2004-229 for violation of Securities
Regulation Code and his complaint in I.S. No. 2003-1059 for
syndicated estafa.
G.R. No 168380
Re: I.S. No. 2004-229
For violation of the Securities Regulation Code
Section 53.1 of the Securities Regulation Code provides:
SEC. 53. Investigations, Injunctions and Prosecution of
Offenses.–
53. 1. The Commission may, in its discretion, make such
investigation as it deems necessary to determine whether
any person has violated or is about to violate any provision
of this Code, any rule, regulation or order thereunder, or
any rule of an Exchange, registered securities association,
clearing agency, other self-regulatory organization, and
may require or permit any person to file with it a statement
in writing, under oath or otherwise, as the Commission shall
determine, as to all facts and circumstances concerning
the matter to be investigated. The Commission may
publish information concerning any such violations and to
investigate any fact, condition, practice or matter which it
may deem necessary or proper to aid in the enforcement
of the provisions of this Code, in the prescribing of rules and
regulations thereunder, or in securing information to serve
as a basis for recommending further legislation concerning
the matters to which this Code relates: Provided, however,
That any person requested or subpoenaed to produce
documents or testify in any investigation shall
simultaneously be notified in writing of the purpose of such
investigation: Provided, further, That all criminal complaints
for violations of this Code and the implementing rules and
regulations enforced or administered by the Commission
shall be referred to the Department of Justice for
preliminary investigation and prosecution before the
proper court: Provided, furthermore, That in instances
where the law allows independent civil or criminal
proceedings of violations arising from the act, the
Commission shall take appropriate action to implement
the same: Provided, finally; That the investigation,
prosecution, and trial of such cases shall be given priority.
The Court of Appeals held that under the above provision,
a criminal complaint for violation of any law or rule
administered by the SEC must first be filed with the latter. If
the Commission finds that there is probable cause, then it
should refer the case to the DOJ. Since petitioner failed to
comply with the foregoing procedural requirement, the
DOJ did not gravely abuse its discretion in dismissing his
complaint in I.S. No. 2004-229.
A criminal charge for violation of the Securities Regulation
Code is a specialized dispute. Hence, it must first be
referred to an administrative agency of special
competence, i.e., the SEC. Under the doctrine of primary
jurisdiction, courts will not determine a controversy
involving a question within the jurisdiction of the
administrative tribunal, where the question demands the
exercise of sound administrative discretion requiring the
specialized knowledge and expertise of said
administrative tribunal to determine technical and
intricate matters of fact.12 The Securities Regulation Code
is a special law. Its enforcement is particularly vested in the
SEC. Hence, all complaints for any violation of the Code
and its implementing rules and regulations should be filed
with the SEC. Where the complaint is criminal in nature, the
SEC shall indorse the complaint to the DOJ for preliminary
investigation and prosecution as provided in Section 53.1
earlier quoted.
We thus agree with the Court of Appeals that petitioner
committed a fatal procedural lapse when he filed his
criminal complaint directly with the DOJ. Verily, no grave
abuse of discretion can be ascribed to the DOJ in
dismissing petitioner’s complaint.
G.R. No. 170602
Re: I.S. No. 2003-1059 for
Syndicated Estafa
Section 5, Rule 110 of the 2000 Rules of Criminal Procedure,
as amended, provides that all criminal actions,
commenced by either a complaint or an information, shall
be prosecuted under the direction and control of a public
prosecutor. This mandate is founded on the theory that a
crime is a breach of the security and peace of the people
at large, an outrage against the very sovereignty of the
State. It follows that a representative of the State shall
direct and control the prosecution of the offense.13 This
representative of the State is the public prosecutor, whom
this Court described in the old case of Suarez v. Platon,14
as:
[T]he representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice
shall be done. As such, he is in a peculiar and very definite
sense a servant of the law, the twofold aim of which is that
guilt shall not escape or innocence suffers.
67
Concomitant with his authority and power to control the
prosecution of criminal offenses, the public prosecutor is
vested with the discretionary power to determine whether
a prima facie case exists or not.15 This is done through a
preliminary investigation designed to secure the
respondent from hasty, malicious and oppressive
prosecution. A preliminary investigation is essentially an
inquiry to determine whether (a) a crime has been
committed; and (b) whether there is probable cause that
the accused is guilty thereof.16 In Pontejos v. Office of the
Ombudsman,17 probable cause is defined as such facts
and circumstances that would engender a well-founded
belief that a crime has been committed and that the
respondent is probably guilty thereof and should be held
for trial. It is the public prosecutor who determines during
the preliminary investigation whether probable cause
exists. Thus, the decision whether or not to dismiss the
criminal complaint against the accused depends on the
sound discretion of the prosecutor.
Given this latitude and authority granted by law to the
investigating prosecutor, the rule in this jurisdiction is that
courts will not interfere with the conduct of preliminary
investigations or reinvestigations or in the determination of
what constitutes sufficient probable cause for the filing of
the corresponding information against an offender.18
Courts are not empowered to substitute their own
judgment for that of the executive branch.19 Differently
stated, as the matter of whether to prosecute or not is
purely discretionary on his part, courts cannot compel a
public prosecutor to file the corresponding information,
upon a complaint, where he finds the evidence before
him insufficient to warrant the filing of an action in court. In
sum, the prosecutor’s findings on the existence of probable
cause are not subject to review by the courts, unless these
are patently shown to have been made with grave abuse
of discretion.20
Grave abuse of discretion is such capricious and whimsical
exercise of judgment on the part of the public officer
concerned which is equivalent to an excess or lack of
jurisdiction. The abuse of discretion must be as patent and
gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, or to act
at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason
of passion or hostility.21
In determining whether the DOJ committed grave abuse
of discretion, it is expedient to know if the findings of fact
of herein public prosecutors were reached in an arbitrary
or despotic manner.
