Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 176830

considering that petitioners have chosen to take recourse directly before

us and that the cases are of significant national interest.
Petitioners have raised several issues, but most are too insubstantial to
require consideration. Accordingly, in the exercise of sound judicial
discretion and economy, this Court will pass primarily upon the following:

February 11, 2014

SATURNINO C. OCAMPO, Petitioner,

vs.
HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the
Regional Trial Court of Hilongos, Leyte, Branch 18, CESAR M. MERIN,
in. his capacity as Approving Prosecutor and Officer-in-Charge,
ROSULO U. VIVERO, in his capacity as Investigating Prosecutor,
RAUL M. GONZALEZ, in his capacity as Secretary of the Department
of Justice, Respondents.
DECISION

1. Whether petitioners were denied due process during preliminary

investigation and in the issuance of the warrants of arrest.
2. Whether the murder charges against petitioners should be
dismissed under the political offense doctrine.
ANTECEDENT FACTS
These are petitions for certiorari and prohibition2 seeking the annulment of
the orders and resolutions of public respondents with regard to the
indictment and issuance of warrants of arrest against petitioners for the
crime of multiple murder.

SERENO, CJ.:
On 26 August 2006, a mass grave was discovered by elements of the 43rd
Infantry Brigade of the Philippine Army at Sitio Sapang Daco, Barangay
Kaulisihan, Inopacan, Leyte.1 The mass grave contained skeletal remains
of individuals believed to be victims of "Operation Venereal Disease"
(Operation VD) launched by members of the Communist Party of the
Philippines/New Peoples Army/National Democratic Front of the
Philippines (CPP/NPA/NDFP) to purge their ranks of suspected military
informers.
While the doctrine of hierarchy of courts normally precludes a direct
invocation of this Courts jurisdiction, we take cognizance of these petitions

Police Chief Inspector George L. Almaden (P C/Insp. Almaden) of the

Philippine National Police (PNP) Regional Office 8 and Staff Judge
Advocate Captain Allan Tiu (Army Captain Tiu) of the 8th Infantry Division
of the Philippine Army sent 12 undated letters to the Provincial Prosecutor
of Leyte through Assistant Provincial Prosecutor Rosulo U. Vivero
(Prosecutor Vivero).3 The letters requested appropriate legal action on 12
complaint-affidavits attached therewith accusing 71 named members of
the Communist Party of the Philippines/New Peoples Army/National
Democratic Front of the Philippines (CPP/NPA/NDFP) of murder, including
petitioners herein along with several other unnamed members.

The letters narrated that on 26 August 2006, elements of the 43rd Infantry
Brigade of the Philippine Army discovered a mass grave site of the
CPP/NPA/NDFP at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan,
Leyte.4 Recovered from the grave site were 67 severely deteriorated
skeletal remains believed to be victims of Operation VD. 5
The PNP Scene of the Crime Operation (SOCO) Team based in Regional
Office 8 was immediately dispatched to the mass grave site to conduct
crime investigation, and to collect, preserve and analyze the skeletal
remains.6Also, from 11-17 September 2006, an investigation team
composed of intelligence officers, and medico-legal and DNA experts,
conducted forensic crime analysis and collected from alleged relatives of
the victims DNA samples for matching.7
The Initial Specialist Report8 dated 18 September 2006 issued by the PNP
Crime Laboratory in Camp Crame, Quezon City, was inconclusive with
regard to the identities of the skeletal remains and even the length of time
that they had been buried. The report recommended the conduct of further
tests to confirm the identities of the remains and the time window of
death.9
However, in a Special Report10 dated 2 October 2006, the Case
Secretariat of the Regional and National Inter-Agency Legal Action Group
(IALAG) came up with the names of ten (10) possible victims after
comparison and examination based on testimonies of relatives and
witnesses.11
The 12 complaint-affidavits were from relatives of the alleged victims of
Operation VD. All of them swore that their relatives had been abducted or
last seen with members of the CPP/NPA/NDFP and were never seen
again.
They also expressed belief that their relatives remains were among those
discovered at the mass grave site.

Also attached to the letters were the affidavits of Zacarias

Piedad,12 Leonardo C. Tanaid, Floro M. Tanaid, Numeriano Beringuel,
Glecerio Roluna and Veronica P. Tabara. They narrated that they were
former members of the CPP/NPA/NDFP.13 According to them, Operation
VD was ordered in 1985 by the CPP/NPA/NDFP Central
Committee.14 Allegedly, petitioners Saturnino C. Ocampo
(Ocampo),15 Randall B. Echanis (Echanis),16 Rafael G. Baylosis
(Baylosis),17 and Vicente P. Ladlad (Ladlad)18 were then members of the
Central Committee.
According to these former members, four sub-groups were formed to
implement Operation VD, namely, (1) the Intel Group responsible for
gathering information on suspected military spies and civilians who would
not support the movement; (2) the Arresting Group charged with their
arrests; (3) the Investigation Group which would subject those arrested to
questioning; and (4) the Execution Group or the "cleaners" of those
confirmed to be military spies and civilians who would not support the
movement.19
From 1985 to 1992, at least 100 people had been abducted, hog-tied,
tortured and executed by members of the CPP/NPA/NDF20 pursuant to
Operation VD.21
On the basis of the 12 letters and their attachments, Prosecutor Vivero
issued a subpoena requiring, among others, petitioners to submit their
counter-affidavits and those of their witnesses.22 Petitioner Ocampo
submitted his counter-affidavit.23 Petitioners Echanis24 and Baylosis25 did
not file counter-affidavits because they were allegedly not served the copy
of the complaint and the attached documents or evidence. Counsel of
petitioner Ladlad made a formal entry of appearance on 8 December 2006
during the preliminary investigation.26 However, petitioner Ladlad did not
file a counter-affidavit because he was allegedly not served a subpoena. 27

In a Resolution28 dated 16 February 2007, Prosecutor Vivero

recommended the filing of an Information for 15 counts of multiple murder
against 54 named members of the CPP/NPA/NDFP, including petitioners
herein, for the death of the following: 1) Juanita Aviola, 2) Concepcion
Aragon, 3) Gregorio Eras, 4) Teodoro Recones, Jr., 5) Restituto Ejoc, 6)
Rolando Vasquez, 7) Junior Milyapis, 8) Crispin Dalmacio, 9) Zacarias
Casil, 10) Pablo Daniel, 11) Romeo Tayabas, 12) Domingo Napoles, 13)
Ciriaco Daniel, 14) Crispin Prado, and 15) Ereberto Prado. 29
Prosecutor Vivero also recommended that Zacarias Piedad, Leonardo
Tanaid, Numeriano Beringuel and Glecerio Roluna be dropped as
respondents and utilized as state witnesses, as their testimonies were vital
to the success of the prosecution.30 The Resolution was silent with regard
to Veronica Tabara.
The Information was filed before the Regional Trial Court (RTC) Hilongos,
Leyte, Branch 18 (RTC Hilongos, Leyte) presided by Judge Ephrem S.
Abando (Judge Abando) on 28 February 2007, and docketed as Criminal
Case No. H-1581.31 Petitioner Ocampo filed an Ex Parte Motion to Set
Case for Clarificatory Hearing dated 5 March 2007 prior to receiving a
copy of the Resolution recommending the filing of the Information. 32
On 6 March 2007, Judge Abando issued an Order finding probable cause
"in the commission by all mentioned accused of the crime charged." 33 He
ordered the issuance of warrants of arrest against them with no
recommended bail for their temporary liberty.34
On 16 March 2007, petitioner Ocampo filed before us this special civil
action for certiorari and prohibition under Rule 65 of the Rules of Court and
docketed as G.R. No. 176830 seeking the annulment of the 6 March 2007
Order of Judge Abando and the 16 February 2007 Resolution of
Prosecutor Vivero.35 The petition prayed for the unconditional release of
petitioner Ocampo from PNP custody, as well as the issuance of a

temporary restraining order/ writ of preliminary injunction to restrain the

conduct of further proceedings during the pendency of the petition. 36
Petitioner Ocampo argued that a case for rebellion against him and 44
others (including petitioners Echanis and Baylosis37 and Ladlad38)
docketed as Criminal Case No. 06-944 was then pending before the RTC
Makati, Branch 150 (RTC Makati).39 Putting forward the political offense
doctrine, petitioner Ocampo argues that common crimes, such as murder
in this case, are already absorbed by the crime of rebellion when
committed as a necessary means, in connection with and in furtherance of
rebellion.40
We required41 the Office of the Solicitor General (OSG) to comment on the
petition and the prayer for the issuance of a temporary restraining order/
writ of preliminary injunction, and set42 the case for oral arguments on 30
March 2007. The OSG filed its Comment on 27 March 2007. 43
The following were the legal issues discussed by the parties during the
oral arguments:
1. Whether the present petition for certiorari and prohibition is the
proper remedy of petitioner Ocampo;
2. Assuming it is the proper remedy, whether he was denied due
process during preliminary investigation and in the issuance of the
warrant of arrest;
3. Whether the murder charges against him are already included
in the rebellion charge against him in the RTC.44
Afterwards, the parties were ordered to submit their memoranda within 10
days.45 On 3 April 2007, the Court ordered the provisional release of
petitioner Ocampo under a P100,000 cash bond.46

Acting on the observation of the Court during the oral arguments that the
single Information filed before the RTC Hilongos, Leyte was defective for
charging 15 counts of murder, the prosecution filed a Motion to Admit
Amended Information and New Informations on 11 April 2007. 47 In an
Order dated 27 July 2007, Judge Abando held in abeyance the resolution
thereof and effectively suspended the proceedings during the pendency of
G.R. No. 176830 before this Court.48
While the proceedings were suspended, petitioner Echanis was arrested
on 28 January 2008 by virtue of the warrant of arrest issued by Judge
Abando on 6 March 2007.49 On 1 February 2008, petitioners Echanis and
Baylosis filed a Motion for Judicial Reinvestigation/ Determination of
Probable Cause with Prayer to Dismiss the Case Outright and Alternative
Prayer to Recall/ Suspend Service of Warrant.50
On 30 April 2008, Judge Abando issued an Order denying the
motion.51 Petitioners Echanis and Baylosis filed a Motion for
Reconsideration52 dated 30 May 2008, but before being able to rule
thereon, Judge Abando issued an Order dated 12 June 2008 transmitting
the records of Criminal Case No. H-1581 to the Office of the Clerk of
Court, RTC Manila.53 The Order was issued in compliance with the
Resolution dated 23 April 2008 of this Court granting the request of then
Secretary of Justice Raul Gonzales to transfer the venue of the case.
The case was re-raffled to RTC Manila, Branch 32 (RTC Manila) presided
by Judge Thelma Bunyi-Medina (Judge Medina) and re-docketed as
Criminal Case No. 08-262163.54 Petitioner Echanis was transferred to the
PNP Custodial Center in Camp Crame, Quezon City. On 12 August 2008,
petitioners Echanis and Baylosis filed their Supplemental Arguments to
Motion for Reconsideration.55
In an Order56 dated 27 October 2008, Judge Medina suspended the
proceedings of the case pending the resolution of G.R. No. 176830 by this
Court.

On 18 December 2008, petitioner Ladlad filed with the RTC Manila a

Motion to Quash and/or Dismiss.57
On 23 December 2008, petitioner Echanis filed before us a special civil
action for certiorari and prohibition under Rule 65 of the Rules of Court
seeking the annulment of the 30 April 2008 Order of Judge Abando and
the 27 October 2008 Order of Judge Medina.58 The petition, docketed as
G.R. No. 185587, prayed for the unconditional and immediate release of
petitioner Echanis, as well as the issuance of a temporary restraining
order/writ of preliminary injunction to restrain his further incarceration. 59
On 5 January 2009, petitioner Baylosis filed before us a special civil action
for certiorari and prohibition under Rule 65 of the Rules of Court also
seeking the annulment of the 30 April 2008 Order of Judge Abando and
the 27 October 2008 Order of Judge Medina.60 The petition, docketed as
G.R. No. 185636, prayed for the issuance of a temporary restraining order/
writ of preliminary injunction to restrain the implementation of the warrant
of arrest against petitioner Baylosis.61
The Court consolidated G.R. Nos. 185587 and 185636 on 12 January
2009.62
On 3 March 2009, the Court ordered the further consolidation of these two
cases with G.R. No. 176830.63 We required64 the OSG to comment on the
prayer for petitioner Echaniss immediate release, to which the OSG did
not interpose any objection on these conditions: that the temporary release
shall only be for the purpose of his attendance and participation in the
formal peace negotiations between the Government of the Republic of the
Philippines (GRP) and the CPP/NPA/NDFP, set to begin in August 2009;
and that his temporary release shall not exceed six (6) months. 65 The latter
condition was later modified, such that his temporary liberty shall continue
for the duration of his actual participation in the peace negotiations. 66

On 11 August 2009, the Court ordered the provisional release of petitioner

Echanis under a P100,000 cash bond, for the purpose of his participation
in the formal peace negotiations.67
Meanwhile, the Department of Justice (DOJ) filed its Opposition 68 to
petitioner Ladlads motion to quash before the RTC Manila. The trial court
conducted a hearing on the motion on 13 February 2009. 69
On 6 May 2009, Judge Medina issued an Order70 denying the motion to
quash. The motion for reconsideration filed by petitioner Ladlad was also
denied on 27 August 2009.71
On 9 November 2009, petitioner Ladlad filed before us a special civil
action for certiorari under Rule 65 of the Rules of Court seeking the
annulment of the 6 May 2009 and 27 August 2009 Orders of Judge
Medina.72 The petition was docketed as G.R. No. 190005.
On 11 January 2010, we ordered the consolidation of G.R. No. 190005
with G.R. Nos. 176830, 185587 and 185636.73 We also required the OSG
to file its comment thereon. The OSG submitted its Comment 74 on 7 May
2010.
On 27 July 2010, we likewise required the OSG to file its Comment in G.R.
Nos. 185636 and 185587.75 These Comments were filed by the OSG on
13 December 201076 and on 21 January 2011,77 respectively. Petitioners
Echanis and Baylosis filed their Consolidated Reply78 on 7 June 2011.
On 2 May 2011, petitioner Ladlad filed an Urgent Motion to Fix Bail. 79 On
21 July 2011, petitioner Baylosis filed A Motion to Allow Petitioner to Post
Bail.80 The OSG interposed no objection to the grant of a P100,000 cash
bail to them considering that they were consultants of the NDFP
negotiating team, which was then holding negotiations with the GRP peace
panel for the signing of a peace accord.81

On 17 January 2012, we granted the motions of petitioners Ladlad and

Baylosis and fixed their bail in the amount of P100,000, subject to the
condition that their temporary release shall be limited to the period of their
actual participation in the peace negotiations.82
Petitioner Ladlad filed his Reply83 to the OSG Comment on 18 January
2013.
OUR RULING
Petitioners were accorded due
process during preliminary
investigation and in the issuance of
the warrants of arrest.
A. Preliminary Investigation
A preliminary investigation is "not a casual affair."84 It is conducted to
protect the innocent from the embarrassment, expense and anxiety of a
public trial.85 While the right to have a preliminary investigation before trial
is statutory rather than constitutional, it is a substantive right and a
component of due process in the administration of criminal justice. 86
In the context of a preliminary investigation, the right to due process of law
entails the opportunity to be heard.87 It serves to accord an opportunity for
the presentation of the respondents side with regard to the accusation.
Afterwards, the investigating officer shall decide whether the allegations
and defenses lead to a reasonable belief that a crime has been committed,
and that it was the respondent who committed it. Otherwise, the
investigating officer is bound to dismiss the complaint.
"The essence of due process is reasonable opportunity to be heard and
submit evidence in support of one's defense." 88 What is proscribed is lack

of opportunity to be heard.89 Thus, one who has been afforded a chance to

present ones own side of the story cannot claim denial of due process. 90
Petitioners Echanis and Baylosis allege that they did not receive a copy of
the complaint and the attached documents or evidence. 91 Petitioner Ladlad
claims that he was not served a subpoena due to the false address
indicated in the 12 undated letters of P C/Insp. Almaden and Army Captain
Tiu to Prosecutor Vivero.92Furthermore, even though his counsels filed
their formal entry of appearance before the Office of the Prosecutor,
petitioner Ladlad was still not sent a subpoena through his counsels
addresses.93 Thus, they were deprived of the right to file counter-affidavits.
Petitioner Ocampo claims that Prosecutor Vivero, in collusion with P
C/Insp. Almaden and Army Captain Tiu, surreptitiously inserted the
Supplemental Affidavit of Zacarias Piedad in the records of the case
without furnishing petitioner Ocampo a copy.94 The original affidavit of
Zacarias Piedad dated 14 September 2006 stated that a meeting presided
by petitioner Ocampo was held in 1984, when the launching of Operation
VD was agreed upon.95 Petitioner Ocampo refuted this claim in his
Counter-affidavit dated 22 December 2006 stating that he was in military
custody from October 1976 until his escape in May 1985. 96 Thereafter, the
Supplemental Affidavit of Zacarias Piedad dated 12 January 2007 admitted
that he made a mistake in his original affidavit, and that the meeting
actually took place in June 1985.97 Petitioner Ocampo argues that he was
denied the opportunity to reply to the Supplemental Affidavit by not being
furnished a copy thereof.
Petitioner Ocampo also claims that he was denied the right to file a motion
for reconsideration or to appeal the Resolution of Prosecutor Vivero,
because the latter deliberately delayed the service of the Resolution by 19
days, effectively denying petitioner Ocampo his right to due process. 98
As to the claim of petitioners Echanis and Baylosis, we quote the pertinent
portion of Prosecutor Viveros Resolution, which states:

In connection with the foregoing and pursuant to the Revised Rules of

Criminal Procedure[,] the respondents were issued and served with
Subpoena at their last known address for them to submit their counteraffidavits and that of their witnesses.
Majority of the respondents did not submit their counter-affidavits because
they could no longer be found in their last known address, per return of the
subpoenas. On the other hand, Saturnino Ocampo @ Satur, Fides Lim,
Maureen Palejaro and Ruben Manatad submitted their Counter-Affidavits.
However, Vicente Ladlad and Jasmin Jerusalem failed to submit the
required Counter Affidavits in spite entry of appearance by their respective
counsels.99
Section 3(d), Rule 112 of the Rules of Court, allows Prosecutor Vivero to
resolve the complaint based on the evidence before him if a respondent
could not be subpoenaed. As long as efforts to reach a respondent were
made, and he was given an opportunity to present countervailing
evidence, the preliminary investigation remains valid. 100 The rule was put in
place in order to foil underhanded attempts of a respondent to delay the
prosecution of offenses.101
In this case, the Resolution stated that efforts were undertaken to serve
subpoenas on the named respondents at their last known addresses. This
is sufficient for due process. It was only because a majority of them could
no longer be found at their last known addresses that they were not served
copies of the complaint and the attached documents or evidence.
Petitioner Ladlad claims that his subpoena was sent to the nonexistent
address "53 Sct. Rallos St., QC,"102 which had never been his address at
any time.103 In connection with this claim, we take note of the fact that the
subpoena to Fides Lim, petitioner Ladlads wife, 104 was sent to the same
address, and that she was among those mentioned in the Resolution as
having timely submitted their counter-affidavits.

Despite supposedly never receiving a subpoena, petitioner Ladlads

counsel filed a formal entry of appearance on 8 December
2006.105 Prosecutor Vivero had a reason to believe that petitioner Ladlad
had received the subpoena and accordingly instructed his counsel to
prepare his defense.
Petitioner Ladlad, through his counsel, had every opportunity to secure
copies of the complaint after his counsels formal entry of appearance and,
thereafter, to participate fully in the preliminary investigation. Instead, he
refused to participate.
We have previously cautioned that "litigants represented by counsel
should not expect that all they need to do is sit back, relax and await the
outcome of their case."106 Having opted to remain passive during the
preliminary investigation, petitioner Ladlad and his counsel cannot now
claim a denial of due process, since their failure to file a counter-affidavit
was of their own doing.
Neither do we find any merit in petitioner Ocampos allegation of collusion
to surreptitiously insert the Supplemental Affidavit of Zacarias Piedad in
the records. There was nothing surreptitious about the Supplemental
Affidavit since it clearly alludes to an earlier affidavit and admits the
mistake committed regarding the date of the alleged meeting. The date of
the execution of the Supplemental Affidavit was also clearly stated. Thus, it
was clear that it was executed after petitioner Ocampo had submitted his
counter-affidavit. Should the case go to trial, that will provide petitioner
Ocampo with the opportunity to question the execution of Zacarias
Piedads Supplemental Affidavit.
Neither can we uphold petitioner Ocampos contention that he was denied
the right to be heard. For him to claim that he was denied due process by
not being furnished a copy of the Supplemental Affidavit of Zacarias
Piedad would imply that the entire case of the prosecution rested on the
Supplemental Affidavit. The OSG has asserted that the indictment of

petitioner Ocampo was based on the collective affidavits of several other

witnesses107attesting to the allegation that he was a member of the
CPP/NPA/NDFP Central Committee, which had ordered the launch of
Operation VD.
As to his claim that he was denied the right to file a motion for
reconsideration or to appeal the Resolution of Prosecutor Vivero due to the
19-day delay in the service of the Resolution, it must be pointed out that
the period for filing a motion for reconsideration or an appeal to the
Secretary of Justice is reckoned from the date of receipt of the resolution
of the prosecutor, not from the date of the resolution. This is clear from
Section 3 of the 2000 National Prosecution Service Rule on Appeal:
Sec. 3. Period to appeal. The appeal shall be taken within fifteen (15)
days from receipt of the resolution, or of the denial of the motion for
reconsideration/ reinvestigation if one has been filed within fifteen (15)
days from receipt of the assailed resolution. Only one motion for
reconsideration shall be allowed. (Emphasis supplied)
Thus, when petitioner Ocampo received the Resolution of Prosecutor
Vivero on 12 March 2007,108 the former had until 27 March 2007 within
which to file either a motion for reconsideration before the latter or an
appeal before the Secretary of Justice. Instead, petitioner Ocampo chose
to file the instant petition for certiorari directly before this Court on 16
March 2007.
B. Issuance of the Warrants of Arrest
Article III, Section 2 of the Constitution provides that "no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce."

Petitioner Ocampo alleges that Judge Abando did not comply with the
requirements of the Constitution in finding the existence of probable cause
for the issuance of warrants of arrest against petitioners. 109
Probable cause for the issuance of a warrant of arrest has been defined as
"such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed by the person
sought to be arrested."110 Although the Constitution provides that probable
cause shall be determined by the judge after an examination under oath or
an affirmation of the complainant and the witnesses, we have ruled that a
hearing is not necessary for the determination thereof. 111 In fact, the
judges personal examination of the complainant and the witnesses is not
mandatory and indispensable for determining the aptness of issuing a
warrant of arrest.112
It is enough that the judge personally evaluates the prosecutors report
and supporting documents showing the existence of probable cause for
the indictment and, on the basis thereof, issue a warrant of arrest; or if, on
the basis of his evaluation, he finds no probable cause, to disregard the
prosecutor's resolution and require the submission of additional affidavits
of witnesses to aid him in determining its existence.113
Petitioners Echanis and Baylosis claim that, had Judge Abando
painstakingly examined the records submitted by Prosecutor Vivero, the
judge would have inevitably dismissed the charge against
them.114 Additionally, petitioner Ocampo alleges that Judge Abando did not
point out facts and evidence in the record that were used as bases for his
finding of probable cause to issue a warrant of arrest. 115
The determination of probable cause for the issuance of warrants of arrest
against petitioners is addressed to the sound discretion of Judge Abando
as the trial judge.116 Further elucidating on the wide latitude given to trial
judges in the issuance of warrants of arrest, this Court stated in Sarigumba
v. Sandiganbayan117 as follows:

x x x. The trial court's exercise of its judicial discretion should not, as a

general rule, be interfered with in the absence of grave abuse of discretion.
Indeed, certiorari will not lie to cure errors in the trial court's appreciation of
the evidence of the parties, the conclusion of facts it reached based on the
said findings, as well as the conclusions of law. x x x.
Whether or not there is probable cause for the issuance of warrants for the
arrest of the accused is a question of fact based on the allegations in the
Informations, the Resolution of the Investigating Prosecutor, including
other documents and/or evidence appended to the Information.
Here, the allegations of petitioners point to factual matters indicated in the
affidavits of the complainants and witnesses as bases for the contention
that there was no probable cause for petitioners indictment for multiple
murder or for the issuance of warrants for their arrest. As stated above, the
trial judges appreciation of the evidence and conclusion of facts based
thereon are not interfered with in the absence of grave abuse of discretion.
Again, "he sufficiently complies with the requirement of personal
determination if he reviews the [I]nformation and the documents attached
thereto, and on the basis thereof forms a belief that the accused is
probably guilty of the crime with which he is being charged." 118
Judge Abandos review of the Information and the supporting documents is
shown by the following portion of the judges 6 March 2007 Order:
On the evaluation of the Resolution and its Information as submitted and
filed by the Provincial Prosecution of Leyte Province supported by the
following documents: Affidavits of Complainants, Sworn Statements of
Witnesses and other pertinent documents issued by the Regional Crime
Laboratory Office, PNP, Region VIII and Camp Crame, Quezon City,
pictures of the grave site and skeletal remains, this court has the findings
[sic] of probable cause in the commission by all mentioned accused of the
crime charged.119

