Republic of the Philippines businessman contractor from Santa Maria, Bulacan.
It turned out that the
SUPREME COURT
Manila
EN BANC
G.R. No. L-26549 July 31, 1970
EUGENIO LOPEZ, publisher and owner of the "MANILA, CHRONICLE
and JUAN T. GATBONTON, petitioners,
vs.
THE HON. COURT OF APPEALS and FIDEL G. CRUZ, respondents.
Salonga, Ordoñez, Sicat & Associates for petitioners.
FERNANDO, J.:
There is an element of novelty in this appeal by certiorari from a decision of
respondent Court of Appeals holding petitioners, the then publisher and
editor of This Week Magazine, liable in damages to the tune of eleven
thousand pesos arising from the publication of a picture of respondent,
Fidel G. Cruz, as being responsible for the hoax of the year. The absence
of any connection either fanciful or remote with such event is admitted. The
view is pressed by petitioners, invoking a liberal construction of the
implications of press freedom, owning up to the mistake, unfortunately not
discovered until it was too late, and publishing a correction as an earnest of
its good faith, that they should not be made to pay at all. This Court,
without discounting the elements of plausibility of their contention, cannot,
however, close its eyes to the injury inflicted on respondent and indulge
them in such a plea. It is not disposed though to affirm respondent Court's
decision in its entirety. Considering all the circumstances, the damages
awarded to private respondent appear to be far too generous. A reduction
is in order. The sum of one thousand pesos would be enough. So we
decide.
The antecedents of the case follow: In the early part of January, 1956,
there appeared on the front page of The Manila Chronicle, of which
petitioner Eugenio Lopez was the publisher, as well as on other dailies, a
news story of a sanitary inspector assigned to the Babuyan Islands, Fidel
Cruz by name, sending a distress signal to a passing United States
Airforce plane which in turn relayed the message to Manila. He was not
ignored, an American Army plane dropping on the beach of an island an
emergency-sustenance kit containing, among other things, a two-way radio
set. He utilized it to inform authorities in Manila that the people in the place
were living in terror, due to a series of killings committed since Christmas
of 1955. Losing no time, the Philippines defense establishment rushed to
the island a platoon of scout rangers led by Major Wilfredo Encarnacion.
Upon arriving at the reported killer-menaced Babuyan Claro, however,
Major Encarnacion and his men found, instead of the alleged killers, a
man, the same Fidel Cruz, who merely wanted transportation home to
Manila. In view of this finding, Major Wilfredo Encarnacion branded as a
"hoax," to use his own descriptive word, the report of Fidel Cruz. That was
the term employed by the other newspapers when referring to the above-
mentioned incident.
This Week Magazine of the Manila Chronicle, then edited by petitioner
Juan T. Gatbonton, devoted a pictorial article to it in its issue of January
15, 1956. Mention was made that while Fidel Cruz story turned out to be
false if brought to light the misery of the people living in that place, with
almost everybody sick, only two individuals able to read and write, food
and clothing being scarce. Then in the January 29, 1956 issue of This
Week Magazine, the "January News Quiz" included an item on the central
figure in what was known as the Calayan Hoax, who nevertheless did the
country a good turn by calling the government's attention to that forsaken
and desolate corner of the Republic. Earlier in its Special Year End Quiz
appearing in its issue of January 13, 1956, reference was made to a health
inspector who suddenly felt "lonely" in his isolated post, cooked up a story
about a murderer running loose on the island of Calayan so that he could
be ferried back to civilization. He was given the appellation of "Hoax of the
Year."
The magazine on both occasions carried photographs of the person
purporting to be Fidel Cruz. Unfortunately, the pictures that were published
on both occasions were that of private respondent Fidel G. Cruz, a
photographs of respondent Cruz and that of Fidel Cruz, sanitary inspector,
were on file in the library of the Manila Chronicle in accordance with the
standard procedure observed in other newspaper offices, but when the
news quiz format was prepared, the two photographs were in advertently
switched.
As soon, however, as the inadvertent error was brought to the attention of
petitioners, the following correction was immediately published in This
Week Magazine on January 27, 1957: "While we were rushing to meet: the
deadline for January 13th issue of This Week, we inadvertently published
the picture of former Mayor Fidel G. Cruz of Sta. Maria, Bulacan,
businessman and contractor, in 'Our Own Who's Who feature in the Year
End Quiz' of This Week in lieu of the health inspector Fidel Cruz, who was
connected with a story about a murderer running loose on Calayan Island.
We here express our profound regrets that such an error occurred."
Together with the foregoing correction, petitioners published the picture of
Fidel Cruz; the photographs and the correction moreover were enclosed by
four lines the type used was bolder than ordinary, and the item was placed
in a conspicuous place in order to call the attention of the readers to such
amends being made.1
Respondent Fidel G. Cruz sued petitioners in the Court of First Instance of
Manila for the recovery of damages alleging the defamatory character of
the above publication of his picture. After trial duly had, he was awarded
five thousand pesos as actual damages, another five thousand pesos as
moral damages, and one thousand pesos for attorney's fees. That
judgment was affirmed on appeal to respondent Court. Hence, this petition
for certiorari with the result, as already announced at the opening of this
opinion, that while respondent Cruz is entitled to Prevail, the damages
awarded him should be reduced.
1. It is on the freedom of the press that petitioners would stake their case to
demonstrate that no action for libel would lie arising from the publication of
the picture of respondent Cruz identified as responsible for the hoax of the
year, when such was not the case at all. It is easily understandable why.
No liability would be incurred if it could be demonstrated that it comes
within the well-nigh all embracing scope of freedom of the press. Included
therein is the widest latitude of choice as to what items should see the light
of day so long as they are relevant to a matter of public interest, the
insistence on the requirement as to its truth yielding at times to
unavoidable inaccuracies attendant on newspapers and other publications
being subject to the tyranny of deadlines. If no such showing could be
plausibly made, however, it is difficult to resist the conclusion that there
was in fact the commission of such quasi-delict. It was held in Lu Chu Sing
v. Lu Tiong Gui,2 that "the repeal of the old Libel Law (Act No. 277) did not
abolish the civil action for libel."3 A libel was defined in that Act as a
"malicious defamation, expressed either in writing, printing, or by signs or
pictures, or the like, ..., tending to blacken the memory of one who is dead
or to impeach the honesty, virtue, or reputation, or publish the alleged or
natural defects of one who is alive, and thereby "pose him to public hatred,
contempt, or ridicule,"4 There was an express provision in such legislation
for a tort or a quasi-delict action arising from libel.5 There is reinforcement
to such a view in the new Civil Code providing for the recovery of moral
damages for libel, slander or any other form of defamation.6
There has been no time then in our judicial history when civil actions for
libel did not form a staple part of litigations which had reached this
Court.7 Such is the case in a far greater measure in the United States.
According to the standard treatise of Newell on Slander and Libel:
"Publication of a person's photograph in connection with an article libelous
of a third person, is a libel on the person whose picture is published, where
the acts set out in the article are imputed to such person."8 In support of
the above statement, he made reference to several cases.9 Other
decisions to the same effect have been promulgated since the fourth
edition of Newell published in 1924. 1 0 Why libel law has both a criminal
and a civil aspect is explained by Hale in his Law of the Press thus: "On
the one hand, libeling a person results in depriving him of his good
reputation. Since reputation is a thing of value, truly rather to be chosen
than great riches , an impairment of it is a personal wrong. To redress this
personal wrong money damages are awarded to the injured person. On the
other hand, the publication of defamatory statements tends strongly to
induce breach of the peace by the person defamed, and hence is of
peculiar moment to the state as the guardian of the public peace. Viewed
from this angle, libel is a crime, and as such subjects the offender to a fine
or imprisonment." 11
The first decision cited by Newell is a decision of Justice Holmes. The case consistently with good faith and reasonable care, they should not be held
is Peck v. Tribune Co. 1 2 Plaintiff there complained of her picture being to account, to a point of suppression, for honest mistakes or imperfection in
published in an advertisement in defendant's newspaper. The Chicago the choice of words." 2 1
Sunday Tribune, with certain words of commendation for a brand of liquor
attributed to her when in fact she did not make such a statement at all and
It was not until 1964 that the United States Supreme Court had occasion to
could not have made it, as she was a total abstainer. The defendant was
speak its mind on the subject. In the leading case of New York Times Co.
held liable, for as Justice Holmes pointed out: "There was some suggestion
v. Sulivan, 2 2 the nature of the question presented was set forth by Justice
that the defendant published the portrait by mistake, and without
Brennan for the Court in the opening paragraph of his opinion: "We are
knowledge that it was the plaintiff's portrait, or was not what it purported to
required in this case to determine for the first time the extent to which the
be. But the fact, if it was one, was no excuse. If the publication was
constitutional protections for speech and press limit a State's power to
libelous, the defendant took the risk. As was said of such matters by Lord
award damages in a libel action brought by a public official against critics of
Mansfield, 'Whenever a man publishes, he publishes at his peril.' ... The
his official conduct." 2 3 This is the Court's approach to such an issue: "In
reason is plain. A libel is harmful on its face. If a man sees fit to publish
deciding the question now, we are compelled by neither precedent nor
manifestly hurtful statements concerning an individual, without other
Policy to give any more weight to the epithet 'libel' than we have to other
justification than exists for an advertisement or a piece of news, the usual
'mere labels' of state law. ... Like insurrection, contempt, advocacy of
principles of tort will make him liable if the statements are false, or are true
unlawful acts, breach of the peace, obscenity, solicitation of legal business,
only of someone else." 1 3
and the various other formulae for the repression of expression that have
been challenged in this Court, libel can claim no talismanic immunity from
Learned Hand, in holding that an action for libel would lie arising from a constitutional limitations. It must be measured by standards that satisfy the
publication in an advertisement of plaintiff's photograph yielding a First Amendment." 2 4 Continuing the same trend, the opinion stressed
"grotesque monstrous and obscene impression" and that he was further: "Thus we consider this case against the background of a profound
"substantially enough ridiculed" to complain reached the conclusion "that national commitment to the principle that debate on public issues should be
because the picture taken with the legends was calculated to expose the uninhibited, robust, and wide-open, and that it may well include vehement,
plaintiff to more than trivial ridicule, it was prima facie actionable; that the caustic, and sometimes unpleasantly sharp attacks on government and
fact that it did not assume to state a fact or an opinion is irrelevant; and that public officials. ... The present advertisement, as an expression of
in consequence the publication is actionable." 1 4 It is likewise an accepted grievance and protest on one of the major public issues of our time, would
fact that such publications do occasion greater injury to reputation than seem clearly to qualify for the constitutional protection." 2 5
would mere words alone. Cardozo so aptly put the matter thus: "'It has its
genesis in evils which the years have not erased. Many things that are
For liability to arise then without offending press freedom, there is this test
defamatory may be said with impunity through the medium of speech. Not
to meet: "The constitutional guarantees require, we think, a federal rule
so, however, when speech is caught upon the wing and transmuted into
that prohibits a public official from recovering damages for a defamatory
print. What gives the sting to the writing is its permanence of form. The
falsehood relating to his official conduct unless he proves that the
spoken word dissolves, but the written one abide and Perpetuates the
statement was made with 'actual malice' — that is, with knowledge that it
scandal.' ... When one speaks of a writing in this connection, one does not
was false or with reckless disregard of whether it was false or not." 2 6 The
limit oneself to writings in manuscripts or books. Any symbol suffices —
United States Supreme Court went further in Curtis Publishing Co. v.
Pictures, hieroglyphics shorthand notes — if only what is written is
Butts, 2 7 where such immunity, was held as covering statements
intelligible to him who reads." 1 5
concerning public figures regardless of whether or not they are government
officials. Why there should be such an extension is understandable in the
2. That is only one side of the picture, however. There is an impressive light of the broad scope enjoyed by press freedom which certainly allows a
recognition in our decisions of the curtailment to which press freedom full and free discussion of public issues. What can be more logical and
would be subjected if an action for libel were not rigorously scrutinized to appropriate, then, than such an expansion of the principle. As noted by a
remove doubts as to its being utilized to penalize the exercise of that commentator: "Since discussion of public issues cannot be meaningful
constitutional right Thus, in the first leading case, United States v. without reference to the men involved on both sides of such issues, and
Bustos, 1 6 Justice Malcolm could correctly stress: "The interest of society since such men will not necessarily be public officials, one cannot but
and the maintenance of good government demand a full discussion of agree that the Court was right in Curtis to extend the Times rule to all
public affairs. Complete liberty to comment on the conduct of public men is public figures." 2 8
a scalpel in the case of free speech. The sharp incision of its probe relieves
the abscesses of officialdom. Men in public life may suffer under a hostile
The significance of the foregoing line of decisions impressive for their
and an unjust accusation: the wound can be assuaged with the balm of a
consistency is quite obvious. No inroads on press freedom should be
clear conscience. A public officer must not to be too thin-skinned with
allowed in the guise of punitive action visited on what otherwise could be
reference to comment upon his official acts. Only thus can the intelligence
characterized as libel whether in the form of printed words or a defamatory
and dignity of the individual be exalted. Of course, criticism does not
imputation resulting from the publication of respondent's picture with the
authorize defamation. Nevertheless, as an individual is less than the State,
offensive caption as in the case here complained of. This is not to deny
so must expected criticism be born for the common good." 1 7 On this
that the party responsible invites the institution either of a criminal
aspect of the question which, as answered by him, would require that a
prosecution or a civil suit. It must be admitted that what was done did invite
criminal suit for libel should not be utilized as a means for stifling press
such a dire consequence, considering the value the law justly places on a
freedom, he categorically declared: "Public policy, the welfare of society,
man's reputation. This is merely to underscore the primacy that freedom of
and the orderly administration of government have demanded protection
the press enjoys. It ranks rather high in the hierarchy of legal values. If the
for public opinion. The inevitable and incontestable result has been the
cases moan anything at all then, to emphasize what has so clearly
development and adoption of the doctrine of privilege." 1 8
emerged, they call for the utmost care on the part of the judiciary to assure
that in safeguarding the interest of the party allegedly offended a realistic
In another civil action for libel, such a thought is expressed differently in account of the obligation of a news media to disseminate information of a
this wise: "So long as it is done in good faith, newspapers have the legal public character and to comment thereon as well as the conditions
right to have and express opinions on legal questions. To deny them that attendant on the business of publishing cannot be ignored. To single out
right would infringe upon the freedom of the press." 1 9 The last word on one decision, Quisumbing v. Lopez so speaks in tones loud and clear.
the subject, up to now at least, came from Quisumbing v. Lopez. 2 0 In the
language of the then Chief Justice Paras, who penned the opinion: "The
3. It is to the haven thus afforded by such a highly sympathetic ruling to
Court of Appeals found as a fact that "there is no evidence in the record to
press freedom that petitioners would seek refuge. The defamatory matter
prove that the publication of the news item under Consideration was
complained of in the Quisumbing case appeared in the headline. It was
prompted by personal ill will or spite, or that there was intention to do
without basis, as shown by the text of the news item itself. Nonetheless, for
harm,' and that on the other hand there was 'an honest and high sense of
the reasons expressed with vigor and clarity by former Chief Justice Paras,
duty to serve the best interests of the public, without self-seeking motive
no liability was deemed incurred by the then publisher of the Manila
and with malice towards none.' Every citizen of course has the right to
Chronicle A newspaper, it is stressed, "should not be held to account to a
enjoy a good name and reputation, but we do not consider that the
point of suppression for honest mistakes or imperfection in the choice of
respondents, under the circumstances of this case, had violated said right
words." The above ruling, coupled with the requirement in the New York
or abused the freedom of the press. The newspapers should be given such
Times decision of the United States Supreme Court, would for the writer of
leeway and tolerance as to enable them to courageously and effectively
this opinion, furnish a sufficient basis for the success of this appeal. The
perform their important role in our democracy. In the preparation of stories,
Court, however, is not inclined to view matters thus. Obviously Quisumbing
press reporters and edition usually have to race with their deadlines; and
v. Lopez is not squarely in point. Here there was no pressure of a daily
deadline to meet no occasion to act with haste as the picture of respondent
was published in a weekly magazine. Moreover, there is the added
requirement of reasonable care imposed by such decision which from the
facts here found, appeared not to be satisfied. It cannot be concluded then
that the plea of petitioners is sufficiently persuasive. The mandate of press
freedom is not ignored, but here it does not speak unequivocally. It is not
decisive of the basic issue. By itself, it does not have a controlling
significance. So we hold.