The Court of Appeals held that petitioner’s evidence is
insufficient to establish probable cause for syndicated
estafa. There is no showing from the record that private
respondents herein did induce petitioner by false
representations to invest in the GTPMF securities. Nor did
they act as a syndicate to misappropriate his money for
their own benefit. Rather, they invested it in accordance
with his written instructions. That he lost his investment is not
their fault since it was highly speculative.
Records show that public respondents examined
petitioner’s evidence with care, well aware of their duty to
prevent material damage to his constitutional right to
liberty and fair play. In Suarez previously cited, this Court
made it clear that a public prosecutor’s duty is two-fold.
On one hand, he is bound by his oath of office to
prosecute persons where the complainant’s evidence is
ample and sufficient to show prima facie guilt of a crime.
Yet, on the other hand, he is likewise duty-bound to
protect innocent persons from groundless, false, or
malicious prosecution.22
Hence, we hold that the Court of Appeals was correct in
dismissing the petition for review against private
respondents and in concluding that the DOJ did not act
with grave abuse of discretion tantamount to lack or
excess of jurisdiction.
On petitioner’s complaint for violation of the Securities
Regulation Code, suffice it to state that, as aptly declared
by the Court of Appeals, he should have filed it with the
SEC, not the DOJ. Again, there is no indication here that in
dismissing petitioner’s complaint, the DOJ acted
capriciously or arbitrarily.
WHEREFORE, we DENY the petitions and AFFIRM the
assailed Decisions of the Court of Appeals in CA-G.R. SP
No. 87328 and in CA-G.R. SP No. 85078.
Costs against petitioner.
SO ORDERED.
68
G.R. No. 143591 May 5, 2010
TEODORO C. BORLONGAN, JR., CORAZON M.
BEJASA, ARTURO E. MANUEL, JR., ERIC L. LEE, P. SIERVO
H. DIZON, BENJAMIN DE LEON, DELFIN C. GONZALES,
JR., and BEN YU LIM, JR., Petitioners,
vs.
MAGDALENO M. PEÑA and HON. MANUEL Q.
LIMSIACO, JR., as Judge Designate of the Municipal
Trial Court in Cities, Bago City, Respondents.
DECISION
PEREZ, J.:
The pivotal issue in this case is whether or not the Court of
Appeals, in its Decision1 dated 20 June 2000 in CA-G.R. SP
No. 49666, is correct when it dismissed the petition for
certiorari filed by petitioners Teodoro C. Borlongan, Jr.,
Corazon M. Bejasa, Arturo E. Manuel, Jr., Benjamin de
Leon, P. Siervo H. Dizon, Delfin C. Gonzales, Jr., Eric L. Lee
and Ben Yu Lim, Jr., and ruled that the Municipal Trial Court
in Cities (MTCC), Bago City, did not gravely abuse its
discretion in denying the motion for reinvestigation and
recall of the warrants of arrest in Criminal Case Nos. 6683,
6684, 6685, and 6686.
The factual antecedents of the case are as follows:
Respondent Atty. Magdaleno M. Peña (Atty. Peña)
instituted a civil case for recovery of agent’s
compensation and expenses, damages, and attorney’s
fees2 against Urban Bank and herein petitioners, before
the Regional Trial Court (RTC) of Negros Occidental, Bago
City. The case was raffled to Branch 62 and was docketed
as Civil Case No. 754. Atty. Peña anchored his claim for
compensation on the Contract of Agency3 allegedly
entered into with the petitioners, wherein the former
undertook to perform such acts necessary to prevent any
intruder and squatter from unlawfully occupying Urban
Bank’s property located along Roxas Boulevard, Pasay
City. Petitioners filed a Motion to Dismiss4 arguing that they
never appointed the respondent as agent or counsel.
Attached to the motion were the following documents: 1)
a Letter5 dated 19 December 1994 signed by Herman
Ponce and Julie Abad on behalf of Isabela Sugar
Company, Inc. (ISCI), the original owner of the subject
property; 2) an unsigned Letter6 dated 7 December 1994
addressed to Corazon Bejasa from Marilyn G. Ong; 3) a
Letter7 dated 9 December 1994 addressed to Teodoro
Borlongan, Jr. and signed by Marilyn G. Ong; and 4) a
Memorandum8 dated 20 November 1994 from Enrique
Montilla III. Said documents were presented in an attempt
to show that the respondent was appointed as agent by
ISCI and not by Urban Bank or by the petitioners.
In view of the introduction of the above-mentioned
documents, Atty. Peña filed his Complaint-Affidavit9 with
the Office of the City Prosecutor, Bago City.10 He claimed
that said documents were falsified because the alleged
signatories did not actually affix their signatures, and the
signatories were neither stockholders nor officers and
employees of ISCI.11 Worse, petitioners introduced said
documents as evidence before the RTC knowing that they
were falsified.