At bottom, issues involving the finding of probable cause for an indictment

and issuance of a warrant of arrest, as petitioners are doubtless aware,
are primarily questions of fact that are normally not within the purview of a
petition for certiorari,120 such as the petitions filed in the instant
consolidated cases.
The political offense doctrine is not a
ground to dismiss the charge against
petitioners prior to a determination
by the trial court that the murders
were committed in furtherance of
rebellion.
Under the political offense doctrine, "common crimes, perpetrated in
furtherance of a political offense, are divested of their character as
"common" offenses and assume the political complexion of the main crime
of which they are mere ingredients, and, consequently, cannot be
punished separately from the principal offense, or complexed with the
same, to justify the imposition of a graver penalty." 121
Any ordinary act assumes a different nature by being absorbed in the
crime of rebellion.122 Thus, when a killing is committed in furtherance of
rebellion, the killing is not homicide or murder. Rather, the killing assumes
the political complexion of rebellion as its mere ingredient and must be
prosecuted and punished as rebellion alone.
However, this is not to say that public prosecutors are obliged to
consistently charge respondents with simple rebellion instead of common
crimes. No one disputes the well-entrenched principle in criminal
procedure that the institution of criminal charges, including whom and what
to charge, is addressed to the sound discretion of the public prosecutor.123
But when the political offense doctrine is asserted as a defense in the trial
court, it becomes crucial for the court to determine whether the act of

killing was done in furtherance of a political end, and for the political motive
of the act to be conclusively demonstrated.124
Petitioners aver that the records show that the alleged murders were
committed in furtherance of the CPP/NPA/NDFP rebellion, and that the
political motivation behind the alleged murders can be clearly seen from
the charge against the alleged top leaders of the CPP/NPA/NDFP as coconspirators.
We had already ruled that the burden of demonstrating political motivation
must be discharged by the defense, since motive is a state of mind which
only the accused knows.125 The proof showing political motivation is
adduced during trial where the accused is assured an opportunity to
present evidence supporting his defense. It is not for this Court to
determine this factual matter in the instant petitions.
As held in the case of Office of the Provincial Prosecutor of Zamboanga
Del Norte v. CA,126 if during trial, petitioners are able to show that the
alleged murders were indeed committed in furtherance of rebellion,
Section 14, Rule 110 of the Rules of Court provides the remedy, to wit:
SECTION 14. Amendment or substitution. A complaint or information
may be amended, in form or in substance, without leave of court, at any
time before the accused enters his plea. After the plea and during the trial,
a formal amendment may only be made with leave of court and when it
can be done without causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of
the offense charged in or excludes any accused from the complaint or
information, can be made only upon motion by the prosecutor, with notice
to the offended party and with leave of court. The court shall state its
reasons in resolving the motion and copies of its order shall be furnished
all parties, especially the offended party. (n)

If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint
or information upon the filing of a new one charging the proper offense in
accordance with Section 19, Rule 119, provided the accused shall not be
placed in double jeopardy. The court may require the witnesses to give bail
for their appearance at the trial. (Emphasis supplied)
Thus, if it is shown that the proper charge against petitioners should have
been simple rebellion, the trial court shall dismiss the murder charges
upon the filing of the Information for simple rebellion, as long as petitioners
would not be placed in double jeopardy.
Section 7, Rule 117 of the Rules of Court, states:
SEC. 7. Former conviction or acquittal; double jeopardy. When an
accused has been convicted or acquitted, or the case against him
dismissed or otherwise terminated without his express consent by a court
of competent jurisdiction, upon a valid complaint or information or other
formal charge sufficient in form and substance to sustain a conviction and
after the accused had pleaded to the charge, the conviction or acquittal of
the accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the same
or frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or
information.
Based on the above provision, double jeopardy only applies when: (1) a
first jeopardy attached; (2) it has been validly terminated; and (3) a second
jeopardy is for the same offense as in the first.127
A first jeopardy attaches only after the accused has been acquitted or
convicted, or the case has been dismissed or otherwise terminated without
his express consent, by a competent court in a valid indictment for which
the accused has entered a valid plea during arraignment. 128

To recall, on 12 May 2006, an Information for the crime of rebellion, as

defined and penalized under Article 134 in relation to Article 135 of the
Revised Penal Code, docketed as Criminal Case No. 06-944 was filed
before the RTC Makati against petitioners and several others. 129
However, petitioners were never arraigned in Criminal Case No. 06944.1awp++i1 Even before the indictment for rebellion was filed before the
RTC Makati, petitioners Ocampo, Echanis and Ladlad had already filed a
petition before this Court to seek the nullification of the Orders of the DOJ
denying their motion for the inhibition of the members of the prosecution
panel due to lack of impartiality and independence.130 When the indictment
was filed, petitioners Ocampo, Echanis and Ladlad filed supplemental
petitions to enjoin the prosecution of Criminal Case No. 06-944. 131 We
eventually ordered the dismissal of the rebellion case. It is clear then that a
first jeopardy never had a chance to attach.
Petitioner Ocampo shall remain on provisional liberty under the P100,000
cash bond posted before the Office of the Clerk of Court. He shall remain
on provisional liberty until the termination of the proceedings before the
RTC Manila.1wphi1
The OSG has given its conformity to the provisional liberty of petitioners
Echanis, Baylosis and Ladlad in view of the ongoing peace negotiations.
Their provisional release from detention under the cash bond of P100,000
each shall continue under the condition that their temporary release shall
be limited to the period of their actual participation as CPP-NDF
consultants in the peace negotiations with the government or until the
termination of the proceedings before the RTC Manila, whichever is
sooner. It shall be the duty of the government to inform this Court the
moment that peace negotiations are concluded.
WHEREFORE, the instant consolidated petitions are DISMISSED. The
RTC of Manila, Branch 32, is hereby ORDERED to proceed with dispatch
with the hearing of Criminal Case No. 08-262163. Petitioner Saturnino C.

Ocampo shall remain on temporary liberty under the same bail granted by
this Court until the termination of the proceedings before the RTC Manila.
Petitioners Randall B. Echanis, Rafael G. Baylosis and Vicente P. Ladlad
shall remain on temporary liberty under the same bail granted by this Court
until their actual participation as CPP-NDF consultants in the peace
negotiations with the government are concluded or terminated, or until the
termination of the proceedings before the RTC Manila, whichever is
sooner.
SO ORDERED.
ROSALINDA PUNZALAN AND RAINIER PUNZALAN, complainants,
vs. JUDGE RUBEN R. PLATA, respondent.
DECISION
PUNO, J.:
Respondent Judge Ruben Plata is a judge and a father. As a judge,
he is hidebound to the judicial canon that he should "avoid impropriety and
the appearance of impropriety in all his activities." [1] As a father, he has a
moral duty to care for and protect his family. In his effort to defend his
family at the expense of propriety, he sullied his judicial robe and must
therefore pay the price.
On February 18, 1998, Precioso R. Perlas and Ma. Teresa C.
Manansala, on behalf of complainants Rosalinda B. Punzalan and Rainier
B. Punzalan, filed with the Office of the Court Administrator (OCA) a Sworn
Complaint against respondent judge for grave misconduct, lack of moral
character and oppressive conduct unbecoming a judge.
The following facts gave rise to this complaint.

On August 15, 1997, an information for attempted homicide allegedly

committed against Rainier Punzalan on August 13, 1997, was filed against
Michael Plata. It was filed, on complaint of the victim, in the Metropolitan
Trial Court, Branch 60, Mandaluyong City, and docketed as Criminal Case
No. 66879. The accused therein, twenty-year old Michael Plata, is the son
of respondent Judge Plata. Michael Plata appealed to the Chief State
Prosecutor the resolution in I.S. No. 97-10732 upon which the information
in Criminal Case No. 66879 was based. On June 18, 1998, the Chief State
Prosecutor set aside the said resolution upon finding that the testimonies
of the prosecution witnesses were conflicting, and more importantly, that
Dencio dela Pea voluntarily, spontaneously, and knowingly admitted that it
was he who accidentally shot Rainier Punzalan on August 13, 1997. The
Chief State Prosecutor directed the City Prosecutor of Mandaluyong to
cause the withdrawal of the information for attempted homicide against
Michael Plata.[2] Rainier Punzalan moved for reconsideration of the Chief
State Prosecutor's June 18, 1998 resolution, but this was denied by former
Justice Secretary Serafin Cuevas on February 8, 1999. [3]
After the information against Michael Plata was filed and while it was
not yet withdrawn, numerous cases were filed by respondent's wife
Rosario, his son Michael and his driver Robert Cagara, the Platas' house
boarder Dencio dela Pea and Rolando Curampes, against herein
complainant Rosalinda, her sons Rainier and Randall, and the latter's
friends who were eyewitnesses to the shooting incident. The Platas and
the Punzalans were neighbors in Hulo Bliss, Mandaluyong
City. Complainants allege that, by taking advantage of his legal expertise
and experience as a former prosecutor of Pasay City and of his judicial
connections and influence, respondent judge orchestrated the filing of the
following groundless cases to harass and retaliate to the Punzalans and
their eyewitnesses:
1. I.S. No. 97-11487 for grave oral defamation allegedly committed on
August 13, 1997, filed by Michael Plata against Rosalinda Punzalan;

2. I.S. No. 97-11528 for attempted murder allegedly committed on August

13, 1997, filed by Dencio dela Pea against Rainier Punzalan and six
eyewitnesses;

Other cases were filed without preliminary investigation conducted by

the Mandaluyong City prosecutors who, complainants allege, are
"obviously friendly" to respondent judge, viz:

3. I.S. No. 97-11485 for slight physical injuries allegedly committed on

August 30, 1997, filed by Robert Cagara against Randall Punzalan and
three eyewitnesses;

1. I.S. No. 97-11648 or Criminal Case No. 68742 for grave threats
allegedly committed on October 21, 1997, filed by Rolando Curampes and
Robert Cagara against Randall Punzalan, Rainier Punzalan, et al;

4. I.S. No. 97-11786 for grave oral defamation allegedly committed on

October 16, 1997, filed by Michael Plata against Rosalinda Punzalan;

2. I.S. No. 97-11427 or Criminal Case No. 68848 for malicious mischief
committed on August 13, 1997, filed by Rosario J. Plata against Randall
Punzalan, et al.;

5. I.S. No. 97-11522 for grave oral defamation allegedly committed on

October 16, 1997, filed by Dencio dela Pea against Rosalinda Punzalan;
6. I.S. No. 97-44856 for grave oral defamation allegedly committed on
October 16, 1997, filed by Robert Cagara against Rosalinda Punzalan;
7. I.S. No. 97-11764 for grave oral defamation allegedly committed on
October 21, 1997, filed by Rolando Curampes and Robert Cagara against
Randall Punzalan and ten eyewitnesses;

3. I.S. No. 97-11427 or Criminal Case No. 68849 for malicious mischief
committed on August 30 and 31, 1997, filed by Rosario J. Plata against
Rainier Punzalan, et al.
For maliciously causing the filing of these allegedly unfounded cases,
complainants seek the dismissal of respondent judge on the following
grounds, viz:
"(a) GROSS MISCONDUCT

8. I.S. No. 97-11766 for robbery allegedly committed on October 25, 1997,
filed by Judge Ruben R. Plata and Michael Plata against Randall Punzalan
and eleven eyewitnesses;
9. I.S. No. 97-11765 for malicious mischief allegedly committed on October
25, 1997, filed by Michael Plata against Randall Punzalan and eleven
eyewitnesses;
10. I.S. No. 97-11492 for grave threats allegedly committed on October 30,
1997, filed by Michael Plata against Rosalinda Punzalan.

xxxxxxxxx
A GOOD JUDGE invites the "peaceful settlement of disputes in the
community". A BAD JUDGE on the other hand,
encourages STRIFE, DISSENSION and DISCONTENTMENT in the
community.
The deliberate filing of the above false and concocted thirteen (13)
countercharges in such a flagrant and shameless manner clearly
demonstrates a serious flaw in the character of the respondent to be
anexemplary and respectable Member of the Bench.

(b) LACK OF MORAL CHARACTER

xxxxxxxxx
A person (referring to Judge Plata) who bears a perverted notion of
right and wrong is unfit and unsafe to sit in judgment of the citizens
who seek his office. He is bound to misapply the law and thereby
cause the loss of confidence in the judiciary. It would be dangerous
to allow him to occupy such a position with its powers and
prerogatives.
A judge who has a predisposition to do wrong is bound to commit
frequent infractions of the law; he would set a bad example. (Legal
and Judicial Ethics, Martin)
(c) OPPRESSIVE CONDUCT UNBECOMING OF A JUDGE

Undeniably - this oath is so sacred. And it should be - specially for an

individual like respondent Judge PLATA who now sits in a responsible and
respectable judicial position in Isabela City, a major commercial city in
North Luzon. He is obliged under the CANONS OF JUDICIAL ETHICS not
only to act impartially but also to BEHAVE with dignity and above
reproach."[4]
On March 2, 1998, Precioso Perlas filed a Supplemental
Administrative Complaint informing the OCA that the daughter of
respondent judge, Kathy Rose J. Plata, filed a 14th case, Criminal Case
No. MC 98-319, entitled "People v. Avelino 'Bobby' Serrano" for attempted
murder against one of complainants' eyewitnesses. Complainants allege
that the case was filed upon the instigation of respondent judge.
In his Comment dated April 3, 1998, respondent judge denied the
charges against him and narrated his version of what happened after the
stabbing of complainant Rainier Punzalan, viz:

xxxxxxxxx
Had Judge Plata been an ordinary law practitioner, his desperate attempt
to defend his son by unethically resorting to the Macheviallian (sic)
strategy of "OFFENSE IS THE BEST DEFENSE" would be
understandable. But being an incumbent and presiding Judge of a Court of
the Republic who among others, had sworn as follows'xxx; I will do no falsehood, nor consent to the doing of any in court; I
will not wittingly nor willingly promote or sue any groundless, false
or unlawful suit, or give aid nor consent to the same; xxx.'
his oppressive conduct is simply UNACCEPTABLE not only to the legal
profession as a whole but more particularly to the other respectable
members of the Judiciary.

"As a father, after I learned of the foregoing incident (referring to the

stabbing and the implication of his son), I immediately discussed the
matter with my son who vehemently denied his involvement and professed
to me that he merely became involved in the incident in his efforts to pacify
a group of youngsters who were engaged in a rumble. While it is not for
me to pass judgment on my son's guilt or innocence, it is evidently my
moral obligation to make arrangements for the engagement of adequate
and competent legal representation for my son to ensure that his rights will
be protected and that the truth will be determined in accordance with due
process of law. However, I have repeatedly advised my son as well (sic)
my family to abide by the final resolution of said criminal case and to be
ready to face whatever its consequences may be.
Further, in the interest of restoring peace and tranquility in the community
where my children reside, far from my station in Santiago City, Isabela, I
exerted earnest efforts to resolve any misunderstanding that may have

arisen from the foregoing incident. However, my efforts proved futile as my

family even became the subject of subsequent repeated acts of
harassment and intimidation. Thus, faced with the foregoing predicament, I
also advised my family to always seek the assistance of the authorities for
their protection. I also advised my family to resort only to peaceful and
legal means to protect themselves and to seek redress for whatever
grievance they may have within the confines of our judicial processes.
As a member of the bench, I recognized the implications of the foregoing
incidents to the office that I hold. I realize the need to act with
circumspection and to purposely avoid any untoward suspicion as what the
complainants now have raised. Since the inception of the criminal
indictment of my son, I have consciously distanced myself from the mire of
the ensuing proceedings relating to said criminal case. I also left all legal
matters involving my son and my family entirely in the able hands of their
lawyers. I have not participated and I never intend to take part, much more
to unduly influence or intervene, in any proceedings involving my son and
my family as I have full faith in the integrity of our criminal justice system
and the men and women tasked to dispense justice under it. All these I
have done in a conscious effort to avoid any misimpression that I am
exerting undue influence over the outcome of the proceedings involving
my son and my family. Thus, it now pains me to be subjected to the unfair
and malicious allegations leveled against me by the complainants." [5]
Respondent judge denies having exerted influence over the
Mandaluyong City prosecutors who filed the set of cases without
preliminary investigations as he claims that he does not even know
them. He stressed that he had no participation in the filing of all the cases
cited by complainants, except for I.S. No. 97-11766, the robbery charge
filed by his son where he (Judge Plata) had to file a Supplemental Affidavit
as he was the registered owner of the vehicle subject of the robbery.[6]
On February 24, 1999, the Second Division of the Court resolved to
refer the instant case to Executive Judge Fe Albano Madrid, Regional Trial

Court, Santiago City, Isabela for investigation, report and recommendation.

[7]
In compliance thereto, Judge Madrid submitted a one-page report dated
July 19, 1999 without making findings of fact and conclusions of law nor
making a recommendation therein, viz:
"In compliance with the Resolution of the Honorable Supreme Court,
Second Division dated January 24, 1999 which was received on April 12,
1999, the undersigned Executive Judge, Regional Trial Court, Santiago
City called the parties to appear for hearing, after receiving the records of
the case on May 11, 1999.
The complainants did not appear in the scheduled hearing on June 4, 5,
25 and 26, 1999.
On June 25, 1999, the complainants filed an urgent Motion to Cancel
Hearing thus the hearing was re-scheduled on July 16, and July 17, 1999.
On July 16, 1999, the complainant together with their counsel Atty. Ma.
Theresa Manansala manifested jointly with respondent's counsel Atty.
Wilfredo Ambrocio, that the parties have settled and that they will move to
dismiss the case.
Apparently the respondent offered to settle which the complainants
accepted and so they choose to have their complaint dismissed.
Respectfully submitted."[8]
The report did not include a copy of the compromise agreement
between the complainants and respondent judge.
On September 6, 1999, the OCA received a copy of an "Urgent ExParte Motion to Revive" dated August 16, 1999 filed by the complainants
before the investigating judge seeking to revive the investigation on the

respondent judge as he did not comply with his undertakings in the

compromise agreement dated July 16, 1999. The agreement stipulated
that in the spirit of neighborliness, herein complainants and respondent
judge agreed to amicably settle their differences with the respondent judge
undertaking to pay the complainants P180,000.00 in four equal monthly
installments payable on July 31, 1999, August 31, 1999, September 30,
1999, and October 31, 1999, and to withdraw or cause the withdrawal of
the cases he, his wife, and his son Michael Plata filed against the
complainants, Randall Punzalan, and their eyewitnesses. For their part,
the complainants undertook to cause the withdrawal of the instant
administrative case and the attempted homicide case against Michael
Plata.[9]
Respondent judge admitted that he was not able to pay the first
installment on July 31, 1999, but explained that when he entered into the
compromise agreement, he thought that he could seek financial assistance
from a friend who promised to lend him money because her daughter
received inheritance; he also planned to sell or mortgage a piece of land
he owned in Muntinlupa. It turned out, however, that by the time the first
installment fell due, his financial condition could not permit him to pay the
amount due the complainants. Thus, on August 4, 1999, complainants'
lawyer sent him a letter demanding payment of the first installment by
August 6, 1999. The letter was sent to respondent judge's residence in
Mandaluyong even though he was then stationed in Santiago City,
Isabela. While his family was trying to raise the amount to cover the first
installment, the complainants filed the "Urgent Ex-Parte Motion to Revive"
dated August 16, 1999. Respondent also pointed out that complainants
themselves had failed to comply with the terms of the compromise
agreement as they had not caused the provisional dismissal or withdrawal
of the instant case.[10] Under these circumstances, respondent judge no
longer wished to abide by the compromise agreement and instead
proceeded to present evidence to exculpate himself from the
administrative charges leveled against him.

The Court issued a resolution on December 15, 1999, returning the

instant case to Executive Judge Madrid for a more thorough fact-finding
investigation. Judge Madrid conducted the investigation and submitted a
report dated April 6, 2000 wherein she recommended that respondent
judge be "admonished to be more upright in his dealings with others." [11]
On July 3, 2000, the Court noted the report of Judge Madrid [12] and
referred the instant case to the OCA for evaluation, report, and
recommendation. In its Memorandum dated August 7, 2000, [13] the OCA
adopted the findings of the investigating judge that, while the complainants
in the above-mentioned fourteen cases were family members and
companions of the respondent judge, this circumstance does not of itself
render the respondent judge administratively liable for aiding in the filing of
allegedly groundless cases. There is no evidence to prove the participation
of respondent judge in the filing of these cases nor is there evidence to
show that he exerted influence over the Office of the Prosecutor in
Mandaluyong to get favorable actions and recommendations. The OCA
observed that it was Atty. Rodel A. Cruz, lawyer of respondent judge's
family, who prepared and signed the pleadings and other documents
relative to the said fourteen cases. The OCA also noted that 3rd Assistant
City Prosecutor Susante J. Tobias' dismissal of eleven out of the thirteen
cases for lack of sufficient basis in fact and in law as stated in her July 28,
1998 Joint Resolution[14] shows that respondent judge did not exert
influence over the prosecutor for her to act in his favor. On appeal to the
DOJ, then Justice Secretary Artemio Tuquero, in his March 23, 2000
resolution, modified this Joint Resolution and directed the City Prosecutor
of Mandaluyong City to file informations for slight oral defamation, light
threats, attempted homicide, malicious mischief and theft. [15] On motion for
reconsideration, Secretary Tuquero reversed his March 23, 2000
resolution and in his June 6, 2000 resolution, directed the City Prosecutor
of Mandaluyong City to withdraw the above informations. [16] In a motion for
reconsideration dated July 3, 2000, Michael Plata sought reconsideration
of the June 6, 2000 resolution with respect to the cases for grave oral
defamation and theft and malicious mischief where respondent Judge

submitted a Supplemental Affidavit as registered owner of the vehicle

subject of the theft.
The OCA found nothing illegal nor improper with respondent judge's
tolerance of his family's filing of numerous criminal cases as every person,
including his family members, has a right to seek judicial recourse for his
grievance. Respondent judge even admitted that he advised his family not
to take the law into their own hands and "to seek redress for whatever
grievance they may have within the confines of our judicial processes." [17]
Congruent with the finding of the the investigating judge, the OCA
found that the failure of respondent judge to comply with the July 16, 1999
compromise agreement was tainted with bad faith. The OCA noted, viz:
"Respondent bound himself to pay the sum of P180,000.00 payable in four
(4) monthly installments in consideration for the withdrawal of the criminal
case for attempted homicide and herein administrative case but he
reneged on said promise. Adding insult to injury, respondent merely
rationalized that he was financially hard-up and claimed that herein
complainant was only after monetary compensation and not really (sic) to
exact judicial relief. Respondent judge's explanation of financial difficulties
cannot be countenanced. Compromise agreement entails reciprocal
concessions, non-compliance of (sic) which raises doubt as to
respondent's sincerity and honest desire to avoid a litigation or put an end
to one already commenced."[18]
The OCA recommended that the instant case be re-docketed as a regular
administrative matter and that the respondent judge be ordered to pay Five
Thousand Pesos (P5,000.00) with a stern warning that a repetition of the
same or similar acts will be dealt with more severely.[19] On August 30,
2000, the Court resolved to docket the instant case as a regular
administrative matter.

Canon 2 of the Code of Judicial Conduct mandates that "a judge

should avoid impropriety and the appearance of impropriety in all
activities." Rule 2.01 and Rule 2.04 of the Code provide, viz:
"Rule 2.01 - A judge should so behave at all times as to promote public
confidence in the integrity and impartiality of the judiciary.
xxxxxxxxx
Rule 2.04 - A judge shall refrain from influencing in any manner the
outcome of litigation or dispute pending before another court or
administrative agency."
The personal behavior of the judge, not only while in the performance
of his duties but also outside the court, must be beyond reproach for he is
the visible representation of the law and of justice. [20]Thus, the above
canon enjoins judges to avoid not only impropriety, but even the
appearance of impropriety in all their conduct, whether in their public or
private life.[21] The proscription includes a judge's meddling with judicial
processes in courts other than his own and acting in a manner that would
arouse suspicion that he is meddling with such court processes.
The records show that the complainants failed to adduce evidence
that respondent judge participated in the filing of the fourteen allegedly
retaliatory and harassment suits against the complainants and their
eyewitnesses, except in the case for robbery/theft filed by his son Michael
where respondent judge filed a Supplemental Affidavit as registered owner
of the vehicle subject of the case. Even assuming that contrary to his
testimony, respondent judge was in fact aware that his family and
companions would file the subject fourteen cases, such awareness does
not necessarily amount to wittingly or willingly promoting or giving aid or
consenting to the filing of groundless, false or unlawful suits.

There is also a dearth of evidence with respect to complainants'

allegation that respondent judge took advantage of his legal expertise and
experience as a former prosecutor and exerted influence upon the
Mandaluyong City prosecutors to secure favorable actions and
recommendations. In fact, as pointed out by the OCA, eleven of the
alleged harassment suits were dismissed by 3rd Assistant City Prosecutor
Susante J. Tobias in her July 28, 1998 Joint Resolution for lack of sufficient
basis in fact and in law.[22]
We, however, find improper respondent judge's execution of the July
16, 1999 compromise agreeement. Worthy of notice is the subject matter
of the compromise agreement, which, among others, is the dismissal of
the instant administrative case in consideration of P180,000.00 and the
withdrawal of the cases filed against the complainants and their
eyewitnesses. It cannot be gainsaid that public office is a public trust and
this truism is no more applicable than to the office of a judge [23] for he is a
visible representation of law and justice. The dignity of a public office
cannot be bought nor compromised. Thus, inBais v. Tugaoen,[24] the Court
frowned upon the complainant's affidavit of desistance and in spite of it,
proceeded with the complaint against the erring judge.
Section 5, Rule 139-B of the Rules of Court pertaining to the
disbarment and discipline of lawyers provides, viz:
"No investigation shall be interrupted or terminated by reason of the
desistance, settlement, compromise, restitution, withdrawal of the charges,
or failure of the complainant to prosecute the same."
In Bolivar v. Simbol,[25] the Court, citing In re Davies,[26] ruled that the
discipline of lawyers cannot be cut short by a compromise or withdrawal of
charges, viz:
"It is contended on the part of the plaintiff in error that this settlement
operated as an absolution and remission of his offense. This view of the

case ignores the fact that the exercise of the power is not for the purpose
of enforcing civil remedies between parties, but to protect the court and the
public against an attorney guilty of unworthy practices in his profession. He
had acted in clear disregard of his duty as an attorney at the bar, and
without 'good fidelity' to his client. The public had rights which Mrs. Curtis
could not thus settle or destroy. The unworthy act had been fully
consummated. xxx"[27]
Lawyers are officers of the court tasked with aiding the court in its
dispensation of justice. There are weightier reasons why investigations
and complaints against judges should not be settled or compromised for
judges not only aid in the dispensation of justice but dispense justice
themselves. Respondent judge's execution of a compromise agreement to
have the instant administrative case dismissed is glaringly improper and
should not be countenanced.
As though respondent judge's execution of the compromise
agreement was not sufficient impropriety to merit reproof, he even failed in
bad faith to comply with his undertakings in the agreement. He rationalized
that he was not able to pay the first installment when it fell due because his
plan to secure financial assistance from a friend and to sell or mortgage
his lot in Muntinlupa did not materialize.Without these other financial
resources, his salary as a judge, according to him, was not sufficient to
cover the installment amount. There is a dearth of evidence, however, to
prove his efforts to secure financial assistance from his friend and to sell or
mortgage his lot in Muntinlupa. Respondent judge also miserably failed to
remedy the situation and show good faith in trying to comply with the terms
of the compromise agreement. He could have requested from the
complainants a few days extension for payment of the first installment or
he could have partially paid the first installment as his means would permit
him, but these he did not do. These omissions of respondent judge,
coupled with the absence of evidence on his efforts to raise the first
installment amount, lead us to conclude that respondent judge was even in

bad faith in not complying with the provisions of the compromise

agreement.

DR. CELIA MORALES,

Respondents.