4. Petitioners would make much, likewise, of their correction, which has all
the force of a retraction, as a basis from being absolved from any
pecuniary responsibility. The present Chief Justice in Policarpio v. Manila
Times 2 9 restated the controlling principle: "We note that the news item
published on August 13, 1956, rectified a major inaccuracy contained in the
first article, by stating that neither Col. Alba nor the PCAC had filed the
aforementioned complaints with the city fiscal's office. It, likewise, indicated
the number of sheets of stencil involved in said complaints. But, this
rectification or clarification does not wipe out the responsibility arising from
the publication of the first article, although it may and should mitigate it
(Jimenez vs. Reyes, 27 Phil. 52)." 3 0

The correction promptly made by petitioners would thus call for a reduction
in the damages awarded. It should be noted that there was no proof of any
actual pecuniary logs arising from the above publication. It is worthwhile to
recall what Justice Malcolm referred to as the tolerant attitude on the part
of appellate courts on this score, the usual practice being "more likely to
reduce damages for libel than to increase them." 3 1

WHEREFORE, the decision of respondent Court of Appeals of August 25,

1966 affirming the lower court decision of March 22, 1958 is hereby
modified, petitioners Eugenio Lopez and Juan T. Gatbonton being ordered
to pay jointly and severally the sum of P500.00 as moral damages and the
additional amount of P500.00 for attorney's fees. Costs against petitioners.

Concepcion, C.J., Reyes, J.B.L., Zaldivar and Teehankee, JJ., concur.

Castro and Barredo, JJ., concur in the result.