In a Resolution12 dated 24 September 1998, the City
Prosecutor found probable cause for the indictment of
petitioners for four (4) counts of the crime of Introducing
Falsified Documents, penalized by the second paragraph
of Article 172 of the Revised Penal Code. The City
Prosecutor concluded that the documents were falsified
because the alleged signatories untruthfully stated that
ISCI was the principal of the respondent; that petitioners
knew that the documents were falsified considering that
the signatories were mere dummies; and that the
documents formed part of the record of Civil Case No. 754
where they were used by petitioners as evidence in
support of their motion to dismiss, and then adopted in
their answer and in their Pre-Trial Brief.13 Subsequently, the
corresponding Informations14 were filed with the MTCC,
Bago City. The cases were docketed as Criminal Case Nos.
6683, 6684, 6685, and 6686. Thereafter, Judge Primitivo
Blanca issued the warrants15 for the arrest of the
petitioners.
On 1 October 1998, petitioners filed an Omnibus Motion to
Quash, Recall Warrants of Arrest and/or For
Reinvestigation.16 Petitioners insisted that they were
denied due process because of the non-observance of
the proper procedure on preliminary investigation
prescribed in the Rules of Court. Specifically, they claimed
that they were not afforded the right to submit their
counter-affidavit. Then they argued that since no such
counter-affidavit and supporting documents were
submitted by the petitioners, the trial judge merely relied
on the complaint-affidavit and attachments of the
respondent in issuing the warrants of arrest, also in
contravention with the Rules of Court. Petitioners further
prayed that the information be quashed for lack of
probable cause. Moreover, one of the accused, i.e., Ben
Lim, Jr., is not even a director of Urban Bank, contrary to
what complainant stated. Lastly, petitioners posited that
the criminal cases should have been suspended on the
ground that the issue being threshed out in the civil case is
a prejudicial question.
In an Order17 dated 13 November 1998, the MTCC denied
the omnibus motion primarily on the ground that
preliminary investigation was not available in the instant
case – which fell within the jurisdiction of the first-level
court. The court, likewise, upheld the validity of the warrant
of arrest, saying that it was issued in accordance with the
Rules of Court. Besides, the court added, petitioners could
no longer question the validity of the warrant since they
already posted bail. The court also believed that the issue
involved in the civil case was not a prejudicial question,
and, thus, denied the prayer for suspension of the criminal
proceedings. Lastly, the court was convinced that the
Informations contained all the facts necessary to
constitute an offense.
69
Petitioners immediately instituted a special civil action for
Certiorari and Prohibition with Prayer for Writ of Preliminary
Injunction and Temporary Restraining Order (TRO) before
the Court of Appeals, ascribing grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
the MTCC in issuing and not recalling the warrants of arrest,
reiterating the arguments in their omnibus motion.18 They,
likewise, questioned the court’s conclusion that by posting
bail, petitioners already waived their right to assail the
validity of the warrants of arrest.
On 20 June 2000, the Court of Appeals dismissed the
petition.19 Thus, petitioners filed the instant petition for
review on certiorari under Rule 45 of the Rules of Court,
raising the following issues:
A.
Where the offense charged in a criminal complaint is not
cognizable by the Regional Trial Court and not covered by
the Rule on Summary Procedure, is the finding of probable
cause required for the filing of an Information in court?
If the allegations in the complaint-affidavit do not establish
probable cause, should not the investigating prosecutor
dismiss the complaint, or at the very least, require the
respondent to submit his counter-affidavit?
B.
Can a complaint-affidavit containing matters which are
not within the personal knowledge of the complainant be
sufficient basis for the finding of probable cause?
C.
Where there is offense charged in a criminal complaint is
not cognizable by the Regional Trial Court and not
covered by the Rule on Summary Procedure, and the
record of the preliminary investigation does not show the
existence of probable cause, should not the judge refuse
to issue a warrant of arrest and dismiss the criminal case,
or at the very least, require the accused to submit his
counter-affidavit in order to aid the judge in determining
the existence of probable cause?
D.
Can a criminal prosecution be restrained?
E.
Can this Honorable Court itself determine the existence of
probable cause?20
On the other hand, respondent contends that the issues
raised by the petitioners had already become moot and
academic when the latter posted bail and were already
arraigned.
On 2 August 2000, this Court issued a TRO21 enjoining the
judge of the MTCC from proceeding in any manner with
Criminal Case Nos. 6683 to 6686, effective during the entire
period that the case is pending before, or until further
orders of, this Court.
We will first discuss the issue of mootness.
The issues raised by the petitioners have not been mooted
by the fact that they had posted bail and were already
arraigned.
It appears from the records that upon the issuance of the
warrant of arrest, petitioners immediately posted bail as
they wanted to avoid embarrassment, being then the
officers of Urban Bank. On the scheduled date for the
arraignment, despite the petitioners’ refusal to enter a
plea, the court a quo entered a plea of "Not Guilty" for
them.
The erstwhile ruling of this Court was that posting of bail
constitutes a waiver of any irregularity in the issuance of a
warrant of arrest, that has already been superseded by
Section 26, Rule 114 of the Revised Rule of Criminal
Procedure. The principle that the accused is precluded
from questioning the legality of the arrest after
arraignment is true only if he voluntarily enters his plea and
participates during trial, without previously invoking his
objections thereto.22
As held in Okabe v. Hon. Gutierrez:23
It bears stressing that Section 26, Rule 114 of the Revised
Rules on Criminal Procedure is a new one, intended to
modify previous rulings of this Court that an application for
bail or the admission to bail by the accused shall be
considered as a waiver of his right to assail the warrant
issued for his arrest on the legalities or irregularities thereon.
