THIRD DIVISION

[G.R. No. 199067. November 11, 2013.]

NISSAN GALLERY-ORTIGAS, petitioner, vs. PURIFICACION F.

FELIPE, respondent.

DECISION

MENDOZA, J : p

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to
review, reverse and set aside the June 30, 2011 Decision 1 of the Court of Appeals (CA)
in CA-G.R. SP No. 120100, 2 and its October 21, 2011 Resolution, 3 for being issued in
a manner not in accord with law and jurisprudence.

This case stemmed from a criminal complaint for violation of Batas Pambansa
Blg. 22 (BP 22) filed by petitioner Nissan Gallery-Ortigas (Nissan), an entity engaged in
the business of car dealership, against respondent Purificacion F. Felipe (Purificacion)
with the Office of the City Prosecutor of Quezon City. The said office found probable
cause to indict Purificacion and filed an Information before the Metropolitan Trial Court,
(raffled to Branch 41), Quezon City (MeTC), for her issuance of a postdated check in the
amount of P1,020,000.00, which was subsequently dishonored upon presentment due to
"STOP PAYMENT."

Purificacion issued the said check because her son, Frederick Felipe (Frederick),
attracted by a huge discount of P220,000.00, purchased a Nissan Terrano 4x4 sports and
utility vehicle (SUV) from Nissan. The term of the transaction was Cash-on-Delivery and
no downpayment was required. The SUV was delivered on May 14, 1997, but Frederick
failed to pay upon delivery. Despite non-payment, Frederick took possession of the
vehicle. 4HTCISE

Since then, Frederick had used and enjoyed the SUV for more than four (4)
months without paying even a single centavo of the purchase price. This constrained
Nissan to send him two (2) demand letters, on different dates, but he still refused to pay.
Nissan, through its retained counsel, was prompted to send a final demand letter.
Reacting to the final demand, Frederick went to Nissan's office and asked for a grace
period until October 30, 1997 within which to pay his full outstanding obligation
amounting to P1,026,750.00. Through further negotiation, the amount was eventually
reduced to P1,020,000.00. 5

Frederick reneged on his promise and again failed to pay. On November 25, 1997,
he asked his mother, Purificacion, to issue the subject check as payment for his
obligation. Purificacion acceded to his request. Frederick then tendered her postdated
check in the amount of P1,020,000.00. The check, however, was dishonored upon
presentment due to "STOP PAYMENT." 6

A demand letter was served upon Purificacion, through Frederick, who lived with
her. The letter informed her of the dishonor of the check and gave her five (5) days from
receipt within which to replace it with cash or manager's check. Despite receipt of the
demand letter, Purificacion refused to replace the check giving the reason that she was
not the one who purchased the vehicle. On January 6, 1998, Nissan filed a criminal case
for violation of BP 22 against her. 7
CaDSHE

During the preliminary investigation before the Assistant City Prosecutor,

Purificacion gave P200,000.00 as partial payment to amicably settle the civil aspect of
the case. Thereafter, however, no additional payment had been made.

After trial, the MeTC rendered its judgment acquitting Purificacion of the charge,
but holding her civilly liable to Nissan. The dispositive portion of the judgment states
that:

WHEREFORE, judgment is hereby rendered ACQUITTING accused

PURIFICACION FELIPE of the crime of Violation of Batas Pambansa 22.
However, accused PURIFICACION FELIPE is ordered to pay private
complainant Nissan Gallery Ortigas the amount of SIX HUNDRED SEVENTY
FIVE THOUSAND PESOS (P675,000.00) with legal interest per annum, from
the filing of the information until the finality of this decision.

SO ORDERED. 8

Purificacion appealed to the Regional Trial Court (RTC). Branch 105 thereof
affirmed the MeTC decision on December 22, 2008. The RTC ruled that Purificacion was
estopped from denying that she issued the check as a "show check" to boost the credit
standing of Frederick and that Nissan agreed not to deposit the same. 9 Further, the RTC
considered Purificacion to be an accommodation party who was "liable on the instrument
to a holder for value even though the holder at the time of taking the instrument knew
him or her to be merely an accommodation party." 10 SEIDAC

Purificacion moved for a reconsideration, but her motion was denied.

 The CA, before whom the case was elevated via a petition for review, granted the
petition on May 20, 2009. In so deciding, the CA reasoned out that there was no privity
of contract between Nissan and Purificacion. No civil liability could be adjudged against
her because of her acquittal from the criminal charge. It was Frederick who was civilly
liable to Nissan. 11

It added that Purificacion could not be an accommodation party either because she
only came in after Frederick failed to pay the purchase price, or six (6) months after the
execution of the contract between Nissan and Frederick. Her liability was limited to her
act of issuing a worthless check, but by her acquittal in the criminal charge, there was no
more basis for her to be held civilly liable to Nissan. 12 Purificacion's act of issuing the
subject check did not, by itself, assume the civil obligation of Frederick to Nissan or
automatically made her a party to the contract. 13 Thus, the decretal portion of the
judgment reads:

WHEREFORE, finding merit therefrom, the instant petition is GIVEN

DUE COURSE and is hereby GRANTED. The Decision and Order dated
December 22, 2008 and May 20, 2009, respectively, of the Regional Trial Court
(RTC), Branch 105, Quezon City, in Crim. Case No. Q-08-151734, affirming
the Judgment of the Metropolitan Trial Court (MeTC), Branch 41, Quezon City,
for Violation of B.P. 22, acquitting petitioner of the crime charged but ordering
the latter to pay respondent the amount of Six Hundred Seventy Five Thousand
Pesos (P675,000.00) with 12% legal interest, is SET ASIDE and petitioner is
EXONERATED from any civil liability by reason of her issuance of the
subject check.

xxx xxx xxx

SO ORDERED. 14 ICASEH

Nissan filed a motion for reconsideration, but it was later denied.

Hence, this petition, with Nissan presenting the following:

GROUNDS

A.

BOTH THE METROPOLITAN TRIAL COURT AND THE

REGIONAL TRIAL COURT CONCURRED THAT THE ISSUANCE
BY RESPONDENT PURIFICACION OF THE SUBJECT BOUNCED
CHECK WAS FOR AND IN PAYMENT OF HER SON'S
OUTSTANDING OBLIGATION TO NISSAN GALLERY
ORIGINATING FROM HIS PURCHASE OF THE SUBJECT MOTOR
VEHICLE, NOT MERELY AS A "SHOW CHECK", HENCE, EVEN IF
 PURIFICACION IS NOT A PARTY TO THE SALES TRANSACTION
BETWEEN NISSAN GALLERY, AS SELLER, AND FREDERICK, AS
BUYER, PURIFICACION, AS THE ONE WHO DREW THE
BOUNCED CHECK AS AND IN PAYMENT OF THE LONG-UNPAID
MOTOR VEHICLE PURCHASED BY HER SON, COULD NOT
ESCAPE LIABILITY ON THE CIVIL ASPECT OF THE CASE.