 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 121234 August 23, 1995
HUBERT J. P. WEBB, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional
Trial Court of Parañaque, Branch 258, HONORABLE ZOSIMO V.
ESCANO, the Presiding Judge of the Regional Trial Court of
Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE
GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR., ROBERTO LAO,
PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION,
and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of
the Regional Trial Court of Parañaque, Branch 274, respondents,
LAURO VIZCONDE, intervenor.
G.R. No. 121245 August 23, 1995
MICHAEL A. GATCHALIAN, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional
Trial Court of Parañaque, Branch 258, HONORABLE ZOSIMO V.
ESCANO, the Presiding Judge of the Regional Trial Court of
Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE
GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL
BUREAU OF INVESTIGATION, and HONORABLE AMELITA G.
TOLENTINO, the Presiding Judge of the Regional Trial Court of
Parañaque, Branch 274, respondents.
G.R. No. 121297 August 23, 1995
ANTONIO L. LEJANO, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional
Trial Court of Parañaque, Branch 258, HONORABLE ZOSIMO V.
ESCANO, the Presiding Judge of the Regional Trial Court of
Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE
GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR., ROBERTO LAO,
PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION,
and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of
the Regional Trial Court of Parañaque, Branch 274, respondents.
PUNO, J.:
Before the Court are petitions for the issuance of the extraordinary writs
of certiorari, prohibition and mandamus with application for temporary
restraining order and preliminary injunction to: (1) annul and set aside the
Warrants of Arrest issued against petitioners by respondent Judges Raul
E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin
the respondents from conducting any proceeding in the aforementioned
criminal case; and (3) dismiss said criminal case or include Jessica Alfaro
as one of the accused therein.1
From the records of the case, it appears that on June 19, 1994, the
National Bureau of Investigation (NBI) filed with the Department of Justice
a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian,
Antonio J. Lejano and six (6) other persons,2 with the crime of Rape with
Homicide. Forthwith, the Department of Justice formed a panel of
prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuño
to conduct the preliminary investigation3 of those charged with the rape
and killing on June 30, 1991 of Carmela N. Vizconde; 4 her mother Estrellita
Nicolas-Vizconde,5 and her sister Anne Marie Jennifer6 in their home at
Number 80 W. Vinzons, St., BF Homes, Parañaque, Metro Manila.
During the preliminary investigation, the NBI presented the following: (1)
the sworn statement dated May 22, 1995 of their principal witness, Maria
Jessica M. Alfaro who allegedly saw the commission of the crime;7 (2) the
sworn statements of two (2) of the former housemaids of the Webb family
in the persons of Nerissa E. Rosales and Mila S.Gaviola;8 (3) the sworn-
statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was
a passenger of United Airlines Flight No. 808 bound for New York and who
expressed doubt on whether petitioner Webb was his co-passenger in the
trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of
Gerardo Biong, who narrated the manner of how Biong investigated and
tried to cover up the crime at bar;9 (5) the sworn statements of Belen
Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn
statements of Normal White, a security guard and Manciano Gatmaitan, an
engineer. The autopsy reports of the victims were also submitted and they
showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and
Jennifer nineteen (19).10 The genital examination of Carmela confirmed the
presence of spermatozoa.11
Before submitting his counter-affidavit, petitioner Webb filed with the DOJ
Panel a Motion for Production And Examination of Evidence and
Documents for the NBI to produce the following:
(a) Certification issued by the U.S. Federal Bureau of
Investigation on the admission to and stay of Hubert Webb in the
United States from March 9, 1991 to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer,
Dr. Prospero A. Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn
Statement dated October 7, 1991);
(d) Photographs of fingerprints lifted from the Vizconde
residence taken during the investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;
(f) List of names of 135 suspects/persons investigated by the
NBI per Progress Report dated September 2, 1991 submitted by
Atty. Arlis Vela, Supervising Agent;
(g) Records of arrest, interview, investigation and other written
statements of Jessica Alfaro (other than the May 22, 1995 Sworn
Statement) conducted by the NBI and other police agencies;
(h) transmittal letter to the NBI, including the report of the
investigation conducted by Superintendent Rodolfo C. Sison,
Regional Deputy Director, NCRC;
(i) The names of NBI officials/agents composing the Task Force
Jecares, including their respective positions and duties;
(j) Statements made by other persons in connection with the
crime charged.
The motion was granted by the DOJ Panel and the NBI submitted
photocopies of the documents. It alleged it lost the original of the April 28,
1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil
Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for
the purpose, among others, of obtaining the original of said sworn
statement. He succeeded, for in the course of its proceedings, Atty. Arturo
L. Mercader, Jr., produced a copy of said original in compliance with a
subpoena duces tecum. The original was then submitted by petitioner
Webb to the DOJ Panel together with his other evidence. It appears,
however, that petitioner Webb failed to obtain from the NBI the copy of the
Federal Bureau of Investigation (FBI) Report despite his request for its
production.
Petitioner Webb claimed during the preliminary investigation that he did not
commit the crime at bar as he went to the United States on March 1, 1991
and returned to the Philippines on October 27, 1992. 12 His alibi was
corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco,
Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela
Francisco.13 To further support his defense, he submitted documentary
evidence that he bought a bicycle and a 1986 Toyota car while in the
United States on said dates14 and that he was issued by the State of
California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner
Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert
Heafner, Legal Attache of the US Embassy, citing certain records tending
to confirm, among others, his arrival at San Francisco, California on March
9, 1991 as a passenger in United Airlines Flight No. 808.
The other respondents — Hospicio "Pyke" Fernandez, Michael Gatchalian,
Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo
Biong — submitted sworn statements, responses, and a motion to dismiss
denying their complicity in the rape-killing of the Vizcondes.16 Only the
respondents Joey Filart and Artemio "Dong" Ventura failed to file their
counter-affidavits though they were served with subpoena in their last
known address.17 In his sworn statement, petitioner Gatchalian alleged that
from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the
morning of the following day, he was at the residence of his friends, Carlos
and Andrew Syyap, at New Alabang Village, Muntinlupa watching video
tapes. He claimed that his co-petitioner Lejano was with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding
probable cause to hold respondents for trial" and recommending that an
Information for rape with homicide be filed against petitioners and their co-
respondents,18 On the same date, it filed the corresponding
Information19 against petitioners and their co-accused with the Regional
Trial Court of Parañaque. The case was docketed as Criminal Case No.
95-404 and raffled to Branch 258 presided by respondent judge Zosimo V.
Escano. It was, however, the respondent judge Raul de Leon, pairing judge
of Judge Escano, who issued the warrants of arrest against the petitioners.
On August 11, 1995, Judge Escano voluntarily inhibited himself from the
case to avoid any suspicion about his impartiality considering his
employment with the NBI before his appointment to the bench. The case
was re-raffled to Branch 274, presided by Judge Amelita Tolentino who
issued new warrants of arrest against the petitioners and their co-accused.
On August 11, 1995, petitioner Webb voluntarily surrendered to the police
authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners
Gatchalian and Lejano likewise gave themselves up to the authorities after
filing their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de
Leon and Tolentino gravely abused their discretion when they failed to
conduct a preliminary examination before issuing warrants of arrest against
them: (2) the DOJ Panel likewise gravely abused its discretion in holding
that there is probable cause to charge them with the crime of rape with
homicide; (3) the DOJ Panel denied them their constitutional right to due
process during their preliminary investigation; and (4) the DOJ Panel
unlawfully intruded into judicial prerogative when it failed to charge Jessica
Alfaro in the Information as an accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of probable cause.
They insist that the May 22, 1995 sworn statement of Jessica
Alfaro is inherently weak and uncorroborated. They hammer on
alleged material inconsistencies between her April 28, 1995 and
May 22, 1995 sworn statements. They assail her credibility for her
misdescription of petitioner Webb's hair as semi-blonde. They
also criticize the procedure followed by the DOJ Panel when it did
not examine witnesses to clarify the alleged incredulities and
inconsistencies in the sworn statements of the witnesses for the
NBI.
We start with a restatement of the purpose of a preliminary
investigation. Section 1 of Rule 112 provides that a preliminary
investigation should determine " . . . whether there is a sufficient
ground to engender a well-grounded belief that a crime cognizable
by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof, and should be held for trial."
Section 3 of the same Rule outlines the procedure in conducting a
preliminary investigation, thus:
Sec. 3. Procedure. — Except as provided for in Section 7 hereof,
no complaint or information for an offense cognizable by the
Regional Trial Court shall be filed without a preliminary
investigation having been first conducted in the following manner:
(a) The complaint shall state the known address of the respondent
and be accompanied by affidavits of the complainant and his
witnesses as well as other supporting documents, in such number
of copies as there are respondents, plus two (2) copies for the
official file. The said affidavits shall be sworn to before any fiscal,
state prosecutor or government official authorized to administer
oath, or, in their absence or unavailability, a notary public, who
must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their
affidavits.
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss the same if he finds no
ground to continue with the inquiry, or issue a subpoena to the
respondent, attaching thereto a copy of the complaint, affidavits
and other supporting documents. Within ten (10) days from receipt
thereof, the respondent shall submit counter-affidavits and other
supporting documents. He shall have the right to examine all other
evidence submitted by the complainant.
(c) Such counter-affidavits and other supporting evidence
submitted by the respondent shall also be sworn to and certified
as prescribed in paragraph (a) hereof and copies thereof shall be
furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed,
does not submit counter-affidavits within the ten (10) day period,
the investigating officer shall base his resolution on the evidence
presented by the complainant.
(e) If the investigating officer believes that there are matters to be
clarified, he may set a hearing to propound clarificatory questions
to the parties or their witnesses, during which the parties shall be
afforded an opportunity to be present but without the right to
examine or cross-examine. If the parties so desire, they may
submit questions to the investigating officer which the latter may
propound to the parties or witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and
the investigating officer shall resolve the case within ten (10) days
therefrom. Upon the evidence thus adduced, the investigating
officer shall determine whether or not there is sufficient ground to
hold the respondent for trial.
Section 4 of Rule 112 then directs that "if the investigating fiscal
finds cause to hold the respondent for trial, he shall prepare the
resolution and corresponding information. He shall certify under
oath that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses, that
there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof . . ."
The need to find probable cause is dictated by the Bill of Rights which
protects "the right of the people to be secure in their persons . . . against
unreasonable searches and seizures of whatever nature . . ." 20 An arrest
without a probable cause is an unreasonable seizure of a person, and
violates the privacy of persons which ought not to be intruded by the
State.21 Probable cause to warrant arrest is not an opaque concept in our
jurisdiction. Continuing accretions of case law reiterate that they are facts
and circumstances which would lead a reasonably discreet and prudent
man to believe that an offense has been committed by the person sought
to be arrested.22 Other jurisdictions utilize the term man of reasonable
caution 23 or the term ordinarily prudent and cautious man.24 The terms
are legally synonymous and their reference is not to a person with training
in the law such as a prosecutor or a judge but to the average man on the
street.25 It ought to be emphasized that in determining probable cause, the
average man weighs facts and circumstances without resorting to the
calibrations of our technical rules of evidence of which his knowledge is nil.
Rather, he relies on the calculus of common sense of which all reasonable
men have an abundance.
Applying these basic norms, we are not prepared to rule that the
DOJ Panel gravely abused its discretion when it found probable
cause against the petitioners. Petitioners belittle the truthfulness
of Alfaro on two (2) grounds: (a) she allegedly erroneously
described petitioner Webb's hair as semi-blond and (b) she
committed material inconsistencies in her two (2) sworn
statement, thus:26
 xxx xxx xxx
To illustrate, the following are some examples of
inconsistencies in the two sworn statements of Alfaro:
On whether Alfaro knew Carmela before the incident in
question
First Affidavit: She had NOT met Carmela before June
29, 1991.
Second Affidavit: "I met her in a party sometime in
February, 1991."
On whether Alfaro saw the dead bodies
First Affidavit: She did not see the three dead persons on
that night. She just said "on the following day I read in the
newspaper that there were three persons who were killed .
. ."
Second Affidavit: "I peeped through the first door on the
left. I saw two bodies on top of the bed, bloodied, and in
the floor, I saw Hubert on top of Carmela."
On the alleged rape of Carmela Vizconde
First Affidavit: She did not see the act of rape.
Second Affidavit: She saw Hubert Webb "with bare
buttocks, on top of Carmela and pumping, her mouth
gagged and she was moaning and I saw tears on her
eyes."
On how Webb, Lejano, and Ventura entered the
Vizconde house
First Affidavit: "by jumping over the fence, which was only
a little more than a meter high."
Second Affidavit: They "entered the gate which was
already open."
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.
Second Affidavit: "I proceeded to the iron grill gate
leading to the dirty kitchen."
In its Resolution, the DOJ Panel ruled that these alleged
misdescription and inconsistencies did not erode the
credibility of Alfaro. We quote the pertinent ruling, viz.:27
xxx xxx xxx
As regards the admissibility of Alfaro's statements, granting for
purposes of argument merely that she is a co-conspirator, it is well
to note that confessions of a co-conspirator may be taken as
evidence to show the probability of the co-conspirator's
participation in the commission of the crime (see People vs.
Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established doctrine that conspiracy need
not be proved by direct evidence of prior agreement to commit the
crime. Indeed, "only rarely would such a prior agreement be
demonstrable since, in the nature of things, criminal undertakings
are only rarely documented by agreements in writing. Thus,
conspiracy may be inferred from the conduct of the accused
before, during and after the commission of the crime, showing that
the several accused had acted in concert or in unison with each
other, evincing a common purpose or design." (Angelo vs. Court
of Appeals, 210 SCRA 402 [1992], citations omitted; People vs.
Molleda, 86 SCRA 699).
Neither can we discredit Alfaro merely because of the
inconsistencies in her two sworn statements. In Angelo, the Court
refused to discredit the testimony of a witness accusing therein
petitioner for the slaying of one Gaviano Samaniego even though
said witness failed to name Angelo in his affidavit which was
executed five (5) months earlier. Granting, the Court continued,
that a part of the witness' testimony is untrue, such circumstance
is not sufficient to discredit the entire testimony of the witness.
On August 7, 1995, another counsel for respondent Webb
submitted his memorandum suggesting that the instant complaint
"should not be decided within the month to give time to the NBI to
coordinate with the FBI on the latter's inquiry into the whereabouts
of Hubert Webb . . . and to check on our U.S.-based witnesses."
In said memorandum, counsel for respondent Webb calls for the
application of the maxim falsus in uno, falsus in omnibus arising
from the inconsistencies of Alfaro's statements, among others.
This is untenable. As held in Angelo:
There is no rule of law which prohibits a court from crediting part
of the testimony of a witness as worthy of belief and from
simultaneously rejecting other parts which the court may find
incredible or dubious. The maxim falsus in uno, falsus in
omnibus is not a rule of law, let alone a general rule of law which
is universally applicable. It is not a legal presumption either. It is
merely a latinism describing the conclusion reached by a court in
a particular case after ascribing to the evidence such weight or
lack of weight that the court deemed proper.
In the case before us, complainant reasoned out that Alfaro was
then having reservations when she first executed the first
statement and held back vital information due to her natural
reaction of mistrust. This being so, the panel believes that the
inconsistencies in Alfaro's two sworn statements have been
sufficiently explained especially specially so where there is no
showing that the inconsistencies were deliberately made to distort
the truth. Consequently, the probative value of Alfaro's testimony
deserves full faith and credit. As it has been often noted, ex
parte statements are generally incomplete because they are
usually executed when the affiant's state of mind does not give
her sufficient and fair opportunity to comprehend the import of her
statement and to narrate in full the incidents which transpired
(People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of
Appeals, supra). In the case at bar, there is no dispute that a
crime has been committed and what is clear before us is that the
totality of the evidence submitted by the complainant indicate
a prima facie case that respondents conspired in the perpetration
of the imputed offense.
We note that the May 22, 1995 sworn statement of Alfaro was given with
the assistance of counsel28 and consists of six (6) pages, in single space
reciting in rich details how the crime was planned and then executed by the
petitioners. In addition, the DOJ Panel evaluated the supporting sworn
statements of Nerissa Rosales and Mila Gaviola, former housemaids of the
Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808
and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their
statements as follows:29
xxx xxx xxx
According to Nerissa E. Rosales, a former housemaid of the
Webb family, on June 29, 1991, between 7:00 o'clock and 8:00
o'clock in the evening, Hubert was at home inside his room with
two male visitors. She knew it because she and her co-
housemaid, Loany, were instructed by Hubert to bring them three
glasses of juice. It was the last time she saw Hubert and was
later told by then Congressman Webb that Hubert was in the
United States.
While Mila S. Gaviola, another former housemaid of the Webb
family and who served as a laundry woman, claims, aside from
corroborating the statement of Nerissa Rosales, that on June 30,
1991, she woke up at around 4:00 in the morning and as what
she used to do, she entered the rooms of the Webbs to get their
clothes to be washed. As a matter of fact, in that early morning,
she entered Hubert's room and saw Hubert, who was only
wearing his pants, already awake and smoking while he was
sitting on his bed. She picked up Hubert's scattered clothes and
brought them together with the clothes of the other members of
the family to the laundry area. After taking her breakfast, she
began washing the clothes of the Webbs. As she was washing
the clothes of Hubert Webb, she noticed fresh bloodstains in his
shirt. After she finished the laundry, she went to the servant's
quarters. But feeling uneasy, she decided to go up to the
stockroom near Hubert's room to see what he was doing. In the
said stockroom, there is a small door going to Hubert's room and
in that door there is a small opening where she used to see
Hubert and his friends sniffing on something. She observed
Hubert was quite irritated, uneasy, and walked to and from inside
his room.
On that day, she noticed Hubert left the house at
around 1:00 in the afternoon and came back at around
 4:00 in the same afternoon and went inside his room
using the secret door of the house. It was the last time
that she saw Hubert until she left the Webb family.
On the other hand, Carlos J. Cristobal alleged that on March 9,
1991, at about 10:00 in the morning, he was at the Ninoy Aquino
International Airport as he was then scheduled to take the United
Airlines Flight No. 808 at 2:00 in the afternoon for New York. At
the airport's lobby, he saw then Congressman Freddie Webb
with a male companion. He greeted him and Webb answered:
"Mabuti naman, at ito, ihahatid ko ang anak ko papuntang
Florida." He knew Freddie Webb because he often watched him
then in a television show "Chicks to Chicks." He observed that
the man whom Freddie Webb referred to as his son, was of the
same height as Freddie. The son referred to has fair complexion
with no distinguishing marks on his face. He (son of Webb) was
then wearing a striped white jacket. When he and his children
were already inside the plane, he did not see Freddie anymore,
but he noticed his son was seated at the front portion of the
economy class. He never noticed Freddie Webb's son upon their
arrival in San Francisco. He claims that, while watching the
television program "DONG PUNO LIVE" lately, he saw the wife
of Freddie Webb with her lawyer being interviewed, and when
she described Hubert as "moreno" and small built, with a height
of five feet and seven inches tall, and who was the one who left
for United States on March 9, 1991, he nurtured doubts because
such description does not fit the physical traits of the son of
Freddie, who left with him for United States on the same flight
and date.
Lolita Birrer, alleged that she know Gerardo Biong because she
had an affair with him for almost three (3) years and in fact, she
had a child with him who is now four (4) years old. Their
relationship started in February, 1991 until she broke up with him
in September 1993. She recalls that on June 29, 1991, at around
6:00 p.m., Biong invited her to play mahjong at the canteen of a
certain Aling Glo located at the back of the Parañaque Municipal
Hall.
At about 2:30, in the early morning of January 30, 1991, the
radio operator of the Parañaque police told Biong that he has a
phone call. Before Biong went to the radio room, she was
instructed to take him over and after somebody won the game,
she followed Biong at the radio room where she overheard him
uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin
kita, O ano?, dilaw na taxi, o sige." When he put the phone
down, Biong told her, "Mayroon lang akong rerespondehan, ikaw
muna ang maupo" and then, he went outside the canteen
apparently waiting for somebody. Twenty minutes later, a taxi,
colored yellow, arrived with a male passenger sitting at the
backseat and parked near the canteen. After it made some
signals by blinking its headlight, Biong rode thereat at the front
seat beside the driver and then, they left. She was not able to
recognize the male passenger because the window of the taxi
was tinted. Biong came back at around 7:00 of the same
morning and when he arrived, he immediately washed his hands
and face, and took his handkerchief from his pocket which he
threw at the trash can. She asked him why he threw his
handkerchief and he answered, "Hmp . . . amoy tae." She
inquired what happened in BF Homes and he replied, "Putang
inang mga batang iyon, pinahirapan nila ako."
Biong later invited her for breakfast, but they first went to his
office where she observed him doing something in his steel
cabinet while he appeared to be uneasy. Moments later, Galvan,
another policeman of Parañaque, arrived and said, "Oy Biong,
may tatlong patay sa BF, imbestigahan mo" to which Biong
answered, "Oo susunod na ako." Biong went to the office of
Capt. Don Bartolome who offered to accompany him and with
whom she asked permission to go with them. Before they
proceeded to the place where the killings happened, she asked
Biong if he knew the exact address and the latter immediately
responded, "Alam ko na yon." She was surprised because
Galvan never told him the place of the incident.
As soon as they arrived at the Vizconde's residence, Biong
instructed the housemaids to contact the victim's relatives, while
the security guard fetched the barangay chairman and the
president of the Homeowners Association. When all these
persons were already in the house, Biong started recording the
wounds of the victim. Inside the master's bedroom, she saw
Biong took a watch from the jewelry box. Because she could not
tolerate the foul odor, she and Capt. Bartolome went out of the
room and proceeded to the dining area. On top of the dining
table, she saw the scattered contents of a shoulder bag.
Moments later, Biong came out from the room and proceeded to
the front door to remove the chain lock; asked the keys from the
housemaid and it was only then that the main door was opened.
Biong noticed a stone in front of the broken glass of the door and
requested Capt. Bartolome to go inside the servant's quarters as
he doubted the housemaids' claim that they heard nothing
unusual. Using the handle of his gun, Biong broke the remaining
glass of the door panel. Bartolome then came out of the room
and told Biong that he can hear the sound of the glass being
broken. At the garage, Biong also noticed same marks on the
hood of the car.
On the following day, at around 12:00 noon, Biong arrived in her
house together with the Vizconde housemaids. When Biong was
preparing to take a bath, she saw him remove from his pocket
the things she also saw from Vizconde's residence, to wit: calling
cards, driver's license, ATM card, a crossed check worth
P80,000.00, earrings, a ring, bracelet, necklace, and the watch
he took from the jewelry box inside the room of the Vizcondes.
These jewelry items were later pawned by Biong for P20,000.00
at a pawnshop in front of Chow-Chow restaurant in Santos
Avenue, Parañaque. The next day, she saw Biong took from his
locker at the Parañaque Police Station an imported brown
leather jacket, which the latter claimed to have been given to him
by the person who called him up in the early morning of June 30,
1991.
Since then, Biong has been wearing said jacket until they broke
up sometime in 1993. She observed that Biong seemed not
interested in pursuing the investigation of the Vizconde case. In
fact, when Biong and this group picked up Mike Gatchalian and
brought him to the Parañaque Police Station, she was surprised
that Biong halted the investigation when Gatchalian was
profusely sweating while being interrogated. After the father of
Gatchalian talked to Colonel Pureza, the latter called up and
instructed Biong to bring Gatchalian to him (Colonel Pureza) and
that was the last thing she remembered regarding this case.
The DOJ Panel then weighed these inculpatory evidence against the
exculpatory evidence of petitioners. It ruled: 30
xxx xxx xxx
The voluminous number of exhibits submitted by
respondent Webb to support his defense of denial and alibi
notwithstanding, the panel, after a careful and thorough
evaluation of the records, believes that they cannot outweigh the
evidence submitted by the complainant. Alibi cannot prevail over
the positive identification made by a prosecution witness. Verily,
alibi deserves scant consideration in the face of positive
identification especially so where the claim of alibi is supported
mainly by friends and relatives (People vs. Apolonia, 235 SCRA
124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of
cases).
Similarly, denial is a self-serving negative which cannot be given
greater evidentiary weight than the declaration of a credible
witness who testified on affirmative matters (People vs. Carizo,
233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and
becomes even more weaker when arrayed against the positive
identification by the witness for the prosecution (People vs.
Onpaid, 233 SCRA 62 [1994]).
Surprisingly, Gatchalian's defense of alibi was not corroborated
by Lejano, whom he claimed was with him watching video tapes
at the Syyap residence. Other than claiming that he "was not and
could not have been at or near the area of the Vizconde
residence at the time of the alleged commission of the crime,"
respondent Lejano proffered no evidence to substantiate his
claim of alibi.
 xxx xxx xxx
On the other hand, respondent Webb seeks to enhance the
acceptability of his alibi in the form of documents tending to show
that he was thousands of miles away when the incident
occurred. We have carefully deliberated and argued on the
evidence submitted by respondent Webb in support of his
absence from the country since March 9, 1991 to October 26,
1992 and found the same wanting to exonerate him of the
offense charged. The material dates in this case are June 29 and
30, 1991. While respondent Webb may have submitted proof
tending to show that he was issued a California driver's license
on June 14, 1991, there is no showing that he could not have
been in the country on the dates above mentioned. Neither do
we find merit in the allegation that respondent Webb personally
bought a bicycle on June 30, 1991 in California in view of his
positive identification by Alfaro and the two (2) househelps of the
Webb family who testified that he was here in the country on said
dates. Additionally, the issuance of receipt evidencing the
purchase of a bicycle in California is no conclusive proof that the
name appearing thereon was the actual buyer of the
merchandise.
Given these conflicting pieces of evidence of the NBI and the