The new rule has reverted to the ruling of this Court in
People v. Red. The new rule is curative in nature because
precisely, it was designed to supply defects and curb evils
in procedural rules. Hence, the rules governing curative
statutes are applicable. Curative statutes are by their
essence retroactive in application. Besides, procedural
rules as a general rule operate retroactively, even without
express provisions to that effect, to cases pending at the
time of their effectivity, in other words to actions yet
undetermined at the time of their effectivity. Before the
appellate court rendered its decision on January 31, 2001,
the Revised Rules on Criminal Procedure was already in
effect. It behoved the appellate court to have applied the
same in resolving the petitioner’s petition for certiorari and
her motion for partial reconsideration.1avvphi1
Moreover, considering the conduct of the petitioner after
posting her personal bail bond, it cannot be argued that
she waived her right to question the finding of probable
cause and to assail the warrant of arrest issued against her
by the respondent judge. There must be clear and
convincing proof that the petitioner had an actual
intention to relinquish her right to question the existence of
probable cause. When the only proof of intention rests on
what a party does, his act should be so manifestly
consistent with, and indicative of, an intent to voluntarily
70
and unequivocally relinquish the particular right that no
other explanation of his conduct is possible. x x x.
Herein petitioners filed the Omnibus Motion to Quash,
Recall Warrants of Arrest and/or For Reinvestigation on the
same day that they posted bail. Their bail bonds likewise
expressly contained a stipulation that they were not
waiving their right to question the validity of their arrest.24
On the date of their arraignment, petitioners refused to
enter their plea due to the fact that the issue on the
legality of their arrest is still pending with the Court. Thus,
when the court a quo entered a plea of not guilty for them,
there was no valid waiver of their right to preclude them
from raising the same with the Court of Appeals or this
Court. The posting of bail bond was a matter of imperative
necessity to avert their incarceration; it should not be
deemed as a waiver of their right to assail their arrest. The
ruling to which we have returned in People v. Red25
stated:
x x x The present defendants were arrested towards the
end of January, 1929, on the Island and Province of
Marinduque by order of the judge of the Court of First
Instance of Lucena, Tayabas, at a time when there were
no court sessions being held in Marinduque. In view of
these circumstances and the number of the accused, it
may properly be held that the furnishing of the bond was
prompted by the sheer necessity of not remaining in
detention, and in no way implied their waiver of any right,
such as the summary examination of the case before their
detention. That they had no intention of waiving this right
is clear from their motion of January 23, 1929, the same day
on which they furnished a bond, and the fact that they
renewed this petition on February 23, 1929, praying for the
stay of their arrest for lack of the summary examination; the
first motion being denied by the court on January 24, 1929
(G.R. No. 33708, page 8), and the second remaining
undecided, but with an order to have it presented in Boac,
Marinduque.
Therefore, the defendants herein cannot be said to have
waived the right granted to them by section 13, General
Order No. 58, as amended by Act No. 3042.
The rest of the issues raised by the petitioners may be
grouped into two, which are: (1) the procedural aspect,
i.e., whether the prosecution and the court a quo properly
observed the required procedure in the instant case, and,
(2) the substantive aspect, which is whether there was
probable cause to pursue the criminal cases to trial.
The procedural aspect:
Petitioners contend that they were denied due process as
they were unable to submit their counter-affidavits and
were not accorded the right to a preliminary investigation.
Considering that the complaint of Atty. Peña was filed in
September 1998, the rule then applicable was the 1985
Rules of Criminal Procedure.
The provisions of the 1985 Rules of Criminal Procedure
relevant to the issue are Sections 1, 3(a) and 9(a) of Rule
112, to wit:
Section 1. Definition. Preliminary investigation is an inquiry
or proceeding for the purpose of determining whether
there is sufficient ground to engender a well founded
belief that a crime cognizable by the Regional Trial Court
has been committed and that the respondent is probably
guilty thereof, and should be held for trial.
Sec. 3. Procedure. Except as provided for in Section 7
hereof, no complaint or information for an offense
cognizable by the Regional Trial Court shall be filed without
a preliminary investigation having been first conducted in
the following manner:
(a) The complaint shall state the known address of the
respondent and be accompanied by affidavits of the
complainant and his witnesses as well as other supporting
documents, in such number of copies as there are
respondents, plus two (2) copies for the official file. The said
affidavits shall be sworn to before any fiscal, state
prosecutor or government official authorized to administer
oath, or, in their absence or unavailability, a notary public,
who must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and
understood their affidavits.
Sec. 9. Cases not falling under the original jurisdiction of the
Regional Trial Courts nor covered by the Rule on Summary
Procedure.
(a) Where filed with the fiscal.— If the complaint is filed
directly with the fiscal or state prosecutor, the procedure
outlined in Section 3(a) of this Rule shall be observed. The
fiscal shall take appropriate action based on the affidavits
and other supporting documents submitted by the
complainant. (underscoring supplied)
The crime to which petitioners were charged was defined
and penalized under second paragraph of Article 172 in
relation to Article 171 of the Revised Penal Code.