WHEREFORE, respondent Judge Ruben R. Plata is ordered to pay a

FINE in the amount of Five Thousand Pesos (P5,000.00) and STERNLY
WARNED that a repetition of the same or similar acts in the future will be
dealt with more severely.
SO ORDERED.

G. R. No. 173375

Petitioners,
Present:

- versus -

THE COURT OF APPEALS, THE REGIONAL

TRIAL COURT OF GAPAN CITY, BRANCH
35, THE PEOPLE OF THE PHILIPPINES AND

DECISION
CHICO-NAZARIO, J.:

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago,

JJ., concur.

LEONCIO D. MANGAHAS, ZALDY G.

MATIAS, ORLANDOO. OANES, DANTE Y.
ARCILLA AND JOCELYN R. DELA CRUZ,

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

YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
REYES,
DE CASTRO, JJ.*

Promulgated:
September 25, 2008

Assailed in the instant Petition for Review on Certiorari[1] under

Rule 45 of the Revised Rules of Court is (1) the Resolution[2] dated 23
February 2006 of the Court of Appeals in CA-G.R. SP No. 93272, entitled
Leoncio D. Mangahas, Zaldy G. Matias, Orlando O. Oanes, Dante Y.
Arcilla
and
Jocelyn
R.
de
la
Cruz
v.
The Regional Trial Court ofGapan City (Nueva Ecija), Branch 35, the
People of
the Philippines and Dr. Celia
Morales; and (2)
the Resolution[3] dated 13 June 2006 of the same court denying petitioners
Motion for Reconsideration of its earlier resolution. In both assailed
resolutions, the Court of Appeals dismissed the Petition for Certiorari, with
prayer for issuance of a temporary restraining order and injunction, filed by
petitioners, for having been filed beyond the reglementary period within
which to file said recourse.
The antecedent facts of the present petition are:
On 20 April 2001, private respondent Dr. Celia P. Morales
(Morales) filed an Affidavit-Complaint[4] against petitioners Leoncio D.
Mangahas, Zaldy G. Matias, Orlando O. Oanes, Dante Y. Arcilla and
Jocelyn R. de la Cruz (Mangahas, et al.) for violation of Sec. 3 (f) of
Republic Act No. 3019 before the Office of the Ombudsman. The
complaint was docketed as OMB-1-01-0382-D.
In her complaint, private respondent Morales basically alleged
that:

1. On June 27, 1998, the Sangguniang Bayan (SB

for brevity) of the Municipality of Gapan,
Nueva Ecija, thru the initiative of
Councilor Zaldy G. Matias (nephew of Mr.
and Mrs. Edgardo Manalastas), seconded
by
Councilor
Carlos
R.
Malaca,
persuaded
to
pass
and
enact
Kapasyahan Blg. 39, taon 1998, granting
the request of Mr. and Mrs. Edgardo
Manalastas for the conversion of their
agricultural land covered by Transfer
Certificate of Title No. NT-125720 into a
memorial garden despite insufficiency of
the requirements thereof as provided by
law x x x;
xxxx
3. x x x after receiving a copy of the said
Kapasyahan, it appeared that the
conversion of the agricultural land of Mr.
and
Mrs.
Edgardo
Manalastas
(Manalastas for brevity) into a memorial
garden was hurriedly done and apparently
not in accord with the necessary legal
requirements based on their failure to: (a)
notify the adjacent residential lot owners
of the said plan and/or development; (b)
secure proper recommendation(s) and
permit
from
different
government
departments, bureaus and agencies
concerned; and (c) follow and comply with
the proper procedures as prescribed by
law;
4. In questioning the same, my son sent a letter
dated 13 April 1999 addressed to the SB
and prayed, among others the immediate

REVOCATION and CANCELLATION of

the said Kapasyahan x x x;
5. x x x Secretary of the Sanggunian, x x x
admitted therein that Kapasyahan Blg. 39,
taon 1998 was only a DRAFT
RESOLUTION x x x;
6. On 20 April 1999, another Kapasyahan Blg. 34,
taon 1999 was issued by the SB refraining
or stopping the Manalastas to further
develop their project without first securing
the proper permits and certification from
the different government departments and
bureaus
concerned,
unfortunately,
however,
the
same
was
never
implemented x x x;
7. On 14 May 1999, my son decided to send
another letter addressed to the SB and
prayed x x x the issuance of a permanent
revocation of Kapasyahan Blg. 39, taon
1998 in lieu of a temporary revocation
previously issued x x x;
8. x x x my daughter, Felicitas Morales sent
another letter dated 28 September 2000
addressed to the SB, informing them of
the presence of persons who had
continued and still continue to develop the
project of Manalastas despite the
prohibition previously issued to that effect.
However, to our prejudice, no action
whatsoever was taken by the said public
officials concerned, thereby extending
undue favor to the Manalastas;

9. x x x the undersigned was forced to send

another
letter
dated 24
January
2001 addressed to the SB x x x;
10. On 12 March 2001, another letter was sent by
the undersigned addressed to the SB,
requesting that I be given a chance to be
heard in a form of public hearing in order
to air my grievances against the illegal
conversion of the land x x x and for the
unfair, unjust and oppressive treatment
which we suffered and continue to suffer
up to the present x x x;
11. Four (4) days prior to the scheduled public
hearing on 6 April 2001, the Office of the
Sanggunian headed by Hon. Vice-Mayor
Marcelino D.I. Alvarez sent a notice to all
the members of the SB, namely, Leoncio
D. Mangahas, Zaldy G. Matias, Danilo A.
de Guzman, Carlos R. Malaca, Orlando
Q. Oanes, Dante Y. Arcilla, Jocelyn dela
Cruz, Crisanto V. Velayo II, Alfredo M.
Alejandria, Jr. and Alejandro C. Velayo,
for purpose(s) of informing them of the
said public hearing;
12. When the notice was served to the following
councilors,
namely:
Leoncio
D.
Mangahas, Zaldy G. Matias, Carlos R.
Malaca, Orlando Q. Oanes, Dante Y.
Arcilla and Jocelyn R. dela Cruz, I was
informed by the Hon. Vice-Mayor
Marcelino D.L. Alvarez and the Secretary
of the Sanggunian, Mr. Eduardo H.
Almera, that the said councilors have
maliciously refused to sign the said
notice, thereby giving undue advantage in
favor of the Manalastas who up to this
present time has been continuously

developing their project

prohibition thereof x x x;

despite

the

13. However, despite the fact that they were

properly notified, the above-named
councilors in the preceding paragraph
have
deliberately
and
maliciously
neglected and/or refused to attend the
scheduled public hearing last 6 April
2001, thereby unjustly and oppressively
discriminating the undersigned without
sufficient justification whatsoever;
14. Due to the unlawful acts committed by the six
(6) councilors, the undersigned most
respectfully submits that they be
prosecuted for violation of Sec. 3(f) of the
Anti-Graft and Corrupt Practice Act (R.A.
3019 as amended by R.A. 3047, P.D. 77
and B.P. 195) which provides that:
Xxx
Neglecting
or
refusing,
after
due
demand
or
request,
without
sufficient
justification, to act within
a reasonable time on
matter pending before
him for purpose of
obtaining,
directly
or
indirectly,
from
any
person interested in the
matter some pecuniary or
material
benefit
or
advantage, or for the
purpose of favoring his
own interest or giving
undue advantage in favor

of
or
discriminating
against
any
other
interested party. xxx
15. As of this date, no public hearing yet has ever
been conducted, hence, to the prejudice
of the undersigned;
16. With full sincerity and honesty, I believe that
there will be no more public hearing that
will be conducted due (to) the admission
made by Hon. Vice-Mayor Marcelino D.L.
Alvarez and Mr. Eduardo H. Almera as
contained in their Joint Affidavit.

In their joint counter-affidavits, petitioners denied the accusations

of private respondent Morales. They argued that the assailed Kapasyahan
Blg. 39, taon 1998, was unanimously approved by the Municipal
Councilors and was thereafter approved by the Provincial Councilors of
Nueva Ecija.

In a Resolution[5] dated 27 June 2001, the Office of the Deputy

Ombudsman for Luzon resolved to dismiss the complaint for lack of
probable cause.

Upon motion of private respondent Morales, however, said Office, in

another Resolution,[6] reconsidered its earlier finding of lack of probable
cause. It held that there was further need for preliminary investigation to
determine the criminal liabilities of petitioners in deliberately absenting

themselves from the public hearing of the SangguniangBayan held on 6

April 2001.

On 8 November 2001, an Order[7] was issued by the Office of the

Deputy Ombudsman for Luzon re-opening the case for further preliminary
investigation.

In a Resolution[8] dated 5 June 2002, the Office of the Deputy

Ombudsman for Luzon recommended that (1) petitioners be charged with
and prosecuted for violation of Sec. 3 (f) of Republic Act No. 3019; and (2)
the corresponding Information be filed in court.

On 18 July 2002, an Information[9] dated 5 June 2002, was filed

before the Regional Trial Court (RTC), Branch 34, Gapan, Nueva Ecija,
charging petitioners with the violation of Sec. 3(f) of Republic Act No. 3019.
The accusatory portion thereof states:

That on or about 11 April 2001 or sometime prior or

subsequent thereto in Gapan, Nueva Ecija, Philippines
and within the jurisdiction of this Honorable Court, the
above-named accused, all public officers, being then the
incumbent Councilors of the Municipality of Gapan, Nueva
Ecija, committing the crime herein charged in relation to
and in the performance of their official function, did then

and there willfully, unlawfully and criminally neglect and

refuse after due demand or request, without sufficient
justification, to act within a reasonable time on a matter
pending before them by absenting themselves in the
public hearing of Kapasyahan Blg. 39, knowing fully well
that their presence are indispensable, necessary to justify
the development of the proposed memorial garden
thereat, for the development of (sic) discriminating against
one Celia Morales, the other interested party.

The case was docketed as Criminal Case No. 10926.

On 28 October 2002, petitioners filed with the RTC a Motion for

Reinvestigation with Prayer to Suspend Proceedings [10] since the
Information had already been filed with the said trial court.

In an Order[11] dated 26 March 2003, the RTC denied petitioners

motion for lack of merit.

[12]

Warrants for the arrest of petitioners were subsequently issued

by the RTC, but the former, without more ado, posted personal cash bail
bonds to secure their provisional liberty.[13]

In a last ditch effort to defer the proceedings before the RTC,

petitioners filed a Motion for Reconsideration of the Order dated March 26,
2003 with Prayer for Inhibition.[14]

On 1 July 2003, Hon. Rodolfo Beltran, Presiding Judge of RTCBranch 34, recused himself from the case without resolving the latest
motion filed by petitioners.[15]

In an Order[16] dated 5 August 2003, Hon. Victoriano B. Cabanos,

Presiding Judge of RTC-Branch 87, resolved the above motion by denying
the same.

In the interim, before petitioners could be arraigned, the

prosecution filed with the RTC a Motion to Suspend Accused from Public
Office;[17] which petitioners countered by filing with the same court
a Motion to Quash with Urgent Prayer to Defer Arraignment and Issuance
of Order of Suspension.[18]

In an Order[19] dated 16 June 2005, the RTC granted the

prosecutions prayer to suspend petitioners from public office for sixty (60)
days in view of Sec. 63 (b) of the Local Government Code [20]; thus,
effectively denying petitioners Motion to Quash with Urgent Prayer to

Defer Arraignment and Issuance of Order of Suspension. Petitioners filed

a motion for reconsideration of the order of suspension but it was also
denied by the RTC in another Order[21] dated 25 November 2005, but this
time issued by RTC Branch 35,[22] Gapan, Nueva Ecija.

Imputing grave abuse of discretion amounting to lack or excess of

jurisdiction on the part of the RTC in (1) suspending them for sixty (60)
days from public office; and (2) denying the motion to quash, as well as
their prayer to defer their arraignment, petitioners filed a Petition
for Certiorari under Rule 65 of the Revised Rules of Court before the Court
of Appeals.

On 23 February 2006, the Court

a Resolution dismissing the Petition. It ruled that:

of

Appeals

The petition alleges that petitioners received

on December
9,
2005 a
copy
of
the
Order
dated November 25, 2005, which denied their motion for
reconsideration of the Order dated June 16, 2005.
Consequently, the sixty (60) day period within which to file
a petition for certiorari expired on February 7, 2006.
However, the instant petition was filed only on February 8,
2006, as shown by the post office stamp on the envelope,
and was, therefore, late by one (1) day. The assailed
Orders had thus (sic) already attained finality.[23]

issued

Petitioners moved for the reconsideration of the appellate courts

dismissal of their petition. They claimed that, in actuality, their petition was
mailed on 7 February 2006and not on 8 February 2006. Attached to
petitioners motion for reconsideration was a certification by one Marita
Pangandian, Assistant Postmaster of Cabanatuan City Post Office, Nueva
Ecija, as well as a simple photocopy of the page of the registry receipt
book of said post office showing that that subject mail matters addressed
to the Court of Appeals were received for mailing on 7 February 2006.

The Court of Appeals, however, in a Resolution dated 13 June

2006 found no cogent reason to disturb its original conclusion that the
petition was filed beyond the reglementary period within which to avail of
the extraordinary writ of certiorari. The appellate court held that:

Settled is the rule that a xerox copy of any

document is without evidentiary weight or value (citation
omitted). Moreover, the clerk of the post office who
allegedly failed to stamp the date February 7, 2006 and,
instead, stamped the date February 8, 2006 on the
envelope containing the mail matter addressed to this
Court did not execute an affidavit to that effect, so that the
allegations in the affidavit of Mrs. Pangandian are hearsay.
[24]

Further, the Court of Appeals took exception to the fact that the Office of
the Solicitor General (OSG), being the official counsel of the People of
the Philippines in appeals before the appellate court and the Supreme
Court, was not served a copy of said petition. In its place, the Provincial
Prosecutor was the one furnished a copy thereof.

a. FIRST, THE REGISTRY RECEIPT BOOK OF

THE CABANATUAN CITY
POST
OFFICE
SHOWED AND THE ASSISTANT POSTMASTER
STATED THAT THE MAIL MATTER ADDRESSED
TO THE COURT OF APPEALS WAS MAILED BY
THE PETITIONERS ON 7 FEBRUARY 2006 AND
NOT ON 8 FEBRUARY 2006.

Hence, petitioners come to this Court, challenging the dismissal by

the Court of Appeals of their Petition anchored on the following arguments:

A.

WITH REGARD TO THE ACTUATIONS OF

THE COURT OF APPEALS:

1. WITH DUE RESPECT, THE HONORABLE

COURT OF APPEALS ERRED IN DISMISSING
THE PETITION FOR CERTIORARI FOR
ALLEGEDLY HAVING BEEN FILED ONE DAY
LATE, CONSIDERING THAT:

b. SECOND, THE PETITIONERS ARE NOW

SUBMITTING A CERTIFIED COPY OF THE
REGISTRY RECEIPT BOOK AND AN AFFIDAVIT
OF THE CLERK CONCERNED WHO STAMPED
THE NOTATION THAT IT WAS MAILED ON 8
FEBRUARY
2006 AND
INSTEAD
OF 7
FEBRUARY 2006.

2. WITH DUE RESPECT, THE HONORABLE

COURT OF APPEALS ERRED IN DENYING THE
MOTION FOR RECONSIDERATION ON THE
GROUND THAT NO COPY OF THE PETITION
FOR CERTIORARI WAS FURNISHED TO THE
OFFICE OF THE SOLICITOR GENERAL.
PETITIONERS ARE NOW SUBMITTING A COPY
OF THIS PETITION AND THE OTHER
PLEADINGS ARE NOW BEING FURNISHED TO
THE OFFICE OF THE SOLICITOR GENERAL.

B.

WITH REGARD TO THE ACTUATIONS OF

THE TRIAL COURT:

1. WITH DUE RESPECT, THE HONORABLE

TRIAL COURT GRAVELY ABUSED ITS
DISCRETION, AMOUNTING TO LACK OF
JURISDICTION, WHEN IT DENIED THE
MOTION TO QUASH AND WHEN IT ORDERED
THE SUSPENSION OF THE PETITIONERS
CONSIDERING THAT:

a. FIRST,
THE
SUBJECT
INFORMATION
DATED 5 JUNE 2002 WAS AN INVALID
INFORMATION, CONSIDERING THAT IT WAS
NOT SIGNED BY THE GOVERNMENT
PROSECUTOR CONCERNED ON THE DATE IT
WAS FILED ON 18 JULY 2002;

b. SECOND, EVEN IF IT WAS BELATEDLY

SIGNED, THE SAME INFORMATION REMAINED
AS INVALID AND WAS NOT CURED BY THE
FACT OF SIGNING AND COULD NOT BE GIVEN
A RETROACTIVE EFFECT AS IF IT WERE
VALID AT THE TIME IT WAS ORIGINALLY
FILED;

c. THIRD, EVEN IF IT WAS RENDERED VALID

BY THE FACT OF ITS BELATED SIGNING BY
THE
GOVERNMENT
PROSECUTOR
CONCERNED, THE SAID INFORMATION HAS
INSUFFICIENT ALLEGATIONS IN IT AND SUCH,
THE SAME SHOULD BE QUASHED;

d. FOURTH, THE TRIAL COURT HAS NO

JURISDICTION TO TRY AND HEAR THIS CASE,
MUCH MORE IMPOSE SUSPENSION AGAINST
THE PETITIONERS.

e. FIFTH, WITH DUE RESPECT, IT WOULD

HAVE BEEN MORE PRUDENT IF THE TRIAL
COURT
HAD
CONDUCTED
A
PRESUSPENSION HEARING IN ACCORDANCE
WITH THE RULING OF THE SUPREME COURT
IN
THE
CASE
OF SANTIAGO
V.
SANDIGANBAYAN, 356 SCRA 636.

f. SIXTH,
WITH
DUE
RESPECT,
THE
HONORABLE COURT FAILED TO CONSIDER
THAT THE ACCUSED ARE ALREADY SERVING
DIFFERENT TERMS OF OFFICES AND THAT

THE ALLEGED ACTS COMPLAINED OF WERE

COMMITTED DURING THEIR PAST TERMS.[25]

Cutting through the issues, it would appear that ultimately, the

central question and bone of contention in the petition before us boils
down to the appreciation and determination of factual matters, first and
foremost of which is the issue of whether the Petition for Certiorari filed
with the Court of Appeals was indeed mailed on 7 February 2006. And only
when the foregoing issue is resolved in the affirmative, is it still relevant for
us to proceed to the legal question of whether the trial court erred in
denying petitioners motion to quash and granting the Peoples motion to
suspend them from public office.

Factual issues are not the proper subject of this Courts

discretionary power of judicial review under Rule 45 of the Revised Rules
of Court. We have defined a question of law as distinguished from a
question of fact, to wit:

A question of law arises when there is doubt as to

what the law is on a certain state of facts, while there is a
question of fact when the doubt arises as to the truth or
falsity of the alleged facts. For a question to be one of law,
the same must not involve an examination of the probative
value of the evidence presented by the litigants or any of
them. The resolution of the issue must rest solely on what
the law provides on the given set of circumstances. Once
it is clear that the issue invites a review of the evidence
presented, the question posed is one of fact. Thus, the
test of whether a question is one of law or of fact is not the

appellation given to such question by the party raising the

same; rather, it is whether the appellate court can
determine the issue raised without reviewing or evaluating
the evidence, in which case, it is a question of law;
otherwise it is a question of fact.[26]

Under Rule 45, only questions of law may be raised in a petition

for review on certiorari before this Court as we are not a trier of facts. Our
jurisdiction in such a proceeding is limited to reviewing only errors of law
that may have been committed by the lower courts. Consequently, findings
of fact of the trial court and the Court of Appeals are final and conclusive,
and cannot be reviewed on appeal. [27] It is not the function of this Court to
reexamine or reevaluate evidence, whether testimonial or documentary,
adduced by the parties in the proceedings below. [28] The preceding rule
however, admits of certain exceptions and has, in the past, been relaxed
when the lower courts findings were not supported by the evidence on
record or were based on a misapprehension of facts, [29] or when certain
relevant and undisputed facts were manifestly overlooked that, if properly
considered, would justify a different conclusion.[30]

Be that as it may, we are hard pressed to apply any of the

exceptions to the case at bar.

Timeliness of an appeal is a factual issue. It requires a review or

evaluation of evidence on when the present petition was actually mailed
and received by the appellate court. In the case at bar, to prove that they

mailed their Petition for Certiorari addressed to the Clerk of Court of the
Court of Appeals on 7 February 2006 instead of 8 February 2006 as shown
by the stamped date on the envelope, petitioners initially submitted (1) a
photocopy of the pertinent page of the Registry Book of the Cabanatuan
Post Office sans any official guarantee that it was a faithful reproduction of
the original; (2) an Affidavit of Service executed by one Lolita S. Rase
stating under oath that she was the one who served copies of the Petition
for Certiorari, by registered mail, to the parties of the subject case,
including that intended for the Court of Appeals, with an attached
photocopy of the registry receipt corresponding to the mail sent to the
appellate court; and (3) an Affidavit of Merit/Certification made under oath
by one Marita Pangandian, claiming to be the Assistant PostMaster of
Cabanatuan City Post Office, which stated that said office received for
mailing on 7 February 2006 four (4) parcels/mail matters addressed to (a)
Atty. Romeo Viloria; (b) the Clerk of Court of RTC-Br. 87, Gapan, Nueva
Ecija; (c) the Office of the Provincial Prosecutor; and (d) Court of Appeals
Clerk of Court. To be precise, the supposed Assistant PostMaster attested
in her affidavit that:

1. Based on our records, we received in our office on 7

February 2006 for mailing as registered mail four
(4) parcels/envelopes addressed to the following
persons, namely:
a) Atty. Romeo Viloria 2092
b) The Clerk of Court, Gapan 2093
c) The Office of the Provincial Prosecutor 2094

d) The Clerk of Court, Manila A-2094 (for the Court of

Appeals)
2. As a practice, mail matters are dispatched in the
morning. If the mail matters are received in the
afternoon, then they are dispatched on the next
day. As such, of the said registered mail matters
were received in the afternoon of 7 February
2006, then they were dispatched on the next day
or on 8 February 2006;
3. Unknown to me, the registered mail matter for The
Clerk of Court of Court of Appeals, manila may not
have been stamped when it was received on 7
February 2006 and/or may have been stamped
with an erroneous date on 8 February 2006 when
it was about to be dispatched.
4. When I examined the Registry Book, it appeared to be
that there was some confusion on the part of our
new clerk Lorena Datus, as the registered mail
matter for the Office of the Provincial Prosecutor
was also entered as 2094 while the one intended
for The Clerk of Court, Manila in the Registry
Receipt Book was marked as A-2094. With two (2)
registered mail matters with Nos. 2094, it may
possibly occur that the other parcel intended for
the Clerk of Court, Manila was not stamped with
the date February 7, 2006 when it was received
by our Post Office. The fact that it was not
stamped may have gone unnoticed until that time
that the said matters were about to be dispatched

on February 8, 2006 and possibly, one of our staff

might have stamped the copy for the Court of
Appeals with the date 8 February 2006.
5. This oversight on the erroneous stamping of the date
was clearly unintentional and not deliberate on our
part.
6. I am executing the foregoing for the purpose of attesting
to the truth of the foregoing and upon the request
of Atty. Christian B. Flores for the purpose of
proving that the registered mail matter A-2094
was received by our Post Office on 7 February
2006.[31]
Both of the affidavits submitted by petitioners were notarized by
Atty. Bener Ortiz Bauto of Bauto, Bauto and Flores Law Offices - evidently,
the same law firm as that of the counsel of petitioners.

evidentiary basis to reverse the dismissal by the Court of Appeals of

petitioners petition for certiorari for being belatedly filed.
True, petitioners sent the Court of Appeals a registered mail
containing seven (7) copies of their Petition for Certiorari. But the envelope
in which the copies of the petition were contained bore the notation 8
February 2006 as the date of mailing. Such date fell beyond the
reglementary period within which to file such a petition.
To dispute the date of mailing as stamped on the envelope of their
mail, petitioners presented the attestation, under oath, of the supposed
Assistant Postmaster of theCabanatuan City Post Office that the subject
registered mail was received in our office on 7 February 2006 for mailing x
x x; as well as that of the purported clerk of the same post office admitting
to having mistakenly stamped the envelope of the subject registered mail
with the date 8 February 2006.
There is a presumption that official duties have been regularly
performed.[32] On this basis, we have ruled in previous cases that the
Postmasters certification is sufficient evidence of the fact of mailing. This
presumption, however, is disputable. In this case, the Affidavit/Certification
of the alleged Assistant Postmaster cannot give rise to such a
presumption, for not only does it attest to an irregularity in the performance
of official duties (i.e., mistake in stamping the date on the registered mail),
it is essentially hearsay evidence.

Based on the foregoing documents, nevertheless, the Court of

Appeals stood pat in its dismissal of the petition. When petitioners came to
this Court via the present petition for review on certiorari, they attached
thereto the same photocopy of the pertinent page of the Registry Book of
the Cabanatuan City Post Office, but this time with a typewritten notation
certified true copy signed by one Lorena Gatus, purportedly a clerk of such
post office. Likewise, petitioners annexed to their present petition, the
additional affidavit of the same clerk Lorena Gatus attesting to the fact that
she erroneously stamped on the envelopes of petitioners mails the date 8
February 2006 instead of 7 February 2006.

Though notarized, we cannot give the affidavits of the Assistant

Postmaster and the clerk any probative value, since they were both
notarized by a lawyer belonging to the same law firm as petitioners
counsel and, as such, are self-serving assertions not corroborated by any
other evidence. Considering the interest of his law firm in the case, we
cannot rely solely on the jurat of the notary public that the affiants/certifiers
are indeed who they say they are. The affiants/certifiers herein claimed to
be officers or employees of the Cabanatuan City Post Office, but this Court
has no way of ensuring the veracity of such claim.