B.

WHILE IT MAY BE TRUE THAT RESPONDENT PURIFICACION

MAY BE ACQUITTED OF THE CRIME CHARGED (VIOLATION OF
B.P. 22), ONLY BECAUSE THE PROSECUTION FAILED TO PROVE
THAT RESPONDENT PURIFICACION WAS PROPERLY NOTIFIED
OF THE DISHONOR OF THE SUBJECT BOUNCED CHECK, IT IS
NOT CORRECT TO EXONERATE HER FROM THE CIVIL ASPECT
OF THE CASE. 15

Ultimately, the question presented before the Court is whether or not Purificacion
is civilly liable for the issuance of a worthless check despite her acquittal from the
criminal charge.

Ruling of the Court

The Court rules in the affirmative.

Well-settled is the rule that a civil action is deemed instituted upon the filing of a
criminal action, subject to certain exceptions. Section 1, Rule 111 of the Rules of Court
specifically provides that:HTAIcD

SECTION 1. Institution of criminal and civil actions. — (a) when a

criminal action is instituted, the civil action for the recovery of civil liability
arising from the offense charged shall be deemed instituted with the criminal
action unless the offended party waives the civil action, reserves the right to
institute it separately or institutes the civil action prior to the criminal action
(unless the offended party waives the civil action, reserves the right to institute
it separately or institutes the civil action prior to the criminal action).
TaSEHC

xxx xxx xxx.

(b) The criminal action for violation of Batas Pambansa Blg. 22 shall

be deemed to include the corresponding civil action. No reservation to file such
civil action separately shall be allowed.

xxx xxx xxx.

 As can be gleaned from the foregoing, with respect to criminal actions for
violation of BP 22, it is explicitly clear that the corresponding civil action is deemed
included and that a reservation to file such separately is not allowed.

The rule is that every act or omission punishable by law has its accompanying
civil liability. The civil aspect of every criminal case is based on the principle that every
person criminally liable is also civilly liable. 16 If the accused, however, is not found to
be criminally liable, it does not necessarily mean that he will not likewise be held civilly
liable because extinction of the penal action does not carry with it the extinction of the
civil action. 17 This rule more specifically applies when (a) the acquittal is based on
reasonable doubt as only preponderance of evidence is required; (b) the court declares
that the liability of the accused is only civil; and (c) the civil liability of the accused does
not arise from or is not based upon the crime of which the accused was acquitted. 18 The
civil action based on the delict is extinguished if there is a finding in the final judgment in
the criminal action that the act or omission from which the civil liability may arise did not
exist or where the accused did not commit the acts or omission imputed to him. 19

It can, therefore, be concluded that if the judgment is conviction of the accused,

then the necessary penalties and civil liabilities arising from the offense or crime shall be
imposed. On the contrary, if the judgment is of acquittal, then the imposition of the civil
liability will depend on whether or not the act or omission from which it might arise
exists.cCaDSA

Purificacion was charged with violation of BP 22 for allegedly issuing a worthless

check. The essential elements of the offense of violation of BP 22 are the following:

(1) The making, drawing, and issuance of any check to apply for account
or for value;

(2) The knowledge of the maker, drawer, or issuer that at the time of

issue there were no sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment; and

(3) The dishonor of the check by the drawee bank for insufficiency of

funds or credit or the dishonor for the same reason had not the drawer, without
any valid cause, ordered the drawee bank to stop payment. 20

Here, the first and third elements were duly proven in the trial. Purificacion,
however, was acquitted from criminal liability because of the failure of the prosecution to
prove the fact of notice of dishonor. Of the three (3) elements, the second element is the
hardest to prove as it involves a state of mind. 21 Thus, Section 2 of BP 22 creates a
presumption of knowledge of insufficiency of funds which, however, arises only after it
is proved that the issuer had received a written notice of dishonor and that within five (5)
days from receipt thereof, he failed to pay the amount of the check or to make
arrangements for its payment. 22 CDcaSA

Purificacion was acquitted because the element of notice of dishonor was not
sufficiently established. Nevertheless, the act or omission from which her civil liability
arose, which was the making or the issuing of the subject worthless check, clearly
existed. Her acquittal from the criminal charge of BP 22 was based on reasonable doubt
and it did not relieve her of the corresponding civil liability. The Court cannot agree more
when the MeTC ruled that:

A person acquitted of a criminal charge, however, is not necessarily

civilly free because the quantum of proof required in criminal prosecution
(proof beyond reasonable doubt) is greater than that required for civil liability
(mere preponderance of evidence). In order to be completely free from civil
liability, a person's acquittal must be based on the fact he did not commit the
offense. If the acquittal is based merely on reasonable doubt, the accused
may still be held civilly liable since this does not mean he did not commit
the act complained of. It may only be that the facts proved did not
constitute the offense charged. 23

The Court is also one with the CA when it stated that the liability of Purificacion
was limited to her act of issuing a worthless check. The Court, however, does not agree
with the CA when it went to state further that by her acquittal in the criminal charge,
there was no more basis for her to be held civilly liable to Nissan. The acquittal was just
based on reasonable doubt and it did not change the fact that she issued the subject check
which was subsequently dishonored upon its presentment. STaIHc

Purificacion herself admitted having issued the subject check in the amount of
P1,020,000.00 after Frederick asked her to do it as payment for his obligation with
Nissan. Her claim that she issued the check as a mere "show check" to boost Frederick's
credit standing was not convincing because there was no credit standing to boost as her
son had already defaulted in his obligation to Nissan. Had it been issued prior to the sale
of the vehicle, the "show check" claim could be given credence. It was not, however, the
case here. It was clear that she assumed her son's obligation with Nissan and issued the
check to pay it. The argument that it was a mere "show check" after her son was already
in default is simply ludicrous.

The Court shall not be belabored with the issue of whether or not Purificacion was
an accommodation party because she was not. Granting that she was, it is with more
reason that she cannot escape any civil liability because Section 29 24 of the Negotiable
Instruments Law specifically bounds her to the instrument. The crux of the controversy
pertains to the civil liability of an accused despite acquittal of a criminal charge. Such
issue is no longer novel. In cases like violation of BP 22, a special law, the intent in
issuing a check is immaterial. The law has made the mere act of issuing a bad check
malum prohibitum, an act proscribed by the legislature for being deemed pernicious and
inimical to public welfare. Considering the rule in mala prohibita cases, the only inquiry
is whether the law has been breached. 25 The lower courts were unanimous in finding
that, indeed, Purificacion issued the bouncing check. Thus, regardless of her intent, she
remains civilly liable because the act or omission, the making and issuing of the subject
check, from which her civil liability arises, evidently exists.