Art. 172. Falsification by private individual and use of
falsified documents. — The penalty of prision correccional
in its medium and maximum periods and a fine of not more
than ₱5,000 pesos shall be imposed upon:
1. Any private individual who shall commit any of the
falsifications enumerated in the next preceding article in
any public or official document or letter of exchange or
any other kind of commercial document; and
2. Any person who, to the damage of a third party, or with
the intent to cause such damage, shall in any private
document commit any of the acts of falsification
enumerated in the next preceding article.
Any person who shall knowingly introduce in evidence in
any judicial proceeding or to the damage of another or
who, with the intent to cause such damage, shall use any
71
of the false documents embraced in the next preceding
article or in any of the foregoing subdivisions of this article,
shall be punished by the penalty next lower in degree.
Prision correccional in its medium and maximum periods
translates to imprisonment of 2 years, 4 months and 1
day.26 The next lower in degree to prision correccional is
arresto mayor in its maximum period to prision
correccional in its minimum period which translates to 4
months and 1 day to 2 years and 4 months27 of
imprisonment. Since the crime committed is not covered
by the Rules of Summary Procedure,28 the case falls within
the exclusive jurisdiction of the first level courts but
applying the ordinary rules. In such instance, preliminary
investigation as defined in Section 1, Rule 112 of the 1985
Rules of Criminal Procedure is not applicable since such
section covers only crimes cognizable by the RTC. That
which is stated in Section 9(a) is the applicable rule.
Under this Rule, while probable cause should first be
determined before an information may be filed in court,
the prosecutor is not mandated to require the respondent
to submit his counter-affidavits to oppose the complaint.
In the determination of probable cause, the prosecutor
may solely rely on the complaint, affidavits and other
supporting documents submitted by the complainant. If
he does not find probable cause, the prosecutor may
dismiss outright the complaint or if he finds probable cause
or sufficient reason to proceed with the case, he shall issue
a resolution and file the corresponding information.
The complaint of respondent, verbatim, is as follows:
COMPLAINT – AFFIDAVIT
I, MAGDALENO M. PEÑA, Filipino, of legal age, with
address at Brgy. Ubay, Pulupandan, Negros Occidental,
after having been sworn in accordance with law hereby
depose and state:
1. I am the Plaintiff in Civil Case No. 754 pending with the
Regional Trial Court of Bago City entitled "Atty. Magdaleno
M. Peña v. Urban Bank, et al" Impleaded therein as
defendants of the board of the bank, namely, Teodoro
Borlongan, Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo
Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and Arturo
Manuel.(underlining ours)
2. I filed the said case to collect my fees as agent of Urban
Bank, Inc.(hereinafter referred to as the "bank") in ridding
a certain parcel of land in Pasay City of squatters and
intruders. A certified true copy of the Complaint in the said
case is hereto attached as Annex "A".
3. In the Motion to Dismiss dated 12 March 1996 (a certified
true copy of which is attached as Annex "B"), Answer
dated 28 October 1996 (Annex "C"), and Pre-Trial Brief
dated 28 January 1997 (Annex "D") filed by the bank and
the respondent members of the board, the said
respondents used as evidence the following documents:
a. Letter dated 19 December 1994 supposedly signed by
a certain Herman Ponce and Julie Abad for Isabela Sugar
Company (ISC) (a copy of which is attached as Annex "E"),
which states:
December 19, 1994
Urban Bank
Urban Avenue, Makati
Metro Manila
Gentlemen:
This has reference to your property located among Roxas
Boulevard, Pasay City which you purchased from Isabela
Sugar Company under a Deed of Absolute Sale executed
on December 1, 1994.
In line with our warranties as the Seller of the said property
and our undertaking to deliver to you the full and actual
possession and control of said property, free from tenants,
occupants or squatters and from any obstruction or
impediment to the free use and occupancy of the
property and to prevent the former tenants or occupants
from entering or returning to the premises. In view of the
transfer of ownership of the property to Urban Bank, it may
be necessary for Urban Bank to appoint Atty. Peña likewise
as its authorized representative for purposes of
holding/maintaining continued possession of the said
property and to represent Urban Bank in any court action
that may be instituted for the abovementioned purposes.
It is understood that any attorney’s fees, cost of litigation
and any other charges or expenses that may be incurred
relative to the exercise by Atty. Peña of his
abovementioned duties shall be for the account of
Isabela Sugar Company and any loss or damage that may
be incurred to third parties shall be answerable by Isabela
Sugar Company.
Very truly yours,
Isabela Sugar Company
By:
HERMAN PONCE
JULIE ABAD
b. Memorandum dated 7 December 1994 supposedly
executed by a certain Marilyn Ong on behalf of ISC, a
copy of which is hereto attached as annex "F", which
states:
December 7, 1994
To: ATTY. CORA BEJASA
From: MARILYN G. ONG
RE: ISABELA SUGAR CO., INC.
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Atty. Magdaleno M. Peña, who has been assigned by
Isabela Sugar Company inc. to take charge of inspecting
the tenants would like to request an authority similar to this
from the Bank to new owners. Can you please issue
something like this today as he (unreadable) this.
b. Letter dated 9 December 1994 supposedly executed by
the same Marilyn Ong, a copy of which is hereto attached
as Annex "G", which states:
December 9, 1994
Atty. Ted Borlongan
URBAN BANK OF THE PHILIPPINES
MAKATI, METRO MANILA
Attention: Mr. Ted Borlongan
Dear Mr. Borlongan
I would like to request for an authority from Urban Bank per
attached immediately – as the tenants are questioning
authority of the people who are helping us to take
possession of the property.