petitioners, we hold that the DOJ Panel did not gravely abuse its
discretion when it found probable cause against the petitioners.
A finding of probable cause needs only to rest on evidence
showing that more likely than not a crime has been committed
and was committed by the suspects. Probable cause need not
be based on clear and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt.
As well put in Brinegar v. United States,31 while probable cause
demands more than "bare suspicion," it requires "less than
evidence which would justify . . . conviction." A finding of
probable cause merely binds over the suspect to stand trial. It is
not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to
support a finding of probable cause, we also hold that the DOJ
Panel did not, gravely abuse its discretion in refusing to call the
NBI witnesses for clarificatory questions. The decision to call
witnesses for clarificatory questions is addressed to the sound
discretion of the investigator and the investigator alone. If the
evidence on hand already yields a probable cause, the
investigator need not hold a clarificatory hearing. To repeat,
probable cause merely implies probability of guilt and should be
determined in a summary manner. Preliminary investigation is
not a part of trial and it is only in a trial where an accused can
demand the full exercise of his rights, such as the right to
confront and cross-examine his accusers to establish his
innocence. In the case at bar, the DOJ Panel correctly adjudged
that enough evidence had been adduced to establish probable
cause and clarificatory hearing was unnecessary.
II
We now come to the charge of petitioners that respondent Judge
Raul de Leon and, later, respondent Judge Amelita Tolentino
issued warrants of arrest against them without conducting the
required preliminary examination. Petitioners support their
stance by highlighting the following facts: (1) the issuance of
warrants of arrest in a matter of few hours; (2) the failure of said
judges to issue orders of arrest; (3) the records submitted to the
trial court were incomplete and insufficient from which to base a
finding of probable cause; and (4) that even Gerardo Biong who
was included in the Information as a mere accessory had a "NO
BAIL" recommendation by the DOJ Panel. Petitioners postulate
that it was impossible to conduct a "searching examination of
witnesses and evaluation of the documents" on the part of said
judges.
The issuance of a warrant of arrest interferes with individual
liberty and is regulated by no less than the fundamental law of
the land. Section 2 of Article III of the Constitution provides:
Sec. 2. The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by
the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce
and particularly describing the place to be searched
and the persons or things to be seized.
The aforequoted provision deals with the requirements of
probable cause both with respect to issuance of warrants of
arrest or search warrants. The similarities and differences of their
requirements ought to be educational. Some of them are pointed
out by Professors LaFave and Israel, thus:32 "It is generally
assumed that the same quantum of evidence is required whether
one is concerned with probable cause to arrest or probable
cause to search. But each requires a showing of probabilities as
to somewhat different facts and circumstances, and thus one can
exist without the other. In search cases, two conclusions must be
supported by substantial evidence: that the items sought are in
fact seizable by virtue of being connected with criminal activity,
and that the items will be found in the place to be searched. It is
not also necessary that a particular person be implicated. By
comparison, in arrest cases there must be probable cause that a
crime has been committed and that the person to be arrested
committed it, which of course can exist without any showing that
evidence of the crime will be found at premises under that
person's control." Worthy to note, our Rules of Court do not
provide for a similar procedure to be followed in the issuance of
warrants of arrest and search warrants. With respect to warrants
of arrest, section 6 of Rule 112 simply provides that "upon filing
of an information, the Regional Trial Court may issue a warrant
for the arrest of the accused." In contrast, the procedure to be
followed in issuing search warrants is more defined. Thus,
Sections 3, 4 and 5 of Rule 126 provide:
xxx xxx xxx
Sec. 3. Requisites for issuing search warrant. — A
search warrant shall not issue but upon probable
cause in connection with one specific offense to be
determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing
the place to be searched and the things to be seized.
Sec. 4. Examination of complainant; record. — The
judge must, before issuing the warrant, personally
examine in the form of searching questions and
answers, in writing and under oath the complainant
and any witnesses he may produce on facts personally
known to them and attach to the record their sworn
statements together with any affidavits submitted.
Sec. 5. Issuance and form of search warrant. — If the
judge is thereupon satisfied of the facts upon which
the application is based, or that there is probable
cause to believe that they exist, he must issue the
warrant, which must be substantially in the form
prescribed by these Rules.
We discussed the difference in the Procedure of issuing warrants
of arrest and search warrants in Soliven vs. Makasiar,33 thus:
xxx xxx xxx
The second issue, raised by Beltran, calls for an
interpretation of the constitutional provision on the
issuance of warrants of arrest. The pertinent provision
reads:
Art. III, Sec. 2. The right of the
people to be secure in their
persons, houses, papers and
 effects against unreasonable
searches and seizures of
whatever nature and for any
purpose shall be inviolable, and
no search warrant or warrant of
arrest shall issue except upon
probable cause to be determined
personally by the judge after
examination under oath or
affirmation of the complainant and
the witnesses he may produce,
and particularly describing the
place to be searched and the
persons or things to be seized.
The addition of the word "personally" after the word
"determined" and the deletion of the grant of authority
by the 1973 Constitution to issue warrants to "other
responsible officers as may be authorized by law," has
apparently convinced petitioner Beltran that the
Constitution now requires the judge to personally
examine the complainant and his witnesses in his
determination of probable cause for the issuance of
warrants of arrest. This is not an accurate
interpretation.
What the Constitution underscores is the exclusive
and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In
satisfying himself of the existence of probable cause
for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and
his witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the report
and the documents submitted by the fiscal regarding
the existence of probable cause and, on the basis
thereof, issue a warrant; or (2) if on the basis thereof
he finds no probable cause, he may disregard the
fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a
conclusions as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges
would be unduly laden with the preliminary
examination and investigation of criminal complaints
instead of concentrating on hearing and deciding
cases filed before their courts.
Clearly then, the Constitution, the Rules of Court, and our case
law34 repudiate the submission of petitioners that respondent
judges should have conducted "searching examination of
witnesses" before issuing warrants of arrest against them. They
also reject petitioners' contention that a judge must first issue an
order of arrest before issuing a warrant of arrest. There is no law
or rule requiring the issuance of an Order of Arrest prior to a
warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its
26-page report, the two (2) sworn statements of Alfaro and the
sworn statements of Carlos Cristobal and Lolita Birrer35 as well
as the counter-affidavits of the petitioners. Apparently, the
painstaking recital and analysis of the parties' evidence made in
the DOJ Panel Report satisfied both judges that there is
probable cause to issue warrants of arrest against petitioners.
Again, we stress that before issuing warrants of arrest, judges
merely determine personally the probability, not the certainty of
guilt of an accused. In doing so, judges do not conduct a de
novo hearing to determine the existence of probable cause. They
just personally review the initial determination of the prosecutor
finding a probable cause to see if it is supported by substantial
evidence. The sufficiency of the review process cannot be
measured by merely counting minutes and hours. The fact that it
took the respondent judges a few hours to review and affirm the
probable cause determination of the DOJ Panel does not mean
they made no personal evaluation of the evidence attached to
the records of the case.36
Petitioners' reliance on the case of Allado vs. Diokno37 is
misplaced. Our Allado ruling is predicated on the utter failure of
the evidence to show the existence of probable cause. Not even
the corpus delicti of the crime was established by the evidence of
the prosecution in that case. Given the clear insufficiency of the
evidence on record, we stressed the necessity for the trial judge
to make a further personal examination of the complainant and
his witnesses to reach a correct assessment of the existence or
non-existence of probable cause before issuing warrants of
arrest against the accused. The case at bar, however, rests on a
different factual setting. As priorly discussed, the various types of
evidence extant in the records of the case provide substantial
basis for a finding of probable cause against the petitioner.
The corpus delicti of the crime is a given fact. There is an
eyewitness account of the imputed crime given by Alfaro. The
alibi defense of petitioner Webb is also disputed by sworn
statements of their former maids. It was therefore unnecessary
for the respondent judges to take the further step of
examining ex parte the complainant and their witnesses with
searching questions.
III
Petitioners also complain about the denial of their constitutional
right to due process and violation of their right to an impartial
investigation. They decry their alleged hasty and malicious
prosecution by the NBI and the DOJ Panel. They also assail the
prejudicial publicity that attended their preliminary investigation.
We reject these contentions. The records will show that the DOJ
Panel did not conduct the preliminary investigation with indecent
haste. Petitioners were given fair opportunity to prove lack of
probable cause against them. The fairness of this opportunity is
well stressed in the Consolidated Comment of the Solicitor
General, viz.:
Again, there is no merit in this contention. Petitioners were
afforded all the opportunities to be heard. Petitioner Webb
actively participated in the preliminary investigation by appearing
in the initial hearing held on June 30, 1995 and in the second
hearing on July 14, 1995; and by filing a "Motion for Production
and Examination of Evidence and Documents" on June 27, 1995
(p. 4, Petition), a "Reply to the compliance and
Comment/Manifestation to the Motion for Production and
Examination of Evidence" on July 5, 1995 (p. 6, Petition), a
"Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his
"Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a
"Motion to Resolve" on August 1, 1995. Numerous letter-
requests were also sent by the petitioner Webb's counsel to the
DOJ Panel requesting the latter to furnish him a copy of the
reports prepared by the FBI concerning the petitioner's
whereabouts during the material period (Annexes "L", "L-1" and
"L-2" of the Supplemental Petition dated August 14, 1995). In
fact, not satisfied with the decision of the DOJ Panel not to
issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr.,
petitioner Webb filed a "Petition for Injunction, Certiorari,
Prohibition and Mandamus" with the Regional Trial Court,
Branch 63 of Makati in order to compel said Atty. Mercader, Jr.
to produce the first sworn statement of Alfaro for submission to
the DOJ Panel. (p. 4, Petition) The said court dismissed the
petition after Mercader produced and submitted to the DOJ
Panel the first sworn statement of Alfaro, without ruling on the
admissibility and credence of the two (2) conflicting and
inconsistent sworn statements of the principal witness, Alfaro.
(Attached hereto is a copy of the order of Judge Ruben A.
Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked
as Annex "F."
It must also be pointed out that despite the declaration by the
DOJ Panel that the preliminary investigation was to be
terminated after the hearing held on July 14, 1995, the panel
continued to conduct further proceedings, e.g. comparison of the
photo-copies of the submitted documents with the originals on
July 17, 1995. (p. 7, Petition) The panel even entertained the
"Response" submitted by accused Miguel Rodriguez on July 18,
1995. (p. 17 Resolution) In addition to these, the panel even
announced that any party may submit additional evidence before
the resolution of the case. (p. 8, Petition) From the time the panel
declared the termination of the preliminary investigation on July
14, 1995, twenty-seven (27) days elapsed before the resolution
was promulgated, and the information eventually filed in the
Regional Trial Court of Parañaque on August 10, 1995. This
notwithstanding the directive of Section 3(f) Rule 112 of the
Revised Rules of Court that the investigating officer shall resolve
the case within ten (10) days from the termination of the
preliminary investigation. The DOJ Panel precisely allowed the
parties to adduce more evidence in their behalf and for the panel
to study the evidence submitted more fully. This directly disputes
the allegation of the petitioners that the resolution was done with
indecent haste in violation of the rights of the petitioners. During
the period of twenty-seven (27) days, the petitioners were free to
adduce and present additional evidence before the DOJ Panel.
Verily, petitioners cannot now assert that they were denied due
process during the conduct of the preliminary investigation
simply because the DOJ Panel promulgated the adverse
resolution and filed the Information in court against them.
Petitioners cannot also assail as premature the filing of the
Information in court against them for rape with homicide on the
ground that they still have the right to appeal the adverse
resolution of the DOJ Panel to the Secretary of Justice. The filing
of said Information is in accord with Department of Justice Order
No. 223, series of 1993, dated June 25, 1993. We quote its
pertinent sections, viz.:
Sec. 4. Non-Appealable Cases; Exceptions. — No appeal may
be taken from a resolution of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor finding probable cause except upon showing of
manifest error or grave abuse of discretion. Notwithstanding the
showing of manifest error or grave abuse of discretion, no appeal
shall be entertained where the appellant had already been
arraigned. If the appellant is arraigned during the pendency of
the appeal, said appeal shall be dismissed motu propio by the
Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding
probable cause, however, shall not hold the filing of the
information in court.
Sec. 2. When to appeal. — The appeal must be filed within a
period of fifteen (15) days from receipt of the questioned
resolution by the party or his counsel. The period shall be
interrupted only by the filing of a motion for reconsideration
within ten (10) days from receipt of the resolution and shall
continue to run from the time the resolution denying the motion
shall have been received by the movant or his counsel.
(Emphasis supplied)
Without doubt then, the said DOJ Order No. 223 allows the filing
of an Information in court after the consummation of the
preliminary investigation even if the accused can still exercise
the right to seek a review of the prosecutor's recommendation
with the Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro in
the Information considering her alleged conspiratorial
participation in the crime of rape with homicide. The non-
inclusion of Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness Protection,
Security And Benefit Program And For Other Purposes" enacted
on April 24, 1991. Alfaro qualified under its Section 10, which
provides:
xxx xxx xxx
Sec. 10. State Witness. — Any person who has participated in
the commission of a crime and desires to a witness for the State,
can apply and, if qualified as determined in this Act and by the
Department, shall be admitted into the Program whenever the
following circumstances are present:
(a) the offense in which his testimony will be used is a grave
felony as defined under the R.P.C. or its equivalent under special
laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper
prosecution of the offense committed;
(d) his testimony can be substantially corroborated on its
material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime involving
moral turpitude.
An accused discharged from an information or criminal complaint
by the court in order that he may be a State Witness pursuant to
Sections 9 and 10 of Rule 119 of the Revised Rules of Court
may upon his petition be admitted to the Program if he complies
with the other requirements of this Act. Nothing in this Act shall
prevent the discharge of an accused so that he can be used as a
Witness under Rule 119 of the Revised Rules of Court.
Upon qualification of Alfaro to the program, Section 12 of the
said law mandates her non-inclusion in the criminal Complaint or
Information, thus:
xxx xxx xxx
Sec. 12. Effect of Admission of a State Witness into the
Program. — The certification of admission into the Program by
the Department shall be given full faith and credit by the
provincial or city prosecutor who is required NOT TO INCLUDE
THE WITNESS IN THE CRIMINAL COMPLAINT OR
INFORMATION and if included therein, to petition the court for
his discharge in order that he can be utilized as a State Witness.
The court shall order the discharge and exclusion of the said
accused from the information.
Admission into the Program shall entitle such State Witness to
immunity from criminal prosecution for the offense or offenses in
which his testimony will be given or used and all the rights and
benefits provided under Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb.
It is urged that they constitute ". . . an intrusion into judicial
prerogative for it is only the court which has the power under the
Rules on Criminal Procedure to discharge an accused as a state
witness." The argument is based on Section 9, Rule 11938which
gives the court the prerogative to approve the discharge of an
accused to be a state witness. Petitioner's argument lacks
appeal for it lies on the faulty assumption that the decision whom
to prosecute is a judicial function, the sole prerogative of courts
and beyond executive and legislative interference. In truth, the
prosecution of crimes appertains to the executive department of
government whose principal power and responsibility is to see
that our laws are faithfully executed. A necessary component of
this power to execute our laws is the right to prosecute their
violators. The right to prosecute vests the prosecutor with a wide
range of discretion — the discretion of whether, what and whom
to charge, the exercise of which depends on a smorgasbord of
factors which are best appreciated by prosecutors. We thus hold
that it is not constitutionally impermissible for Congress to enact
R.A. No. 6981 vesting in the Department of Justice the power to
determine who can qualify as a witness in the program and who
shall be granted immunity from prosecution.39 Section 9 of Rule
119 does not support the proposition that the power to choose
who shall be a state witness is an inherent judicial prerogative.
Under this provision, the court, is given the power to discharge a
state witness only because it has already acquired jurisdiction
over the crime and the accused. The discharge of an accused is
part of the exercise of jurisdiction but is not a recognition of an
inherent judicial function. Moreover, the Rules of Court have
never been interpreted to be beyond change by legislation
designed to improve the administration of our justice system.
R.A. No. 6981 is one of the much sought penal reform laws to
help government in its uphill fight against crime, one certain
cause of which is the reticence of witnesses to testify. The
rationale for the law is well put by the Department of Justice, viz.:
"Witnesses, for fear of reprisal and economic dislocation, usually
refuse to appear and testify in the investigation/prosecution of
criminal complaints/cases. Because of such refusal, criminal
complaints/cases have been dismissed for insufficiency and/or
lack of evidence. For a more effective administration of criminal
justice, there was a necessity to pass a law protecting witnesses
and granting them certain rights and benefits to ensure their
appearance in investigative bodies/courts."40 Petitioner Webb's
challenge to the validity of R.A. No. 6981 cannot therefore
succeed.
Further, petitioners charge the NBI with violating their right to
discovery proceedings during their preliminary investigation by
suppressing the April 28, 1995 original copy of the sworn
statement of Alfaro and the FBI Report. The argument is novel in
this jurisdiction and as it urges an expansive reading of the rights
of persons under preliminary investigation it deserves serious
consideration. To start with, our Rules on Criminal Procedure do
not expressly provide for discovery proceedings during the
preliminary investigation stage of a criminal
proceeding.41 Sections 10 and 11 of Rule 117 do provide an
accused the right to move for a bill of particulars and for
production or inspection of material evidence in possession of
the prosecution.42 But these provisions apply after the filing of
the Complaint or Information in court and the rights are accorded
to the accused to assist them to make an intelligent plea at
arraignment and to prepare for trial.43
This failure to provide discovery procedure during preliminary
investigation does not, however, negate its use by a person
under investigation when indispensable to protect his
constitutional right to life, liberty and property. Preliminary
investigation is not too early a stage to guard against any
significant erosion of the constitutional right to due process of a
potential accused. As aforediscussed, the object of a preliminary
investigation is to determine the probability that the suspect
committed a crime. We hold that the finding of a probable cause
by itself subjects the suspect's life, liberty and property to real
risk of loss or diminution. In the case at bar, the risk to the liberty
of petitioners cannot be understated for they are charged with
the crime of rape with homicide, a non-bailable offense when the
evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure
inquisitorial system of preliminary investigation. Instead, Rule
112 installed a quasi-judicial type of preliminary investigation
conducted by one whose high duty is to be fair and
impartial.44 As this Court emphasized in Rolito Go vs. Court of
Appeals,45 "the right to have a preliminary investigation
conducted before being bound over for trial for a criminal
offense, and hence formally at risk of incarceration or some other
penalty, is not a mere formal or technical right; it is a substantive
right." A preliminary investigation should therefore be
scrupulously conducted so that the constitutional right to liberty
of a potential accused can be protected from any material
damage. We uphold the legal basis of the right of petitioners to
demand from their prosecutor, the NBI, the original copy of the
April 28, 1995 sworn statement of Alfaro and the FBI Report
during their preliminary investigation considering their
exculpatory character, and hence, unquestionable materiality to
the issue of their probable guilt. The right is rooted on the
constitutional protection of due process which we rule to be
operational even during the preliminary investigation of a
potential accused. It is also implicit in section (3) (a) of Rule 112
which requires during the preliminary investigation the filing of a
sworn complaint, which shall ". . . state the known address of the
respondent and be accompanied by affidavits of the complainant
and his witnesses as well as other supporting documents . . ."
In laying down this rule, the Court is not without enlightened
precedents from other jurisdictions. In the 1963 watershed case
of Brady v. Maryland 46 the United States Supreme Court held
that "suppression of evidence favorable to an accused upon
request violates due process where the evidence is material to
guilt or punishment, irrespective of the good faith or bad faith of
the prosecution." Its progeny is the 1935 case of Mooney
v. Holohan 47 which laid down the proposition that a
prosecutor's intentional use of perjured testimony to procure
conviction violates due process. Thus, evolved jurisprudence
firming up the prosecutor's duty to disclose to the defense
exculpatory evidence in its possession.48 The rationale is well put
by Justice Brennan in Brady49 — "society wins not only when the
guilty are convicted but when criminal trials are fair." Indeed,
prosecutors should not treat litigation like a game of poker where
surprises can be sprung and where gain by guile is not punished.
But given the right of petitioners to compel the NBI to disclose
exculpatory evidence in their favor, we are not prepared to rule
that the initial non-production of the original sworn statement of
Alfaro dated April 28, 1995 could have resulted in the reasonable
likelihood that the DOJ Panel would not have found probable
cause. To be sure, the NBI, on July 4, 1995, upon request of
petitioners, submitted a photocopy of Alfaro's April 28, 1995
sworn statement. It explained it cannot produce the original as it
had been lost. Fortunately, petitioners, on July 28, 1995, were
able to obtain a copy of the original from Atty. Arturo Mercader in
the course of the proceedings in Civil Case No. 951099. 50 As
petitioners admit, the DOJ Panel accepted the original of Alfaro's
April 28, 1995 sworn statement as a part of their
evidence.51 Petitioners thus had the fair chance to explain to the
DOJ Panel then still conducting their preliminary investigation the
exculpatory aspects of this sworn statement. Unfortunately for
petitioners, the DOJ Panel still found probable cause to charge
them despite the alleged material discrepancies between the first
and second sworn statements of Alfaro. For reasons we have
expounded, this finding of probable cause cannot be struck down
as done with grave abuse of discretion.52On the other hand, the
FBI Report while corroborative of the alibi of petitioner Webb
cannot by itself reverse the probable cause finding of the DOJ
Panel in light of the totality of evidence presented by the NBI.
Finally, we come to the argument of petitioner that the DOJ
Panel lost its impartiality due to the prejudicial publicity waged in
the press and broadcast media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their
right to due process while undergoing preliminary investigation.
We find no procedural impediment to its early invocation
considering the substantial risk to their liberty while undergoing a
preliminary investigation.
In floating this issue, petitioners touch on some of the most
problematic areas in constitutional law where the conflicting
demands of freedom of speech and of the press, the public's
right to information, and an accused's right to a fair and impartial
trial collide and compete for prioritization. The process of
pinpointing where the balance should be struck has divided men
of learning as the balance keeps moving either on the side of
liberty or on the side of order as the tumult of the time and the
welfare of the people dictate. The dance of balance is a difficult
act to follow.
In democratic settings, media coverage of trials of sensational
cases cannot be avoided and oftentimes, its excessiveness has
been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the
high volume and high velocity of publicity that attended the
preliminary investigation of the case at bar. Our daily diet of facts
and fiction about the case continues unabated even today.
Commentators still bombard the public with views not too many
of which are sober and sublime. Indeed, even the principal
actors in the case — the NBI, the respondents, their lawyers and
their sympathizers — have participated in this media blitz. The
possibility of media abuses and their threat to a fair trial
notwithstanding, criminal trials cannot be completely closed to
the press and the public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia,53 it was wisely held:
xxx xxx xxx
 (a) The historical evidence of the evolution of the criminal investigation was conducted despite its summary nature and the
trial in Anglo-American justice demonstrates conclusively generosity with which they accommodated the discovery motions
that at the time this Nation's organic laws were adopted, of petitioners speak well of their fairness. At no instance, we
criminal trials both here and in England had long been note, did petitioners seek the disqualification of any member of
presumptively open, thus giving assurance that the the DOJ Panel on the ground of bias resulting from their
proceedings were conducted fairly to all concerned and bombardment of prejudicial publicity.
discouraging perjury, the misconduct of participants, or
decisions based on secret bias or partiality. In addition, the
It all remains to state that the Vizconde case will move to a more
significant community therapeutic value of public trials was
critical stage as petitioners will now have to undergo trial on the
recognized: when a shocking crime occurs, a community
merits. We stress that probable cause is not synonymous with
reaction of outrage and public protest often follows, and
guilt and while the light of publicity may be a good disinfectant of
thereafter the open processes of justice serve an important
unfairness, too much of its heat can bring to flame an accused's
prophylactic purpose, providing an outlet for community
right to fair trial. Without imposing on the trial judge the difficult
concern, hostility, and emotion. To work effectively, it is
task of supervising every specie of speech relating to the case at
important that society's criminal process "satisfy the
bar, it behooves her to be reminded of the duty of a trial judge in
appearance of justice," Offutt v. United States, 348 US 11,
high profile criminal cases to control publicity prejudicial to the
14, 99 L Ed 11, 75 S Ct 11, which can best be provided by
fair administration of justice.55 The Court reminds judges that our
allowing people to observe such process. From this
ability to dispense impartial justice is an issue in every trial and in
unbroken, uncontradicted history, supported by reasons as
every criminal prosecution, the judiciary always stands as a
valid today as in centuries past, it must be concluded that a
silent accused. More than convicting the guilty and acquitting the
presumption of openness inheres in the very nature of a
innocent, the business of the judiciary is to assure fulfillment of
criminal trial under this Nation's system of justice, Cf., e.g.,
the promise that justice shall be done and is done — and that is
Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S
the only way for the judiciary to get an acquittal from the bar of
Ct 1038.
public opinion.