WHEREFORE, the petition is GRANTED. The June 30, 2011 Decision and the
October 21, 2011 Resolution of the Court of Appeals are hereby SET ASIDE. The
Decision of the Regional Trial Court, Branch 105, Quezon City, in Criminal Case No. Q-
08-151734, dated December 22, 2008, affirming the Judgment of the Metropolitan Trial
Court, Branch 41, Quezon City, for Violation of B.P. 22 is REINSTATED with
MODIFICATION with respect to the legal interest which shall be reduced to 6% per
annum from finality of this judgment until its satisfaction. 26cEAaIS

SO ORDERED.

(Nissan Gallery-Ortigas v. Felipe, G.R. No. 199067, [November 11, 2013], 720 PHIL
|||

828-840)

SECOND DIVISION

[G.R. No. 181986. December 4, 2013.]

ELIZALDE S. CO, petitioner, vs. LUDOLFO P. MUÑOZ, n JR.,

respondent.

DECISION

BRION, J : p

Before us is a petition for review on certiorari 1 seeking to set aside the decision 2
dated January 31, 2007 and resolution 3 dated March 3, 2008 of the Court of Appeals
(CA) in CA-G.R. CR No. 29355. The CA rulings reversed and set aside the decision 4
dated February 24, 2004 of the Regional Trial Court (RTC) of Legaspi City, Branch 5, in
Criminal Case Nos. 9704, 9705 and 9737, and acquitted respondent Ludolfo P. Muñoz,
Jr. (Muñoz) of three counts of libel.

Factual Antecedents
 The case springs from the statements made by the respondent against the
petitioner, Elizalde S. Co (Co), in several interviews with radio stations in Legaspi City.
Muñoz, a contractor, was charged and arrested for perjury. Suspecting that Co, a wealthy
businessman, was behind the filing of the suit, Muñoz made the following statements:

(a)  Co influenced the Office of the City Prosecutor of Legaspi City to expedite
the issuance of warrant of arrest against Muñoz in connection with the
perjury case;

(b)  Co manipulated the results of the government bidding involving the

Masarawag-San Francisco dredging project, and;

(c)  Co received P2,000,000.00 from Muñoz on the condition that Co will sub-
contract the project to Muñoz, which condition Co did not comply with.
5 AcHSEa

Consequently, Co filed his complaint-affidavit which led to the filing of three

criminal informations for libel before the RTC. 6 Notably, Co did not waive, institute or
reserve his right to file a separate civil action arising from Muñoz's libelous remarks
against him. 7

In his defense, 8 Muñoz countered that he revealed the anomalous government

bidding as a call of public duty. In fact, he filed cases against Co before the Ombudsman
involving the anomalous dredging project. Although the Ombudsman dismissed the
cases, Muñoz claimed that the dismissal did not disprove the truth of his statements. He
further argued that Co is a public figure considering his participation in government
projects and his prominence in the business circles. He also emphasized that the
imputations dealt with matters of public interest and are, thus, privileged. Applying the
rules on privileged communication to libel suits, the prosecution has the burden of
proving the existence of actual malice, which, Muñoz claimed, it failed to do.

In its decision, the RTC found Muñoz guilty of three counts of libel. The RTC
ruled that the prosecution established the elements of libel. In contrast, Muñoz failed to
show that the imputations were true and published with good motives and for justifiable
ends, as required in Article 361 of the Revised Penal Code (RPC). 9 In light of the
Ombudsman's dismissal of Muñoz' charges against Co, the RTC also held that Muñoz'
statements were baseless accusations which are not protected as privileged
communication. 10

In addition to imprisonment, Muñoz was ordered to pay P5,000,000.00 for each

count of libel as moral damages, P1,200,000.00 for expenses paid for legal services, and
P297,699.00 for litigation expense. 11 Muñoz appealed his conviction with the CA. HDTCSI

The CA Ruling
 The CA held that the subject matter of the interviews was impressed with public
interest and Muñoz' statements were protected as privileged communication under the
first paragraph of Article 354 of the RPC. 12 It also declared that Co was a public figure
based on the RTC's findings that he was a "well-known, highly-regarded and recognized
in business circles." 13 As a public figure, Co is subject to criticisms on his acts that are
imbued with public interest. 14 Hence, the CA reversed the RTC decision and acquitted
Muñoz of the libel charges due to the prosecution's failure to establish the existence of
actual malice.

The Petitioner's Arguments

In the present petition, Co acknowledges that he may no longer appeal the criminal
aspect of the libel suits because that would violate Muñoz' right against double jeopardy.
Hence, he claims damages only on the basis of Section 2, Rule 111 of the Rules of
Court (ROC), which states that the extinction of the penal action does not carry with it
the extinction of the civil action. He avers that this principle applies in general whether
the civil action is instituted with or separately from the criminal action. 15 He also claims
that the civil liability of an accused may be appealed in case of acquittal. 16
CHcESa

Co further makes the following submissions:

First, the CA erred when it disregarded the presumption of malice under Article
354 17 of the RPC. To overcome this presumption, Muñoz should have presented
evidence on good or justifiable motive for his statements. 18 On the contrary, the context
of Muñoz's radio interviews reflects his evident motive to injure Co's reputation instead
of a sincere call of public duty. 19

Second, the CA erred in declaring Co as a public figure based on the RTC findings
that he is known in his community. He claims this as a relatively limited community
comprising of his business associates. 20

The Respondent's Arguments

Muñoz argues that Co misunderstood Section 2, Rule 111 of the ROC because,
as its title suggests, the provision presupposes the filing of a civil action separately from
the criminal action. Thus, when there is no reservation of the right to separately institute
the civil action arising from the offense, the extinction of the criminal action extinguishes
the civil action. Since Co did not reserve his right to separately institute a civil action
arising from the offense, the dismissal of the criminal action bars him from filing the
present petition to enforce the civil liability. 21

Muñoz further posits that Co is not entitled to recover damages because there is no
wrongful act to speak of. Citing De la Rosa, et al. v. Maristela, 22 he argues that if there
is no libel due to the privileged character of the communication and actual malice is not
proved, there should be no award of moral damages. 23

Lastly, Muñoz avers that Co is indirectly challenging the factual and legal issues
which the CA has already settled in acquitting him. Muñoz explains that this Court may
no longer overturn the CA's findings as the doctrine of double jeopardy has set in. 24

The Issues

The parties' arguments, properly joined, present to us the following issues:

1.  Whether a private party may appeal the judgment of acquittal insofar as he

seeks to enforce the accused's civil liability; and

2.  Whether the respondent is liable for damages arising from the libelous
remarks despite his acquittal.

The Court's Ruling

We do not find the petition meritorious. CDAcIT

The private party may appeal the

judgment of acquittal insofar as he
seeks to enforce the accused's civil
liability.