Upon closer examination of the aforementioned documents,

including those submitted before the appellate court, this Court finds no

It would have been different had petitioners presented an Official

Receipt as evidence of payment of appropriate fees corresponding to the

issuance of such certifications by the Assistant Postmaster and the clerk,

who certified that the photocopy of the pertinent page of the Registry Book
was a faithful reproduction of the original and that she was the one who
erroneously made the notation 8 February 2006 on the envelope
addressed to the Clerk of Court of the Court of Appeals. Under PhilPost
Administrative Order No. 05-17 dated 20 December 2005, in relation to
Department of Transportation and Communications Memorandum Circular
No. 2000-17 dated 18 February 2000, concerning fees for administrative
services rendered, a fee of Php25.00 is imposed for certification of every
document or information based on record. Without such receipt, plus the
fact that thejurats of the affidavits/certifications were made by a lawyer
from the same law firm as petitioners counsel, we cannot help but doubt
that the said documents were issued by the officers of the Cabanatuan
City Post Office.
In addition, petitioners could have easily presented the original
Registry Receipt No. A-2094. It would have constituted the best evidence
of the fact of mailing on 7 February 2006, even if a different date had been
stamped on the envelope of the subject registered mail. Regrettably,
petitioners have not seen fit to present such original. Their continued
failure to present the original receipt can only lead one to remember the
well-settled rule that when the evidence tends to prove a material fact
which imposes a liability on a party, and he has it in his power to produce
evidence which from its very nature must overthrow the case made against
him if it is not founded on fact, and he refuses to produce such evidence,
the presumption arises that the evidence, if produced, would operate to his
prejudice, and support the case of his adversary.[33] Mere photocopy of
Registry Receipt No. A-2094 militates against their position as there is
no indicium of its authenticity. A mere photocopy lacks assurance of its
genuineness, considering that photocopies can easily be tampered with.
Given the foregoing, we find no reason to reverse the assailed
resolutions of the Court of Appeals and disturb its conclusions therein.
Petitioners miserably failed to adduce credible and sufficient substantiation
that any inadvertence was committed by the Post Office of Cabanatuan
City, Nueva Ecija. Instead of supporting their cause, the affidavits
submitted by petitioners, taken together with the mere photocopy of
Registry Receipt No. A-2094 without the presentation of the original
thereof, actually lead this Court to doubt whether petitioners counsel has

been sincere in his dealings with the courts. Needless to stress, a lawyer is
bound by ethical principles in the conduct of cases before the courts at all
times.[34]
It has been said time and again that the perfection of an appeal
within the period fixed by the rules is mandatory and jurisdictional. [35] But it
is always in the power of this Court to suspend its own rules, or to except a
particular case from its operation, whenever the purposes of justice require
it.[36] This Court is mindful of the policy of affording litigants the amplest
opportunity for the determination of their cases on the merits [37] and of
dispensing with technicalities whenever compelling reasons so warrant or
when the purpose of justice requires it.[38]
Assuming that we suspend the rules, in the interest of justice, and
direct the Court of Appeals to admit petitioners Petition for Certiorari even
if it was one day late, we would still affirm the dismissal of said Petition by
the appellate court considering petitioners failure to serve the OSG with a
copy of the same.
In addressing the issue, petitioners exploit the oft used defense in
the interest of justice; and the fact that they have now furnished the OSG
copies of the present petition, as well as other pleadings.
Failure to furnish the OSG a copy of the petition filed before the
Court of Appeals was a fatal defect.
We agree with the disposition of the Court of Appeals in that we
have stated in Salazar v. Romaquin[39] that Section 5, Rule 110 of the
Revised Rules of Court provides:
SEC. 5. Who must prosecute criminal actions. All
criminal actions commenced by a complaint or information
shall be prosecuted under the direction and control of the
prosecutor. However, in the Municipal Trial Courts or
Municipal Circuit Trial Courts when the prosecutor
assigned thereto or to the case is not available, the
offended party, any peace officer, or public officer charged
with the enforcement of the law violated may prosecute
the case. This authority shall cease upon actual

intervention of the prosecutor or upon elevation of the

case to the Regional Trial Court.
The authority of the Provincial Prosecutor to appear for and
represent the respondent People of the Philippines is confined only to the
proceedings before the trial court.
We further elucidated in the same case that:
The pleadings of the accused and copies of the
orders or resolutions of the trial court are served on the
People
of
the Philippines through
the
Provincial
Prosecutor. However, in appeals before the Court of
Appeals and the Supreme Court either (a) by writ of error;
(b) via petition for review; (c) on automatic appeal; or (d) in
special civil actions where the People of the Philippines is
a party, the general rule is that the Office of the Solicitor
General is the sole representative of the People of the
Philippines. This is provided for in Section 35(l) Chapter
12, Title III of Book IV of the 1987 Administrative
Code, viz:
(l) Represent the Government in
the Supreme Court and the Court of
Appeals in all criminal proceedings;
represent the Government and its officers
in the Supreme Court, the Court of
Appeals, and all other courts or tribunals
in all civil actions and special proceedings
in which the Government or any officer
thereof in his official capacity is a party.
A copy of the petition in such action must be
served on the People of the Philippines as mandated by
Section 3, Rule 46 of the Rules of Court, through the
Office of the Solicitor General (citation omitted). The
service of a copy of the petition on the People of
the Philippines, through the Provincial Prosecutor would

be inefficacious. The petitioners failure to have a copy of

his petition served on the respondent, through the Office
of the Solicitor General, shall be sufficient ground for the
dismissal of the petition as provided in the last paragraph
of Section 3, Rule 46 of the Rules of Court. Unless and
until copies of the petition are duly served on the
respondent, the appellate court has no other recourse but
to dismiss the petition.
The purpose of the service of a copy of the
petition on the respondent in an original action in the
appellate court prior to the acquisition of jurisdiction over
the person of the respondent is to apprise the latter of the
filing of the petition and the averments contained therein
and, thus, enable the respondent to file any appropriate
pleading thereon even before the appellate court can act
on the said petition, or to file his comment thereon if so
ordered by the appellate court. But if a copy of the petition
is served on the Provincial Prosecutor who is not
authorized to represent the People of the Philippines in
the appellate court, any pleading filed by the said
Prosecutor for and in behalf of the People of
the Philippines is unauthorized, and may be expunged
from the records.[40]
In the more recent case of Go v. Court of Appeals,[41] this Court,
through Mr. Justice Quisumbing, once again made clear that Section 1,
Rule 65 in relation to Section 3, Rule 46 of the Rules of Court, clearly
states that in a petition filed originally in the Court of Appeals, the petitioner
is required to serve a copy of the petition on the adverse party before its
filing (citation omitted). If the adverse party appears by counsel, service
shall be made on such counsel pursuant to Section 2, Rule 13. Since the
OSG represents the Republic of the Philippines once the case is brought
before this Court of the Court of Appeals, then service of the petition
should be made on that office (citation omitted).

As a last ditch effort, petitioners hark on a liberal construction of

the rules of procedure in order to bring about substantial justice and
appeal to this Courts exercise of equity jurisdiction.

as it remains in force. The applicable maxim, which goes

back to the ancient days of the Roman jurists- and is now
still reverently observed- is `aequetas nunquam
contravenit legis.[43]

We are not convinced.

It must always be remembered that the liberality with which we
exercise our equity jurisdiction is always anchored on the basic
consideration that the same must be warranted by the circumstances
obtaining in each case. Aside from the above disquisition, there is no
showing herein of any exceptional circumstance that may rationalize a
digression from the rule on timely filing of appeals.
Rules of procedure are intended to ensure the orderly
administration of justice and the protection of substantive rights in judicial
and extrajudicial proceedings. It is a mistake to suppose that substantive
law and adjective law are contradictory to each other; or, as has often
been suggested, that enforcement of procedural rules should never be
permitted if it will result in prejudice to the substantive rights of the litigants.
This is not exactly true; the concept is much misunderstood. As a matter of
fact, the policy of the courts is to give effect to both kinds of law, as
complementing each other, in the just and speedy resolution of the dispute
between the parties. Observance of both substantive and procedural rights
is equally guaranteed by due process, whatever the source of such rights,
be it the Constitution itself or only a statute or a rule of court. [42]
As we have put it long before:
For all its conceded merits, equity is available only
in the absence of law and not as its replacement. Equity is
described as justice outside legality, which simply means
that it cannot supplant although it may, as often happens,
supplement the law. We said in an earlier case, and we
repeat it now, that all abstract arguments based only on
equity should yield to positive rules, which pre-empt and
prevail over such persuasions. Emotional appeals for
justice, while they may wring the heart of the Court,
cannot justify disregard of the mandate of the law as long

Having found the explanation of petitioners less than worthy of

credence and lacking in evidentiary support, this Court is obliged to adhere
austerely to the procedural rules on the timeliness of submission before
the court.
All told, We find that the Court of Appeals did not err in dismissing
the petition for (1) being filed beyond the reglementary period within which
to file the same; and (2) failure to observe the requirement of service upon
the OSG as counsel for the People of the Philippines.
In view of the foregoing, this Court sees no need to discuss the
second assigned error.
WHEREFORE, premises considered, the instant petition
is DENIED for
lack
of
merit. The
assailed 23
February
2006 Resolution and 13 June 2006 Resolution, both of the Court of
Appeals in CA-G.R. SP No. 93272, are hereby AFFIRMED. Costs against
petitioners Leoncio D. Mangahas, Zaldy G. Matias, Orlando O. Oanes,
Dante Y. Arcilla and Jocelyn R. de la Cruz.
SO ORDERED.

THIRD DIVISION
STATE PROSECUTOR RINGCAR B.
PINOTE,
Petitioner, vs
JUDGE ROBERTO L. AYCO,
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - x

DECISION
CARPIO MORALES, J.:
On August 13 and 20, 2004, Judge Roberto L. Ayco of Branch 26,
Regional Trial Court (RTC) of South Cotabato allowed the defense in
Criminal Case No. 1771 TB, People v. Vice Mayor Salvador Ramos, et al.,
for violation of Section 3 of Presidential Decree (P.D.) No. 1866, to present
evidence consisting of the testimony of two witnesses, even in the
absence of State Prosecutor Ringcar B. Pinote who was prosecuting the
case.
State Prosecutor Pinote was on August 13 and 20, 2004 undergoing
medical treatment at the Philippine Heart Center in Quezon City, hence,
his absence during the proceedings on the said dates.
On the subsequent scheduled hearings of the criminal case on August 27,
October 1, 15 and 29, 2004, State Prosecutor Pinote refused to crossexamine the two defense witnesses, despite being ordered by Judge Ayco,
he maintaining that the proceedings conducted on August 13 and 20, 2004
in his absence were void.
State Prosecutor Pinote subsequently filed a Manifestation on November
12, 2004 before the trial court, he restating why he was not present on
August 13 and 20, 2004, and reiterating his position that Judge Aycos act
of allowing the defense to present evidence in his absence was erroneous
and highly irregular. He thus prayed that he should not be coerced to
cross-examine those two defense witnesses and that their testimonies be
stricken off the record.
By Order issued also on November 12, 2004, Judge Ayco, glossing over
the Manifestation, considered the prosecution to have waived its right to
cross-examine the two defense witnesses.
Hence, arose the present administrative complaint lodged by State
Prosecutor Pinote (complainant) against Judge Ayco (respondent), for
Gross Ignorance of the Law, Grave Abuse of Authority and Serious
Misconduct.

By Comment dated March 18, 2005, respondent proffers that complainant

filed the complaint to save his face and cover up for his incompetence and
lackadaisical handling of the prosecution of the criminal case as in fact
complainant was, on the request of the Provincial Governor of South
Cotabato, relieved as prosecutor in the case by the Secretary of Justice.
And respondent informs that even after complainant was already relieved
as the prosecutor in the case, he filed a motion for his inhibition without
setting it for hearing.
On the above-said Manifestation filed by complainant before the trial court
on November 12, 2004, respondent brands the same as misleading and
highly questionable, complainants having undergone medical treatment at
the Philippine Heart Center on August 13 and 20, 2004 having been
relayed to the trial court only on said date.
On his Order considering the prosecution to have waived presenting
evidence, respondent justifies the same on complainants failure to formally
offer the evidence for the prosecution despite several extensions of time
granted for the purpose.
Finally, respondent proffers that no substantial prejudice was suffered by
the prosecution for complainant was permitted to cross examine the two
defense witnesses but he refused to do so.
By way of counter-complaint, respondent charges complainant with
Contempt of Court and Grave Misconduct and/or Conduct Unbecoming of
a Member of the Bar and as an Officer of the Court.
On evaluation of the case, the Office of the Court Administrator (OCA),
citing Section 5, Rule 110 of the Revised Rule on Criminal Procedure,
finds respondent to have breached said rule and accordingly recommends
that he be reprimanded therefor, with warning that a repetition of the same
or similar act shall be dealt with more severely.
Rule 110, Section 5 of the Revised Rules of Criminal Procedure reads:
Sec. 5. Who must prosecute criminal actions. - All criminal
actions commenced by a complaint or information shall
be prosecuted under the direction and control of the

prosecutor. In case of heavy work schedule or in the event

of lack of public prosecutors, the private prosecutor may
be authorized in writing by the Chief of the Prosecution
Office or the Regional State Prosecution Office to
prosecute the case subject to the approval of the Court.
Once so authorized to prosecute the criminal action, the
private prosecutor shall continue to prosecute the case up
to the end of the trial even in the absence of a public
prosecutor, unless the authority is revoked or otherwise
withdrawn.

Respondents intention to uphold the right of the accused to a speedy

disposition of the case, no matter how noble it may be, cannot justify a
breach of the Rules. If the accused is entitled to due process, so is the
State.
Respondents lament about complainants failure to inform the court of his
inability to attend the August 13 and 20, 2004 hearings or to file a motion
for postponement thereof or to subsequently file a motion for
reconsideration of his Orders allowing the defense to present its two
witnesses on said dates may be mitigating. It does not absolve respondent
of his utter disregard of the Rules.

x x x (Underscoring supplied)
Thus, as a general rule, all criminal actions shall be prosecuted under the
control and direction of the public prosecutor.
If the schedule of the public prosecutor does not permit, however, or in
case there are no public prosecutors, a private prosecutor may be
authorized in writing by the Chief of the Prosecution Office or the Regional
State Prosecution Office to prosecute the case, subject to the approval of
the court. Once so authorized, the private prosecutor shall continue to
prosecute the case until the termination of the trial even in the absence of
a public prosecutor, unless the authority is revoked or otherwise
withdrawn.
Violation of criminal laws is an affront to the People of the Philippines as a
whole and not merely to the person directly prejudiced, he being merely
the complaining witness.[1] It is on this account that the presence of a
public prosecutor in the trial of criminal cases is necessary to protect vital
state interests, foremost of which is its interest to vindicate the rule of law,
the bedrock of peace of the people.[2]
Respondents act of allowing the presentation of the defense witnesses in
the absence of complainant public prosecutor or a private prosecutor
designated for the purpose is thus a clear transgression of the Rules which
could not be rectified by subsequently giving the prosecution a chance to
cross-examine the witnesses.

WHEREFORE, respondent Judge Roberto L. Ayco is hereby ordered to

pay a fine FIVE THOUSAND PESOS (P5,000.00) with warning that a
repetition of the same or similar acts in the future shall be dealt with more
severely.
Respecting the counter-complaint against complainant State Prosecutor
Ringcar B. Pinote, respondent is advised that the same should be lodged
before the Secretary of Justice.
SO ORDERED.

[A.M. No. MTJ-00-1306. March 20, 2001]

Prosecutor ROBERT M. VISBAL, complainant, vs. Judge RODOLFO
C. RAMOS, Municipal Trial Court of Jaro, Leyte, respondent.
DECISION
PANGANIBAN, J.:
Judges must resolve matters pending before them promptly and
expeditiously within the prescribed period. If they fail to do so, they should
ask the Supreme Court for an extension, citing meritorious grounds
therefor. Otherwise, they may be charged with gross inefficiency and
sanctioned administratively.
The Case and the Facts

In a verified Letter-Complaint[1] received by the Office of the Court

Administrator (OCA) on February 27, 1998, Prosecutor Robert M. Visbal
charged Judge Rodolfo C. Ramos of the Municipal Trial Court of Jaro,
Leyte, with gross ignorance of the law, grave abuse of judicial authority
and negligence. The material averments of the Letter-Complaint were
summarized by the OCA in this wise:
Complainant alleges that the aforecited case [Crim. Case No. 9484,
entitled People v. Antonio Grana, for reckless imprudence] was filed before
the sala of respondent judge who issued an Order dated February 18,
1998 directing him (herein complainant) to appear for the prosecution even
when he has already delegated his prosecutory authority to the Station
Commander or duly authorized representative.He claims that only the
executive department, through the Department of Justice, can give such
order. In addition, he cites the provision of the Rules of Court which

succinctly provides that although criminal cases must be prosecuted by the

public prosecutor, his authority may be delegated to a private prosecutor
under his control or supervision or to the Chief of Police in the Municipal
Trial Court, when a regular prosecutor is not available. In the instant case,
no regular prosecutor is available in respondent Judges sala since he
(complainant) is officially and regularly assigned to RTC, Branch VIII of
Tacloban City, thus forcing him to delegate the prosecution of the case to
the police investigator.
According to complainant, respondent Judge [was] motivated by malice
and bad faith when he issued the assailed order because of the latters
lingering grudge against him arising out of an action which he filed in 1994
against respondent Judge before the RTC of Tacloban City.
Finally, complainant accuses respondent Judge of deliberately failing to
rule on the prosecutions offer of evidence which was submitted as early as
March 10, 1997 despite his repeated manifestation for the resolution of the
aforesaid motion.[2]
In his Comment,[3] respondent judge denies any liability and prays for
the dismissal of the Complaint. He maintains that the police chiefs
authority to prosecute ceases upon actual intervention of the
prosecutor. Although the judge admits that it was only on November 24,
1997 that he ruled on the Offer of Evidence submitted by the prosecution
on March 10, 1997, he claims that it was not deliberately done considering
that respondent was motivated by no other consideration than to give a
chance to the accused to make his comment to said offer.[4] He further
denies complainants allegation that the February 18, 1998 Order was
impelled by malice and bad faith.
In a Resolution dated August 2, 2000,[5] this Court directed the parties
to manifest within twenty days from notice whether they were submitting

the case on the basis of the pleadings filed. Complainant submitted his
Manifestation[6] in a letter dated September 10, 2000.
In a Resolution issued on November 29, 2000, [7] the Court considered
respondent to have waived the filing of the required manifestation,
because he had not done so within the prescribed period.
The OCA Report and Recommendation

In its Report,[8] the OCA recommended that respondent be sanctioned

for his unjustified delay in the resolution of the prosecutions offer of
evidence in Criminal Case No. 9484, and that the other charges filed
against him be dismissed. It explained:
x x x [I]n those municipalities and cities which do not have their own
fiscals, the criminal cases therein may be prosecuted by any peace or law
enforcement officers, or by private prosecutors. Their authority ceases,
however, upon actual intervention of the provincial or city fiscal or their
assistants, or upon elevation of the case to the Regional Trial Court
(People vs. Beriales, April 7, 1976, 70 SCRA 361). In the instant case, it
appears that a public prosecutor, Pros. Ricardo Candido, actively handled
the prosecution of the case but [it] was only transferred to herein
complainant when the former was hospitalized.
It is clear from the provision of Sec. 5, Rule 110 that the authority to
prosecute criminal cases may only be delegated when there is no fiscal
available. Hence, respondent Judge did not abuse his authority when he
issued the assailed order.

Anent the second issue, the record shows that there was indeed delay in
the resolution of the prosecutions offer of evidence. Even if we consider
respondent Judges explanation that complainant was not immediately
furnished with a copy of the Order dated November 24, 1997, the
resolution of the motion was still very much delayed.
On the loss of the necropsy report in Criminal Case No. 7613, complainant
failed to submit evidence that would make respondent Judge liable
therefor particularly since the control and supervision over all court
records, exhibits, documents, etc. within the branch pertains to the branch
clerk of court (OCA vs. Judge Amelita D.R. Benedicto, et al. A.M. No. 96-5176-RTJ, October 12, 1998). Respondent Judges Clerk of Court,
moreover, specifically declared that the Medico-Legal Necropsy Report
was not included because the Complainant-Police Officer failed to [attach
to] the complaint said document when it was filed x x x on December 18,
1989. (Ltr. Dated May 22, 1998 of Clerk of Court Simeon M. Polo to Pros.
Robert M. Visbal).[9]
This Courts Ruling

This Court agrees with the OCAs finding that respondent is guilty of
delay in resolving the prosecutions offer of exhibits in Criminal Case No.
9484. It believes, however, that the recommended penalty of reprimand is
too light, considering that this is respondents second offense.
Respondents Administrative Liability

The records show that the prosecution submitted an Offer of

Evidence in Criminal Case No. 9484 on March 10, 1997. But it was only on
April 7, 1998, or more than one year later, that it received respondents
Order admitting the Offer.

Respondent asserts that the Order was in fact dated November 24,
1997. He explains that it was sent to the prosecution only in April 1998,
because of the inadvertence of the clerk of court.
Respondents contention is not meritorious. First, the alleged
inadvertence of the clerk of court in sending the prosecutions copy of the
November 24, 1997 Order only in April 1998 does not speak well of
respondents managerial competence. While the clerk of court, as
administrative officer,[10] is primarily tasked to send notices to parties and
their counsel, the judge is ultimately responsible for ensuring that court
personnel perform their tasks, and that parties are promptly notified of his
orders and decisions. Verily, [p]roper and efficient court management is as
much his responsibility. He is the one directly responsible for the proper
discharge of his official functions.[11]
Second, respondents assertion that the Order admitting the Offer of
Evidence was issued on November 24, 1997 is an admission of
liability. Section 15 (1), Art. VII of the Constitution, provides:
"Sec. 15. (1) All cases or matters filed after the effectivity of this
Constitution must be decided or resolved within twenty-four months from
date of submission [to] the Supreme Court, and, unless reduced by the
Supreme Court, twelve months for all lower collegiate courts, and three
months for all other lower courts." (emphasis supplied)
In this case, it took respondent more than eight months to resolve the
prosecutions Offer of Evidence. In fact, the prosecution had filed two
Motions the first on September 1, 1997 and the second on November 20,
1997 -- urging respondent to resolve the question. That he did not delay
deliberately is not an excuse.
Once again, we remind judges that they must resolve matters
pending before them promptly and expeditiously within the constitutionally
mandated 90-day period. Failing to do so, they should ask for an extension

from the same court, citing meritorious grounds therefor. Otherwise, they
may be charged with gross inefficiency and sanctioned administratively.[12]
While the OCA recommends that respondent be reprimanded for the
foregoing, we believe that the penalty is too light. In Francisco Tan Sr v.
Judge Rodolfo Ramos,[13] the judge was already reprimanded for failure to
decide two cases within the reglementary period, with the warning that a
repetition of the same or similar violation will be dealt with more severely.
Accordingly, the proper penalty in the present case should be a fine
of three thousand pesos (P3,000).
Other Charges

We agree with the OCA that complainant failed to substantiate his

allegation that respondent had lost the Necropsy Report, which was
supposedly part of the records submitted to the judge for preliminary
investigation in Criminal Case No. 7613.
In his Rejoinder, respondent alleged that there was no necropsy
medical report x x x attached to the complaint x x x, although it was merely
listed therein as one of the exhibits supporting the complaint. [14] His
allegation was based on the letter[15] dated May 22, 1998, written by the
MTC clerk of court who, as such, had control and supervision over all court
records, exhibits and documents within that particular branch.
[16]
Significantly, complainant has not controverted respondents claim.
Complainant also charges respondent with gross ignorance of the
law, in connection with the latters February 18, 1998 Order directing the
former to continue his appearance for the prosecution in Criminal Case
No. 9484. Complainant contends that his authority to prosecute the case
may be delegated to a private prosecutor or even to the town police
chief. He chides respondent for intruding into the exclusive authority of the
Executive Branch, an unpardonable error to commit, being a basic

principle of separation of powers [of] the three Departments of

Government; x x x.[17]
There is nothing in the said February 18, 1998 Order that constitutes
gross ignorance of the law. In fact, it is in accord with Section 5, Rule 110
of the 2000 Revised Rules of Criminal Procedure, which reads as follows:
Sec. 5. Who must prosecute criminal actions. -- All criminal actions
commenced by a complaint or information shall be prosecuted under the
direction and control of the prosecutor. However, in Municipal Trial Courts
or Municipal Circuit Trial Courts when the prosecutor assigned thereto or
to the case is not available, the offended party, any peace officer, or public
officer charged with the enforcement of the law violated may prosecute the
case. This authority shall cease upon actual intervention of the prosecutor
or upon elevation of the case to the Regional Trial Court. [18]
As a general rule, all criminal actions shall be prosecuted under the
control and direction of the prosecutor. As an exception, when the
assigned prosecutor is not available, cases before the MTC and the MCTC
(Municipal Circuit Trial Court) may be prosecuted by the offended party,
any peace officer or any proper public officer. The Rules further provides
that such authority, which properly belongs to the governments
prosecutory arm, ceases upon actual intervention of the prosecutor or
upon the elevation of the case to the RTC.
In People v. Ramos,[19] the Court held that the aforesaid exception
must be applied strictly. In its words:
The exception provided in Section 5 must be strictly applied as the
prosecution of crime is the responsibility of officers appointed and trained
for that purpose. The violation of the criminal laws is an affront to the
People of the Philippines as a whole and not merely the person directly
prejudiced, who is merely the complaining witness. This being so, it is
necessary that the prosecution be handled by persons skilled in this

function instead of being entrusted to private persons or public officers with

little or no preparation for this responsibility. The exception should be
allowed only when the conditions therefor as set forth in Section 5, Rule
110 of the Rules on Criminal Procedure have been clearly established.
In this case, a prosecutor had already intervened in the
case. Prosecutor Ricardo P. Candido had actively handled the prosecution
which was, however, transferred to complainant when the former was
hospitalized. Hence, a prosecutor was available; there was no reason for
the delegation of the prosecutory authority to the police chief of the
municipality.
Also apropos to this case is the observation of the Court in People v.
Beriales:[20]
Moreover, as aptly observed by the Solicitor General, to permit such
prosecution of a criminal case by the private prosecutor with the fiscal
in absentia can set an obnoxious precedent that can be taken advantage
of by some indolent members of the prosecuting arm of the government as
well as those who are oblivious of their bounden duty to see to it not only
that the guilty should be convicted, but that the innocent should be
acquitted a duty that can only be effectively and sincerely performed if they
actively participate in the conduct of the case, especially in the
examination of the witnesses and the presentation of documentary
evidence for both parties.
We must stress that gross ignorance of the law is a serious
accusation. It therefore behooves complainant to be more circumspect in
hurling this charge. Indeed, a person who accuses a judge of this very
serious offense must be sure of the grounds for the accusation, or else be
found ignorant of the law, as in this case. Judges, while expected to be a
cut above the rest in the legal profession, are not inured to the strain
concomitant with baseless and unfair aspersions on their
competence. They certainly deserve a better treatment, especially from a

prosecutor who should know, at the very least, the basic provisions of the
Rules of Criminal Procedure.
WHEREFORE, Judge Rodolfo C. Ramos is found GUILTY of gross
inefficiency and is hereby ordered to PAY a fine of three thousand pesos

G.R. No. L-30146 February 24, 1981

THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
JOSEPH CASEY alias "Burl" and RICARDO FELIX alias "CARDING
TUWAD", defendants-appellants.