(b) The freedoms of speech, press, and assembly,

IN VIEW WHEREOF, the petitions are dismissed for lack of
expressly guaranteed by the First Amendment, share a
showing of grave abuse of discretion on the part of the
common core purpose of assuring freedom of
respondents. Costs against petitioners.
communication on matters relating to the functioning of
government. In guaranteeing freedoms such as those of
speech and press, the First Amendment can be read as SO ORDERED.
protecting the right of everyone to attend trials so as to give
meaning to those explicit guarantees; the First Amendment
right to receive information and ideas means, in the context
of trials, that the guarantees of speech and press, standing
alone, prohibit government from summarily closing
courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the
right of assembly is also relevant, having been regarded not
only as an independent right but also as a catalyst to
augment the free exercise of the other First Amendment
rights with which it was deliberately linked by
the draftsmen. A trial courtroom is a public place where the
people generally — and representatives of the media —
have a right to be present, and where their presence
historically has been thought to enhance the integrity and
quality of what takes place.

(c) Even though the Constitution contains no provision

which by its terms guarantees to the public the right to
attend criminal trials, various fundamental rights, not
expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated rights. The
right to attend criminal trials is implicit in the guarantees of
the First Amendment; without the freedom to attend such
trials, which people have exercised for centuries, important
aspects of freedom of speech and of the press could be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial

publicity under certain circumstances can deprive an accused of
his due process right to fair trial. Thus, in Martelino, et
al. vs. Alejandro, et al.,54 we held that to warrant a finding of
prejudicial publicity there must be allegation and proof that the
judges have been unduly influenced, not simply that they might
be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content, of the
publicity that attended the investigation of petitioners fatally
infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity
on the sense of fairness of the DOJ Panel, for these are basically
unbeknown and beyond knowing. To be sure, the DOJ Panel is
composed of an Assistant Chief State Prosecutor and Senior
State Prosecutors. Their long experience in criminal investigation
is a factor to consider in determining whether they can easily be
blinded by the klieg lights of publicity. Indeed, their 26-page
Resolution carries no indubitable indicia of bias for it does not
appear that they considered any extra-record evidence except
evidence properly adduced by the parties. The length of time the
 EN BANC
[G.R. No. 106632. October 9, 1997]
DORIS TERESA HO, petitioner, vs. PEOPLE OF THE PHILIPPINES
(represented by the Office of the Special Prosecutor of the
Ombudsman) and the SANDIGANBAYAN (Second
Division), respondents.
[G.R. No. 106678. October 9, 1997]
ROLANDO S. NARCISO, petitioner, vs. PEOPLE OF THE PHILIPPINES
(represented by the Office of the Special Prosecutor of the
Ombudsman) and the SANDIGANBAYAN (Second
Division), respondents.
DECISION
PANGANIBAN, J.:
May a judge issue a warrant of arrest solely on the basis of the report
and recommendation of the investigating prosecutor, without personally
determining probable cause by independently examining sufficient evidence
submitted by the parties during the preliminary investigation?
The Case
This is the main question raised in these two consolidated petitions
for certiorari under Rule 65 of the Rules of Court challenging the
Sandiganbayans August 25, 1992 Resolution[1]which answered the said
query in the affirmative.
The Facts
Both petitions have the same factual backdrop. On August 8, 1991,
the Anti-Graft League of the Philippines, represented by its chief prosecutor
and investigator, Atty. Reynaldo L. Bagatsing, filed with the Office of the
Ombudsman a complaint[2] against Doris Teresa Ho, Rolando S. Narciso
(petitioners in G.R. Nos. 106632 and 106678, respectively), Anthony
Marden, Arsenio Benjamin Santos and Leonardo Odoo. The complaint was
for alleged violation of Section 3 (g) of Republic Act 3019[3] prohibiting a
public officer from entering into any contract or transaction on behalf of the
government if it is manifestly and grossly disadvantageous to the latter,
whether or not the public officer profited or will profit thereby. After due
notice, all respondents therein filed their respective counter-affidavits with
supporting documents. On January 8, 1992, Graft Investigation Officer Titus
P. Labrador (hereafter, GIO Labrador) submitted his resolution[4] with the
following recommendations:
WHEREFORE, all premises considered, it is respectfully recommended
that an information for violation of Section 3 (g) of R.A. 3019 as amended
be filed against respondent Rolando S. Narciso before the Sandiganbayan.
It is likewise recommending that the case against the other respondents be
DISMISSED for insufficiency of evidence.
However, after a review of the above resolution, Special Prosecution
Officer Leonardo P. Tamayo (hereafter, SPO Tamayo) recommended that
both Rolando Narciso and Doris Teresa Ho be charged with violation of
Section 3 (e) of R.A. 3019. The resolution of GIO Labrador, as modified by
the memorandum[5] of SPO Tamayo, was approved by Ombudsman
Conrado M. Vasquez on May 5, 1992. Thus, herein petitioners were charged
accordingly before the Sandiganbayan in an information[6] filed on May 18,
1992. Attached to the information were the resolution of GIO Labrador and
the memorandum of SPO Tamayo. The said information reads:
The undersigned Special Prosecution Officer III, Office of the Special
Prosecutor, hereby accuses ROLANDO NARCISO and DORIS TERESA
HO, President of National Marine Corporation, of violation of Section 3(e)
of RA 3019, as amended, committed as follows:
That on or about April 4, 1989, and for sometime prior and/or subsequent
thereto, in the City of Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused ROLANDO NARCISO, a
public officer, being then the Vice-President of the National Steel
Corporation (NSC), a government-owned or controlled corporation
organized and operating under the Philippine laws, and DORIS TERESA
HO, a private individual and then the President of National Marine
Corporation (NMC), a private corporation organized and operating under
our Corporation law, conspiring and confederating with one another, did
then and there wilfully, unlawfully and criminally, with evident bad faith and
through manifest partiality, cause undue injury to the National Steel
Corporation (NSC), by entering without legal justification into a negotiated
contract of affreightment disadvantageous to the NSC for the haulage of its
products at the rate of P129.50/MT, from Iligan City to Manila, despite their
full knowledge that the rate they have agreed upon was much higher than
those offered by the Loadstar Shipping Company, Inc. (LSCI) and Premier
Shipping Lines, Inc. (PSLI), in the amounts of P109.56 and P123.00 per
Metric Ton, respectively, in the public bidding held on June 30, 1988,
thereby giving unwarranted benefits to the National Marine Corporation, in
the total sum of One Million One Hundred Sixteen Thousand Fifty Two
Pesos and Seventy Five Centavos (P1,116,052.75), Philippine Currency,
to the pecuniary damage and prejudice of the NSC in the aforestated
sum. The said offense was committed by Rolando S. Narciso in the
performance of his official functions as Vice-President of the National Steel
Corporation.
CONTRARY TO LAW.
Acting on the foregoing information, the Sandiganbayan issued the
now questioned warrant of arrest against Petitioners Ho and
Narciso. Petitioner Ho initially questioned the issuance thereof in an Urgent
Motion to Recall Warrant of Arrest/Motion for Reconsideration which was
adopted by Petitioner Narciso. They alleged that the Sandiganbayan, in
determining probable cause for the issuance of the warrant for their arrest,
merely relied on the information and the resolution attached thereto, filed by
the Ombudsman without other supporting evidence, in violation of the
requirements of Section 2, Article III of the Constitution, and settled
jurisprudence. Respondent Sandiganbayan denied said motion in the
challenged Resolution. It ratiocinated in this wise:
Considering, therefore, that this Court did not rely solely on
the certification appearing in the information in this case in the
determination of whether probable cause exists to justify the issuance of
the warrant of arrest but also on the basis predominantly shown by the
facts and evidence appearing in the resolution/memorandum of
responsible investigators/ prosecutors, then the recall of the warrant of
arrest, or the reconsideration sought for, cannot be granted. More so, when
the information, as filed, clearly shows that it is sufficient in form and
substance based on the facts and evidence adduced by both parties during
the preliminary investigation. To require this Court to have the entire record
of the preliminary investigation to be produced before it, including the
evidence submitted by the complainant and the accused-respondents,
would appear to be an exercise in futility.
Thus, these petitions.
The Issue
Petitioner Ho raises this sole issue:
May a judge determine probable cause and issue [a] warrant of
arrest solely on the basis of the resolution of the prosecutor (in the instant
case, the Office of the Special Prosecutor of the Ombudsman) who
conducted the preliminary investigation, without having before him any of
the evidence (such as complainants affidavit, respondents counter-
affidavit, exhibits, etc.) which may have been submitted at the preliminary
investigation?[7]
In his separate petition, Rolando S. Narciso adopts the foregoing and
raises no other distinct issue.
Petitioners Ho and Narciso similarly contend that a judge, in personally
determining the existence of probable cause, must have before
him sufficient evidence submitted by the parties, other than the information
filed by the investigating prosecutor, to support his conclusion and justify the
issuance of an arrest warrant. Such evidence should not be merely
described in a prosecutors resolution. Citing People vs. Inting,[8] petitioners
insist that the judge must have before him the report, the affidavits, the
transcripts of stenographic notes (if any), and all other supporting documents
which are material in assisting the judge to make his determination.
The Courts Ruling
The petitions are meritorious.
The pertinent provision of the Constitution reads:
Section 2 [, Article III]. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce and
particularly describing the place to be searched and the persons or things
to be seized. (Underscoring supplied.)
 In explaining the object and import of the aforequoted constitutional
mandate, particularly the power and the authority of judges to issue warrants
of arrest, the Court elucidated in Soliven vs. Makasiar[9]:
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
probable cause. In satisfying himself of the existence of probable cause for
the issuance of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine
and procedure, he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if
on the basis thereof he finds no probable cause, he may disregard the
fiscals 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.[10] [underscoring supplied]
We should stress that the 1987 Constitution requires the judge to
determine probable cause personally. The word personally does not appear
in the corresponding provisions of our previous Constitutions. This emphasis
shows the present Constitutions intent to place a greater degree of
responsibility upon trial judges than that imposed under the previous
Charters.
While affirming Soliven, People vs. Inting[11] elaborated on what
determination of probable cause entails, differentiating the judges object or
goal from that of the prosecutors.
First, the determination of probable cause is a function of the Judge. It is
not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to
ascertain. Only the Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the
Judge. It merely assists him to make the determination of probable
cause. The Judge does not have to follow what the Prosecutor presents to
him. By itself, the Prosecutors certification of probable cause is
ineffectual. It is the report, the affidavits the transcripts of stenographic
notes (if any), and all other supporting documents behind the Prosecutors
certification which are material in assisting the Judge to
make his determination.
And third, Judges and Prosecutors alike should distinguish the preliminary
inquiry which determines probable cause for the issuance of a warrant of
arrest from the preliminary investigation proper which ascertains whether
the offender should be held for trial or released. Even if the two inquiries
are conducted in the course of one and the same proceeding, there should
be no confusion about the objectives.The determination of probable cause
for the warrant of arrest is made by the Judge. The preliminary
investigation proper -- whether or not there is reasonable ground to believe
that the accused is guilty of the offense charged and, therefore, whether or
not he should be subjected to the expense, rigors and embarrassment of
trial -- is the function of the Prosecutor.[12]
And clarifying the statement in People vs. Delgado[13] -- that the trial
court may rely on the resolution of the COMELEC to file the information, by
the same token that it may rely on the certification made by the prosecutor
who conducted the preliminary investigation, in the issuance of the warrant
of arrest -- this Court underscored in Lim Sr. vs. Felix[14] that [r]eliance on the
COMELEC resolution or the Prosecutors certification presupposes that the
records of either the COMELEC or the Prosecutor have been submitted to
the Judge and he relies on the certification or resolution because the records
of the investigation sustain the recommendation. We added, The warrant
issues not on the strength of the certification standing alone but because of
the records which sustain it. Summing up, the Court said:
We reiterate the ruling in Soliven vs. Makasiar that the Judge does not
have to personally examine the complainant and his witnesses. The
Prosecutor can perform the same functions as a commissioner for the
taking of the evidence. However, there should be a report and necessary
documents supporting the Fiscals bare certification. All of these should be
before the Judge.
The extent of the Judges personal examination of the report and its
annexes depends on the circumstances of each case. We cannot
determine beforehand how cursory or exhaustive the Judges examination
should be. The Judge has to exercise sound discretion for, after all, the
personal determination is vested in the Judge by the Constitution. It can be
as brief or as detailed as the circumstances of each case require. To be
sure, the Judge must go beyond the Prosecutors certification and
investigation report whenever necessary. He should call for [the]
complainant and [the] witnesses themselves to answer the courts probing
questions when the circumstances of the case so require. [15] [underscoring
supplied]
The above rulings in Soliven, Inting and Lim Sr. were iterated
in Allado vs. Diokno[16] where we explained again what probable cause
means. Probable cause for the issuance of a warrant of arrest is the
existence of such facts and circumstances that would lead a reasonably
discreet and prudent person to believe that an offense has been committed
by the person sought to be arrested.[17] Hence, the judge, before issuing a
warrant of arrest, must satisfy himself that based on the evidence submitted
there is sufficient proof that a crime has been committed and that the person
to be arrested is probably guilty thereof.[18] At this stage of the criminal
proceeding, the judge is not yet tasked to review in detail the evidence
submitted during the preliminary investigation. It is sufficient that he
personally evaluates such evidence in determining probable
cause.[19] In Webb vs. De Leon,[20] we stressed that the judge merely
determines the probability, not the certainty, of guilt of the accused and, in
doing so, he need not conduct a de novo hearing. He simply personally
reviews the prosecutors initial determination finding probable cause to see if
it is supported by substantial evidence.
In the recent case of Roberts Jr. vs. Court of Appeals,[21] this Courts
application of the dictum laid down in Soliven -- affirmed and fortified
in Inting, Lim Sr., Allado and Webb -- should lay to rest the issue raised in
the instant petitions. In Roberts Jr., this Court, through Mr. Justice Hilario G.
Davide, Jr., set aside the order of the respondent judge directing inter
alia the issuance of warrants of arrest against the accused, reasoning that
said judge did not personally determine the existence of probable cause,
since he had only the information, amended information, and Joint
Resolution as bases thereof. He did not have the records or evidence
supporting the prosecutors finding of probable cause.
In like manner, herein Respondent Sandiganbayan had only the
information filed by the Office of the Ombudsman, the thirteen-page
resolution of the investigating officer and the three-page memorandum of
the prosecution officer, when it issued the warrant of arrest against the
petitioners. The latter two documents/reports even had dissimilar
recommendations -- the first indicting only Petitioner Narciso, the second
including Petitioner Ho. This alone should have prompted the public
respondent to verify, in the records and other documents submitted by the
parties during the preliminary investigation, whether there was sufficient
evidence to sustain the Ombudsmans action charging both petitioners with
violation of Sec. 3(e) of Anti-Graft law.But in its initial justification of the
issuance of the warrant, the Sandiganbayan simply said:
JUSTICE ESCAREAL:
xxx xxx xxx
But in this particular case we believe there is a prima facie case based on
our examination of the resolution because we believe, we think the
Ombudsman will not approve a resolution just like that, without evidence to
back it up.[22]
In attempting to further justify its challenged action, the public
respondent explained in its assailed Resolution:
In the instant case, there are attached to the information, two (2)
Memorandum/Resolution (sic) emanating from the Offices of the
Ombudsman and the Special Prosecutor (Pp. 4-6, 7-19, respectively,
Record) which clearly and indubitably established, firstly, the conduct of a
due and proper preliminary investigation, secondly, the approval by proper
officials clothed with statutory authority; and thirdly, the determination and
ascertainment of probable cause based on the documentary evidence
submitted by the complainant (Anti-Graft League of the Philippines),
foremost among which is the Contract of Affreightment entered into
between National Steel Corporation (NSC), and National Marine
Corporation (NMC) and the COA-NSC audit report, together with the
counter-affidavits of accused Rolando Narciso and NMC officials, among
whom is accused-movant. Outlined in detail in the aforesaid Resolution of
Titus P. Labrador, Graft Investigation Officer II, which was reviewed by
Attys. Romeo I. Tan and Arturo Mojica, Director, Community Coordination
Bureau and Assistant Ombudsman, PACPO, [respectively,] are the facts
leading to the questioned transaction between NSC and NMC, together
with an evaluation of the propriety and legality of the bidding process
involved therein and which revealed that there were supposed non-
compliance with proper bidding procedures. GIO Labradors findings and
recommendations, extensively set out in his thirteen-page resolution, is
complemented by the three-page Memorandum of Special Prosecution
Officer II Leonardo P. Tamayo, both of which meticulously delved into the
merits and demerits of the evidence presented by the complainant and
accused-respondents and which resulted in their respective
recommendation which led the Honorable Conrado M. Vasquez to approve
the recommendations of Deputy Special Prosecutor Jose de G. Ferrer and
Special Prosecutor Aniano A. Desierto for the filing of the information in the
case at bar.
xxx xxx xxx
Considering, therefore, that this Court did not rely solely on
the certification appearing in the information in this case in the
determination of whether probable cause exists to justify the issuance of
the warrant of arrest but also on the basis predominantly shown by the
facts and evidence appearing in the resolution/memorandum of
responsible investigators/ prosecutors, then the recall of the warrant of
arrest, or the reconsideration sought for, cannot be granted. More so, when
the information, as filed, clearly shows that it is sufficient in form and
substance based on the facts and evidence adduced by both parties during
the preliminary investigation. To require this Court to have the entire record
of the preliminary investigation to be produced before it, including the
evidence submitted by the complainant and the accused-respondents,
would appear to be an exercise in futility.[23]
In light of the aforecited decisions of this Court, such justification
cannot be upheld. Lest we be too repetitive, we only wish to emphasize three
vital matters once more: First, as held in Inting, the determination of
probable cause by the prosecutor is for a purpose different from that which
is to be made by the judge. Whether there is reasonable ground to believe
that the accused is guilty of the offense charged and should be held for trial
is what the prosecutor passes upon. The judge, on the other hand,
determines whether a warrant of arrest should be issued against the
accused, i.e. whether there is a necessity for placing him under immediate
custody in order not to frustrate the ends of justice.[24] Thus, even if both
should base their findings on one and the same proceeding or evidence,
there should be no confusion as to their distinct objectives.
judges that there [was] probable cause to issue warrants of arrest against
petitioners. This statement may have been wrongly construed by the public
respondent to mean that the narration or description of portions of the
evidence in the prosecutors report may serve as sufficient basis to make its
own independent judgment. What it should bear in mind, however, is that,
aside from the 26-page report of the DOJ panel, the sworn statements of
three witnesses and counter-affidavits of the petitioners in Webb were also
submitted to the trial court, and the latter is presumed to have reviewed these
documents as well, prior to its issuance of the warrants of arrest.
In the instant case, the public respondent relied fully and completely
upon the resolution of the graft investigation officer and the memorandum of
the reviewing prosecutor, attached to the information filed before it, and its
conjecture that the Ombudsman would not have approved their
recommendation without supporting evidence. It had no other documents
from either the complainant (the Anti-Graft League of the Philippines) or the
People from which to sustain its own conclusion that probable cause
exists. Clearly and ineluctably, Respondent Courts findings of the conduct
of a due and proper preliminary investigation and the approval by proper
officials clothed with statutory authority are not equivalent to
the independent and personalresponsibility required by the Constitution and
settled jurisprudence. At least some of the documentary evidence
mentioned (Contract of Affreightment between National Steel Corporation
and National Marine Corporation, the COA-NSC audit report, and counter-
affidavits of Rolando Narciso and NMC officials), upon which the
investigating officials of the Ombudsman reportedly ascertained the
existence of probable cause, should have been physically present before
the public respondent for its examination, to enable it to determine on its own
whether there is substantial evidence to support the finding of probable
cause. But it stubbornly stood pat on its position that it had essentially
complied with its responsibility. Indisputably, however, the procedure it
undertook contravenes the Constitution and settled
jurisprudence. Respondent Court palpably committed grave abuse of
discretion in ipso facto issuing the challenged warrant of arrest on the sole
basis of the prosecutors findings and recommendation, and without
determining on its own the issue of probable cause based on evidence other
than such bare findings and recommendation.
WHEREFORE, the petitions are GRANTED and the assailed
Resolution is SET ASIDE. The warrant issued by the Sandiganbayan
(Second Division) on May 20, 1992 in Case No. 17674 for the arrest of
Petitioners Doris Teresa Ho and Rolando Narciso is hereby declared NULL
AND VOID.