Marilyn Ong
c. Memorandum dated 20 November 1994, copy of which
is attached as annex "H", which states:
MEMORANDUM
To: Atty. Magadaleno M. Peña
Director
From: Enrique C. Montilla III
President
Date: 20 November 1994
You are hereby directed to recover and take possession of
the property of the corporation situated at Roxas
Boulevard covered by TCT No. 5382 of the Registry of
Deeds for Pasay City, immediately upon the expiration of
the contract of lease over the said property on 29
November 1994. For this purpose, you are authorized to
engage the services of security guards to protect the
property against intruders. You may also engage the
services of a lawyer in case there is a need to go to court
to protect the said property of the corporation. In addition,
you may take whatever steps or measures are necessary
to ensure our continued possession of the property.
ENRIQUE C. MONTILLA III
President
4. The respondent member of the board of the bank used
and introduced the aforestated documents as evidence
in the civil case knowing that the same are falsified. They
used thae said documents to justify their refusal to pay my
agent’s fees, to my damage and prejudice.
5. The 19 December 1994 letter (Annex ‘E") is a falsified
document, in that the person who supposedly executed
the letter on behalf of ISC, a certain Herman Ponce and
Julie Abad did not actually affix their signatures on the
document. The execution of the letter was merely
simulated by making it appear that Ponce and Abad
executed the letter on behalf of ISC when they did not in
fact do so.
6. No persons by the name of Herman Ponce and Julie
Abad were ever stockholders, officers, employees or
representatives of ISC. In the letter, Herman Ponce was
represented to be the President of ISC and Julie Abad, the
Corporate Secretary. However, as of 19 December 1994,
the real President of plaintiff was Enrique Montilla, III and
Cristina Montilla was the Corporate Secretary. A copy of
the Minutes of the Regular Meeting of ISC for the year 1994,
during which Montilla, et al. Were elected is hereto
attached as Annex "I". On the otherhand, a list of the
stockholders of ISC on or about the time of the transaction
is attached as Annex "J".
7. The same holds true with respect to the Memorandum
dated 7 December 1994 and athe letter dated 9
December 1994 allegedly written by a ceratin Marilyn
Ong. Nobody by the said name was ever a stockholder of
ISC.
8. Lastly, with respect to the supposed Memorandum
issued by Enrique Montilla, III his signature thereon was
merely forged by respondents. Enrique Montilla III, did not
affix his signature on any such document.
9. I am executing this affidavit for the purpose of charging
Teodoro C. Borlongan, Corazon M. Bejasa and Arturo E.
Manuel, Delfin C. Gonzales Jr., Benjamin L. De Leon, P.
Siervo H. Dizon and Eric Lee, with the crime of use of
falsified documents under Artilce 172, paragraph 2, of the
Revised Penal Code.(underlining ours)
10. I am likewise executing this affidavit for whatever legal
purpose it may serve.
FURTHER AFFIANT SAYETH NAUGHT.
Sgd. MAGDALENO M. PEÑA
It is evident that in the affidavit-complaint, specifically in
paragraph 1, respondent merely introduced and
identified "the board of the bank, namely, Teodoro
Borlongan, Jr., Delfin Gonzales, Jr., Benjamin De Leon, P.
Siervo Dizon, Eric Lee, Ben Lim, Jr., Corazon Bejasa and
Arturo Manuel, Sr." However, in the accusatory portion of
the complaint which is paragraph number 9, Mr. Ben Lim,
Jr. was not included among those charged with the crime
of use of falsified documents under Article 172, paragraph
2, of the Revised Penal Code. The omission indicates that
respondent did not intend to criminally implicate Mr. Ben
Lim, Jr., even as he was acknowledged to be a member
of the board. And there was no explanation in the
Resolution and Information by the City Prosecutor why Mr.
Ben Lim, Jr. was included. Moreover, as can be gleaned
73
from the body of the complaint and the specific
averments therein, Mr. Ben Lim, Jr. was never mentioned.
The City Prosecutor should have cautiously reviewed the
complaint to determine whether there were
inconsistencies which ought to have been brought to the
attention of the respondent or, on his own, considered for
due evaluation. It is a big mistake to bring a man to trial for
a crime he did not commit.
Prosecutors are endowed with ample powers in order that
they may properly fulfill their assigned role in the
administration of justice. It should be realized, however,
that when a man is hailed to court on a criminal charge, it
brings in its wake problems not only for the accused but for
his family as well. Therefore, it behooves a prosecutor to
weigh the evidence carefully and to deliberate thereon to
determine the existence of a prima facie case before filing
the information in court. Anything less would be a
dereliction of duty.29
Atty. Peña, in his Second Manifestation30 dated 16 June
1999, averred that petitioners, including Mr. Ben Lim, Jr.,
were already estopped from raising the fact that Mr. Ben
Lim, Jr. was not a member of the board of directors of
Urban Bank, as the latter participated and appeared
through counsel in Civil Case No. 754 without raising any
opposition. However, this does not detract from the fact
that the City Prosecutor, as previously discussed, did not
carefully scrutinize the complaint of Atty. Peña, which did
not charge Mr. Ben Lim, Jr. of any crime.