The parties have conflicting interpretations of the last paragraph of Section 2, Rule
111 of the ROC, which states:

The extinction of the penal action does not carry with it extinction of
the civil action. However, the civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment in the criminal action that
the act or omission from which the civil liability may arise did not exist.
(Emphasis ours)

Muñoz claims that the last paragraph of Section 2, Rule 111 of the ROC applies only
if the civil liability ex delicto is separately instituted or when the right to file it
separately was properly reserved. In contrast, Co claims that Muñoz' acquittal of the
crime of libel did not extinguish the civil aspect of the case because Muñoz' utterance
of the libelous remarks remains undisputed.

We reject Muñoz' claim. The last paragraph of Section 2, Rule 111 of the ROC
applies to civil actions to claim civil liability arising from the offense charged, regardless
if the action is instituted with or filed separately from the criminal action. Undoubtedly,
Section 2, Rule 111 of the ROC governs situations when the offended party opts to
institute the civil action separately from the criminal action; hence, its title "When
separate civil action is suspended." Despite this wording, the last paragraph, by its terms,
governs all claims for civil liability ex delicto. This is based on Article 100 of the RPC
which states that that "[e]very person criminally liable for a felony is also civilly liable."
Each criminal act gives rise to two liabilities: one criminal and one civil.

Reflecting this policy, our procedural rules provide for two modes by which civil
liability ex delicto may be enforced: (1) through a civil action that is deemed impliedly
instituted in the criminal action; 25 (2) through a civil action that is filed separately,
either before the criminal action or after, upon reservation of the right to file it separately
in the criminal action. 26 The offended party may also choose to waive the civil action.
27 This dual mode of enforcing civil liability ex delicto does not affect its nature, as may
be apparent from a reading of the second paragraph of Section 2, Rule 120 of the ROC,
which states:

Section 2.  Contents of the judgment. — . . .

In case the judgment is of acquittal, it shall state whether the

evidence of the prosecution absolutely failed to prove the guilt of the
accused or merely failed to prove his guilt beyond reasonable doubt. In
either case, the judgment shall determine if the act or omission from
which the civil liability might arise did not exist. (Emphasis ours)

If, as Muñoz suggests, the extinction of the penal action carries with it the
extinction of the civil action that was instituted with the criminal action, then Section 2,
Rule 120 of the ROC becomes an irrelevant provision. There would be no need for the
judgment of the acquittal to determine whether "the act or omission from which the civil
liability may arise did not exist." The Rules precisely require the judgment to declare if
there remains a basis to hold the accused civilly liable despite acquittal so that the
offended party may avail of the proper remedies to enforce his claim for civil liability ex
delicto.

In Ching v. Nicdao and CA, 28 the Court ruled that an appeal is the proper remedy
that a party — whether the accused or the offended party — may avail with respect to the
judgment:

If the accused is acquitted on reasonable doubt but the court renders judgment
on the civil aspect of the criminal case, the prosecution cannot appeal from the
judgment of acquittal as it would place the accused in double jeopardy.
However, the aggrieved party, the offended party or the accused or both
may appeal from the judgment on the civil aspect of the case within the
period therefor.
 From the foregoing, petitioner Ching correctly argued that he, as the
offended party, may appeal the civil aspect of the case notwithstanding
respondent Nicdao's acquittal by the CA. The civil action was impliedly
instituted with the criminal action since he did not reserve his right to
institute it separately nor did he institute the civil action prior to the
criminal action. (Emphasis ours)

Moreover, an appeal is favored over the institution of a separate civil action because
the latter would only add to our clogged dockets. 29

To reiterate, the extinction of the penal action does not necessarily carry with it the
extinction of the civil action, whether the latter is instituted with or separately from the
criminal action. The offended party may still claim civil liability ex delicto if there is a
finding in the final judgment in the criminal action that the act or omission from which
the liability may arise exists. Jurisprudence has enumerated three instances when,
notwithstanding the accused's acquittal, the offended party may still claim civil liability
ex delicto: (a) if the acquittal is based on reasonable doubt as only preponderance of
evidence is required; (b) if the court declared that the liability of the accused is only civil;
and (c) if the civil liability of the accused does not arise from or is not based upon the
crime of which the accused is acquitted. We thus now proceed to determine if Co's claim
falls under any of these three situations.

The respondent is not civilly liable

because no libel was committed.

The CA has acquitted Muñoz of libel because his statement is a privileged

communication. In libel, the existence of malice is essential as it is an element of the
crime. 30 The law presumes that every imputation is malicious; 31 this is referred to as
malice in law. The presumption relieves the prosecution of the burden of proving that the
imputations were made with malice. This presumption is rebutted if the accused proved
that the imputation is true and published with good intention and justifiable motive. 32 EAIaHD

There are few circumstances wherein malice in law is inapplicable. For instance,
Article 354 of the RPC further states that malice is not presumed when:

(1)  a private communication made by any person to another in the performance

of any legal, moral or social duty; 33 and

(2)  a fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which
are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public
officers in the exercise of their functions. 34
 Jurisprudence supplements the enumeration in Article 354 of the RPC. In Borjal v.
CA, 35 we held that in view of the constitutional right on the freedoms of speech and
of the press, fair commentaries on matters of public interest are privileged. In
Guingguing v. CA, 36 we ruled that the remarks directed against a public figure are
likewise privileged. In order to justify a conviction in libel involving privileged
communication, the prosecution must establish that the libelous statements were made
or published with actual malice or malice in fact — the knowledge that the statement
is false or with reckless disregard as to whether or not it was true. 37 In other words,
our rulings in Borjal and Guingguing show that privileged communication has the
effect of destroying the presumption of malice or malice in law and consequently
requiring the prosecution to prove the existence of malice in fact.

In the present case, the CA declared that the libelous remarks are privileged. The
legal conclusion was arrived at from the fact that Co is a public figure, the subject matter
of the libelous remarks was of public interest, and the context of Muñoz' statements were
fair comments. Consequently, malice is no longer presumed and the prosecution has the
burden of proving that Muñoz acted with malice in fact. The CA found that the
prosecution failed in this respect.

Co assails the CA's ruling by raising arguments that essentially require a review of
the CA's factual and legal findings. However, the Court cannot, through the present
petition, review these findings without going against the requirements of Rule 45 with
respect to factual matters, and without violating Muñoz' right against double jeopardy
given that the acquittal is essentially anchored on a question of fact.

In light of the privileged nature of Muñoz' statements and the failure of the
prosecution to prove malice in fact, there was no libel that was committed by Muñoz.
Without the crime, no civil liability ex delicto may be claimed by Co that can be pursued
in the present petition. There is no act from which civil liability may arise that exists.

WHEREFORE, premises considered, we DENY the petition. The Decision of the

Court of Appeals (CA) in CA-G.R. CR No. 29355 dated January 31, 2007 is
AFFIRMED. ScTaEA

SO ORDERED.

Carpio, Del Castillo, Perez and Perlas-Bernabe, JJ., concur.

||| (Co v. Muñoz, Jr., G.R. No. 181986, [December 4, 2013], 722 PHIL 729-743)

THIRD DIVISION
 [G.R. No. 184861. June 30, 2009.]