Second, since their objectives are different, the judge cannot rely SO ORDERED.
solely on the report of the prosecutor in finding probable cause to justify the
issuance of a warrant of arrest. Obviously and understandably, the contents
of the prosecutors report will support his own conclusion that there is reason
to charge the accused of an offense and hold him for trial. However, the
judge must decide independently. Hence, he must have supporting
evidence, other than the prosecutors bare report, upon which to legally
sustain his own findings on the existence (or nonexistence) of probable
cause to issue an arrest order. This responsibility of determining personally
and independently the existence or nonexistence of probable cause is
lodged in him by no less than the most basic law of the land. Parenthetically,
the prosecutor could ease the burden of the judge and speed up the litigation
process by forwarding to the latter not only the information and his bare
resolution finding probable cause, but also so much of the records and the
evidence on hand as to enable His Honor to make his personal and separate
judicial finding on whether to issue a warrant of arrest.[25]

Lastly, it is not required that the complete or entire records of the

case during the preliminary investigation be submitted to and examined by
the judge.[26] We do not intend to unduly burden trial courts by obliging them
to examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused. What is required, rather, is that
the judge must have sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the findings
of the prosecutor as to the existence of probable cause. The point is: he
cannot rely solely and entirely on the prosecutors recommendation, as
Respondent Court did in this case. Although the prosecutor enjoys the legal
presumption of regularity in the performance of his official duties and
functions, which in turn gives his report the presumption of accuracy, the
Constitution, we repeat, commands the judge to personally determine
probable cause in the issuance of warrants of arrest. This Court has
consistently held that a judge fails in his bounden duty if he relies merely on
the certification or the report of the investigating officer.