GUERRERO, J.:
Automatic review of the judgment of the Circuit Criminal Court in Criminal
Case No. CCC-VI -6 Rizal (1 7857), imposing upon Joseph Casey alias
"Burl" and Ricardo Felix alias "Carding Tuwad" the capital punishment for
the death of Alfredo Valdez. The dispositive portion thereof, states:
WHEREFORE, the Court finds the accused, Joseph
Casey alias "Buri" and Ricardo Felix alias "Carding
Tuwad", GUILTY, beyond reasonable doubt, of the
commission of the crime of Murder, under Article No. 248
of the Revised Penal Code, as charged in an Information,
and hereby sentences them to suffer the PENALTY OF
DEATH, with accessory penalties as prescribed by law; to
indemnify the heirs of the deceased, Alfredo Valdez, in the
amount of TWELVE THOUSAND (P12,000) PESOS,
jointly and severally; and to pay the costs.

(P3,000). He is WARNED that a repetition of the same or a similar act

shall be dealt with much more severely. Let a copy of this Decision be
attached to his personal records.
SO ORDERED.

On May 22, 1968, Assistant Fiscal Herminio I. Benito filed an Information

for Murder against accused-appellant Joseph Casey alias "Burl", alleging:
That on or about the 31st day of March, 1968, in the
municipality of San Juan, province of Rizal, a place within
the jurisdiction of this Honorable Court, the above- named
accused, being then armed with a knife, together with one
Ricardo Felix alias "Carding Tuwad" who is then armed
with a firearm and who was (sic) still at large, and the two
of them conspiring and confederating together and
mutually helping and aiding one another, with intent to kill,
evident premeditation and treachery and taking advantage
of superior strength, did, then and there wilfully, unlawfully
and feloniously attack, assault and shoot and stab with the
said firearm and knife one Alfredo Valdez, thereby
inflicting upon the latter fatal wounds which directly
caused his death.
Contrary to law. 1
On June 24, 1968, upon arraignment, said accused pleaded not guilty to
the crime charged in the said complaint. Then, sometime in September,
1968, accused ' appellant Ricardo Felix alias "Carding Tuwad" was
arrested. Accordingly, an Amended Information was filed by the same
fiscal to include Ricardo Felix as an accused, stating as follows:

That on or about the 31st day of March, 1968, in the

municipality of San Juan, province of Rizal, a place within
the jurisdiction of this Honorable Court, the above named
accused Joseph Casey alias "Burl" being then armed with
a knife, together with the accused Ricardo Felix alias
"Carding Tuwad" who was then armed with a firearm, and
the two of them conspiring and confederating together and
mutually helping and aiding one another, with intent to kill,
evident premeditation and treachery and taking advantage
of superior strength, did, then and there wilfully, unlawfully
and feloniously attack, assault and shoot and stab with the
said firearm and knife one Alfredo Valdez, thereby
inflicting upon the latter fatal wounds which directly
caused his death.

Continuing her testimony, she said that she saw the one with curly hair
overtake and stab the victim several times, while in the meantime, Ricardo
Felix stood nearby holding a gun which he later fired once at the victim. 4

Contrary to law. 2

Patrolman Honorio Carritero, 46 years old, also a policeman, testified that

in the afternoon of March 31, 1968. he was awakened by noise that
somebody was stabbed and shot. Upon going out to investigate, he saw
the victim lying down near the toilet with stab wounds but still alive,
hovering between life and death. He then called for a jeep and brought him
to a hospital. 6

On October 15, 1968, accused Ricardo Felix entered the plea of not guilty
upon being arraigned and trial was accordingly had.
Mercedes Palomo, 28, resident of 242 Mahinhin Street, San Juan, Rizal,
testified that on March 31, 1968, at around three o'clock in the afternoon,
while in the house of her aunt, she heard a shot coming from the pool
room located near her aunt's place. She then looked towards the direction
of the pool room and saw three men coming out, one of them being
pursued by the two others. She recognized the man being pursued as
Alfredo Valdez alias "G.I." She, however, did not know the names of the
pursuers but described one of them as a short man, with curly black hair
and black complexion while the other as having a fair complexion. When
asked as to whether she can Identify them, she answered in the affirmative
and pointed to Joseph Casey and Ricardo Felix. 3

Jose Rivera, 57 years old, a policeman, was presented by the prosecution

to testify on the investigation he conducted before Judge Alfredo M.
Gorgonio on April 1, 1968 involving the accused Joseph Casey. He
submitted in evidence the extrajudicial statement of the said accused,
contained in a two page sworn statement wherein said accused narrated
having a rendezvous with the accused Ricardo Felix and with another
person named Rudy at Cubao Rotonda, Quezon City at about nine o'clock
in the morning of March 31, 1968 and thereafter proceeding to Barrio HaloHalo, San Juan, Rizal at about three o'clock in the afternoon, where the
incident happened. 5

Finally, Dr. Mariano B. Cueva, 32 years of age, a physician, was presented

to testify on the Necropsy Report No. 58-425 of Alfredo Valdez, herein
quoted as follows:
Marked paleness of lips, nailbeds, and integument.
Abrasion, 1.5 x 0.7 cm., right scapular region of back, 12.0
cm. from posterior median line.
Stab wounds: (1) 1.1 cm. long, spindle shape, located at
left hypochondriac region of abdomen, 11.0 cm. from

anterior median line, level of 8th intercostal space; long

axis is oriented horizontally, medial extremity sharp, lateral
extremity contused, edges clean-cut and slightly gaping,
with bevelled lower border; attract is directed backward
upward medially, entering abdominal cavity and
perforating along its track the greater momentum, body of
stomach, body of pancreas, and partly severing the
abdominal aorta at the level of 12th thoracic vertebra;
approximate depth, 10.0 cms.

contused, edges clean-cut and gaping, with bevelled

upper border; track is directed downward slightly forward
and laterally, taking a subcutaneous route at right lateral
lumbar region to a depth of 6.5 cm.

(2) 1.1 cm. long, spindle shape, located at umbilical region

of abdomen, 2.3. cm. to the left of anterior median line, 6.0
cm. above the level of navel; long axis oriented
horizontally, medial extremity sharp, lateral extremity
contused, edges clean- cut and gaping, with bevelled
lower border; track is directed backward upward and
medially, entering abdominal cavity and perforating along
its track the greater momentum, pylorus of stomach and
body of pancreas; approximate depth, 10.0 cms.

Heart and its big vessels, almost empty of

blood.

(3) 1.0 cm. long, spindle shape, located at left infra

scapular region of the back, 8.5 cm. from posterior median
line, level of 9th rib; long axis is oriented slightly downward
and laterally, lateral extremity sharp, medial extremity
contused, edges clean-cut and gaping with bevelled upper
border; track is directed downward slightly forward and
medially taking a deep intra-muscular route at left
posterior lumbar region to a depth of 9.0 cm.
(4) 1.2 cm. long, slightly curvilinear in shape, located at
right posterior lumbar region, 8.0 cm. from posterior
lumbar region, 8.0 cm. from posterior median line, 12.0
cm. above iliac crest convexity of wound is directed
upward, medial extremity sharp, lateral extremity

Hemoperitoneum 840 cc.

Hematomas,
bilateral.

retroperitoneal,

severe,

Brain and other visceral organs, markedly

pale.
Stomach, filled with dark fluid and clotted
blood about 800 cc. 7
Case of Death: Hemorrhage, severe,
secondary to stab wounds of abdomen.
On the other hand, the evidence for the defense consisted of the
testimonies of the two accused. Joseph Casey, when called to testify on
his behalf, admitted having stabbed the victim, Alfredo Valdez but alleged
that he did so in self-defense. His version of the incident was that on
March 31, 1968, he went to the house of Ricardo Felix but was told that he
was not in. So he proceeded to the pool room, located around two or three
meters away from the residence of Ricardo Felix. At the start, he simply
witnessed those playing pool and when they were through, he himself
played. While playing, he accidentally bumped the victim with the pool cue
(tako). He accordingly asked for apoloy but the victim simply ignored him
and left the place immediately. 8

When he was through playing, he went out and saw the victim waiting for
him outside, accompanied by six or seven persons holding pieces of wood.
As the place had no other exit, he proceeded on his way together with one
person named "Rody." While passing by, the victim suddenly drew a
"balisong" and lunged it on him. But he was able to parry the thrust. He
then took hold of the victim's right hand and grappled with him. In the
process, he successfully wrested the knife from him. He then used the
weapon against him, hitting him about two or three times. While he was
contending with the victim, the latter's companions joined in and hit him
with pieces of wood, inflicting "gasgas" or abrasions on his back. 9

The Court a quo erred in holding that the appellants acted

with evident premeditation and abuse of superior strength,
and in qualifying the crane committed as aggravated
murder.
THIRD ASSIGNMENT OF ERROR
The Court a quo erred in holding that the appellants had
forged a conspiracy to kill the victim, Alfredo Valdez.
FOURTH ASSIGNMENT OF ERROR

The other accused, Ricardo Felix, testified that he did not see Joseph
Casey on March 31, 1968. Likewise, he said that he knew the victim,
Alfredo Valdez; that he last saw him alive in a store on the same day that
he was killed when he was about to leave for Manila; and that he learned
that he was dead when he returned home. 10
On the basis of the aforesaid evidence, the court a quo rendered the
aforementioned judgment of conviction. It found that two aggravating
circumstances attended the commission of the crime, namely: employing
or taking advantage of superior strength and evident premeditation, one of
which qualified the killing to murder. Hence, this automatic review.
The able counsel de oficio for the accused-appellant raised the following
assignments of errors in a well-prepared brief:
FIRST ASSIGNMENT OF ERROR
The Court a quo erred in illegally trying appellant Casey
on the amended information without arraignment, and in
finding him guilty after such illegal trial.
SECOND ASSIGNMENT OF ERROR

The Court a quo erred in holding that both appellants were

liable for the death of Alfredo Valdez; if any crime had
been committed at all, the only person responsible
therefore was appellant Casey, and, at that, only for
homicide, instead of murder.
FIFTH ASSIGNMENT OF ERROR
The Court a quo erred in discounting appellant Casey's
defense that he acted in legitimate self-defense.
SIXTH ASSIGNMENT OF ERROR
The Court a quo erred in discounting the defense of alibi
interposed by appellant Felix.
SEVENTH ASSIGNMENT OF ERROR
The Court a quo erred in not acquitting both appellants.

11

We do not find merit in the first assignment of error. The lack of

arraignment under the amended information is objected to by accusedappellant Joseph Casey allegedly on the ground that there is a violation of
his constitutional right to be informed of the charge against him. There can
be a violation of such right, however, only when the amendment pertains to
matters of substance. In the case at bar, the alterations introduced in the
information refer to the inclusion of accused appellant Ricardo Felix to the
same charge of murder. They do not change the nature of the crime
against accused-appellant Casey. Conspiracy, evident premeditation,
treachery and taking advantage of superior strength are similarly alleged in
both informations. No extenuating circumstance is likewise alleged in both.
Thus the amendment of the information as far as accused-appellant Casey
is concerned is one of form and not of substance as it is not prejudicial to
his rights.

In the morning of March 31, 1968, from the evidence on

the record, the two (2) accused, Joseph Casey and
Ricardo Felix, had rendezvous in Cubao, Quezon City,
and planned to kill the victim, Alfredo Valdez. (Evident
premeditation and conspiracy) There was superior
strength that was used because the victim, Alfredo Valdez,
was alone, being pursued by the two accused, who were
both armed. The two accused did not waste time in
planning the killing of the victim on March 31, 1968. They
clung to their determination of killing the victim. From 9:00
o'clock in the morning, they had the firm conviction and
strong determination of killing the victim up to the time of
the execution of their evil motive. (People vs. Caushi, G.
R. No. L16495) 14

The test as to whether a defendant is prejudiced by the amendment of an

information has been said to be 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. 12 A look into Our
jurisprudence on the matter shows that an amendment to an information
introduced after the accused has pleaded not guilty thereto, which does
not change the nature of the crime alleged therein, does not expose the
accused to a charge which could call for a higher penalty, 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 not prejudicial to the accused and, therefore,
not prohibited by Section 13, Rule 110 of the Revised Rules of Court. 13

Indeed, accused-appellant Joseph Casey gave an extrajudicial sworn

statement that he met accused-appellant Ricardo Felix and another person
named Rudy in Cubao, Quezon City on that fateful day. However, there is
no showing that this meeting was purposely arranged to plan the killing of
the victim. In fact, the following questions and answers in the said sworn
statement show that there was no preconceived design to kill the victim:

We, however, find the second assignment of error of accused- appellants

meritorious. The lower court erred in its findings and conclusions, herein
quoted below, that the aggravating circumstances of evident premeditation
and abuse of superior strength attended the commission of the crime:

7. T Sino ang sinasabi mong binaril at

sinaksak mo?
S Hindi ko po kilala dahil noon ko po
lamang nakita ang nasabing tao.
8. T Maari mo bang isalaysay ang
buong pangyayari?
S Kami po ay nagkita nila Carding
Tuwad at isang nagngangalang Rody sa
Cubao, Quezon City, ng mga alas 9:00 ng

umaga, Marzo 31, 1968, at kami ay naginuman. Matapos kaming mag-inuman, ng

mga mag-aalas 3:00 ng hapon ng araw
ding iyon, nagyaya po si Carding doon sa
kanila sa Barrio Halo-Halo, San Juan,
Rizal, at sa paglalakad namin doon sa
daang Mahinhin, San Juan, Rizal, nakita
ni Carding ang isang lalaki, at ang ginawa
ay nilapitan niya. Ng makita ng lalaki si
Carding, tumakbo po, at ang ginawa ni
Carding ay kanyang hinabol. 15
The subsequent portions of the said sworn statement further militate
against the existence of evident premeditation. Thus, when accusedappellant Casey was asked why Ricardo Felix shot the victim, he
answered:"Noon pong nakasakay na kami sa jeep, tinanong ko siya kung
bakit nangyari ang away na yaon at ang sabi ni Carding ay. DATI KO
NANG NAKAENKWENTRO YAONG TAO" (Question No. 28). And when
asked why he stabbed the victim, he replied: Dahilan kasama ko po si
Carding kaya ko po nasaksak ang tao. Hindi ko kusang kagustuhan na
saksakin ang tao kung hindi dahil sa nakasama ko si Carding.
(Question No. 29)
There is evident premeditation when the killing had been carefully planned
by the offender or when he had previously prepared the means which he
had considered adequate to carry it out, when he had prepared
beforehand the means suitable for carrying it into execution, when he has
had sufficient time to consider and accept the final consequences, and
when there had been a concerted plan. 16 It has also been held that to
appreciate the circumstances of evident premeditation, it is necessary to
establish the following; (1) the time when the offender determined to
commit the crime; (2) the act manifestly indicating that the culprit has clung
to his determination; and (3) a sufficient lapse of time between the

determination and execution to snow him to reflect upon the

consequences of his act and to allow his conscience to overcome the
resolution of his will had he desired to hearken to its warning. 17
From the answers of accused-appellant Casey in said sworn statement, it
can be gleaned that the killing was not a preconceived plan. It was not
preceded by any reflection or deep thought. It was just a spontaneous
decision reached when the victim started to run away upon being
approached by accused-appellant Ricardo Felix. Evident premeditation
cannot, thus, be considered in this case. The Solicitor General himself
agrees with the defense that this circumstance has not been duly proved
(People's Brief, p. 8). Hence, the crime committed is simple homicide
(Article 249, Revised Penal Code).
There are indeed two accused-appellants in this case charged with the
murder of not one victim but superiority in number does not necessarily
mean superiority in strength. It is necessary to show that the aggressors
"cooperated in such a way as to secure advantage from their superiority in
strength." 18 In the case of U.S. vs.. Devela, et al., 19 there were two
accused who were armed with a bolo and a dagger. But the circumstance
of abuse of superiority was not taken into consideration because the mere
fact, according to this Court, of there being a superiority of number is not
sufficient to bring the case within this provision. There must be proof of the
relative physical strength of the aggressors and the assaulted party; 20 or
proof that the accused simultaneously assaulted the deceased. 21 As
likewise held in People vs. Trumata and Baligasa, 22 the mere fact that the
two accused may have inflicted fatal wounds on the deceased with their
respective bolos does not justify a finding that advantage was taken of
superior strength in the absence of proof showing that they cooperated in
such a way as to secure advantage from their superiority of strength.
Thus, in the face of the evidence on record showing that although the
victim was pursued by both of the accused-appellants 23 and that he was
unarmed 24 while the accused-appellants were both armed, one with a gun

and the other with a long pointed weapon, 25 since it is also duly proved
that it was only accused-appellant Casey who assaulted and inflicted stab
wounds on him as the other accused-appellant merely stood nearby toying
with his gun, abuse of superiority cannot be said to have attended the
commission of the crime.
The third essential issue to be resolved is whether or not there is
conspiracy between the two accused in the commission of the crime.
Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. 26 This
agreement need not be in writing or be expressly manifested. 27 It is
sufficient that there is a mutual implied understanding between the
malefactors as shown by their concerted action towards the fulfillment of
the same objective. In People v. Cadag, 28 it was held: "Conspiracy to exist
does not require an agreement for an appreciable period prior to the
occurrence; from the legal viewpoint, conspiracy exists if, at the time of the
commission of the offense, the accused had the same purpose and were
united in its execution." To the same effect is the ruling in other cases
decided by this Court. 29
Pursuant to this uniform and consistent jurisprudence on the existence of
conspiracy by the mere proof of community of design and purpose on the
part of the accused, We hold that conspiracy exists in this case, True
enough that there is no direct showing that the accused had conspired
together, but their acts and the attendant circumstances disclose that
common motive that would make accused Ricardo Felix as a co-principal
with the actual slayer, Joseph Casey. Without doubt, he performed overt
acts in furtherance of the conspiracy. In People vs. Peralta, 30 it was held
that such overt act may consist in actively participating in the actual
commission of the crime, in lending moral assistance to his coconspirators by being present at the scene of the crime, or in exerting
moral ascendancy over the rest of the conspirators as to move them to
executing the conspiracy. In the case at bar, Ricardo Felix's overt acts
consist in instigating the pursuit of the deceased, in firing a shot at him and

in giving Joseph Casey encouragement by his armed presence while the

latter inflicted the fatal wounds on the deceased.
From the extrajudicial confession of the accused-appellant Joseph Casey,
it can also be inferred that Ricardo Felix was the moving factor of the evil
act perpetrated by the former against the victim. While it was Joseph
Casey who inflicted the mortal wounds that caused the death of the victim,
he did so out of his perverted sense of friendship or companionship with
Ricardo Felix.
Hence, it would be incongruous to acquit Ricardo Felix and put all the
blame of the killing on Joseph Casey when it was the latter who merely
joined the former in his criminal resolution. The fact that he did nothing but
toyed with his gun when Joseph Casey successively stabbed the victim
means that he concurred with the wife of Casey to do away with the victim.
For this reason, he should also be held accountable, notwithstanding the
fact that his shot did not hit the victim and that the cause of death of the
victim is the stab wounds inflicted by Casey. In People vs. Peralta, 31 it was
held that the moment it is established that the malefactors conspired and
confederated in the commission of the felony proved, collective liability of
the accused conspirators attaches by reason of the conspiracy, and the
court shall not speculate nor even investigate as to the actual degree of
participation of each of the perpetrators present at the scene of the crime.
The above discussion also disposes of the fourth assignment of error of
accused-appellants. So We proceed with the fifth assignment of error.
We find that the respondent court correctly disregarded Joseph Casey's
claim of self-defense. Besides being unworthy of credence, said claim is
uncorroborated and contrary to the testimony of the eyewitness, Mercedes
Palomo.
The fact that the victim sustained four stab wounds while the accused
complained merely of abrasions on his back indicates the falsity of the

claim. The accused failed to present a medical certificate for the bruises he
allegedly sustained. He likewise failed to present anybody to attest to the
truth of his allegations. There is no clear and convincing evidence that the
elements of self-defense are present. On the other hand, the prosecution
had not only one but several eyewitnesses to the crime as shown by the
different affidavits attached to the records of the case. Although only one of
the eyewitnesses was presented in court, her lone testimony on what
actually transpired, negating the claim of self-defense, is more credible
than the version of Joseph Casey. Evidence, to be believed, must not only
proceed from the mouth of a credible witness, but it must be credible in
itself. Human perception can be warped by the impact the events and
testimony colored by the unconscious workings of the mind. No better test
has yet been found to measure the value of a witness' testimony than its
conformity to the knowledge and common experience of mankind. 32
We likewise find that respondent court correctly denied the defense of alibi
of Ricardo Felix. Alibi, in order to be given full faith and credit must be
clearly established and must not leave any room for doubt as to its
plausibility and verity. 33 In the case at bar, said accused-appellant failed to
show clearly and convincingly that he was at some other place about the
time of the alleged crime. He merely said that he was at home and that he
went to Manila. 34 As pointed out by the Solicitor General, he did not even
specify the exact place at Manila where he had gone and the purpose for
going there. Then, while said defense was corroborated by Joseph Casey,
the latter's testimony lacks that character of trustworthiness since it is very
apparent that he was merely attempting to assume full and exclusive
responsibility for the crime. Finally, said defense is unavailing when there
is positive Identification. Prosecution witness, Mercedes Palomo, gave
distinct attributes of Ricardo Felix in her sworn statement that leave no iota
of doubt that he was one of the perpetrators of the crime.
WHEREFORE, the judgment of the trial court under automatic review is
MODIFIED in that the accused-appellants Joseph Casey and Ricardo Felix
are found guilty beyond reasonable doubt of the crime of homicide without

any attending circumstances and should be sentenced to reclusion

temporal in its medium period. But applying the Indeterminate Sentence
Law, each of the accused is sentenced to an indeterminate penalty of ten
(10) years ofprision mayor, as minimum, to seventeen (17) years and four
(4) months of reclusion temporal, as maximum. The accused are likewise
sentenced to indemnify the heirs of the deceased Alfredo Valdez in the
amount of TWELVE THOUSAND PESOS (P12,000.00) jointly and
severally, and to pay the costs.
SO ORDERED.
Barredo, Concepcion, Jr., Fernandez, Abad Santos, De Castro and
Melencio-Herrera, JJ., concur.
ANTONIO L. TAN, JR., Petitioner, v. YOSHITSUGU MATSUURA and
CAROLINA T ANJUTCO,Respondents.
G.R. No. 195816
ANTONIO L. TAN, JR., Petitioner, v. JULIE O. CUA, Respondent.
DECISION
REYES, J.:
Before the Court are two consolidated Petitions for Review on Certiorari filed
by petitioner Antonio L. Tan, Jr. (Tan) and docketed as:
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(1) G.R. No. 179003 which assails the Court of Appeals (CA) Decision 1 dated
February 6, 2007 and Resolution2 dated July 24, 2007 in CA-G.R. SP No.
89346, entitled Yoshitsugu Matsuura & Carolina Tanjutco v. Hon. Raul
Gonzales, in his capacity as Acting Secretary of the Department of Justice
and Antonio L. Tan, Jr.; and

(2) G.R. No. 195816 which assails the CAs Decision3 dated August 17, 2010
and Resolution4 dated February 23, 2011 in CA-G.R. SP No. 95263, entitled
Julie O. Cua v. Antonio L. Tan, Jr., Hon. Raul M. Gonzales, in his capacity as
Secretary of the Department of Justice and Hon. Ernesto L. Pineda, in his
capacity as Undersecretary of the Department of Justice.
The Factual Antecedents
On March 31, 1998, Tan filed with the Office of the City Prosecutor (OCP) of
Makati City a Complaint-Affidavit5 charging the respondents Yoshitsugu
Matsuura (Matsuura), Atty. Carolina Tanjutco (Tanjutco) and Atty. Julie Cua
(Cua) of the crime of falsification under the Revised Penal Code (RPC),
allegedly committed as follows:
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2. On or about the period from 21 December 1996 to 09 January 1997, Mr.

YOSHITSUGU MATSUURA, Ms. HIROKO MATSUURA and Mr. RUBEN JACINTO
have had stolen companys properties and my personal belongings which
were kept "under lock and key". Among those stolen was my pre-signed
DEED OF TRUST, whose date and number of shares, and the item witness
were all in BLANK. As a result, Criminal Case No. 98-040 for Qualified Theft
was filed against Mr. & Ms. Matsuura and Mr. Jacinto, and now pending
before the Regional Trial Court (of Makati City) Branch 132;
3. In the said "blank" Deed of Trust, the entries as to the number of shares
and the date of the instrument were then inserted, that is, 28,500 as shares
and 20th day of January, and the signatures of Hiroko Matsuura and Lani C.
Camba appeared in the item WITNESS, all without my participation
whatsoever, or without my consent and authority. A copy of the "filled in"
Deed of Trust is attached as Annex "A" and made part hereof;
4. Sometime on 19 June 1997, the said Deed of Trust, was made to be
notarized by JULIE O. CUA, a Notary Public for and in the City of Makati, and
entered in her Notarial Register as Doc[.] No. 2; Page No. 1; Book No. 1 and
Series of 1997, WHEN IN TRUTH AND IN FACT I HAVE NEVER APPEARED,
SIGNED OR TOOK [sic] MY OATH BEFORE THE SAID NOTARY PUBLIC AND
ON THE SAID DATE OF NOTARIZATION because the document (Deed of
Trust) was stolen as earlier stated, and the relation between us (Mr. and Ms.

Matsuura, or Mr. Jacinto, and the undersigned) had become hostile and
irreconcilable. A copy of the notarized Deed of Trust is attached as Annex "B"
and made part hereof.
5. Both documents (Annexes "A" and "B") were/are in the possessions of Mr.
Matsuura and/or his lawyer, CAROLINA TANJUTCO, who used these false
documents in the cases involving us;
6. Without prejudice to the filing of other charges in the proper venues, I am
executing this affidavit for the purpose of charging Mr. YOSHITSUGU
MATSUURA and ATTY. CAROLINA TANJUTCO for violation of Art. 172 (2) in
relation to Art. 171 (6) of the Revised Penal Code with regard to Annex "A",
and likewise charging MR. YOSHITSUGU MATSUURA and ATTYS. CAROLINA
TANJUTCO and JULIE O. CUA for violation of Art. 172 (1) in relation to Art.
171 (2) of the Revised Penal Code, when through their concerted actions
they FALSELY made it appeared [sic] that the undersigned had participated
in notarization of the Deed of Trust (Annex "B") on 19 June 1997, and in
both instances causing prejudice and damages to the undersigned. 6
?r?l1

???r?bl? ??r??l l?? l?br?r

The respondents filed their respective counter-affidavits.