DREAMWORK CONSTRUCTION, INC., petitioner, vs. CLEOFE S.

JANIOLA and HON. ARTHUR A. FAMINI, respondents.

DECISION

VELASCO, JR., J : p

The Case
Petitioner Dreamwork Construction, Inc. seeks the reversal of the August 26,
2008 Decision 1 in SCA No. 08-0005 of the Regional Trial Court (RTC), Branch 253
in Las Piñas City. The Decision affirmed the Orders dated October 16, 2007 2 and
March 12, 2008 3 in Criminal Case Nos. 55554-61 issued by the Metropolitan Trial
Court (MTC), Branch 79 in Las Piñas City.
The Facts
On October 18, 2004, petitioner, through its President, Roberto S. Concepcion,
and Vice-President for Finance and Marketing, Normandy P. Amora, filed a
Complaint Affidavit dated October 5, 2004 4 for violation of Batas Pambansa Bilang
22 (BP 22) against private respondent Cleofe S. Janiola with the Office of the City
Prosecutor of Las Piñas City. The case was docketed as I.S. No. 04-2526-33.
Correspondingly, petitioner filed a criminal information for violation of BP 22 against
private respondent with the MTC on February 2, 2005 docketed as Criminal Case
Nos. 55554-61, entitled People of the Philippines v. Cleofe S. Janiola.
On September 20, 2006, private respondent, joined by her husband, instituted a
civil complaint against petitioner by filing a Complaint dated August 2006 5 for the
rescission of an alleged construction agreement between the parties, as well as for
damages. The case was filed with the RTC, Branch 197 in Las Piñas City and
docketed as Civil Case No. LP-06-0197. Notably, the checks, subject of the criminal
cases before the MTC, were issued in consideration of the construction agreement.
Thereafter, on July 25, 2007, private respondent filed a Motion to Suspend
Proceedings dated July 24, 2007 6 in Criminal Case Nos. 55554-61, alleging that the
civil and criminal cases involved facts and issues similar or intimately related such
that in the resolution of the issues in the civil case, the guilt or innocence of the
accused would necessarily be determined. In other words, private respondent claimed
that the civil case posed a prejudicial question as against the criminal cases.
cISDHE

Petitioner opposed the suspension of the proceedings in the criminal cases in

an undated Comment/Opposition to Accused's Motion to Suspend Proceedings based
on Prejudicial Question 7 on the grounds that: (1) there is no prejudicial question in
this case as the rescission of the contract upon which the bouncing checks were issued
is a separate and distinct issue from the issue of whether private respondent violated
BP 22; and (2) Section 7, Rule 111 of the Rules of Court states that one of the
elements of a prejudicial question is that "the previously instituted civil action
involves an issue similar or intimately related to the issue raised in the subsequent
criminal action"; thus, this element is missing in this case, the criminal case having
preceded the civil case.
Later, the MTC issued its Order dated October 16, 2007, granting the Motion
to Suspend Proceedings, and reasoned that:

Should the trial court declare the rescission of contract and the
nullification of the checks issued as the same are without consideration, then the
instant criminal cases for alleged violation of BP 22 must be dismissed. The
belated filing of the civil case by the herein accused did not detract from the
correctness of her cause, since a motion for suspension of a criminal action may
be filed at any time before the prosecution rests (Section 6, Rule 111, Revised
Rules of Court). 8

In an Order dated March 12, 2008, 9 the MTC denied petitioner's Motion for
Reconsideration dated November 29, 2007.
Petitioner appealed the Orders to the RTC with a Petition dated May 13, 2008.
Thereafter, the RTC issued the assailed decision dated August 26, 2008, denying the
petition. On the issue of the existence of a prejudicial question, the RTC ruled:

Additionally, it must be stressed that the requirement of a "previously"

filed civil case is intended merely to obviate delays in the conduct of the
criminal proceedings. Incidentally, no clear evidence of any intent to delay by
private respondent was shown. The criminal proceedings are still in their initial
stages when the civil action was instituted. And, the fact that the civil action
was filed after the criminal action was instituted does not render the issues in
the civil action any less prejudicial in character. 10

Hence, we have this petition under Rule 45.

The Issue

WHETHER OR NOT THE COURT A QUO SERIOUSLY ERRED IN NOT

PERCEIVING GRAVE ABUSE OF DISCRETION ON THE PART OF THE
INFERIOR COURT, WHEN THE LATTER RULED TO SUSPEND
PROCEEDINGS IN CRIM. CASE NOS. 55554-61 ON THE BASIS OF
"PREJUDICIAL QUESTION" IN CIVIL CASE NO. LP-06-0197. 11 DTCSHA

The Court's Ruling

 This petition must be granted.

The Civil Action Must Precede the Filing of the

Criminal Action for a Prejudicial Question to Exist
Under the 1985 Rules on Criminal Procedure, as amended by Supreme Court
Resolutions dated June 17, 1988 and July 7, 1988, the elements of a prejudicial
question are contained in Rule 111, Sec. 5, which states:

SEC. 5. Elements of prejudicial question. — The two (2) essential

elements of a prejudicial question are: (a) the civil action involves an issue
similar or intimately related to the issue raised in the criminal action; and (b) the
resolution of such issue determines whether or not the criminal action may
proceed.

Thus, the Court has held in numerous cases 12 that the elements of a
prejudicial question, as stated in the above-quoted provision and in Beltran v. People,
13 are:

The rationale behind the principle of prejudicial question is to avoid two

conflicting decisions. It has two essential elements: (a) the civil action involves
an issue similar or intimately related to the issue raised in the criminal action;
and (b) the resolution of such issue determines whether or not the criminal
action may proceed.

On December 1, 2000, the 2000 Rules on Criminal Procedure, however,

became effective and the above provision was amended by Sec. 7 of Rule 111, which
applies here and now provides:

SEC. 7. Elements of prejudicial question. — The elements of a

prejudicial question are: (a) the previously instituted civil action involves an
issue similar or intimately related to the issue raised in the subsequent criminal
action, and (b) the resolution of such issue determines whether or not the
criminal action may proceed. (Emphasis supplied.)