What tainted the procedure further was that the Judge
issued a warrant for the arrest of the petitioners, including,
Mr. Ben Lim, Jr. despite the filing of the Omnibus Motion to
Quash, Recall Warrants of Arrest and/or For Reinvestigation
raising among others the issue that Mr. Ben Lim, Jr., was not
even a member of the board of directors. With the filing of
the motion, the judge is put on alert that an innocent
person may have been included in the complaint. In the
Order31 dated 13 November 1998, in denying the motion
to quash, Judge Primitivo Blanca ruled that:
Courts in resolving a motion to quash cannot consider
facts contrary to those alleged in the information or which
do not appear on the face of the information because
said motion is hypothethical admission of the facts alleged
in the information x x x. (citations omitted.)
We cannot accept as mere oversight the mistake of
respondent judge since it was at the expense of liberty. This
cannot be condoned.
In the issuance of a warrant of arrest, the mandate of the
Constitution is for the judge to personally determine the
existence of probable cause:
Section 2, Article III of the Constitution provides:
Section 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after
examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly
describing the place to be searched and the persons or
things to be seized.
Corollary thereto, Section 9(b) of the 1985 Rules of Criminal
Procedure provides:
Sec. 9. Cases not falling under the original jurisdiction of the
Regional Trial Courts nor covered by the Rule on Summary
Procedure.
(a) x x x.
(b) Where filed directly with the Municipal Trial Court. — If
the complaint or information is filed directly with the
Municipal Trial Court, the procedure provided for in
Section 3(a) of this Rule shall likewise be observed. If the
judge finds no sufficient ground to hold the respondent for
trial, he shall dismiss the complaint or information.
Otherwise, he shall issue a warrant of arrest after personally
examining in writing and under oath the complainant and
his witnesses in the form of searching questions and
answers.
Enshrined in our Constitution is the rule that "[n]o x x x
warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after
examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly
describing x x x the persons x x x to be seized."32
Interpreting the words "personal determination," we said in
Soliven v. Makasiar33 that it does not thereby mean that
judges are obliged to conduct the personal examination
of the complainant and his witnesses themselves. To
require thus would be to unduly laden them with
preliminary examinations and investigations of criminal
complaints instead of concentrating on hearing and
deciding cases filed before them. Rather, what is
emphasized merely is the exclusive and personal
responsibility of the issuing judge to satisfy himself as to the
existence of probable cause. To this end, he may: (a)
personally evaluate the report and the supporting
documents submitted by the prosecutor regarding the
existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or (b) if on the basis thereof he
finds no probable cause, disregard the prosecutor's report
and require the submission of supporting affidavits of
witnesses to aid him in determining its existence. What he
is never allowed to do is to follow blindly the prosecutor's
bare certification as to the existence of probable cause.
Much more is required by the constitutional provision.
Judges have to go over the report, the affidavits, the
transcript of stenographic notes if any, and other
documents supporting the prosecutor's certification.
Although the extent of the judge's personal examination
depends on the circumstances of each case, to be sure,
he cannot just rely on the bare certification alone but must
go beyond it. This is because the warrant of arrest issues
74
not on the strength of the certification standing alone but
because of the records which sustain it.34 He should even
call for the complainant and the witnesses to answer the
court's probing questions when the circumstances
warrant.35
An arrest without a probable cause is an unreasonable
seizure of a person, and violates the privacy of persons
which ought not to be intruded by the State.36
Measured against the constitutional mandate and
established rulings, there was here a clear abdication of
the judicial function and a clear indication that the judge
blindly followed the certification of a city prosecutor as to
the existence of probable cause for the issuance of a
warrant of arrest with respect to all of the petitioners. The
careless inclusion of Mr. Ben Lim, Jr., in the warrant of arrest
gives flesh to the bone of contention of petitioners that the
instant case is a matter of persecution rather than
prosecution.37 On this ground, this Court may enjoin the
criminal cases against petitioners. As a general rule,
criminal prosecutions cannot be enjoined. However, there
are recognized exceptions which, as summarized in
Brocka v. Enrile,38 are:
a. To afford adequate protection to the constitutional
rights of the accused;39
b. When necessary for the orderly administration of justice
or to avoid oppression or multiplicity of actions;40
c. When there is a prejudicial question which is sub
judice;41
d. When the acts of the officer are without or in excess of
authority;42
e. Where the prosecution is under an invalid law,
ordinance or regulation;43
f. When double jeopardy is clearly apparent;44
g. Where the court had no jurisdiction over the offense;45
h. Where it is a case of persecution rather than
prosecution;46
i. Where the charges are manifestly false and motivated
by the lust for vengeance;47 and
j. When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied.48
The substantive aspect:
Petitioners were charged with violation of par. 2, Article
172 of the Revised Penal Code or Introduction of Falsified
Document in a judicial proceeding. The elements of the
offense are as follows:
1. That the offender knew that a document was falsified
by another person.
2. That the false document is embraced in Article 171 or in
any subdivisions Nos. 1 or 2 of Article 172.
3. That he introduced said document in evidence in any
judicial proceeding.49
The falsity of the document and the defendants’
knowledge of its falsity are essential elements of the
offense. The Office of the City Prosecutor filed the
Informations against the petitioners on the basis of the
Complaint-Affidavit of respondent Atty. Peña, attached to
which were the documents contained in the Motion to
Dismiss filed by the petitioners in Civil Case No. 754. Also
included as attachments to the complaint were the
Answers, Pre-Trial Brief, the alleged falsified documents,
copy of the regular meetings of ISCI during the election of
the Board of Directors and the list of ISCI Stockholders.50
Based on these documents and the complaint-affidavit of
Atty. Peña, the City Prosecutor concluded that probable
cause for the prosecution of the charges existed. On the
strength of the same documents, the trial court issued the
warrants of arrest.