True, in Webb vs. De Leon, we found that the painstaking recital and
analysis of the parties evidence made in the DOJ Panel Report satisfied both
 FIRST DIVISION
[G.R. No. 134307. December 21, 1998]
EDUARDO M. COJUANGCO, JR., petitioner vs. SANDIGANBAYAN
(FIRST DIVISION) and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
QUISUMBING, J.:
This petition for prohibition under Section 2 of Rule 65 of the Rules of
Court seeks to dismiss Criminal Case No. 22018 entitled People of the
Philippines vs. Eduardo M. Cojuangco, Jr., et al., now pending before
respondent Sandiganbayan (First Division), and to prohibit said court from
further proceeding with the case. Petitioner invokes his constitutional right to
due process, a speedy trial, and a speedy determination of his cases before
all judicial, quasi-judicial and administrative bodies. Further, he prays for the
issuance of a Temporary Restraining Order and/or Writ of Preliminary
Injunction enjoining respondent Sandiganbayan (First Division) from further
enforcing and/or implementing its order dated February 20, 1995 which bans
petitioner from leaving the country except upon prior approval by said
court.[1]
Criminal Case No. 22018 is an offshoot of a complaint filed on January
12, 1990, by the Office of the Solicitor General before the Presidential
Commission on Good Government (PCGG), docketed as I.S. No. 74,
against the former Administrator of the Philippine Coconut Authority (PCA)
and the former members of the PCA Governing Board, petitioner among
them, for violation of Republic Act No. 3019, the Anti-Graft and Corrupt
Practices Act, as amended. In said complaint, the respondents were
charged for having conspired and confederated together and taking undue
advantage of their public positions and/or using their powers, authority,
influence, connections or relationship with the former President Ferdinand
E. Marcos and former First Lady, Imelda Romualdez-Marcos without
authority granted a donation in the amount of Two Million Pesos
(P2,000,000.00) to the Philippine Coconut Producers Federation
(COCOFED), a private entity, using PCA special fund, thereby giving
COCOFED unwarranted benefits, advantage and preference through
manifest partiality, evident bad faith and gross inexcusable negligence to the
grave (sic) and prejudice of the Filipino people and to the Republic of the
Philippines.[2]
Subsequently, however, this Court ruled that all proceedings in the
preliminary investigation conducted by the PCGG were null and void and the
PCGG was directed to transmit the complaints and records of the case to
the Office of the Ombudsman for appropriate action.[3]
In a Resolution dated June 2, 1992, the panel of investigators
recommended the filing of an Information for violation of Section 3(e) of R.A.
No. 3019, as amended, against herein petitioner and five other respondents.
As set out in the Memorandum of the Office of the Special Prosecutor,
subsequently, the following relevant incidents took place:
The above Resolution dated June 2, 1992 was referred by Assistant
Ombudsman Abelardo L. Aportadera, Jr. to the Office of the Special
Prosecutor for review and if warranted, for the preparation of the criminal
information.
In a Memorandum dated July 15, 1992 the Office of the Special Prosecutor
affirmed the recommendation as contained in the Resolution dated June 2,
1992.
However, on August 19, 1992 then Ombudsman Conrado M. Vasquez
ordered the panel of investigators to discuss the merits of the prejudicial
question posed by respondent Lobregat.
In a Memorandum dated November 18, 1992, the panel of investigators
found that Civil Case No. 0033 does not pose a prejudicial question which
will warrant the suspension of the filing of the criminal case.
The aforesaid Memorandum was received by Assistant Ombudsman
Abelardo L. Aportadera on December 1, 1992 who submitted his comment
thereto on December 16, 1992 to then Ombudsman Vasquez.
On December 23, 1992, then Ombudsman Vasquez ordered the panel of
investigators to go to the specifics and not the general averments on issue
of prejudicial question.
In a Memorandum dated December 1, 1993 the panel of investigators
recommended that the motion to suspend proceedings be granted.
On December 3, 1993 then Ombudsman Vasquez referred for comment to
the Office of the Special Prosecutor the Memorandum dated December 1,
1993 of the panel of investigators on the issue of the existence of
prejudicial question.
In a Memorandum dated January 16, 1995, Special Prosecution Officer
Daniel B. Jovacon, Jr. resolved that no prejudicial question exists to
warrant the suspension of the criminal proceedings which recommendation
was approved by then Ombudsman Vasquez on January 26, 1995. The
Information, together with the case record of OMB-0-90-2806, was
forwarded to the Office of the Ombudsman on February 10, 1995.
On February 16, 1995 Criminal Case No. 22018 was filed with the
Sandiganbayan and thereafter raffled to the First Division.
On February 17, 1995, an order for the arrest of petitioner was issued by
the respondent Sandiganbayan.
On February 19, 1995 petitioner filed with respondent court an Opposition
to Issuance of Warrant of Arrest with Motion For Leave To File Motion For
Reconsideration of Ombudsman Resolutions. In his Opposition, petitioner
alleged that since the only documents attached to the Information and
submitted to respondent Sandiganbayan were the Resolution dated June
2, 1992 of the panel of investigators and the Memorandum dated January
16, 1995 of the Office of the Special Prosecutor, the same were not
adequate for the determination of probable cause for the issuance of a
warrant of arrest by respondent Sandiganbayan. Hence, petitioner claims
the respondent Sandiganbayan should recall the warrant of arrest already
issued or desist from issuing a warrant of arrest. Petitioner, avers,
furthermore that the filing of the Information was premature considering
that he was not furnished a copy of the Ombudsmans Resolution in
violation of Section 27 of R.A. No. 6770 and prays that he be given leave to
file a motion for reconsideration of the Ombudsmans Resolution dated
June 2, 1992 and the Office of the Special Prosecutors Memorandum
dated January 16, 1995.
On February 22, 1995, petitioner posted bail. On the same day he likewise
filed, through counsel, a Manifestation stating that he was posting bail
without prejudice to the Opposition To Issuance of Warrant of Arrest with
Motion For Leave To File a Motion For Reconsideration of the
Ombudsmans Resolution which he filed.
In a Resolution dated February 20, 1995, the respondent Sandiganbayan
barred petitioner from leaving the country except upon approval of the
court.
In an Order dated February 22, 1995, the respondent Sandiganbayan gave
petitioner and the other accused twenty (20) days to file their respective
motions for reconsideration of the Ombudsmans Resolution with the Office
of the Ombudsman. PCGG was likewise given a similar period within which
to file its comment to the motions for reconsideration. Furthermore, the
respondent Sandiganbayan ordered petitioner to supplement or amplify his
existing motion on the issue of the propriety of the issuance of an Order of
Arrest based merely on the resolution of the Ombudsman in support of the
filing of the Information, among others.
On March 9, 1995, petitioner filed a Memorandum in Amplification of
Opposition To Issuance of Warrant of Arrest.
In a Resolution dated March 14, 1995, petitioner was granted additional
fifteen (15) days or until March 29, 1995 within which to file his motion for
reconsideration with the Office of the Ombudsman.
Petitioner filed his motion for reconsideration on March 28, 1995.
In a Resolution dated April 3, 1995, the respondent Sandiganbayan denied
petitioners motion seeking the recall of the issuance of the warrant for his
arrest.
On April 7, 1995, petitioner filed a motion for reconsideration of the
Resolution dated April 3, 1995 of the respondent Sandiganbayan.
On May 25, 1995, petitioner was conditionally arraigned pleading not guilty
to the Information. The arraignment was undertaken solely to
accommodate the petitioner in his request to travel pending the
determination of probable cause against him at the reinvestigation
stage. The conditional arraignment is subject to the condition that if
petitioner is exonerated at the preliminary investigation, the arraignment is
set aside. On the other hand, should there be cause against the petitioner
either as already charged or a separate charge which might be related to
the case pending, the arraignment will not serve as basis for the invocation
of the right against double jeopardy.
In the meantime, in a Memorandum dated October 22, 1995, Special
Prosecution Officer Victorio U. Tabanguil found no probable cause to
warrant the filing against petitioner and the other accused in Criminal Case
No. 22018 and recommended the dismissal of the case. The
recommendation for dismissal was approved by the Honorable
Ombudsman on November 15, 1996.
On December 6, 1996, Special Prosecutor Officer Victorio U. Tabanguil
filed a Manifestation attaching a copy of the Memorandum dated October
22, 1995 with the respondent Sandiganbayan for its consideration.
On December 13, 1996 petitioner filed an Urgent Motion To Dismiss
alleging that with the reversal of the earlier findings of the Ombudsman of
probable cause, there was therefore nothing on record before the
respondent Sandiganbayan which would warrant the issuance of a warrant
of arrest and the assumption of jurisdiction over the instant case.
On December 23, 1996 the Office of the Solicitor General, in
representation of the PCGG, filed with the Office of the Special Prosecutor
a motion for reconsideration of the Memorandum dated October 22, 1996
recommending the dismissal of the case against petitioner and the other
accused in Criminal Case No. 22018.
In an Order dated January 6, 1997, Special Prosecution Officer Victorio U.
Tabanguil merely noted the motion for reconsideration dated December 23,
1996 of the Office of the Solicitor General.
On January 13, 1997, petitioner filed a Motion To Strike Out Alternatively,
Opposition To Complainants Motion For Reconsideration dated December
23, 1996 alleging that the motion was filed out of time.
In an Order dated January 9, 1997, the respondent Sandiganbayan
ordered the prosecution to justify the relationship that may be established
with respect to the COCOFED on one hand and the Philippine Coconut
Authority on the other, as a basis for justifying the position of the
prosecution in this case. Furthermore, upon information provided by
Prosecutor Tabanguil that the Office of the Solicitor General has sought a
reconsideration on the desire of the prosecution to withdraw the
information, the Office of the Solicitor General was given fifteen (15) days
to submit its comment to the Motion to Withdraw Information. The petitioner
and the other accused were given the same period to reply to the comment
if they so desire. After which the matter will be deemed submitted for
resolution.
On January 17, 1997, the prosecution filed its compliance to the Order
dated January 9, 1997. On the other hand, the Office of the Solicitor
General filed its comment on January 24, 1997.
In an Order dated February 4, 1997, the respondent Sandiganbayan
ordered the PCGG lawyers to present themselves before the respondent
court and respond to the claim of the OSG that the exhibits necessary are
with the PCGG so that the Republic might effectively substantiate its
position that probable cause exists. Furthermore, it is as much the function
of the court to determine the existence of probable cause and the propriety
of the withdrawal of the Information to be assured that the evidence for the
complainant has been properly presented or the accused is properly
protected at preliminary investigation.
In an Order dated February 17, 1997, the respondent Sandiganbayan, with
the agreement of the parties, gave the Office of the Solicitor General ten
(10) days within which to submit some form of cataloging and explanation
of the documents on record to the prosecution. On the other hand, the
prosecution was given fifteen (15) days from receipt of the submission
within which to review the matter once more and to respond thereat.
On June 13, 1997, the PCGG filed its Entry of Appearance dated June 3,
1997.
On June 19, 1997, petitioner filed a Second Motion To Resolve the Urgent
Motion To Dismiss dated December 12, 1996.
On July 3, 1997, petitioner filed a Motion to Strike Out (Re: PCGGs Entry
of Appearance) dated June 30, 1997.
On July 16, 1997, the PCGG filed an Opposition to the Motion To Strike
Out (Re: PCGGs Entry of Appearance).
On July 18, 1997, petitioner filed a Reply to the Opposition to Strike Out.
On July 31, 1997, the PCGG filed a Rejoinder to the Reply of petitioner.
On January 23, 1998, petitioner filed a Third Motion To Resolve the Urgent
Motion To Dismiss dated December 12, 1996.
In an Order dated January 26, 1998, respondent Sandiganbayan duly
noted petitioners Motion to Dismiss. [4]
Hence, the present petition.
On July 22, 1998, the Court issued a resolution requiring respondents
to file their respective comments to the petition.[5]
On August 5, 1998, petitioner filed a motion reiterating his application
for temporary restraining order and/or writ of preliminary injunction with
urgent motion for hearing thereon[6] citing the urgency of lifting the travel
restriction on him in view of the various problems involving the investments
of San Miguel Corporation (SMC) abroad which must be immediately
attended to by petitioner as duly elected Chairman and Chief Executive
Officer of SMC. Petitioner asserts that quite often, it becomes necessary for
him to attend meetings and conferences abroad where attendance must be
confirmed promptly.Considering that he must first secure the permission of
respondent Sandiganbayan before he can travel abroad and abide by the
conditions imposed by said court upon the grant of such permission,
petitioner contends that it becomes impossible for him to immediately attend
to the aforecited tasks.
On September 2, 1998, the Court noted the respective comments to
the petition filed by the Office of the Special Prosecutor and the Solicitor
General and required petitioner to file a consolidated reply within ten (10)
days from notice.[7]
On September 3, 1998, petitioner filed a Second Motion Reiterating
Application for Temporary Restraining Order and/or Writ of Preliminary
Injunction with Urgent Motion for Hearing,[8] arguing among others that
the continued maintenance of the hold-departure order against him has
deleterious consequence not only on him personally but also on San Miguel
Corporation, a publicly listed stock company, of which he is now Chairman
and Executive Officer.[9]
On September 7, 1998, the Court resolved to defer action on the
aforementioned second motion reiterating the application for the issuance of
a temporary restraining order and/or a writ of preliminary injunction until the
filing of petitioners Consolidated Reply and required the Sandiganbayan to
file its own Comment on the petition in view of the Comment filed by the
Office of the Special Prosecutor divergent from the position taken by
respondent Sandiganbayan.[10]
On September 10, 1998, petitioner filed a Consolidated Reply[11] and
prayed that his Second Application for a Temporary Restraining Order
and/or Writ of Preliminary Injunction with Urgent Motion for hearing dated
September 2, 1998 be now acted upon.
 On September 17, 1998, respondent Sandiganbayan filed a motion
for extension of time to file its comment to the petition. Subsequently,
petitioner filed his Third Motion Reiterating Application for Temporary
Restraining Order and/or Writ of Preliminary Injunction with Urgent Motion
for Hearing[12] in view of the urgency of lifting the ban on foreign travel
imposed on him by respondent Sandiganbayan.
After respondent Sandiganbayan filed its comment on October 5,
1998, the Court in its Resolution dated October 7, 1998, noted the aforesaid
comment and resolved to set the case for oral argument on October 21,
1998.[13]
During the oral argument, the Court suggested that the parties take up
in their arguments the following issues:
(1) whether the warrant of arrest issued by respondent
Sandiganbayan is null and void, or should now be
lifted if initially valid;
(2) whether petitioners basic rights to due process, speedy trial and
speedy disposition of the case have been violated as
to warrant dismissal of Criminal Case No. 22018; and
(3) whether the ban on foreign travel imposed on petitioner per Order
of February 20, 1995 should be vacated to enable
petitioner to go abroad without prior permission of, and
other restrictions imposed by, the respondent
Sandiganbayan.[14]
After hearing the arguments of the parties, the Court resolved to
require them to submit their respective memoranda on the related issues
taken up on the hearing including the merits of the case within twenty (20)
days. The motion of counsel for petitioner that the issue of lifting the ban on
foreign travel imposed on petitioner be resolved first, was held under
advisement.[15]
On November 6, 1998, petitioner filed another Motion to Resolve
Petitioners Motion for Issuance of a Temporary Restraining Order or Writ of
Preliminary Injunction Enjoining Enforcement of Respondent
Sandiganbayans Order dated February 20, 1995 (Hold Departure Order)
with an alternative prayer to travel abroad within a period of six (6) months.[16]
In its Resolution dated November 9, 1998, the Court noted the
aforesaid motion and directed petitioner that in the meanwhile, he may
address his request for permission to travel abroad to the Sandiganbayan.[17]
On November 12, 1998, petitioner filed a Motion for Reconsideration
of the Courts resolution dated November 9, 1998 and argued that:
xxxxxxxxx
(6) While the petitioner may indeed obtain some relief by addressing
his prayer for permission to travel abroad to the Sandiganbayan, to a
large extent, this defeats the purpose of the petition because
petitioner has precisely come to the Supreme Court to obtain relief
from an oppressive regime of authorization to travel abroad that the
Order of the Sandiganbayan of February 20, 1995 (Annex E,
Petition) has imposed. Significantly, not any of the respondents have
opposed petitioners application for the issuance of temporary
restraining order and/or writ of preliminary injunction or for
permission to travel abroad.[18]
On November 20, 1998, petitioner filed a Manifestation[19] in support
of his motion for reconsideration, setting forth the urgency of lifting the ban
on foreign travel imposed on him in view of the need to oversee the critical
stages in the international operations of SMC as its Chairman and Chief
Executive Officer.
On November 20, 1998, the Office of the Solicitor General filed a
Manifestation indicating that it is not interposing any objection to petitioners
prayer that he be allowed to travel abroad.
With the submission of the parties respective memoranda, the Court
now proceeds to resolve the petition.
As postulated during the oral argument, three main issues confront us
in this petition, to wit:
(1) whether the warrant of arrest issued by respondent
Sandiganbayan is null and void, or should now be
lifted if initially valid;
(2) whether petitioners basic rights to due process, speedy trial and
speedy disposition of the case have been violated as
to warrant dismissal of Criminal Case No. 22018; and
(3) whether the ban on foreign travel imposed on petitioner per Order
of February 20, 1995 should be vacated to enable
petitioner to go abroad without prior permission of, and
other restrictions imposed by, the respondent
Sandiganbayan.[20]
On the first issue, petitioner and the Office of the Special Prosecutor
both argue that the warrant of arrest issued by respondent Sandiganbayan
is null and void for lack of sufficient basis upon which it could have personally
determined the existence of probable cause to issue the warrant of arrest
against him. They contend that there was a violation of Section 2, Article III
of the Constitution because the Information in Criminal Case No. 22018 was
accompanied only by the Resolution dated June 2, 1992 of the Panel of Graft
Investigators of the Office of the Ombudsman recommending the filing of the
information and the Memorandum dated January 16, 1995 of the Office of
the Special Prosecutor denying the existence of a prejudicial question which
will warrant the suspension of the filing of the criminal case. Their argument
is principally anchored on the pronouncements made in the case of Ho vs.
People[21] that reliance on the prosecutors report alone is not sufficient in
determining whether there is probable cause for the issuance of a warrant
of arrest. Consequent to the nullity of the warrant of arrest, petitioner further
argues that the Sandiganbayan has not acquired jurisdiction over him and is
without power to exercise the same.
However, the Office of the Special Prosecutor and the Office of the
Solicitor General maintain that any infirmity that may have attended the
issuance of the warrant of arrest was cured by petitioners voluntary
submission to the jurisdiction of the respondent Sandiganbayan when
petitioner posted bail and subsequently invoked the jurisdiction of the
Sandiganbayan by filing numerous motions wherein he sought affirmative
reliefs.
Now, pertinent to the issue at hand is the second clause of Section 2,
Article III of the 1987 Constitution, which provides that:
Sec. 2. x x x no search warrant or warrant of arrest shall issue except upon
a probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and
the persons or things to be seized. (Emphasis supplied)
In Ho vs. People,[22] the Court had the opportunity to elucidate on the
matter of determining of probable cause to merit the issuance of a warrant
of arrest:
First, x x x the determination of probable cause by the prosecutor is for a
purpose different from that which is to be made by the judge. Whether
there is reasonable ground to believe that the accused is guilty of the
offense charged and should be held for trial is what the prosecutor passes
upon. The judge, on the other hand, determines whether a warrant of
arrest should be issued against the accused, i.e., whether there is a
necessity for placing him under immediate custody in order not to frustrate
the ends of justice. Thus, even if both should base their findings on one
and the same proceeding or evidence, there should be no confusion as to
their distinct objectives.
Second, since their objectives are different, the judge cannot rely solely on
the report of the prosecutor in finding probable cause to justify the issuance
of a warrant of arrest. Obviously and understandably, the contents of the
prosecutors report will support his own conclusion that there is reason to
charge the accused of an offense and hold him for trial. However, the judge
must decide independently. Hence, he must have supporting
evidence, other than the prosecutors bare report, upon which to legally
sustain his own findings on the existence (or nonexistence) of a probable
cause to issue an arrest order. This responsibility of determining personally
and independently the existence or nonexistence of probable cause is
lodged in him by no less than the most basic law of the land.
Parenthetically, the prosecutor could ease the burden of the judge and
speed up the litigation process by forwarding to the latter not only the
information and his bare resolution finding probable cause, but also so
much of the records and the evidence on hand as to enable His Honor to
make his personal and separate judicial finding on whether to issue a
warrant of arrest.
Lastly, it is not required that the complete or entire records of the case
during the preliminary investigation be submitted to and examined by the
judge. We do not intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused. What is required, rather, is
that the judge must have sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the
findings of the prosecutor as to the existence of probable cause. The point
is: he cannot rely solely and entirely on the prosecutors recommendation,
as Respondent Court did in this case. Although the prosecutor enjoys the
legal presumption of regularity in the performance of his official duties and
functions, which in turn gives his report the presumption of accuracy, the
Constitution, we repeat, commands the judge to personally determine
probable cause in the issuance of warrants of arrest. This Court has
consistently held that a judge fails in his bounden duty if he relies merely
on the certification or the report of the investigating officer.[23]
As alleged by petitioner, in the case at bar, the Sandiganbayan had
two pieces of documents to consider when it resolved to issue the warrant
of arrest against the accused: (1) the Resolution dated June 2, 1992 of the
Panel of Investigators of the Office of the Ombudsman recommending the
filing of the Information and (2) the Memorandum dated June 16, 1995 of the
Office of the Special Prosecutor denying the existence of a prejudicial
question which will warrant the suspension of the criminal case. The
Sandiganbayan had nothing more to support its resolution.
In Roberts vs. Court of Appeals, [24] we struck down as invalid an order
for the issuance of a warrant of arrest which were based only on the
information, amended information and Joint Resolution, without the benefit
of the records or evidence supporting the prosecutors finding of probable
cause. And in Ho vs. People,[25] we declared that respondent palpably
committed grave abuse of discretion in ipso facto issuing the challenged
warrant of arrest on the sole basis of the prosecutors findings and
recommendation, and without determining on its own the issue of probable
cause based on evidence other than such bare findings and
recommendation.[26]
Similarly, we are now constrained to rule that herein respondent court
failed to abide by the constitutional mandate of personally determining the
existence of probable cause before issuing a warrant of arrest. For the two
cited documents were the product of somebody elses determination,
insufficient to support a finding of probable cause by the
Sandiganbayan. Hence, the warrant of arrest issued by respondent court on
February 17, 1995 against herein petitioner is palpably invalid.
Consequent to the nullity of the warrant of arrest, the crucial issue now
posed is whether or not respondent Sandiganbayan could still exercise
jurisdiction over the petitioner and proceed with the trial of the case.
As already adverted to, the Office of the Special Prosecutor and the
Office of the Solicitor General are in agreement, that whatever infirmity might
have attended the issuance of the warrant of arrest against petitioner, it was
cured by petitioners subsequent act of voluntarily submitting to respondent
courts jurisdiction by posting his bail and filing the following pleadings which
sought affirmative relief, to wit: (1) Opposition to Issuance of Warrant of
Arrest with Motion for Leave to File Motion for Reconsideration; (2) Motion
for extension of time to file Motion for Reconsideration; (3) seven Motions to
Travel Abroad and two Motions for Extension of time to stay
abroad.[27] Hence, they contend that respondent courts jurisdiction over
petitioner has remained in effect.
Petitioner objects to this contention, and asserts that since the warrant
of arrest issued by respondent Sandiganbayan is null and void, it never
acquired jurisdiction over the person of the petitioner; as a consequence, it
never acquired jurisdiction to take of the offense charged and to issue any
order adverse to the rights of petitioner, including an Order restricting his
right to travel.[28] According to petitioner, the submission of both the Office of
the Special Prosecutor and the Office of the Solicitor General is not only
absurd but also oppressive and offensive to the Bill of Rights since it would
mean that to preserve his right against the issuance of a warrant of arrest
without probable cause determined in accordance with Sec. 2, Article III of
the Constitution, petitioner should have allowed himself to be incarcerated
or imprisoned from the time the warrant of arrest was issued on February
20, 1995 up to the present, or for more than three (3) years now, and
continue to be imprisoned until the Supreme Court decides to declare the
arrest void.[29]
On this score, the rule is well-settled that the giving or posting of bail
by the accused is tantamount to submission of his person to the jurisdiction
of the court.[30] Thus, it has been held that:
When a defendant in a criminal case is brought before a competent court
by virtue of a warrant of arrest or otherwise, in order to avoid the
submission of his body to the jurisdiction of the court he must raise the
question of the courts jurisdiction over his person at the very earliest
opportunity. If he gives bail, demurs to the complaint or files any dilatory
plea or pleads to the merits, he thereby gives the court jurisdiction over his
person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)
xxxxxxxxx
Conceding again that the warrant issued in this case was void for the
reason that no probable cause was found by the court before issuing it, the
defendant waived all his rights to object to the same by appearing and
giving bond.[31]
By posting bail, herein petitioner cannot claim exemption from the
effect of being subject to the jurisdiction of respondent court. While petitioner
has exerted efforts to continue disputing the validity of the issuance of the
warrant of arrest despite his posting bail, his claim has been negated when
he himself invoked the jurisdiction of respondent court through the filing of
various motions that sought other affirmative reliefs.
As ruled in La Naval Drug vs. CA[32]:
[L]ack of jurisdiction over the person of the defendant may be waived either
expressly or impliedly. When a defendant voluntarily appears, he is
deemed to have submitted himself to the jurisdiction of the court. If he so
wishes not to waive this defense, he must do so seasonably by motion for
the purpose of objecting to the jurisdiction of the court; otherwise, he shall
be deemed to have submitted himself to that jurisdiction.
Moreover, [w]here the appearance is by motion for the purpose of
objecting to the jurisdiction of the court over the person, it must be for the
sole and separate purpose of objecting to said jurisdiction. If the appearance
is for any other purpose, the defendant is deemed to have submitted himself
to the jurisdiction of the court. Such an appearance gives the court
jurisdiction over the person.[33]
Verily, petitioners participation in the proceedings before the
Sandiganbayan was not confined to his opposition to the issuance of a
warrant of arrest but also covered other matters which called for respondent
courts exercise of its jurisdiction. Petitioner may not be heard now to deny
said courts jurisdiction over him. Nor can we ignore the long line of
precedents declaring that where the accused had posted bail, as required,
to obtain his provisional liberty, it becomes futile to assail the validity of the
issuance of the warrants of arrest.[34]
As to petitioners contention that he should have just allowed himself
to stay in jail pending the resolution of his opposition to the issuance of the
warrant of arrest against him, if only to avoid waiving his right to question the
jurisdiction of respondent court, the Office of the Special Prosecutor has
pointed out that petitioner is not without a remedy. Petitioner could have filed
a petition for certiorari and prohibition with prayer for the issuance of a
temporary restraining order, rather than actively participate in the
proceedings before the Sandiganbayan. And as exemplified by the case of
Allado vs. Diokno,[35]this remedy has already proved to be effective.
Against the continued exercise of jurisdiction by respondent
Sandiganbayan in Criminal Case No. 22018, petitioner also invokes the
Memorandum of the Office of the Special Prosecutor dated October 22,
1995 recommending the dismissal of the case against him due to the
absence of probable cause, which was later on approved by the
Ombudsman on November 15, 1996. Citing the case of Torralba vs.
Sandiganbayan,[36] petitioner argues that this Memorandum is an integral
part of the preliminary investigation and should take precedence
notwithstanding the fact that the same was made after the filing of the
Information before the Sandiganbayan, for to deny any efficacy to the finding
of the Office of the Special Prosecutor would negate the right of the petitioner
to a preliminary investigation.
The well-entrenched rule however, as laid down by the case of Crespo
vs. Mogul[37] is that:
x x x once a complaint or information is filed in Court any disposition of the
case as its dismissal or the conviction or acquittal of the accused rests in
the sound discretion of the Court. Although the fiscal retains the direction
and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court
is the best and sole judge on what to do with the case before it. The
determination of the case is within its exclusive jurisdiction and
competence. A motion to dismiss the case filed by the fiscal should be
addressed to the Court who has the option to grant or deny the same. It
does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the records of the
investigation.
Nevertheless, petitioner claims exception to this rule by making this
distinction:
b. The preliminary investigation in Crespo vs. Mogul, supra, was conducted
by the Office of the Provincial Fiscal and, following established procedure
with respect to such preliminary investigations, the preliminary investigation
conducted by the fiscal, in the language of Crespo, is terminated upon the
filing of the information in the proper court (at p. 470). On the other hand,
the instant case involves a preliminary investigation conducted by the
Office of the Special Prosecutor pursuant to Sec. 11[4](a), and under Sec.
27 of R.A. No. 6770. In preliminary investigations conducted by the Office
of the Special Prosecutor, the respondent has the right to file a motion for
reconsideration of any resolution within five (5) days from receipt of written
notice, and pursuant to Sec. 7, Rule II of Administrative Order No. 7 (Rules
of Procedure of the Ombudsman), the respondent has the right to file a
motion for reconsideration within fifteen (15) days from notice of the
Resolution of the Ombudsman. Until the motion for reconsideration is
resolved, preliminary investigation is not terminated notwithstanding filing
of information in court. In the instant case, no copy of the Resolution of the
Office of the Special Prosecutor which brought about the filing of the
Information, was served on the petitioner; consequently, when the
Information was filed, the preliminary investigation had not yet been
terminated. It follows that the Resolution of the Office of the Special
Prosecutor (approved by the Ombudsman) resolving in petitioners favor
the Motion for Reconsideration he had filed, now finding no probable
cause, was an integral part of the preliminary investigation, not subject to
review by the Sandiganbayan (see Torralba vs. Sandiganbayan, 230
SCRA 33 [1994]).[38]
Petitioners reliance on Torralba vs. Sandiganbayan is not, in our view,
persuasive. In that case the petitioners were not given any chance at all to
seek reconsideration from the Ombudsmans final resolution because they
were not furnished with a copy of the final resolution of the Ombudsman that
could have enabled them to file a motion for reconsideration. As a result, the
Court declared that petitioners were not only effectively denied the
opportunity to file a motion for reconsideration of the Ombudsmans final
resolution but also deprived of their right to a full preliminary investigation
preparatory to the filing of the information against them.[39]
In the case at bar, however, notwithstanding the filing of the
Information before the Sandiganbayan, petitioner was able to file a motion
for reconsideration of the Ombudsmans Resolution with leave of court, and
in fact his two motions for extensions to file the same were granted by the
respondent court.[40] This eventually paved the way for the filing of
subsequent Memorandum of the Office of the Special Prosecutor, which was
later on approved by the Ombudsman, recommending the dismissal of the
case against him. However, since the Information has already been filed
before the Sandiganbayan, the resolution of the aforesaid recommendation
now lies within the jurisdiction and discretion of respondent
court. Parenthetically, in the Torralba case, we did not altogether deprive the
Sandiganbayan of its jurisdiction to proceed with the case, despite the defect
in the conduct of the preliminary investigation, since we declared that:
The incomplete preliminary investigation in this case, however, does not
warrant the quashal of the information, nor should it obliterate the
proceedings already had. Neither is the courts jurisdiction nor validity of an
information adversely affected by deficiencies in the preliminary
investigation. Instead, the Sandiganbayan is to hold in abeyance any
further proceedings therein and to remand the case to the Office of the
Ombudsman for the completion of the preliminary investigation, the
outcome of which shall then be indorsed to Sandiganbayan for its
appropriate action.[41] (Underscoring supplied)
Clearly, consistent with the rule in Crespo vs. Mogul, after the filing of
the information 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.[42]
Proceeding now to the second issue, petitioner maintains that the long
delay that characterized the proceedings in Criminal Case No. 22018 before
respondent Sandiganbayan has resulted in the violation of his Constitutional
right to a speedy trial and a speedy determination of his case. Thus,
petitioner submits that:
4.09. It has been more than three (3) years since the Information in
Criminal Case No. 22018 was filed with respondent Sandiganbayan. More
than one and a half (1/2) years have elapsed since the Office of the
Special Prosecutor filed its Manifestation seeking the dismissal of the
case. Based on the Office of the Special Prosecutors finding of the
absence of probable cause, petitioner filed on December 13, 1996, an
Urgent Motion To Dismiss. Three times, on March 24, 1997, June 18, 1997
and January 23, 1998, petitioner has sought resolution of his Urgent
Motion To Dismiss. These notwithstanding, the dismissal of the information
as to petitioner remains pending and petitioner continues to be under
criminal indictment -- constrained to suffer without justification in law and
the Constitution, the humiliation, the restraints to liberty and the tormenting
anxieties of an accused.[43]
Respondents concede that there has indeed been some delay but
deny that it amounted to a violation of petitioners right of speedy disposition
of his case. They cite as justification the reorganization of the
Sandiganbayan on September 23, 1997 wherein it was reconstituted into
five (5) Divisions;[44] (2) the filing of motions by petitioner seeking affirmative
reliefs from the Sandiganbayan; (3) the failure of petitioner himself to invoke
his right to speedy resolution of his pending motions prior to the filing of this
petition;[45] (4) the heavy caseload of respondent court.[46]
The right to a speedy disposition of a case, like the right to speedy
trial, is deemed violated only when the proceeding is attended by vexatious,
capricious, and oppressive delays.[47] It should be emphasized that the
factors that must be taken into account in determining whether this
constitutional rights has been violated are as follows: (1) the length of delay,
(2) the reason for such delay and (3) the assertion or failure to assert such
right by the accused, and the prejudice caused by the delay.[48]
As in previous occasions, the Court takes judicial cognizance of the
fact that structural reorganizations[49] and the ever increasing case load of
courts have adversely affected the speedy disposition of the cases pending
before them.
In the instant case, however, the Court finds that delay concerns the
resolution of petitioners Urgent Motion to Dismiss, which is an offshoot of
the Memorandum of the Office of the Special Prosecutor recommending the
dismissal of the case. Such delay is now far from excusable. Petitioners
Motion to Dismiss has been filed as early as December 13, 1996 and, on
three occasions, petitioner has moved for the urgent resolution of this
motion.[50] What further militates against further delay in resolving this case
is the fact that the government prosecutors themselves concede that this
case is of paramount importance, involving as it does the recovery of the ill-
gotten wealth or government funds, unlawfully used or misused by persons
close or perceived to be close to the Marcoses. [51] Respondent court
declared in its Order dated February 17, 1997 that the matter would be
deemed submitted for resolution upon compliance with the Office of the
Special Prosecutor as to whether there is indeed no probable cause against
petitioner,[52] which compliance was submitted by the Office of the Special
Prosecutor on March 17, 1997.[53] Under these circumstances, the Court
does find the period of more than one year that elapsed for resolving
petitioners motion to dismiss quite long, considering that all pertinent
pleadings required by the Sandiganbayan were already submitted.
Even if petitioner himself might have contributed to said delay, as
contended by respondents, in our view it is best that the case be resolved
on the merits by the Sandiganbayan with due regard to petitioners right to
due process, speedy trial and speedy disposition of the case against him
and his co-accused.
Finally, with respect to the issue of whether or not the ban on foreign
travel should be continued, as imposed on petitioner by respondent
Sandiganbayan per its Order dated February 20, 1995 with accompanying
restrictions in effect, we resolve to rule in the negative. The travel ban should
be lifted, considering all the circumstances now prevailing.
The rule laid down by this Court is that a person facing a criminal
indictment and provisionally released on bail does not have an unrestricted
right to travel, the reason being that a persons right to travel is subject to the
usual constraints imposed by the very necessity of safeguarding the system
of justice.[54] But, significantly, the Office of the Solicitor General in its
Manifestation dated November 20, 1998 indicated that it is not interposing
any objection to petitioners prayer that he be allowed to travel abroad based
on the following considerations:

x x x (1) that it is well within the power of this Court to suspend its
own rules, including the second paragraph, Section 23, Rule 114 of
the Rules of Court; (2) that it has been shown in the past that the
petitioner has always returned to the Philippines after the expiration
of the period of his allowed travel; and (3) that petitioner, now
Chairman of the Board of San Miguel Corporation, may be
constrained to leave the country for business purposes, more often
than he had done in the past, x x x.[55]

It however recommended that the period of travel should be reduced

to three (3) months instead of six (6) months as requested by petitioner and
that the latter should be required to post an additional cash bond equivalent
to the present cash bond posted by him.[56]

Moreover, prescinding from our initial declaration that the issuance of

warrant of arrest against petitioner by respondent court is invalid, it now
becomes necessary that there be strong and compelling reasons to justify
the continued restriction on petitioners right to travel abroad. Admittedly, all
of petitioners previous requests to travel abroad has been granted and that,
as confirmed by the Office of the Solicitor General, that petitioner has always
returned to the Philippines and complied with the restrictions imposed on
him. The necessity of further denying petitioners right to travel abroad, with
attendant restrictions, appears less than clear. The risk of flight is further
diminished in view of petitioners recent reinstatement as Chairman and
Chief Executive Officer of San Miguel Corporation, though he has now more
justification to travel so as to oversee the entire operations of that
company. In this regard, it has to be conceded that his assumption of such
vital post has come at a time when the current economic crisis has adversely
affected the international operations of many companies, including San
Miguel. The need to travel abroad frequently on the part of petitioner, to
formulate and implement the necessary corporate strategies and decisions,
could not be forestalled. These considerations affecting the petitioners
duties to a publicly held company, militate against imposing further
restrictions on petitioners right to travel abroad.

WHEREFORE, the Court hereby resolves to DISMISS the petition

insofar as the dismissal of Criminal Case No. 22018 against the petitioner is
concerned. Respondent Sandiganbayan (First Division) is hereby ordered to
proceed with the resolution of the pending motions and incidents in Criminal
Case No. 22018 with utmost dispatch. Meanwhile, the Resolution of the
Sandiganbayan (First Division), dated February 20, 1995, imposing a ban
on petitioners travel abroad without its prior approval pending the resolution
of Criminal Case No. 22018 is, for the reasons heretofore advanced, hereby
LIFTED for a period of three (3) months counted from the finality of this
decision. Any similar request during the pendency of said case before the
Sandiganbayan shall be addressed to that court.

No pronouncement as to costs.

SO ORDERED.