Petitioner interprets Sec. 7 (a) to mean that in order for a civil case to create a
prejudicial question and, thus, suspend a criminal case, it must first be established that
the civil case was filed previous to the filing of the criminal case. This, petitioner
argues, is specifically to guard against the situation wherein a party would belatedly
file a civil action that is related to a pending criminal action in order to delay the
proceedings in the latter.
On the other hand, private respondent cites Article 36 of the Civil Code which
provides:
 Art. 36. Pre-judicial questions which must be decided before any
criminal prosecution may be instituted or may proceed, shall be governed by
rules of court which the Supreme Court shall promulgate and which shall not be
in conflict with the provisions of this Code. (Emphasis supplied.) HTASIa

Private respondent argues that the phrase "before any criminal prosecution may
be instituted or may proceed" must be interpreted to mean that a prejudicial question
exists when the civil action is filed either before the institution of the criminal action
or during the pendency of the criminal action. Private respondent concludes that there
is an apparent conflict in the provisions of the Rules of Court and the Civil Code in
that the latter considers a civil case to have presented a prejudicial question even if the
criminal case preceded the filing of the civil case.
We cannot agree with private respondent.
First off, it is a basic precept in statutory construction that a "change in
phraseology by amendment of a provision of law indicates a legislative intent to
change the meaning of the provision from that it originally had". 14 In the instant
case, the phrase, "previously instituted", was inserted to qualify the nature of the civil
action involved in a prejudicial question in relation to the criminal action. This
interpretation is further buttressed by the insertion of "subsequent" directly before the
term criminal action. There is no other logical explanation for the amendments except
to qualify the relationship of the civil and criminal actions, that the civil action must
precede the criminal action.
Thus, this Court ruled in Torres v. Garchitorena 15 that:

Even if we ignored petitioners' procedural lapse and resolved their

petition on the merits, we hold that Sandiganbayan did not abuse its discretion
amounting to excess or lack of jurisdiction in denying their omnibus motion for
the suspension of the proceedings pending final judgment in Civil Case No.
7160. Section 6, Rule 111 of the Rules of Criminal Procedure, as amended,
reads:

Sec. 6. Suspension by reason of prejudicial question. — A

petition for suspension of the criminal action based upon the pendency
of a prejudicial question in a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary investigation. When
the criminal action has been filed in court for trial, the petition to
suspend shall be filed in the same criminal action at any time before the
prosecution rests.

Sec. 7. Elements of prejudicial question. — The elements of a

prejudicial question are: (a) the previously instituted civil action
involves an issue similar or intimately related to the issue raised in the
subsequent criminal action, and (b) the resolution of such issue
determines whether or not the criminal action may proceed.
 Under the amendment, a prejudicial question is understood in law
as that which must precede the criminal action and which requires a
decision before a final judgment can be rendered in the criminal action
with which said question is closely connected. The civil action must be
instituted prior to the institution of the criminal action. In this case, the
Information was filed with the Sandiganbayan ahead of the complaint in Civil
Case No. 7160 filed by the State with the RTC in Civil Case No. 7160. Thus, no
prejudicial question exists. (Emphasis supplied.) EDaHAT

Additionally, it is a principle in statutory construction that "a statute should be

construed not only to be consistent with itself but also to harmonize with other laws
on the same subject matter, as to form a complete, coherent and intelligible system."
16 This principle is consistent with the maxim, interpretare et concordare leges
legibus est optimus interpretandi modus or every statute must be so construed and
harmonized with other statutes as to form a uniform system of jurisprudence. 17
In other words, every effort must be made to harmonize seemingly conflicting
laws. It is only when harmonization is impossible that resort must be made to
choosing which law to apply.
In the instant case, Art. 36 of the Civil Code and Sec. 7 of Rule 111 of the
Rules of Court are susceptible of an interpretation that would harmonize both
provisions of law. The phrase "previously instituted civil action" in Sec. 7 of Rule 111
is plainly worded and is not susceptible of alternative interpretations. The clause
"before any criminal prosecution may be instituted or may proceed" in Art. 36 of the
Civil Code may, however, be interpreted to mean that the motion to suspend the
criminal action may be filed during the preliminary investigation with the public
prosecutor or court conducting the investigation, or during the trial with the court
hearing the case.
This interpretation would harmonize Art. 36 of the Civil Code with Sec. 7 of
Rule 111 of the Rules of Court but also with Sec. 6 of Rule 111 of the Civil Code,
which provides for the situations when the motion to suspend the criminal action
during the preliminary investigation or during the trial may be filed. Sec. 6 provides:

SEC. 6. Suspension by reason of prejudicial question. — A petition for

suspension of the criminal action based upon the pendency of a prejudicial
question in a civil action may be filed in the office of the prosecutor or the court
conducting the preliminary investigation. When the criminal action has been
filed in court for trial, the petition to suspend shall be filed in the same criminal
action at any time before the prosecution rests.

Thus, under the principles of statutory construction, it is this interpretation of

Art. 36 of the Civil Code that should govern in order to give effect to all the relevant
provisions of law.
 It bears pointing out that the circumstances present in the instant case indicate
that the filing of the civil action and the subsequent move to suspend the criminal
proceedings by reason of the presence of a prejudicial question were a mere
afterthought and instituted to delay the criminal proceedings.
In Sabandal v. Tongco, 18 we found no prejudicial question existed involving a
civil action for specific performance, overpayment, and damages, and a criminal
complaint for BP 22, as the resolution of the civil action would not determine the guilt
or innocence of the accused in the criminal case. In resolving the case, we said: AEScHa

Furthermore, the peculiar circumstances of the case clearly indicate that

the filing of the civil case was a ploy to delay the resolution of the criminal
cases. Petitioner filed the civil case three years after the institution of the
criminal charges against him. Apparently, the civil action was instituted as an
afterthought to delay the proceedings in the criminal cases. 19

Here, the civil case was filed two (2) years after the institution of the criminal
complaint and from the time that private respondent allegedly withdrew its equipment
from the job site. Also, it is worth noting that the civil case was instituted more than
two and a half (2 1/2) years from the time that private respondent allegedly stopped
construction of the proposed building for no valid reason. More importantly, the civil
case praying for the rescission of the construction agreement for lack of consideration
was filed more than three (3) years from the execution of the construction agreement.
Evidently, as in Sabandal, the circumstances surrounding the filing of the cases
involved here show that the filing of the civil action was a mere afterthought on the
part of private respondent and interposed for delay. And as correctly argued by
petitioner, it is this scenario that Sec. 7 of Rule 111 of the Rules of Court seeks to
prevent. Thus, private respondent's positions cannot be left to stand.
The Resolution of the Civil Case Is Not
Determinative of the Prosecution of the Criminal Action
In any event, even if the civil case here was instituted prior to the criminal
action, there is, still, no prejudicial question to speak of that would justify the
suspension of the proceedings in the criminal case.
To reiterate, the elements of a prejudicial question under Sec. 7 of Rule 111 of
the Rules of Court are: (1) the previously instituted civil action involves an issue
similar or intimately related to the issue raised in the subsequent criminal action; and
(2) the resolution of such issue determines whether or not the criminal action may
proceed.
Petitioner argues that the second element of a prejudicial question, as provided
in Sec. 7 of Rule 111 of the Rules, is absent in this case. Thus, such rule cannot apply
to the present controversy.
 Private respondent, on the other hand, claims that if the construction agreement
between the parties is declared null and void for want of consideration, the checks
issued in consideration of such contract would become mere scraps of paper and
cannot be the basis of a criminal prosecution.