Matsuura vehemently denied Tans charges. He countered that the filing of
the complaint was merely a scheme resorted to by Tan following their
dispute in TF Ventures, Inc., and after he had obtained a favorable resolution
in a complaint for estafa against Tan. Matsuura further explained that the
transfer of the shareholdings covered by the subject Deed of Trust 7 was a
result of Tans offer to compromise the intra-corporate dispute. He insisted
that it was Tan who caused the notarization of the deed, as this was a
condition for Matsuuras acceptance of the compromise.8
?r?l1

For her defense, Tanjutco argued that Tans admission of having pre-signed
the subject deed only proved that he had willingly assigned his shares in TF
Ventures, Inc. to Matsuura. She also argued that Tan failed to present any
proof of her participation in the deeds falsification, and explained that she
had not yet known Matsuura at the time of the supposed notarization. 9
?r?l1

For her part, Cua narrated that on June 19, 1997, a group that included a
person who represented himself as Antonio Tan, Jr. approached her law
office for the notarization of the subject deed. Tan presented his community
tax certificate (CTC) as indicated in the subject deed of trust, then was
sworn in by Cua as a notary public. Cua claimed to have conducted her duty
in utmost good faith, with duplicate copies of the notarized deed reported to
the Clerk of Court of Makati City. She denied having any business or interest
whatsoever with the law offices of Tanjutco.10
?r?l1

Undaunted, Tan filed a motion for reconsideration, which was granted by

then Acting Secretary of Justice Ma. Merceditas N. Gutierrez in a
Resolution16 dated July 1, 2004. In finding probable cause to indict the
respondents for the crime of falsification, the DOJ noted that a copy of the
deed of trust attached by Matsuura and Tanjutco to Matsuuras Answer dated
October 30, 1997 in an intra-corporate dispute before the SEC was not yet
notarized. Furthermore, the print and font of the deeds entries on its
covered shares and date remarkably differed from the other portions of the
document. The Secretary then held:
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The Ruling of the City Prosecutor

On July 13, 1998, the OCP issued a Resolution11 dismissing for lack of
probable cause the complaint against Matsuura and Tanjutco. It considered
the fact that Tan had voluntarily signed the subject deed, and further noted
that "whether or not the same document is notarized, the deed has the
effect of a binding contract between the parties. The element of damage has
not been sufficiently shown."12

It would appear that the subject deed of trust was indeed never notarized. If
the said document was purportedly notarized on June 19, 1997, the same
notarized copy should have been presented by respondent Matsuura. After
all, his Answer filed before the SEC was made with the assistance of
respondent Atty. Tanjutco. There being none, it may be concluded that the
notarization of the subject deed of trust was indeed made under doubtful
circumstances.17

The complaint against Cua was also dismissed. For the OCP, Tan failed to
overturn the presumption of regularity attached to the notary publics
performance of her official duty. Any irregularity attending the execution of
the deed of trust required more than mere denial from Tan. 13

The Secretary also held that Cua should have been alerted by the variance in
the deeds print styles, and the fact that the document was presented for
notarization almost five months from the date of its purported execution.
The dispositive portion of the Secretarys resolution then reads:

Tans motion for reconsideration was denied, prompting him to file a petition
for review14 with the Department of Justice (DOJ).

WHEREFORE, the motion for reconsideration is hereby GRANTED. Resolution

No. 189 (Series of 2003) is hereby SET ASIDE. The City Prosecutor of Makati
City is directed to file an information against respondents Yoshitsugu
Matsuura and Atty. Carolina Tanjutco for violation of Art. 172 (2) in relation
to Art. 171 (6), RPC; and another information for violation of Art. 171 (2),
RPC against respondents Yoshitsugu Matsuura, Atty. Carolina Tanjutco and
Atty. Julie Cua.

?r?l1

?r?l1

The Ruling of the Secretary of Justice

On April 4, 2003, then Secretary of Justice Simeon A. Datumanong issued a
resolution15 denying the petition. He ruled that no evidence was presented to
show that the date, the number of shares and the witnesses signatures
appearing on the subject deed were merely inserted therein by the
respondents. Tans bare averments were insufficient to show the actual
participation of the respondents in the alleged falsification.

?r?l1

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SO ORDERED.18

?r?l1

The respondents moved for reconsideration. On April 4, 2005, then DOJ

Undersecretary Ernesto L. Pineda, signing on behalf of the Secretary of
Justice, issued a resolution19 affirming the presence of probable cause
against Matsuura and Tanjutco, but ordering the exclusion of Cua from the

filing of information. He ruled that Cua had exercised due diligence as a

notary public by requiring from the person who appeared before her a proof
of his identification. The resolutions decretal portion provides:

The CA granted both petitions questioning the Secretary of Justices

resolutions.

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Premises considered, the Resolution dated July 1, 2004 is hereby MODIFIED

accordingly. The City Prosecutor of Makati City is directed to move for the
exclusion of respondent Julie Cua from the information for violation of Art.
171 (2), Revised Penal Code, if any has been filed, and to report the action
taken within ten (10) days from receipt hereof. The motion for
reconsideration filed by respondents Yoshitsugu Matsuura and Atty. Carolina
Tanjutco is hereby DENIED.
SO ORDERED.20

?r?l1

At this point, Matsuura and Tanjutco filed with the CA the petition for
certiorari docketed as CA-G.R. SP No. 89346. The DOJs review of its
resolution on Cuas case continued with Tans filing of a motion for partial
reconsideration. Finding merit in the motion, the DOJ again reversed itself
and issued on December 12, 2005 a Resolution21 with dispositive portion that
reads:
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WHEREFORE, in view of the foregoing, the motion for partial reconsideration

is GRANTED and resolution dated April 4, 2005 is SET ASIDE. The City
Prosecutor of Makati City is hereby directed to include Atty. Julie O. Cua in
the information for violation of Article 171 (2) of the Revised Penal Code filed
against respondents Yoshitsugu Matsuura and Atty. Carolina Tanjutco and
report to this Office the action taken within ten (10) days from receipt
hereof.
SO ORDERED.22

In CA-G.R. SP No. 89346, the CA held that given the elements of the crime,
the actual participation of respondents Matsuura and Tanjutco was not
sufficiently alleged, and the element of damage was not sufficiently shown.
The dispositive portion of its Decision23 dated February 6, 2007 reads:
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WHEREFORE, in view of the foregoing, the petition is GRANTED. The

Resolution of the DOJ dated April 4, 2005 and July 1, 2004 are SET ASIDE.
The Resolution of the City Prosecutor, Makati City dated July 13, 1998 in I.S.
No. 98-C-15857-58 affirmed by the DOJ through Secretary Datumanong on
April 4, 2003 STANDS.
SO ORDERED.24

?r?l1

Tans motion for reconsideration was denied.

In CA-G.R. SP No. 95263, the CA held that Tan also failed to discharge the
burden of proving probable cause against Cua. For the appellate court, there
was nothing on record that was sufficient to overcome the presumption of
regularity ascribed to both the subject deed as a public document and to
Cuas discharge of her official functions as a notary public. The dispositive
portion of its Decision25dated August 17, 2010 reads:
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WHEREFORE, the instant Petition is GRANTED. The assailed Resolutions of

the Secretary of Justice dated 12 December 2005 and 8 May 2006 are
REVERSED and SET ASIDE. The Resolution of the Secretary of Justice dated
4 April 2003 affirming the findings of the City Prosecutor is hereby UPHELD.

?r?l1

Cuas motion for reconsideration was denied, prompting her to file with the
CA the petition for certiorari docketed as CA-G.R. SP No. 95263.
The Ruling of the CA

SO ORDERED.26

?r?l1

Tans motion for reconsideration was denied in a Resolution27 dated February

23, 2011.
The Present Petitions

Unsatisfied, Tan separately filed with this Court two petitions for review. G.R.
No. 179003 assails the CAs disposition of Matsuura and Tanjutcos petition,
while G.R. No. 195816 assails the CAs decision in the petition filed by Cua.
From these petitions are two main issues for this Courts resolution:
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(a) whether or not the CA erred in taking cognizance of the two petitions
filed before it, assuming the role of a reviewing authority of the Secretary of
Justice; and
(b) whether or not the CA erred in upholding the finding of the OCP that
there exists no probable cause to indict Matsuura, Tanjutco and Cua for the
crime of falsification.
This Courts Ruling
We emphasize that on February 13, 2012, this Court had already issued in
G.R. No. 195816 a resolution28 denying the petition, on the following
bases:
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Considering the allegations, issues and arguments adduced in the petition

for review on certiorari assailing the Decision dated 17 August 2010 and
Resolution dated 23 February 2011 of the Court of Appeals, Manila, in CAG.R. SP No. 95263, the Court resolves to DENY the petition for raising
substantially factual issues and for failure to sufficiently show any reversible
error in the assailed judgment to warrant the exercise of this Courts
discretionary appellate jurisdiction.29
?r?l1

(Underscoring supplied, emphasis in the original)

Thus, the only pending incident in G.R. No. 195816 is Tans motion for
reconsideration of the Courts denial of his petition. In his motion, Tan
reiterates the arguments he presented in the petition, yet argues for the first
time that the CA erred in granting Cuas motion for an additional period of
thirty (30) days within which to file her petition in CA-G.R. SP No. 95263.
This allegedly violated the provisions of A.M. 00-2-03-SC that amended
Section 4, Rule 6530 of the Rules of Court.

Tan also moved to consolidate G.R. No. 1958156 with G.R. No. 179003,
which motion was allowed by the Court.
Before ruling on the main issues, we address Tans argument that the CA
erred in granting Cuas motion for extension of time to file her petition in CAG.R. SP No. 95263.
In Vallejo v. Court of Appeals,31 we emphasized that the Court has allowed
some meritorious cases to proceed despite inherent procedural defects and
lapses. This is in keeping with the principle that rules of procedure are mere
tools designed to facilitate the attainment of justice and that the strict and
rigid application of rules which would result in technicalities that tend to
frustrate rather than promote substantial justice must always be avoided. It
is a far better and more prudent cause of action for the court to excuse a
technical lapse and afford the parties a review of the case to attain the ends
of justice, rather than dispose of the case on technicality and cause grave
injustice to the parties.32Thus, we allowed the petition in Vallejo to proceed
even if it was filed almost four (4) months beyond the prescribed
reglementary period under the rules.
Pursuant to the foregoing doctrine, in the interest of substantial justice, and
given the merit that was ascribed by the CA to Cuas petition, we sustain the
appellate courts ruling on Cuas motion for extension of time to file her
petition for certiorari.
Courts possess the power to review findings of prosecutors in preliminary
investigations.
On the first main issue, the petitioner contends that the CA should not have
taken cognizance of the petitions for certiorari filed before it because
criminal proceedings shall not be restrained once probable cause has been
determined and the corresponding information has been filed in courts.
Citing jurisprudence, Tan argues that the institution of a criminal action in
court depends upon the sound discretion of the prosecutor.

The Court remains mindful of the established principle that the

determination of probable cause is essentially an executive function that is
lodged with the public prosecutor and the Secretary of Justice. However,
equally settled is the rule that courts retain the power to review findings of
prosecutors in preliminary investigations, although in a mere few exceptional
cases showing grave abuse of discretion.

clear issue on the Secretary of Justices appreciation of facts, which

commanded a review by the court to determine if grave abuse of discretion
attended the discharge of his functions.

Judicial power under Section 1, Article VIII of the 1987 Constitution covers
the courts power to determine whether there has been grave abuse of
discretion amounting to lack or excess of jurisdiction committed by any
branch or instrumentality of the government in the discharge of its
functions. Although policy considerations call for the widest latitude of
deference to the prosecutors findings, courts should not shirk from
exercising their power, when the circumstances warrant, to determine
whether the prosecutors findings are supported by the facts or by the law. In
so doing, courts do not act as prosecutors but as organs of the judiciary that
are exercising their mandate under the Constitution, relevant statutes, and
remedial rules to settle cases and controversies. Indeed, the exercise of the
courts review power ensures that, on the one hand, probable criminals are
prosecuted and, on the other hand, the innocent are spared from baseless
prosecution.33

The Court agrees with the CA that the Secretary of Justice committed grave
abuse of discretion when the latter ruled in favor of Tan, in his complaint
against the respondents. Again, while the courts generally accord respect
upon the prosecutors or the DOJs discretion in the determination of probable
cause in preliminary investigations, the courts may, as an exception, set
aside the prosecutors or DOJs conclusions to prevent the misuse of the
strong arm of the law or to protect the orderly administration of justice. 36

?r?l1

We then ruled in Tan v. Ballena34 that while the findings of prosecutors are
reviewable by the DOJ, this does not preclude courts from intervening and
exercising our own powers of review with respect to the DOJs findings. In
the exceptional case in which grave abuse of discretion is committed, as
when a clear sufficiency or insufficiency of evidence to support a finding of
probable cause is ignored, the CA may take cognizance of the case via a
petition under Rule 65 of the Rules of Court.35
?r?l1

Based on the grounds raised by the respondents in their petitions with the
CA, the appellate courts exercise of its power to review was also the proper
and most prudent course to take after the Secretary had successively issued
several resolutions with varying findings of fact and conclusions of law on
the existence of probable cause, even contrary to the own findings of the
OCP that conducted the preliminary investigation. Although by itself, such
circumstance was not indicative of grave abuse of discretion, there was a

There is no probable cause for falsification against Matsuura, Tanjutco and

Cua.

?r?l1

We emphasize the nature, purpose and amount of evidence that is required

to support a finding of probable cause in preliminary investigations. Probable
cause, for purposes of filing a criminal information, has been defined as such
facts as are sufficient to engender a well-founded belief that a crime has
been committed and that the accused is probably guilty thereof. It is the
existence of such facts and circumstances as would excite the belief in a
reasonable mind, acting on the facts within the knowledge of the prosecutor,
that the person charged was guilty of the crime for which he is to be
prosecuted. 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.37
?r?l1

While probable cause should be determined in a summary manner, there is a

need to examine the evidence with care to prevent material damage to a
potential accuseds constitutional right to liberty and the guarantees of
freedom and fair play, and to protect the State from the burden of
unnecessary expenses in prosecuting alleged offenses and holding trials
arising from false, fraudulent or groundless charges.38
?r?l1

G.R. No. 179003

The Court affirms the CAs finding of grave abuse of discretion on the part of
the Secretary of Justice in reversing the rulings of the OCP that favored
Matsuura and Tanjutco.

(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.

In the Resolutions dated July 1, 2004 and April 4, 2005, the Secretary of
Justice directed the filing in court of two informations against Matsuura and
Tanjutco: one information for the crime of falsification under Article 172 (2),
in relation to Article 171 (6) of the RPC, and another information for a
violation of Article 171 (2) of the RPC. These penal provisions read:

xxx

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Art. 171. Falsification by public officer, employee or notary or ecclesiastic

minister. The penalty of prision mayor and a fine not to exceed 5,000 pesos
shall be imposed upon any public officer, employee, or notary who, taking
advantage of his official position, shall falsify a document by committing any
of the following acts:

In the first information, the charge was under Article 172 (2), in relation to
Article 171 (6), for the alleged insertions in the deed of trust on its number
of covered shares, its date and the witnesses to the instruments execution.
In Garcia v. Court of Appeals,39 we identified the elements of falsification
under Article 171 (6) of the RPC, to wit:
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(1) that there be an alteration (change) or intercalation (insertion) on a

document;

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xxx
(2) Causing it to appear that persons have participated in any act or
proceeding when they did not in fact so participate.

(2) that it was made on a genuine document;

(3) that the alteration or intercalation has changed the meaning of the
document; and
(4) that the changes made the document speak something false. 40

?r?l1

xxx
(6) Making any alteration or intercalation in a genuine document which
changes its meaning.

???r?bl? ??r??l l?? l?br?r

When these are committed by a private individual on a private document,

the violation would fall under paragraph 2, Article 172 of the same code, but
there must be, in addition to the aforesaid elements, independent evidence
of damage or intention to cause the same to a third person. 41
?r?l1

xxx
Art. 172. Falsification by private individuals 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:

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xxx

Logically, affidavits and evidence presented during a preliminary

investigation must at least show these elements of the crime and the
particular participation of each of the respondents in its commission.
Otherwise, there would be no basis for a well-founded belief that a crime has
been committed, and that the persons being charged are probably guilty
thereof. Probable cause can only find support in facts and circumstances that
would lead a reasonable mind to believe that the person being charged
warrants a prosecution. Upon the Courts review, we affirm the ruling that

Tan had failed to adequately show during the preliminary investigation all
the aforementioned elements of the offense.
Petitioner Tan was not able to establish when and how the alleged
unauthorized insertions in the subject document were effected, and that
Matsuura and Tanjutco should be held liable therefor. To warrant an
indictment for falsification, it is necessary to show during the preliminary
investigation that the persons to be charged are responsible for the acts that
define the crime. Contrary to this, however, there were no sufficient
allegations and evidence presented on the specific acts attributed to
Matsuura and Tanjutco that would show their respective actual participation
in the alleged alteration or intercalation. Tans broad statement that the deed
was falsified after it was stolen by Matsuura merits no consideration in
finding probable cause, especially after the following findings of the OCP in
his Resolution dated July 13, 1998:
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Any alleged irregularity attending the execution of such a voluntary Deed

requires more than mere denial. Criminal Case [No. 98-040 (I.S. No. 9720720) concerning Qualified Theft of Condominium Certificate of Title, presigned checks and other personal belongings of complainant herein
petitioner, has already been recommended for dismissal by the Department
of Justice on May 25, 1998, directing the withdrawal of the information in
the aforesaid Criminal Case No. 98-040. In said recommendation, the
principal subject matter is the alleged loss of condominium titles, and it
appears that after the implementation of the search warrant, only titles and
the pre-signed checks were not recovered. There is no mention of a missing
Deed of Trust as claimed by complainant.42
?r?l1

Tan also sought to support his falsification charge by the alleged

intercalations on the covered number of shares and date of the deed, asking
the OCP and Secretary of Justice to take notice that the print, font style and
size of these entries differed from the other portions of the document.
However, it is not unusual, as it is as a common practice, for parties to
prepare and print instruments or contractual agreements with specific details
that are yet to be filled up upon the deeds execution. We are bound to
believe that such was the situation in Tans case, i.e., the document had
blanks when printed but was already complete in details at the time Tan

signed it to give effect thereto, especially with the legal presumption that a
person takes ordinary care of his concerns. Otherwise, Tan would not have
voluntarily affixed his signature in the subject deed. In Allied Banking
Corporation v. Court of Appeals,43 we ruled:
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Under Section 3 (d), Rule 131 of the Rules of Court, it is presumed that a
person takes ordinary care of his concerns. Hence, the natural presumption
is that one does not sign a document without first informing himself of its
contents and consequences. Said presumption acquires greater force in the
case at bar where not only one document but several documents were
executed at different times and at different places by the herein respondent
guarantors and sureties.44 (Citation omitted and emphasis supplied)
While the presumption can be disputed by sufficient evidence, Tan failed in
this respect. We even find no merit in his claim that the incomplete
document was merely intended to convince Japanese friends of Matsuura to
extend credit to TF Ventures, Inc., as he failed to establish any connection
between the deed of trust and the credit sought.
It is then the Courts view that the petitioner had voluntarily executed the
subject Deed of Trust, with the intention of giving effect thereto. Even
granting that there were insertions in the deed after it was signed by the
petitioner, no sufficient allegation indicates that the alleged insertions had
changed the meaning of the document, or that their details differed from
those intended by the petitioner at the time that he signed it. The petitioners
bare allegation that "the change was without his consent and
authority"45 does not equate with the necessary allegation that the insertions
were false or had changed the intended meaning of the document. Again, a
violation of Article 172 (2), in relation to Article 171 (6), of the RPC requires,
as one of its elements, that "the alteration or intercalation has changed the
meaning of the document.46
?r?l1

Neither was there sufficient evidence to support the element of damage that
was purportedly suffered by Tan by reason of the alleged falsification. As
correctly observed by the OCP:
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By his voluntary act of signing the Deed of Trust in favor of Matsuura, it can
be safely inferred that the document speaks for itself. Whether or not the
same document is notarized, the Deed has the effect of a binding contract
between the parties. The element of damage has not been sufficiently
shown.47

appear that Tan participated in an act or proceeding when as he claimed, he

did not in fact so participate. The elements of this crime are as follows:
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(1) that the offender is a public officer, employee or notary public;

?r?l1

The Court emphasizes that the element of damage is crucial in the charge
because the Secretary of Justice directed the filing of the first information for
an alleged falsification of a private document.

(2) that he takes advantage of his official position;

(3) that he falsifies a document by causing it to appear that a person or
persons have participated in any act or proceeding when they did not in fact
so participate.50
?r?l1

From the foregoing, it is clear that the Secretary of Justices finding of

probable cause against Matsuura and Tanjutco was based solely on surmises
and conjectures, wholly unsupported by legal and factual bases. The CA then
correctly nullified, on the ground of grave abuse of discretion, the resolutions
that were assailed before it. There is grave abuse of discretion when the
respondent acts in a capricious, whimsical, arbitrary or despotic manner in
the exercise of his judgment, as when the assailed order is bereft of any
factual and legal justification.48
?r?l1

True, a finding of probable cause need not be based on clear and convincing
evidence, or on evidence beyond reasonable doubt. It does not require that
the evidence would justify conviction. Nonetheless, although the
determination of probable cause requires less than evidence which would
justify conviction, it should at least be more than mere suspicion. And while
probable cause should be determined in a summary manner, there is a need
to examine the evidence with care to prevent material damage to a potential
accuseds constitutional right to liberty and the guarantees of freedom and
fair play, and to protect the State from the burden of unnecessary expenses
in prosecuting alleged offenses and holding trials arising from false,
fraudulent or groundless charges. It is, therefore, imperative for the
prosecutor to relieve the accused from the pain and inconvenience of going
through a trial once it is ascertained that no probable cause exists to form a
sufficient belief as to the guilt of the accused.49
?r?l1

The Secretary of Justices directive upon the prosecutor to file the second
information against Matsuura and Tanjutco also lacked basis. It was
premised on an alleged violation of Article 171(2) of the RPC, by making it

???r?bl? ??r??l l?? l?br?r

Since Matsuura and Tanjutco are both private individuals, they can be
indicted for the offense only if it is shown that they conspired with Cua, as a
notary public, in the commission thereof.
Contrary to this requirement, however, the Secretary of Justice ordered in its
Resolution dated April 4, 2005 the filing of the second information against
Matsuura and Tanjutco, notwithstanding the order in the same resolution to
exclude Cua in the case. Such ruling evidently amounts to a grave abuse of
discretion because as correctly held by the CA:
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Article 171, RPC refers to falsification committed by a public officer,

employee, notary or ecclesiastical minister who, taking advantage of his
official position, shall falsify a document, in this case, by causing it to appear
that persons have participated in any act or proceeding when they did not in
fact so participate. Herein petitioners herein respondents Matsuura and
Tanjutco, not being included in said enumeration cannot, on their own, be
held liable for aforesaid violation. They can be held liable therefor only in
conspiracy with one who is a public officer, employee, notary or ecclesiastical
minister who, taking advantage of his official position, falsified a document.
On account of the exclusion of Atty. Julie Cua from said charge, herein
petitioners cannot be held liable for the charge. It is settled that there is
grave abuse of discretion when an act is done contrary to the Constitution,
the law or jurisprudence, or when executed whimsically, capriciously or
arbitrarily out of malice, ill will or personal bias. x x x.51 (Emphasis ours)

The subsequent resolution of the Secretary of Justice to include Cua in the

information, following a separate motion for reconsideration by Tan and, we
emphasize, only after CA-G.R. SP No. 89346 had already been filed, was
inconsequential to the grave abuse of discretion already committed by the
Secretary of Justice in its final disposition of the case against Matsuura and
Tanjutco. The CA was tasked in CA-G.R. SP No. 89346 to determine the
issue of whether or not the Secretary of Justice had committed grave abuse
of discretion amounting to lack or excess of jurisdiction in issuing the
assailed resolutions, in light of the rulings, findings and the bases used by
the Secretary. In addition, even the CA later declared in CA-G.R. SP No.
96263 that the Secretary of Justices order to pursue the case against Cua
amounted to a grave abuse of discretion.
G.R. No. 195816
We now rule on the petitioners motion for reconsideration of the Courts
denial of the petition docketed as G.R. No. 195816. After review, the Court
affirms its earlier denial of the petition, given Tans failure to show any
reversible error committed by the CA. As correctly held by the appellate
court, no probable cause was established to support a falsification case
against Cua.
We are bound to adhere to the presumption of regularity in Cuas
performance of her official duty, and to the presumption of regularity that is
attached to the subject deed of trust as a public document. As held by the
OCP, even "[t]he records of the Notarial Division of the Clerk of Court,
Makati City faithfully reflects the duplicate copy of the subject Deed of Trust
made and entered on June 19, 1997 executed by Antonio L. Tan, Jr., as
certified by Atty. Corazon Cecilia Pineda."52 It needed more than a bare
denial from Tan to overthrow these presumptions. Adequate supporting
evidence should have been presented to support his assertions.
Tans denial that he personally appeared before Cua on June 19, 1997
deserved no weight in the determination of probable cause. He failed to
present any plausible explanation as to why it was impossible for him to be
at the notary publics office on said date. Neither did he deny that the CTC
indicated in the deeds jurat as evidence of identity actually belonged to him.

The mere circumstance that his relationship with Matsuura was already
strained at the time of the deeds notarization miserably failed to
substantiate the claim that he could not have appeared before Cua.
Matsuura had precisely explained that the transfer of the shares of stock was
part of an attempt to compromise a dispute that existed between them. In
addition, we have explained that the alleged theft of the document by
Matsuura was sufficiently rebutted during the preliminary investigation.
On the basis of the foregoing, the reasonable probability of the respondents
participation in the commission of the crime of falsification was not
sufficiently established during the preliminary investigation. Even the failure
of Matsuura and Tanjutco to attach a notarized copy of the deed to their
pleading filed with the SEC fails to support a finding of probable cause. On
the contrary, the circumstance that an unnotarized copy of the deed was
submitted to the SEC weakens the argument that the alleged falsification
and wrongful notarization was resorted to by the respondents to suit their
interests. It showed that the respondents believed in the value of
the deed to their case even if it was not notarized. We then affirm the CAs
ruling in CA-G.R. SP No. 96263 that the Secretary of Justice committed
grave abuse of discretion, by gross misapprehension of facts, when it
ordered the filing of the information against Cua. Although Tan assails the
CAs grant of the petition on such basis, jurisprudence provides that grave
abuse of discretion refers not merely to palpable errors of jurisdiction; or to
violations of the Constitution, the law and jurisprudence. It also refers to
cases in which, for various reasons, there has been a gross misapprehension
of facts.53
?r?l1

WHEREFORE, the Court rules as follows:

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(1) In G.R. No. 179003, the petition for review is DENIED. The Court of
Appeals' Decision dated February 6, 2007 and Resolution dated July 24,
2007 in CA-G.R. SP No. 89346 are AFFIRMED.
(2) In G.R. No. 195816, petitioner Tan's motion for reconsideration is
DENIED.
???r?bl? ??r??l l?? l?br?r

SO ORDERED.