This Court, however, cannot find these documents
sufficient to support the existence of probable cause.
Probable cause is such set of facts and circumstances as
would lead a reasonably discreet and prudent man to
believe that the offense charged in the Information or any
offense included therein has been committed by the
person sought to be arrested. In determining probable
cause, the average man weighs the facts and
circumstances without restoring to the calibrations of the
rules of evidence of which he has no technical
knowledge. He relies on common sense. A finding of
probable cause needs only to rest on evidence showing
that, more likely than not, a crime has been committed
and that it was committed by the accused. Probable
cause demands more than suspicion; it requires less than
evidence that would justify conviction.51
As enunciated in Baltazar v. People,52 the task of the
presiding judge when the Information is filed with the court
is first and foremost to determine the existence or non-
existence of probable cause for the arrest of the accused.
The purpose of the mandate of the judge to first determine
probable cause for the arrest of the accused is to insulate
from the very start those falsely charged with crimes from
the tribulations, expenses and anxiety of a public trial.53
We do not see how it can be concluded that the
documents mentioned by respondent in his complaint-
affidavit were falsified. In his complaint, Atty. Peña stated
that Herman Ponce, Julie Abad and Marilyn Ong, the
alleged signatories of the questioned letters, did not
actually affix their signatures therein; and that they were
not actually officers or stockholders of ISCI.54 He further
claimed that Enrique Montilla’s signature appearing in
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another memorandum addressed to respondent was
forged.55 These averments are mere assertions which are
insufficient to warrant the filing of the complaint or worse
the issuance of warrants of arrest. These averments cannot
be considered as proceeding from the personal
knowledge of herein respondent who failed to, basically,
allege that he was present at the time of the execution of
the documents. Neither was there any mention in the
complaint-affidavit that herein respondent was familiar
with the signatures of the mentioned signatories to be able
to conclude that they were forged. What Atty. Peña
actually stated were but sweeping assertions that the
signatories are mere dummies of ISCI and that they are not
in fact officers, stockholders or representatives of the
corporation. Again, there is no indication that the assertion
was based on the personal knowledge of the affiant.
The reason for the requirement that affidavits must be
based on personal knowledge is to guard against hearsay
evidence. A witness, therefore, may not testify as what he
merely learned from others either because he was told or
read or heard the same. Such testimony is considered
hearsay and may not be received as proof of the truth of
what he has learned.56 Hearsay is not limited to oral
testimony or statements; the general rule that excludes
hearsay as evidence applies to written, as well as oral
statements.57
The requirement of personal knowledge should have been
strictly applied considering that herein petitioners were not
given the opportunity to rebut the complainant’s
allegation through counter-affidavits.
Quite noticeable is the fact that in the letter dated 19
December 1994 of Herman Ponce and Julie Abad, neither
of the two made the representation that they were the
president or secretary of ISCI. It was only Atty. Peña who
asserted that the two made such representation. He
alleged that Marilyn Ong was never a stockholder of ISCI
but he did not present the stock and transfer book of ISCI.
And, there was neither allegation nor proof that Marilyn
Ong was not connected to ISCI in any other way.lawphil
Moreover, even if Marilyn Ong was not a stockholder of
ISCI, such would not prove that the documents she signed
were falsified.
The Court may not be compelled to pass upon the
correctness of the exercise of the public prosecutor’s
function without any showing of grave abuse of discretion
or manifest error in his findings.58 Considering, however,
that the prosecution and the court a quo committed
manifest errors in their findings of probable cause, this
Court therefore annuls their findings.
Our pronouncement in Jimenez v. Jimenez59 as reiterated
in Baltazar v. People is apropos:
It is x x x imperative upon the fiscal or the judge as the case
may be, to relieve the accused from the pain of going
through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no
probable cause exists to form a sufficient belief as to the
guilt of the accused. Although there is no general formula
or fixed rule for the determination of probable cause since
the same must be decided in the light of the conditions
obtaining in given situations and its existence depends to
a large degree upon the finding or opinion of the judge
conducting the examination, such a finding should not
disregard the facts before the judge nor run counter to the
clear dictates of reasons. The judge or fiscal, therefore,
should not go on with the prosecution in the hope that
some credible evidence might later turn up during trial for
this would be a flagrant violation of a basic right which the
courts are created to uphold. It bears repeating that the
judiciary lives up to its mission by visualizing and not
denigrating constitutional rights. So it has been before. It
should continue to be so.

On the foregoing discussion, we find that the Court of

Appeals erred in affirming the findings of the prosecutor as
well as the court a quo as to the existence of probable
cause. The criminal complaint against the petitioners
should be dismissed.

WHEREFORE, the petition is hereby GRANTED. The Decision

of the Court of Appeals dated 20 June 2000, in CA-G.R. SP
No. 49666, is REVERSED and SET ASIDE. The Temporary
Restraining Order dated 2 August 2000 is hereby made
permanent. Accordingly, the Municipal Trial Court in Cities,
Negros Occidental, Bago City, is hereby DIRECTED to
DISMISS Criminal Case Nos. 6683, 6684, 6685 and 6686.

SO ORDERED.

76