We find for petitioner.

It must be remembered that the elements of the crime punishable under BP 22

are as follows:

(1) the making, drawing, and issuance of any check to apply for account
or for value;AHDaET

(2) the knowledge of the maker, drawer, or issuer that at the time of

issue there are no sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment; and

(3) the subsequent dishonor of the check by the drawee bank for

insufficiency of funds or credit, or dishonor for the same reason had not the
drawer, without any valid cause, ordered the bank to stop payment. 20

Undeniably, the fact that there exists a valid contract or agreement to support
the issuance of the check/s or that the checks were issued for valuable consideration
does not make up the elements of the crime. Thus, this Court has held in a long line of
cases 21 that the agreement surrounding the issuance of dishonored checks is
irrelevant to the prosecution for violation of BP 22. In Mejia v. People, 22 we ruled:

It must be emphasized that the gravamen of the offense charge is the

issuance of a bad check. The purpose for which the check was issued, the terms
and conditions relating to its issuance, or any agreement surrounding such
issuance are irrelevant to the prosecution and conviction of petitioner. To
determine the reason for which checks are issued, or the terms and conditions
for their issuance, will greatly erode the faith the public reposes in the stability
and commercial value of checks as currency substitutes, and bring havoc in
trade and in banking communities. The clear intention of the framers of B.P. 22
is to make the mere act of issuing a worthless check malum prohibitum. DaECST

Lee v. Court of Appeals 23 is even more poignant. In that case, we ruled that
the issue of lack of valuable consideration for the issuance of checks which were later
on dishonored for insufficient funds is immaterial to the success of a prosecution for
violation of BP 22, to wit:

Third issue. Whether or not the check was issued on account or for
value.
 Petitioner's claim is not feasible. We have held that upon issuance of a
check, in the absence of evidence to the contrary, it is presumed that the same
was issued for valuable consideration. Valuable consideration, in turn, may
consist either in some right, interest, profit or benefit accruing to the party who
makes the contract, or some forbearance, detriment, loss or some responsibility,
to act, or labor, or service given, suffered or undertaken by the other side. It is
an obligation to do, or not to do in favor of the party who makes the contract,
such as the maker or indorser.

In this case, petitioner himself testified that he signed several checks in

blank, the subject check included, in exchange for 2.5% interest from the
proceeds of loans that will be made from said account. This is a valuable
consideration for which the check was issued. That there was neither a pre-
existing obligation nor an obligation incurred on the part of petitioner when the
subject check was given by Bautista to private complainant on July 24, 1993
because petitioner was no longer connected with Unlad or Bautista starting July
1989, cannot be given merit since, as earlier discussed, petitioner failed to
adequately prove that he has severed his relationship with Bautista or Unlad.

At any rate, we have held that what the law punishes is the mere act
of issuing a bouncing check, not the purpose for which it was issued nor the
terms and conditions relating to its issuance. This is because the thrust of
the law is to prohibit the making of worthless checks and putting them into
circulation. 24 (Emphasis supplied.)

Verily, even if the trial court in the civil case declares that the construction
agreement between the parties is void for lack of consideration, this would not affect
the prosecution of private respondent in the criminal case. The fact of the matter is
that private respondent indeed issued checks which were subsequently dishonored for
insufficient funds. It is this fact that is subject of prosecution under BP 22.
Therefore, it is clear that the second element required for the existence of a
prejudicial question, that the resolution of the issue in the civil action would
determine whether the criminal action may proceed, is absent in the instant case.
Thus, no prejudicial question exists and the rules on it are inapplicable to the case
before us.
WHEREFORE, we GRANT this petition. We hereby REVERSE and SET
ASIDE the August 26, 2008 Decision in SCA No. 08-0005 of the RTC, Branch 253
in Las Piñas City and the Orders dated October 16, 2007 and March 12, 2008 in
Criminal Case Nos. 55554-61 of the MTC, Branch 79 in Las Piñas City. We order the
MTC to continue with the proceedings in Criminal Case Nos. 55554-61 with dispatch.
cSDIHT

No costs.

SO ORDERED.
 Ynares-Santiago, Chico-Nazario, Nachura and Peralta, JJ., concur.

(Dreamwork Construction, Inc. v. Janiola, G.R. No. 184861, [June 30, 2009], 609 PHIL
|||

245-259)

SECOND DIVISION

[G.R. No. 239521. January 28, 2019.]

PRIMO A. MINA, FELIX DE VERA, POMPEYO MAGALI,

BERNADETTE AMOR and PURIFICACION DELA CRUZ,
petitioners, vs. THE COURT OF APPEALS and RODOLFO C.
TANDOC, respondents.

DECISION

PERLAS-BERNABE, J : p

Assailed in this petition for certiorari 1 are the Resolutions dated May 22,
2017 2 and March 12, 2018 3 of the Court of Appeals (CA) in CA-G.R. SP No.
150130 which dismissed petitioners Primo A. Mina, Felix De Vera, Pompeyo Magali,
Bernadette Amor, and Purificacion Dela Cruz's (petitioners) petition for certiorari
before it for purportedly availing of a wrong remedy.

The Facts

This case stemmed from an Affidavit-Complaint 4 for Perjury, as defined and

penalized under Article 183 of the Revised Penal Code (RPC), filed by petitioners
against respondent Rodolfo C. Tandoc (Tandoc) before the Office of the Provincial
Prosecutor of Pangasinan (OPP). After the requisite preliminary investigation
proceedings, the OPP dismissed petitioners' criminal complaint against Tandoc for
lack of probable cause. 5 Aggrieved, petitioners appealed before the Office of the
Regional State Prosecutor (ORSP) located in San Fernando City, La Union. However,
the ORSP affirmed the OPP's findings that no probable cause exists to indict Tandoc
for the crime of Perjury. Undaunted, petitioners filed a petition for certiorari before
the CA. 6

The CA Ruling
 In a Resolution 7 dated May 22, 2017, the CA dismissed the petition outright
on the ground that petitioners availed of a wrong remedy. It held that under
Department of Justice (DOJ) Department Circular No. 70-A, petitioners should have
first appealed the adverse ORSP ruling to the Secretary of Justice (SOJ) before
elevating the matter to the regular courts. 8
Petitioners moved for reconsideration but the same was denied in a Resolution
9 dated March 12, 2018; hence, this petition. 10

The Issue before the Court

Whether or not the CA erred in dismissing the petition for certiorari on the
ground of petitioners' supposed availment of a wrong remedy. CAIHTE