G.R. No. 168617

On 23 March 2001, petitioner filed a counter-affidavit admitting that she

received and encashed the two checks issued in favor of respondent.
February 19, 2007

BERNADETTE L. ADASA, petitioner,

vs.
CECILLE S. ABALOS, Respondent.

In her Supplemental Affidavit filed on 29 March 2001, petitioner,

however, recanted and alleged instead that it was a certain Bebie
Correa who received the two checks which are the subject matter of
the complaints and encashed the same; and that said Bebie Correa left
the country after misappropriating the proceeds of the checks.

DECISION
CHICO-NAZARIO, J.:
This Petition for Review under Rule 45 of the Rules of Court, filed by
petitioner Bernadette L. Adasa, seeks to nullify and set aside the 21
July 2004 Decision1 and 10 June 2005 Resolution2 of the Court of
Appeals in CA-G.R. SP No. 76396 which nullified the Resolutions of
the Department of Justice (DOJ). The Resolutions of the DOJ reversed
and set aside the Resolution of the Office of the City Prosecutor of
Iligan City, which found on reinvestigation probable cause against
petitioner, and directed the Office of the City Prosecutor of Iligan City to
withdraw the information for Estafa against petitioner.

On 25 April 2001, a resolution was issued by the Office of the City

Prosecutor of Iligan City finding probable cause against petitioner and
ordering the filing of two separate Informations for Estafa Thru
Falsification of Commercial Document by a Private Individual, under
Article 315 in relation to Articles 171 and 172 of the Revised Penal
Code, as amended.
Consequently, two separate criminal cases were filed against petitioner
docketed as Criminal Cases No. 8781 and No. 8782, raffled to
Branches 4 and 5, Regional Trial Court of Iligan City, respectively.
This instant petition pertains only to Criminal Case No. 8782.

The instant case emanated from the two complaints-affidavits filed by

respondent Cecille S. Abalos on 18 January 2001 before the Office of
the City Prosecutor of Iligan City, against petitioner for Estafa.

On 8 June 2001, upon motion of the petitioner, the trial court in

Criminal Case No. 8782 issued an order directing the Office of the City
Prosecutor of Iligan City to conduct a reinvestigation.

Respondent alleged in the complaints-affidavits that petitioner, through

deceit, received and encashed two checks issued in the name of
respondent without respondents knowledge and consent and that
despite repeated demands by the latter, petitioner failed and refused to
pay the proceeds of the checks.

After conducting the reinvestigation, the Office of the City Prosecutor of

Iligan City issued a resolution dated 30 August 2001, affirming the
finding of probable cause against petitioner.
Meanwhile, during her arraignment on 1 October 2001 in Criminal
Case No. 8782, petitioner entered an unconditional plea of not guilty.3

Dissatisfied with the finding of the Office of the City Prosecutor of Iligan
City, petitioner filed a Petition for Review before the DOJ on 15
October 2001.
In a Resolution dated 11 July 2002, the DOJ reversed and set aside
the 30 August 2001 resolution of the Office of the City Prosecutor of
Iligan City and directed the said office to withdraw the Information for
Estafa against petitioner.
The said DOJ resolution prompted the Office of the City Prosecutor of
Iligan City to file a "Motion to Withdraw Information" on 25 July 2002.
On 26 July 2002, respondent filed a motion for reconsideration of said
resolution of the DOJ arguing that the DOJ should have dismissed
outright the petition for review since Section 7 of DOJ Circular No. 70
mandates that when an accused has already been arraigned and the
aggrieved party files a petition for review before the DOJ, the Secretary
of Justice cannot, and should not take cognizance of the petition, or
even give due course thereto, but instead deny it outright. Respondent
claimed Section 12 thereof mentions arraignment as one of the
grounds for the dismissal of the petition for review before the DOJ.
In a resolution dated 30 January 2003, the DOJ denied the Motion for
Reconsideration opining that under Section 12, in relation to Section 7,
of DOJ Circular No. 70, the Secretary of Justice is not precluded from
entertaining any appeal taken to him even where the accused has
already been arraigned in court. This is due to the permissive language
"may" utilized in Section 12 whereby the Secretary has the discretion
to entertain an appealed resolution notwithstanding the fact that the
accused has been arraigned.

Meanwhile, on 27 February 2003, the trial court issued an order

granting petitioners "Motion to Withdraw Information" and dismissing
Criminal Case No. 8782. No action was taken by respondent or any
party of the case from the said order of dismissal.
Aggrieved by the resolution of the DOJ, respondent filed a Petition for
Certiorari before the Court of Appeals. Respondent raised the following
issues before the appellate court:
1. Whether or not the Department of Justice gravely abused its
discretion in giving due course to petitioners petition for review
despite its having been filed after the latter had already been
arraigned;
2. Whether or not there is probable cause that the crime of
estafa has been committed and that petitioner is probably guilty
thereof;
3. Whether or not the petition before the Court of Appeals has
been rendered moot and academic by the order of the
Regional Trial Court dismissing Criminal Case No. 8782.
The Court of Appeals in a Decision dated 21 July 2004 granted
respondents petition and reversed the Resolutions of the DOJ dated
11 July 2002 and 30 January 2003.
In resolving the first issue, the Court of Appeals, relying heavily on
Section 7 of DOJ Circular No. 70 which states "[i]f an information has
been filed in court pursuant to the appealed resolution, the petition
shall not be given due course if the accused had already been
arraigned," ruled that since petitioner was arraigned before she filed
the petition for review with the DOJ, it was imperative for the DOJ to

dismiss such petition. It added that when petitioner pleaded to the

charge, she was deemed to have waived her right to reinvestigation
and right to question any irregularity that surrounds it.
Anent the second issue, the Court of Appeals declared that the
existence of probable cause or the lack of it, cannot be dealt with by it
since factual issues are not proper subjects of a Petition for Certiorari.
In disposing of the last issue, the Court of Appeals held that the order
of the trial court dismissing the subject criminal case pursuant to the
assailed resolutions of the DOJ did not render the petition moot and
academic. It said that since the trial courts order relied solely on the
resolutions of the DOJ, said order is void as it violated the rule which
enjoins the trial court to assess the evidence presented before it in a
motion to dismiss and not to rely solely on the prosecutors averment
that the Secretary of Justice had recommended the dismissal of the
case.
Dissatisfied by the Court of Appeals ruling, petitioner filed a Motion for
Reconsideration setting forth the following grounds:
1. that the over-all language of Sections 7 and 12 of
Department Circular No. 70 is permissive and directory such
that the Secretary of Justice may entertain an appeal despite
the fact that the accused had been arraigned;
2. that the contemporaneous construction by the Secretary of
Justice should be given great weight and respect;
3. that Section 7 of the Circular applies only to resolutions
rendered pursuant to a preliminary investigation, not on a
reinvestigation;

4. that the trial courts order of dismissal of the criminal case

has rendered the instant petition moot and academic;
5. that her arraignment was null and void it being conducted
despite her protestations; and
6. that despite her being arraigned, the supposed waiver of her
right to preliminary investigation has been nullified or recalled
by virtue of the trial courts order of reinvestigation. 4
The Court of Appeals stood firm by its decision. This time, however, it
tried to construe Section 7 side by side with Section 12 of DOJ Circular
No. 70 and attempted to reconcile these two provisions. According to
the appellate court, the phrase "shall not" in paragraph two, first
sentence of Section 7 of subject circular, to wit:
If an information has been filed in court pursuant to the appealed
resolution, the petition shall not be given due course if the accused had
already been arraigned. x x x. (Emphasis supplied.)
employed in the circular denotes a positive prohibition. Applying the
principle in statutory construction - that when a statute or provision
contains words of positive prohibition, such as "shall not," "cannot," or
"ought not" or which is couched in negative terms importing that the act
shall not be done otherwise than designated, that statute or provision is
mandatory, thus rendering the provision mandatory it opined that the
subject provision simply means that the Secretary of Justice has no
other course of action but to deny or dismiss a petition before him
when arraignment of an accused had already taken place prior to the
filing of the petition for review.

On the other hand, reading Section 12 of the same circular which

reads:
The Secretary may reverse, affirm or modify the appealed resolution.
He may, motu proprio or upon motion, dismiss the petition for review
on any of the following grounds:
xxxx
(e) That the accused had already been arraigned when the appeal was
taken; x x x.
the Court of Appeals opined that the permissive word "may" in Section
12 would seem to imply that the Secretary of Justice has discretion to
entertain an appeal notwithstanding the fact that the accused has been
arraigned. This provision should not be treated separately, but should
be read in relation to Section 7. The two provisions, taken together,
simply meant that when an accused was already arraigned when the
aggrieved party files a petition for review, the Secretary of Justice
cannot, and should not take cognizance of the petition, or even give
due course thereto, but instead dismiss or deny it outright. The
appellate court added that the word "may" in Section 12 should be read
as "shall" or "must" since such construction is absolutely necessary to
give effect to the apparent intention of the rule as gathered from the
context.
As to the contemporaneous construction of the Secretary of Justice,
the Court of Appeals stated that the same should not be given weight
since it was erroneous.
Anent petitioners argument that Section 7 of the questioned circular
applies only to original resolutions that brought about the filing of the

corresponding informations in court, but not to resolutions rendered

pursuant to a motion for reinvestigation, the appellate court simply
brushed aside such contention as having no basis in the circular
questioned.
It also rejected petitioners protestation that her arraignment was forced
upon her since she failed to present any evidence to substantiate the
same.
It is petitioners contention that despite her being arraigned, the
supposed waiver of her right to preliminary investigation has been
nullified by virtue of the trial courts order or reinvestigation. On this
score, the Court of Appeals rebuffed such argument stating that there
was no "supposed waiver of preliminary investigation" to speak of for
the reason that petitioner had actually undergone preliminary
investigation.
Petitioner remained unconvinced with the explanations of the Court of
Appeals.
Hence, the instant petition.
Again, petitioner contends that the DOJ can give due course to an
appeal or petition for review despite its having been filed after the
accused had already been arraigned. It asserts that the fact of
arraignment of an accused before the filing of an appeal or petition for
review before the DOJ "is not at all relevant" as the DOJ can still take
cognizance of the appeal or Petition for Review before it. In support of
this contention, petitioner set her sights on the ruling of this Court in
Crespo v. Mogul,5 to wit:

The rule therefore in this jurisdiction is that once a complaint or

information is filed in Court any disposition of the case as 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. (Emphasis supplied.)
To bolster her position, petitioner cites Roberts v. Court of
Appeals,6 which stated:
There is nothing in Crespo vs. Mogul which bars the DOJ from taking
cognizance of an appeal, by way of a petition for review, by an accused
in a criminal case from an unfavorable ruling of the investigating
prosecutor. It merely advised the DOJ to, "as far as practicable, refrain
from entertaining a petition for review or appeal from the action of the
fiscal, when the complaint or information has already been filed in
Court. x x x. (Emphasis supplied.)
Petitioner likewise invokes Marcelo v. Court of Appeals7 where this
Court declared:
Nothing in the said ruling forecloses the power or authority of the
Secretary of Justice to review resolutions of his subordinates in
criminal cases. The Secretary of Justice is only enjoined to refrain as

far as practicable from entertaining a petition for review or appeal from

the action of the prosecutor once a complaint or information is filed in
court. In any case, the grant of a motion to dismiss, which the
prosecution may file after the Secretary of Justice reverses an
appealed resolution, is subject to the discretion of the court.
The Court is unconvinced.
A cursory reading of Crespo v. Mogul reveals that the ruling therein
does not concern the issue of an appeal or petition for review before
the DOJ after arraignment. Verily, the pronouncement therein has to do
with the filing of a motion to dismiss and the courts discretion to deny
or grant the same. As correctly pointed out by respondent, the
emphasized portion in the Crespo ruling is a parcel of the entire
paragraph which relates to the duty and jurisdiction of the trial court to
determine for itself whether or not to dismiss a case before it, and
which states that such duty comes into play regardless of whether such
motion is filed before or after arraignment and upon whose instructions.
The allusion to the Secretary of Justice as reviewing the records of
investigation and giving instructions for the filing of a motion to dismiss
in the cited ruling does not take into consideration of whether the
appeal or petition before the Secretary of Justice was filed after
arraignment. Significantly, in the Crespo case, the accused had not yet
been arraigned when the appeal or petition for review was filed before
the DOJ. Undoubtedly, petitioners reliance on the said case is
misplaced.
Also unavailing is petitioners invocation of the cases of Roberts v.
Court of Appeals and Marcelo v. Court of Appeals. As in Crespo v.
Mogul, neither Roberts v. Court of Appeals nor Marcelo v. Court of
Appeals took into account of whether the appeal or petition before the
Secretary of Justice was filed after arraignment. Just like in the Crespo

case, the accused in both Roberts v. Court of Appeals and Marcelo v.

Court of Appeals had not yet been arraigned when the appeal or
petition for review was filed before the DOJ.
Moreover, petitioner asserts that the Court of Appeals interpretation of
the provisions of DOJ Circular No. 70 violated three basic rules in
statutory construction. First, the rule that the provision that appears last
in the order of position in the rule or regulation must prevail. Second,
the rule that the contemporaneous construction of a statute or
regulation by the officers who enforce it should be given weight. Third,
petitioner lifted a portion from Agpalos Statutory Construction8 where
the word "shall" had been construed as a permissive, and not a
mandatory language.
The all too-familiar rule in statutory construction, in this case, an
administrative rule9 of procedure, is that when a statute or rule is clear
and unambiguous, interpretation need not be resorted to.10 Since
Section 7 of the subject circular clearly and categorically directs the
DOJ to dismiss outright an appeal or a petition for review filed after
arraignment, no resort to interpretation is necessary.
Petitioners reliance to the statutory principle that "the last in order of
position in the rule or regulation must prevail" is not applicable. In
addition to the fact that Section 7 of DOJ Circular No. 70 needs no
construction, the cited principle cannot apply because, as correctly
observed by the Court of Appeals, there is no irreconcilable conflict
between Section 7 and Section 12 of DOJ Circular No. 70. Section 7 of
the circular provides:

therein are too unsubstantial to require consideration. If an information

has been filed in court pursuant to the appealed resolution, the petition
shall not be given due course if the accused had already been
arraigned. Any arraignment made after the filing of the petition shall not
bar the Secretary of Justice from exercising his power of review. (Italics
supplied.)
On the other hand, Section 12 of the same circular states:
SECTION 12. Disposition of the Appeal. The Secretary may reverse,
affirm or modify the appealed resolution. He may, motu proprio or upon
motion, dismiss the petition for review on any of the following grounds:
(a) That the petition was filed beyond the period prescribed in
Section 3 hereof;
(b) That the procedure or any of the requirements herein
provided has not been complied with;
(c) That there is no showing of any reversible error;
(d) That the appealed resolution is interlocutory in nature,
except when it suspends the proceedings based on the alleged
existence of a prejudicial question;
(e) That the accused had already been arraigned when the
appeal was taken;
(f) That the offense has already prescribed; and

SECTION 7. Action on the petition. The Secretary of Justice may

dismiss the petition outright if he finds the same to be patently without
merit or manifestly intended for delay, or when the issues raised

(g) That other legal or factual grounds exist to warrant a

dismissal. (Emphases supplied.)

It is noteworthy that the principle cited by petitioner reveals that, to find

application, the same presupposes that "one part of the statute cannot
be reconciled or harmonized with another part without nullifying one in
favor of the other." In the instant case, however, Section 7 is neither
contradictory nor irreconcilable with Section 12. As can be seen above,
Section 7 pertains to the action on the petition that the DOJ must take,
while Section 12 enumerates the options the DOJ has with regard to
the disposition of a petition for review or of an appeal.
As aptly observed by respondent, Section 7 specifically applies to a
situation on what the DOJ must do when confronted with an appeal or
a petition for review that is either clearly without merit, manifestly
intended to delay, or filed after an accused has already been arraigned,
i.e., he may dismiss it outright if it is patently without merit or manifestly
intended to delay, or, if it was filed after the acccused has already been
arraigned, the Secretary shall not give it due course.
Section 12 applies generally to the disposition of an appeal. Under said
section, the DOJ may take any of four actions when disposing an
appeal, namely:
1. reverse the appealed resolution;
2. modify the appealed resolution;
3. affirm the appealed resolution;
4. dismiss the appeal altogether, depending on the
circumstances and incidents attendant thereto.
As to the dismissal of a petition for review or an appeal, the grounds
are provided for in Section 12 and, consequently, the DOJ must

evaluate the pertinent circumstances and the facts of the case in order
to determine which ground or grounds shall apply.
Thus, when an accused has already been arraigned, the DOJ must not
give the appeal or petition for review due course and must dismiss the
same. This is bolstered by the fact that arraignment of the accused
prior to the filing of the appeal or petition for review is set forth as one
of the grounds for its dismissal. Therefore, in such instance, the DOJ,
noting that the arraignment of an accused prior to the filing of an
appeal or petition for review is a ground for dismissal under Section 12,
must go back to Section 7 and act upon as mandated therein. In other
words, the DOJ must not give due course to, and must necessarily
dismiss, the appeal.
Likewise, petitioners reliance on the principle of contemporary
construction, i.e., the DOJ is not precluded from entertaining appeals
where the accused had already been arraigned, because it exercises
discretionary power, and because it promulgated itself the circular in
question, is unpersuasive. As aptly ratiocinated by the Court of
Appeals:
True indeed is the principle that a contemporaneous interpretation or
construction by the officers charged with the enforcement of the rules
and regulations it promulgated is entitled to great weight by the court in
the latters construction of such rules and regulations. That does not,
however, make such a construction necessarily controlling or binding.
For equally settled is the rule that courts may disregard
contemporaneous construction in instances where the law or rule
construed possesses no ambiguity, where the construction is clearly
erroneous, where strong reason to the contrary exists, and where the
court has previously given the statute a different interpretation.

If through misapprehension of law or a rule an executive or

administrative officer called upon to implement it has erroneously
applied or executed it, the error may be corrected when the true
construction is ascertained. If a contemporaneous construction is found
to be erroneous, the same must be declared null and void. Such
principle should be as it is applied in the case at bar.11
Petitioners posture on a supposed exception to the mandatory import
of the word "shall" is misplaced. It is petitioners view that the language
of Section 12 is permissive and therefore the mandate in Section 7 has
been transformed into a matter within the discretion of the DOJ. To
support this stance, petitioner cites a portion of Agpalos Statutory
Construction which reads:
For instance, the word "shall" in Section 2 of Republic Act 304 which
states that "banks or other financial institutions owned or controlled by
the Government shall, subject to availability of funds xxx, accept at a
discount at not more than two per centum for ten years such (backpay)
certificate" implies not a mandatory, but a discretionary, meaning
because of the phrase "subject to availability of funds." Similarly, the
word "shall" in the provision to the effect that a corporation violating the
corporation law "shall, upon such violation being proved, be dissolved
by quo warranto proceedings" has been construed as "may." 12
After a judicious scrutiny of the cited passage, it becomes apparent
that the same is not applicable to the provision in question. In the cited
passage, the word "shall" departed from its mandatory import
connotation because it was connected to certain provisos/conditions:
"subject to the availability of funds" and "upon such violation being
proved." No such proviso/condition, however, can be found in Section
7 of the subject circular. Hence, the word "shall" retains its mandatory
import.

At this juncture, the Court of Appeals disquisition in this matter is

enlightening:
Indeed, if the intent of Department Circular No. 70 were to give the
Secretary of Justice a discretionary power to dismiss or to entertain a
petition for review despite its being outrightly dismissible, such as when
the accused has already been arraigned, or where the crime the
accused is being charged with has already prescribed, or there is no
reversible error that has been committed, or that there are legal or
factual grounds warranting dismissal, the result would not only be
incongruous but also irrational and even unjust. For then, the action of
the Secretary of Justice of giving due course to the petition would
serve no purpose and would only allow a great waste of time.
Moreover, to give the second sentence of Section 12 in relation to its
paragraph (e) a directory application would not only subvert the
avowed objectives of the Circular, that is, for the expeditious and
efficient administration of justice, but would also render its other
mandatory provisions - Sections 3, 5, 6 and 7, nugatory.13
In her steadfast effort to champion her case, petitioner contends that
the issue as to whether the DOJ rightfully entertained the instant case,
despite the arraignment of the accused prior to its filing, has been
rendered moot and academic with the order of dismissal by the trial
court dated 27 February 2003. Such contention deserves scant
consideration.
It must be stressed that the trial court dismissed the case precisely
because of the Resolutions of the DOJ after it had, in grave abuse of
its discretion, took cognizance of the petition for review filed by
petitioner. Having been rendered in grave abuse of its discretion, the
Resolutions of the DOJ are void. As the order of dismissal of the trial
court was made pursuant to the void Resolutions of the DOJ, said

order was likewise void. The rule in this jurisdiction is that a void
judgment is a complete nullity and without legal effect, and that all
proceedings or actions founded thereon are themselves regarded as
invalid and ineffective for any purpose.14 That respondent did not file a
motion for reconsideration or appeal from the dismissal order of the
trial court is of no moment. Since the dismissal was void, there was
nothing for respondent to oppose.
Petitioner further asserts that Section 7 of DOJ Circular No. 70 applies
only to appeals from original resolution of the City Prosecutor and does
not apply in the instant case where an appeal is interposed by
petitioner from the Resolution of the City Prosecutor denying her
motion for reinvestigation. This claim is baseless.
1avvphi1.net

A reading of Section 7 discloses that there is no qualification given by

the same provision to limit its application to appeals from original
resolutions and not to resolutions on reinvestigation. Hence, the rule
stating that "when the law does not distinguish, we must not
distinguish"15 finds application in this regard.
Petitioner asserts that her arraignment was null and void as the same
was improvidently conducted. Again, this contention is without merit.
Records reveal that petitioners arraignment was without any
restriction, condition or reservation.16 In fact she was assisted by her
counsels Atty. Arthur Abudiente and Atty. Maglinao when she pleaded
to the charge.17

unconditionally pleaded to the charge, she effectively waived the

reinvestigation of the case by the prosecutor as well as the right to
appeal the result thereof to the DOJ Secretary. Thus, with the
arraignment of the petitioner, the DOJ Secretary can no longer
entertain the appeal or petition for review because petitioner had
already waived or abandoned the same.
Lastly, while there is authority19 permitting the Court to make its own
determination of probable cause, such, however, cannot be made
applicable in the instant case. As earlier stated, the arraignment of
petitioner constitutes a waiver of her right to preliminary investigation or
reinvestigation. Such waiver is tantamount to a finding of probable
cause. For this reason, there is no need for the Court to determine the
existence or non-existence of probable cause.
Besides, 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. This being the case, this Court
cannot review the evidence adduced by the parties before the
prosecutor on the issue of the absence or presence of probable
cause.20
WHEREFORE, the petition is DENIED. The Decision of the Court of
Appeals dated 21 July 2004 and its Resolution dated 10 June 2005 in
CA-G.R. SP No. 76396 are AFFIRMED. Costs against petitioner.
SO ORDERED.

Moreover, the settled rule is that when an accused pleads to the

charge, he is deemed to have waived the right to preliminary
investigation and the right to question any irregularity that surrounds
it.18 This precept is also applicable in cases of reinvestigation as well as
in cases of review of such reinvestigation. In this case, when petitioner

JOSE ANTONIO C. LEVISTE,

Petitioner,

G.R. No. 182677

Present:

the trial courts Orders of January 24, 31, February 7, 8, all

in 2007, and denied the motion for reconsideration,
- versus CARPIO MORALES,
respectively.
NACHURA,*
BERSAMIN,
Petitioner was, by Information[3] of January 16,
HON. ELMO M. ALAMEDA, HON. ABAD,** and
RAUL M. GONZALEZ, HON.
VILLARAMA, JR., 2007, charged with homicide for the death of Rafael de las
Alas on January 12, 2007 before the Regional Trial Court
EMMANUEL Y. VELASCO,
(RTC) ofMakati City. Branch 150 to which the case was
HEIRS OF THE LATE RAFAEL
DE LAS ALAS,
Promulgated:
raffled, presided by Judge Elmo Alameda, forthwith issued
Respondents.
August 3, 2010
a commitment order[4] against petitioner who was placed
under
police
custody
while
confined
at
[5]
the Makati Medical Center.
x--------------------------------------- - - - - - - - - - -x
After petitioner posted a P40,000 cash bond which the trial
court approved,[6] he was released from detention, and his
arraignment was set on January 24, 2007.
DECISION

CARPIO MORALES, J.:

Jose Antonio C. Leviste (petitioner) assails via the present
petition for review filed on May 30, 2008 the August 30,
2007 Decision[1] and the April 18, 2008 Resolution[2] of the
Court of Appeals in CA-G.R. SP No. 97761 that affirmed

The private complainants-heirs of De las Alas filed, with

the conformity of the public prosecutor, an Urgent
Omnibus Motion[7] praying, inter alia, for the deferment of
the proceedings to allow the public prosecutor to reexamine the evidence on record or to conduct a
reinvestigation to determine the proper offense.

The RTC thereafter issued the (1) Order of January

24, 2007[8] deferring petitioners arraignment and allowing
the prosecution to conduct a reinvestigation to determine
the proper offense and submit a recommendation within 30
days from its inception, inter alia; and (2) Order of
January 31, 2007[9] denying reconsideration of the first
order.Petitioner assailed these orders via certiorari and
prohibition before the Court of Appeals.

Meantime, petitioner filed an Urgent ExParte Manifestation and Motion before the trial court to
defer acting on the public prosecutors recommendation on
the proper offense until after the appellate court resolves
his application for injunctive reliefs, or alternatively, to
grant him time to comment on the prosecutors
recommendation and thereafter set a hearing for the
judicial determination of probable cause.[10] Petitioner also
separately moved for the inhibition of Judge Alameda with
prayer to defer action on the admission of the Amended
Information.[11]
The trial court nonetheless issued the other assailed
orders, viz: (1) Order of February 7, 2007[12] that admitted

the Amended Information[13] for murder and directed the

issuance of a warrant of arrest; and (2) Order of February
8, 2007[14] which set the arraignment on February 13,
2007. Petitioner questioned
these
two
orders
via supplemental petition before the appellate court.
The appellate court dismissed petitioners petition,
hence, his present petition, arguing that:

PRIVATE RESPONDENT DID NOT HAVE

THE
RIGHT
TO
CAUSE
THE
REINVESTIGATION OF THE CRIMINAL
CASE BELOW WHEN THE CRIMINAL
INFORMATION HAD ALREADY BEEN
FILED WITH THE LOWER COURT. HENCE,
THE COURT OF APPEALS COMMITTED A
GRAVE ERROR IN FINDING THAT
RESPONDENT JUDGE DID NOT ACT WITH
GRAVE ABUSE OF DISCRETION IN
GRANTING SUCH REINVESTIGATION
DESPITE HAVING NO BASIS IN THE
RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH
GRAVE ABUSE OF DISCRETION IN
ADMITTING
STATE
PROSECUTOR

VELASCOS AMENDED INFORMATION,

ISSUING A WARRANT OF ARREST, AND
SETTING THE CASE BELOW FOR
ARRAIGNMENT, CONSIDERING THAT
THE VALIDITY AND LEGALITY OF HIS
ORDERS DATED 24 AND 31 JANUARY
2007,
WHICH
LED
TO
THE
QUESTIONABLE REINVESTIGATION AND
ILLEGAL AMENDED INFORMATION[,]
ARE YET TO BE RESOLVED BY THIS
HONORABLE COURT (sic); [AND]
CONSIDERING
THAT
PROSECUTOR
VELASCOS
FINDINGS
IN
HIS
RESOLUTION DATED 2 FEBRUARY 2007
ARE BLATANTLY BASED ON MERE
SPECULATIONS AND CONJECTURES,
WITHOUT
ANY
SUBSTANTIAL
OR
MATERIAL NEW EVIDENCE BEING
ADDUCED
DURING
THE
REINVESTIGATION, RESPONDENT JUDGE
SHOULD HAVE AT LEAST ALLOWED
PETITIONERS MOTION FOR A HEARING
FOR JUDICIAL DETERMINATION OF
PROBABLE CAUSE.[15] (emphasis in the
original omitted)

Records show that the arraignment scheduled on March 21,

2007 pushed through during which petitioner refused to
plead, drawing the trial court to enter a plea of not guilty
for him.
Prior thereto or on February 23, 2007, petitioner filed an
Urgent Application for Admission to Bail Ex Abundanti
Cautela[16] which the trial court, after hearings thereon,
granted by Order of May 21, 2007,[17] it finding that the
evidence of guilt for the crime of murder is not strong. It
accordingly allowed petitioner to post bail in the amount
of P300,000 for his provisional liberty.
The trial court, absent any writ of preliminary injunction
from the appellate court, went on to try petitioner under the
Amended Information. By Decision of January 14, 2009,
the trial court found petitioner guilty of homicide,
sentencing him to suffer an indeterminate penalty of six
years and one day of prision mayor as minimum to 12
years and one day ofreclusion temporal as maximum. From
the Decision, petitioner filed an appeal to the appellate
court, docketed as CA-G.R. CR No. 32159, during the
pendency of which he filed an urgent application for
admission to bail pending appeal. The appellate court

denied petitioners application which this Court, in G.R. No.

189122, affirmed by Decision ofMarch 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
hevoluntarily enters his plea and participates during trial,
without previously invoking his objections thereto.
[19]
There must be clear and convincing proof that
petitioner had anactual intention to relinquish his right to
question the existence of probable cause. When the only
proof of intention rests on what a party does, his act
should be so manifestly consistent with, and indicative of,
an intent to voluntarily and unequivocally relinquish the
particular right that no other explanation of his conduct is
possible.[20]

From the given circumstances, the Court cannot

reasonably infer a valid waiver on the part of
petitioner to preclude him from obtaining a definite
resolution of the objections he so timely invoked. Other
than its allegation of active participation, the OSG offered
no clear and convincing proof that petitioners participation
in the trial was unconditional with the intent to voluntarily
and
unequivocally
abandon
his
petition. In
fact, on January 26, 2010, petitioner still moved for the
early resolution of the present petition.[21]
Whatever delay arising from petitioners availment
of remedies against the trial courts Orders cannot be
imputed to petitioner to operate as a valid waiver on his
part.Neither can the non-issuance of a writ of preliminary
injunction be deemed as a voluntary relinquishment of
petitioners principal prayer. The non-issuance of such
injunctive relief only means that the appellate court did not
preliminarily find any exception[22] to the long-standing
doctrine that injunction will not lie to enjoin a criminal
prosecution.[23] Consequently, the trial of the case took its
course.
The petition is now moot, however, in view of the
trial courts rendition of judgment.

A moot and academic case is one that ceases to

present a justiciable controversy by virtue of supervening
events, so that a declaration thereon would be of no
practical use or value.[24]
The judgment convicting petitioner of homicide
under the Amended Information for murder operates as a
supervening
event
that
mooted
the
present
[25]
petition. Assuming that there is ground to annul the
finding of probable cause for murder, there is no practical
use or value in abrogating the concluded proceedings and
retrying the case under the original Information for
homicide just to arrive, more likely or even definitely, at
the same conviction of homicide. Mootness would have
also set in had petitioner been convicted of murder, for
proof beyond reasonable doubt, which is much higher than
probable cause, would have been established in that
instance.
Instead, however, of denying the petition outright on
the ground of mootness, the Court proceeds to resolve the
legal issues in order to formulate controlling principles to
guide the bench, bar and public.[26] In the present case,
there is compelling reason to clarify the remedies

available before and after the filing of an information in

cases subject of inquest.
After going over into the substance of the petition
and the assailed issuances, the Court finds no reversible
error on the part of the appellate court in finding no grave
abuse of discretion in the issuance of the four trial court
Orders.
In his first assignment of error, petitioner posits that
the prosecution has no right under the Rules to seek from
the trial court an investigation or reevaluation of the case
except through a petition for review before the Department
of Justice (DOJ). In cases when an accused is arrested
without a warrant, petitioner contends that the remedy of
preliminary investigation belongs only to the accused.
The contention lacks merit.
Section 6,[27] Rule 112 of the Rules of Court reads:
When a person is lawfully arrested without a
warrant involving an offense which requires a
preliminary investigation, the complaint or
information
may
be
filed
by
a

prosecutor without need of such investigation

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

A preliminary investigation is required before the

filing of a complaint or information for an offense where
the penalty prescribed by law is at least four years, two
months and one day without regard to fine.[28] As an
exception, the rules provide that there is no need for a
preliminary investigation in cases of a lawful arrest
without a warrant[29]involving such type of offense, so long
as an inquest, where available, has been conducted.[30]
Inquest is defined as an informal and summary
investigation conducted by a public prosecutor in criminal
cases involving persons arrested and detained without the
benefit of a warrant of arrest issued by the court for the
purpose of determining whether said persons should
remain under custody and correspondingly be charged in
court.[31]
It is imperative to first take a closer look at the
predicament of both the arrested person and the private
complainant during the brief period of inquest, to grasp the
respective remedies available to them before and after the
filing of a complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR
INFORMATION IN COURT, the private complainant may

proceed in coordinating with the arresting officer and the

inquest officer during the latters conduct of
inquest. Meanwhile, the arrested person has the option to
avail of a 15-day preliminary investigation, provided he
duly signs a waiver of any objection against delay in his
delivery to the proper judicial authorities under Article 125
of the Revised Penal Code. For obvious reasons, this
remedy is not available to the private complainant since he
cannot waive what he does not have. The benefit of the
provisions of Article 125, which requires the filing of a
complaint or information with the proper judicial
authorities within the applicable period,[32] belongs to the
arrested person.
The accelerated process of inquest, owing to its
summary nature and the attendant risk of running against
Article 125, ends with either the prompt filing of an
information in court or the immediate release of the
arrested person.[33] Notably, the rules on inquest do not
provide for a motion for reconsideration.[34]
Contrary to petitioners position that private
complainant should have appealed to the DOJ Secretary,
such remedy is not immediately available in cases subject
of inquest.

Noteworthy is the proviso that the appeal to the DOJ

Secretary is by petition by a proper party under such
rules as the Department of Justice may prescribe.[35] The
rule referred to is the 2000 National Prosecution Service
Rule on Appeal,[36] Section 1 of which provides that the
Rule shall apply to appeals from resolutions x x x in cases
subject of preliminary investigation/ reinvestigation. In
cases subject of inquest, therefore, the private party should
first avail of a preliminary investigation or reinvestigation,
if any, before elevating the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable
cause, the private complainant may pursue the case
through the regular course of a preliminary investigation.
ONCE A COMPLAINT OR INFORMATION IS
FILED IN COURT, the rules yet provide the accused with
another opportunity to ask for a preliminary investigation
within five days from the time he learns of its filing. The
Rules of Court and the New Rules on Inquest are silent,
however, on whether the private complainant could
invoke, as respondent heirs of the victim did in the present
case, a similar right to ask for a reinvestigation.

The Court holds that the private complainant can

move for reinvestigation, subject to and in light of the
ensuing disquisition.
All criminal actions commenced by a complaint or
information shall be prosecuted under the direction and
control of the public prosecutor.[37] The private
complainant in a criminal case is merely a witness and not
a party to the case and cannot, by himself, ask for the
reinvestigation of the case after the information had been
filed in court, the proper party for that being the public
prosecutor who has the control of the prosecution of the
case.[38] Thus, in cases where the private complainant is
allowed to intervene by counsel in the criminal action,
[39]
and is granted the authority to prosecute,[40] the private
complainant, by counsel and with the conformity of the
public prosecutor, can file a motion for reinvestigation.
In fact, the DOJ instructs that before the
arraignment of the accused, trial prosecutors must examine
the Information vis--vis the resolution of the investigating
prosecutor in order to make the necessary corrections or
revisions and to ensure that the information is sufficient in
form and substance.[41]

smorgasbord of factors which are best appreciated by

prosecutors.[43]
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

The prosecutions discretion is not boundless or

infinite, however.[44] The standing principle is that once an
information is filed in court, any remedial measure such as
a reinvestigation must be addressed to the sound discretion
of the court. Interestingly, petitioner supports this view.
[45]
Indeed, the Court ruled in one case that:
The rule is now well settled that once a
complaint or information is filed in court, any
disposition of the case, whether as to its
dismissal or the conviction or the acquittal of
the accused, rests in the sound discretion of the
court. Although the prosecutor retains the
direction and control of the prosecution of
criminal cases even when the case is already in
court, he cannot impose his opinion upon the
tribunal. For while it is true that the prosecutor
has the quasi-judicial discretion to determine
whether or not a criminal case should be filed in
court, once the case had already been
brought therein any disposition the prosecutor
may deem proper thereafter

should be addressed to the court for its

consideration
and
approval. The
only
qualification is that the action of the court must
not impair the substantial rights of the accused
or the right of the People to due process of law.
xxxx
In such an instance, before a reinvestigation of the case may be conducted by
the public prosecutor, the permission or consent
of the court must be secured. If after such reinvestigation the prosecution finds a cogent
basis to withdraw the information or otherwise
cause the dismissal of the case, such proposed
course of action may be taken but shall likewise
be addressed to the sound discretion of the
court.[46] (underscoring supplied)

While Abugotal v. Judge Tiro[47] held that to ferret

out the truth, a trial is to be preferred to a reinvestigation,
the Court therein recognized that a trial court may, where
the interest of justice so requires, grant a motion for
reinvestigation of a criminal case pending before it.
Once the trial court grants the prosecutions motion
for reinvestigation, the former is deemed to have deferred

to the authority of the prosecutorial arm of the

Government. Having brought the case back to the
drawing board, the prosecution is thus equipped with
discretion wide and far reaching regarding the disposition
thereof,[48]subject to the trial courts approval of the
resulting proposed course of action.
Since a reinvestigation may entail a modification of
the criminal information as what happened in the present
case, the Courts holding is bolstered by the rule on
amendment of an information under Section 14, Rule 110
of the Rules of Court:
A complaint or information may be amended,
in form or in substance, without leave of
court, at any time before the accused enters
his plea. After the plea and during the trial, a
formal amendment may only be made with
leave of court and when it can be done without
causing prejudice to the rights of the accused.
However, any amendment before plea,
which downgrades the nature of the offense
charged in or excludes any accused from the
complaint or information, can be made only
upon motion by the prosecutor, with notice to
the offended party and with leave of court. The

court shall state its reasons in resolving the

motion and copies of its order shall be furnished
all parties, especially the offended party.
If it appears at any time before judgment
that a mistake has been made in charging the
proper offense, the court shall dismiss the
original complaint or information upon the
filing of a new one charging the proper offense
in accordance with section 11, Rule 119,
provided the accused would not be placed in
double jeopardy. The court may require the
witnesses to give bail for their appearance at the
trial. (emphasis supplied)

In fine, before the accused enters a plea, a formal or

substantial amendment of the complaint or information
may be made without leave of court.[49] After the entry of a
plea, only a formal amendment may be made but with
leave of court and only if it does not prejudice the rights of
the accused. After arraignment, a substantial amendment is
proscribed except if the same is beneficial to the accused.
[50]

It must be clarified though that not all defects in an

information are curable by amendment prior to entry of

plea. An information which is void ab initio cannot be

amended to obviate a ground for quashal.[51] An
amendment which operates to vest jurisdiction upon the
trial court is likewise impermissible.[52]

Considering the general rule that an information

may be amended even in substance and even without leave
of court at any time before entry of plea, does it mean that
the conduct of a reinvestigation at that stage is a mere
superfluity?
It is not.
Any remedial measure springing from the reinvestigation
be it a complete disposition or an intermediate
modification[53] of the charge is eventually addressed to the
sound discretion of the trial court, which must make an
independent evaluation or assessment of the merits of the
case. Since the trial court would ultimately make the
determination on the proposed course of action, it is for
the prosecution to consider whether a reinvestigation is

necessary to adduce and review the evidence for purposes

of buttressing the appropriate motion to be filed in court.
More importantly, reinvestigation is required in cases
involving
a
substantial
amendment
of
the
information. Due process of law demands that no
substantial amendment of an information may be admitted
without conducting another or a new preliminary
investigation. In Matalam v. The 2nd Division of the
Sandiganbayan,[54] the Court ruled that a substantial
amendment in an information entitles an accused to
another preliminary investigation, unless the amended
information contains a charge related to or is included in
the original Information.
The question to be resolved is whether the amendment of
the Information from homicide to murder is considered a
substantial amendment, which would make it not just a
right but a duty of the prosecution to ask for a preliminary
investigation.
The Court answers in the affirmative.
A substantial amendment consists of the
recital of facts constituting the offense

charged and determinative of the jurisdiction

of the court. All other matters are merely of
form. The following have been held to be
mere formal amendments: (1) new allegations
which relate only to the range of the penalty that
the court might impose in the event of
conviction; (2) an amendment which does not
charge another offense different or distinct from
that charged in the original one; (3) additional
allegations which do not alter the prosecutions
theory of the case so as to cause surprise to the
accused and affect the form of defense he has or
will assume; (4) an amendment which does not
adversely affect any substantial right of the
accused; and (5) an amendment that
merely adds
specifications
to
eliminate
vagueness in the information and not to
introduce new and material facts, and merely
states with additional precision something
which is already contained in the original
information and which adds nothing essential
for conviction for the crime charged.
The test as to whether a defendant is prejudiced
by the amendment is whether a defense under
the information as it originally stood would be
available after the amendment is made,
and whether any evidence defendant might have

would be equally applicable to the information

in the one form as in the other. An amendment
to an information which does not change the
nature of the crime alleged therein does not
affect the essence of the offense or cause
surprise or deprive the accused of an
opportunity to meet the new averment had each
been held to be one of form and not of
substance.[55] (emphasis
and
underscoring
supplied)

Matalam adds that the mere fact that the two

charges are related does not necessarily or automatically
deprive the accused of his right to another preliminary
investigation.Notatu dignum is the fact that both the
original Information and the amended Information
in Matalam were similarly charging the accused with
violation of Section 3(e) of theAnti-Graft and Corrupt
Practices Act.
In one case,[56] it was squarely held that the
amendment of the Information from homicide to murder is
one of substance with very serious consequences. [57] The
amendment involved in the present case consists of
additional averments of the circumstances of treachery,
evident premeditation, and cruelty, which qualify the

offense charged from homicide to murder. It being a new

and material element of the offense, petitioner should be
given the chance to adduce evidence on the matter. Not
being merely clarificatory, the amendment essentially
varies the prosecutions original theory of the case and
certainly affects not just the form but the weight of defense
to be mustered by petitioner.
The Court distinguishes the factual milieus in Buhat v.
CA[58] and Pacoy v. Cajigal,[59] wherein the amendment of
the caption of the Information from homicide to murder
was not considered substantial because there was no real
change in the recital of facts constituting the offense
charged as alleged in the body of the Information, as the
allegations of qualifying circumstances were already
clearly
embedded
in
the
original
Information. Buhat pointed out that the original
Information for homicide already alleged the use of
superior strength, while Pacoy states that the averments in
the amended Information for murder are exactly the same
as those already alleged in the original Information for
homicide. None of these peculiar circumstances obtains in
the present case.

Considering that another or a new preliminary

investigation is required, the fact that what was conducted
in the present case was a reinvestigation does not
invalidate the substantial amendment
of the
Information. There is no substantial distinction between a
preliminary investigation and a reinvestigation since both
are conducted in the same manner and for the same
objective of determining whether there exists sufficient
ground to engender a well-founded belief that a crime has
been committed and the respondent is probably guilty
thereof and should be held for trial.[60] What is essential is
that petitioner was placed on guard to defend himself from
the charge of murder[61] after the claimed circumstances
were made known to him as early as the first motion.
Petitioner did not, however, make much of the opportunity
to present countervailing evidence on the proposed
amended charge. Despite notice of hearing, petitioner
opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the
reinvestigation. Mercado v. Court of Appeals states that the
rules do not even require, as a condition sine qua non to
the validity of a preliminary investigation, the presence of
the respondent as long as efforts to reach him were made

and an opportunity to controvert the complainants

evidence was accorded him.[62]
In his second assignment of error, petitioner
basically assails the hurried issuance of the last two
assailed RTC Orders despite the pendency before the
appellate court of the petition for certiorari challenging the
first two trial court Orders allowing a reinvestigation.
The Rules categorically state that the petition shall
not interrupt the course of the principal case unless a
temporary retraining order or a writ of preliminary
injunction has been issued.[63] The appellate court, by
Resolution
of February 15, 2007,[64] denied petitioners application for
a temporary restraining order and writ of preliminary
injunction. Supplementary efforts to seek injunctive reliefs
proved futile.[65] The appellate court thus did not err in
finding no grave abuse of discretion on the part of the trial
court when it proceeded with the case and eventually
arraigned the accused on March 21, 2007, there being no
injunction order from the appellate court. Moreover,
petitioner opted to forego appealing to the DOJ Secretary,
a post-inquest remedy that was available after the

reinvestigation and which could have suspended the

arraignment.[66]
Regarding petitioners protestations of haste, suffice
to state that the pace in resolving incidents of the case is
not per se an indication of bias. In Santos-Concio v.
Department of Justice,[67] the Court held:
Speed in the conduct of proceedings by a
judicial or quasi-judicial officer cannot per se be
instantly attributed
to
an
injudicious
performance of functions. For ones prompt
dispatch may be anothers undue haste. The
orderly administration of justice remains as the
paramount and constant consideration, with
particular regard of the circumstances peculiar
to each case.
The presumption of regularity includes the
public officers official actuations in all phases
of work. Consistent with such presumption, it
was incumbent upon petitioners to present
contradictory evidence other than a mere
tallying of days or numerical calculation. This,
petitioners failed to discharge. The swift
completion of the Investigating Panels initial
task cannot be relegated as shoddy or shady

without discounting the presumably regular

performance of not just one but five state
prosecutors.[68]

There is no ground for petitioners protestations against the

DOJ Secretarys sudden designation of Senior State
Prosecutor Emmanuel Velasco as Acting City Prosecutor
of Makati City for the present case[69] and the latters
conformity to the motion for reinvestigation.
In granting the reinvestigation, Judge Alameda cannot
choose the public prosecutor who will conduct the
reinvestigation or preliminary investigation.[70] There is a
hierarchy of officials in the prosecutory arm of the
executive branch headed by the Secretary of Justice[71] who
is vested with the prerogative to appoint a special
prosecutor or designate an acting prosecutor to handle a
particular case, which broad power of control has been
recognized by jurisprudence.[72]
As for the trial courts ignoring the DOJ Secretarys
uncontested statements to the media which aired his
opinion that if the assailant merely intended to maim and
not to kill the victim, one bullet would have sufficed the

DOJ Secretary reportedly uttered that the filing of the case

of homicide against ano against Leviste lintek naman eh I
told you to watch over that case there should be a report
about the ballistics, about the paraffin, etc., then thats not a
complete investigation, thats why you should use that as a
ground no abuse of discretion, much less a grave one, can
be imputed to it.
The statements of the DOJ Secretary do not evince a
determination to file the Information even in the absence
of probable cause.[73] On the contrary, the remarks merely
underscored the importance of securing basic investigative
reports to support a finding of probable cause. The original
Resolution even recognized that probable cause for the
crime of murder cannot be determined based on the
evidence obtained [u]nless and until a more thorough
investigation is conducted and eyewitness/es [is/]are
presented in evidence[.][74]
The trial court concluded that the wound sustained by the
victim at the back of his head, the absence of paraffin test
and ballistic examination, and the handling of physical
evidence,[75] as rationalized by the prosecution in its
motion, are sufficient circumstances that require further
inquiry.

That the evidence of guilt was not strong as

subsequently assessed in the bail hearings does not affect
the prior determination of probable cause because, as the
appellate court correctly stated, the standard of strong
evidence of guilt which is sufficient to deny bail to an
accused is markedly higher than the standard of judicial
probable cause which is sufficient to initiate a criminal
case.[76]
In his third assignment of error, petitioner faults the
trial court for not conducting, at the very least, a hearing
for judicial determination of probable cause, considering
the lack of substantial or material new evidence adduced
during the reinvestigation.
Petitioners argument is specious.
There are two kinds of determination of probable
cause: executive and judicial. The executive determination
of probable cause is one made during preliminary
investigation. It is a function that properly pertains to the
public prosecutor who is given a broad discretion to
determine whether probable cause exists and to charge
those whom he believes to have committed the crime as

defined by law and thus should be held for trial. Otherwise

stated, such official has the quasi-judicial authority to
determine whether or not a criminal case must be filed in
court. Whether that function has been correctly discharged
by the public prosecutor, i.e., whether he has made a
correct ascertainment of the existence of probable cause in
a case, is a matter that the trial court itself does not and
may not be compelled to pass upon.[77]
The judicial determination of probable cause is one
made by the judge to ascertain whether a warrant of arrest
should be issued against the accused. The judge must
satisfy himself that based on the evidence submitted, there
is necessity for placing the accused under custody in order
not to frustrate the ends of justice. If the judge finds no
probable cause, the judge cannot be forced to issue the
arrest warrant.[78] Paragraph (a), Section 5,[79] Rule 112 of
the Rules of Court outlines the procedure to be followed
by the RTC.
To move the court to conduct a judicial
determination of probable cause is a mere superfluity, for
with or without such motion, the judge is duty-bound to
personally evaluate the resolution of the public prosecutor
and the supporting evidence. In fact, the task of the

presiding judge when the Information is filed with the

court is first andforemost to determine the existence or
non-existence of probable cause for the arrest of the
accused.[80]
What the Constitution underscores is the
exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence
of probable cause. But the judge is not
required to personally examine the
complainant and his witnesses. Following
established doctrine and procedure, he shall
(1) personally evaluate the report and the
supporting documents submitted by the
prosecutor regarding the existence of probable
cause, and on the basis thereof, he may already
make a personal determination of the existence
of probable cause; and (2) if he is not satisfied
that probable cause exists, he may disregard the
prosecutors report and require the submission
of supporting affidavits of witnesses to aid
him in arriving at a conclusion as to the
existence of probable cause.[81] (emphasis and
underscoring supplied)

The rules do not require cases to be set for hearing to

determine probable cause for the issuance of a warrant of

arrest of the accused before any warrant may be issued.

[82]
Petitioner thus cannot, as a matter of right, insist on a
hearing for judicial determination of probable
cause. Certainly, petitioner cannot determine beforehand
how cursory or exhaustive the [judge's] examination of the
records should be [since t]he extent of the judges
examination depends on the exercise of his sound
discretion as the circumstances of the case require. [83] In
one case, the Court emphatically stated:
The periods provided in the Revised Rules of
Criminal Procedure are mandatory, and as
such, the judge must determine the presence or
absence of probable cause within such
periods. The Sandiganbayans determination of
probable cause is made ex parte and
is summary in nature, not adversarial. The
Judge should not be stymied and distracted
from his determination of probable cause by
needless motions for determination of
probable cause filed by the accused.
[84]
(emphasis and underscoring supplied)

Petitioner proceeds to discuss at length evidentiary

matters, arguing that no circumstances exist that would
qualify the crime from homicide to murder.

The allegation of lack of substantial or material new

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

be stressed that reinvestigation, as the word itself implies,

is merely a repeat investigation of the case. New matters
or evidence are not prerequisites for a reinvestigation,
which is simply a chance for the prosecutor to review and
re-evaluate its findings and the evidence already
submitted.[85]
Moreover, under Rule 45 of the Rules of Court, only
questions of law may be raised in, and be subject of, a
petition for review on certiorari since this Court is not a
trier of facts. The Court cannot thus review the evidence
adduced by the parties on the issue of the absence or
presence of probable cause, as there exists no exceptional
circumstances to warrant a factual review.[86]

In a petition for certiorari, like that filed by

petitioner before the appellate court, the jurisdiction of the
court is narrow in scope. It is limited to resolving only
errors of jurisdiction. It is not to stray at will and resolve
questions and issues beyond its competence, such as an
error of judgment.[87] The courts duty in the pertinent case
is confined to determining whether the executive and
judicial determination of probable cause was done without
or in excess of jurisdiction or with grave abuse of
discretion. Although it is possible that error may be
committed in the discharge of lawful functions, this does
not render the act amenable to correction and annulment
by the extraordinary remedy of certiorari, absent any

showing of grave abuse of discretion amounting to excess

of jurisdiction.[88]

WHEREFORE, the petition is DENIED. The

assailed Decision and Resolution of the Court of Appeals
in CA-G.R. SP No. 97761 are AFFIRMED.
SO ORDERED.