The Court's Ruling

To recapitulate, the CA ruled that petitioners should have first elevated the
adverse ORSP ruling to the SOJ before availing of judicial remedies. On the other
hand, petitioners maintain that the ORSP ruling is already final, and as such, it
correctly elevated the matter to the courts by filing a petition for certiorari before the
CA.
The Court finds for petitioners.
DOJ Department Circular No. 70 11 dated July 3, 2000, entitled the "2000 NPS
Rule on Appeal," which governs the appeals process in the National Prosecution
Service (NPS), provides that resolutions of, inter alia, the Regional State Prosecutor,
in cases subject of preliminary investigation/reinvestigation shall be appealed by
filing a verified petition for review before the SOJ. 12 However, this procedure was
immediately amended by DOJ Department Circular No. 70-A 13 dated July 10, 2000,
entitled "Delegation of Authority to Regional State Prosecutors to Resolve Appeals in
Certain Cases," which reads:
DEPARTMENT CIRCULAR NO. 70-A
SUBJECT: Delegation of Authority to Regional State
Prosecutors to Resolve Appeals in Certain Cases
In order to expedite the disposition of appealed cases governed by
Department Circular No. 70 dated July 3, 2000 ("2000 NPS RULE ON
APPEAL"), all petitions for review of resolutions of Provincial/City
Prosecutors in cases cognizable by the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts, except in the
National Capital Region, shall be filed with the Regional State Prosecutor
concerned who shall resolve such petitions with finality in accordance with
the pertinent rules prescribed in the said Department Circular.
 The foregoing delegation of authority notwithstanding, the Secretary
of Justice may, pursuant to his power of supervision and control over the
entire National Prosecution Service and in the interest of justice, review the
resolutions of the Regional State Prosecutors in appealed cases.
xxx xxx xxx (Emphases and underscoring supplied)
As may be gleaned above, DOJ Department Circular No. 70-A delegated to the
ORSPs the authority to rule with finality cases subject of preliminary
investigation/reinvestigation appealed before it, provided that: (a) the case is not filed
in the National Capital Region (NCR); and (b) the case, should it proceed to the
courts, is cognizable by the Metropolitan Trial Courts (MeTCs), Municipal Trial
Courts (MTCs) and Municipal Circuit Trial Courts (MCTCs) — which includes not
only violations of city or municipal ordinances, but also all offenses punishable with
imprisonment not exceeding six (6) years irrespective of the amount of fine, and
regardless of other imposable accessory or other penalties attached thereto. 14 This is,
however, without prejudice on the part of the SOJ to review the ORSP ruling, should
the former deem it appropriate to do so in the interest of justice. The foregoing
amendment is further strengthened by a later issuance, namely DOJ Department
Circular No. 018-14 15 dated June 18, 2014, entitled "Revised Delegation of
Authority on Appealed Cases," pertinent portions of which read:
DEPARTMENT CIRCULAR NO. 018-14
SUBJECT: Revised Delegation of
Authority on Appealed Cases
In the interest of service and pursuant to the provisions of existing
laws with the objective of institutionalizing the Department's Zero Backlog
Program on appealed cases, the following guidelines shall be observed and
implemented in the resolution of appealed cases on Petition for Review and
Motions for Reconsideration: DETACa

1. Consistent with Department Circular No. 70-A, all appeals from

resolutions of Provincial or City Prosecutors, except those from the National
Capital Region, in cases cognizable by the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts, shall be by way of
a petition for review to the concerned province or city. The Regional
Prosecutor shall resolve the petition for review with finality, in accordance
with the rules prescribed in pertinent rules and circulars of this Department.
Provided, however, that the Secretary of Justice may, pursuant to the power of
control and supervision over the entire National Prosecution Service, review,
modify or reverse, the resolutions of the Regional Prosecutor in these
appealed cases.
2. Appeals from resolutions of Provincial or City Prosecutors, except
those from the National Capital Region, in all other cases shall be by way of a
petition for review to the Office of Secretary of Justice.
 3. Appeals from resolutions of the City Prosecutors in the National
Capital Region in cases cognizable by Metropolitan Trial Courts shall be by
way of a petition for review to the Prosecutor General who shall decide the
same with finality. Provided, however, that the Secretary of Justice may,
pursuant to the power of control and supervision over the entire National
Prosecution Service, review, modify or reverse, the resolutions of the
Prosecutor General in these appealed cases.
4. Appeals from resolutions of the City Prosecutors in the National
Capital Region in all other cases shall be by way of a petition for review to the
Office of the Secretary.
xxx xxx xxx
This Circular supersedes all inconsistent issuances, takes effect on 01
July 2014 and shall remain in force until further orders.
For guidance and compliance.
In Cariaga v. Sapigao, 16 the Court harmonized the foregoing DOJ Circulars,
and accordingly, interpreted the prevailing appeals process of the NPS as follows:
A reading of the foregoing provisions shows that the prevailing
appeals process in the NPS with regard to complaints subject of preliminary
investigation would depend on two factors, namely: where the complaint was
filed, i.e., whether in the NCR or in the provinces; and which court has
original jurisdiction over the case, i.e., whether or not it is cognizable by the
MTCs/MeTCs/MCTCs. Thus, the rule shall be as follows:
(a) If the complaint is filed outside the NCR and is cognizable by
the MTCs/MeTCs/MCTCs, the ruling of the OPP may be appealable by
way of petition for review before the ORSP, which ruling shall be with
finality;
(b) If the complaint is filed outside the NCR and is not cognizable by
the MTCs/MeTCs/MCTCs, the ruling of the OPP may be appealable by way
of petition for review before SOJ, which ruling shall be with finality;
(c) If the complaint is filed within the NCR and is cognizable by the
MTCs/MeTCs/MCTCs, the ruling of the OCP may be appealable by way of
petition for review before the Prosecutor General, whose ruling shall be with
finality;
(d) If the complaint is filed within the NCR and is not cognizable by
the MTCs/MeTCs/MCTCs, the ruling of the OCP may be appealable by way
of petition for review before the SOJ, whose ruling shall be with finality;
(e) Provided, that in instances covered by (a) and (c), the SOJ may,
pursuant to his power of control and supervision over the entire National
Prosecution Service, review, modify, or reverse the ruling of the ORSP or
the Prosecutor General, as the case may be. 17 (Emphases and
underscoring supplied) aDSIHc
 In this case, records show that petitioners filed a criminal complaint before the
OPP accusing Tandoc of Perjury. The complaint was, however, dismissed by the OPP
and such dismissal was upheld by the ORSP. Since (a) the criminal complaint was
filed outside of the NCR; (b) perjury cases are cognizable by the first-level courts
since the maximum penalty therefor is imprisonment for less than six (6) years; 18
and (c) it appears that the SOJ did not exercise its power of control and supervision
over the entire NPS by reviewing the ORSP ruling, the ORSP's affirmance of the OPP
ruling was with finality. As such, petitioners have already exhausted its administrative
remedies and may now go to the CA via a petition for certiorari.
In this light, the Court concludes that the CA gravely abused its discretion in
dismissing outright the petition for certiorari filed before it by petitioners. On this
note, since the Court recognizes that the dismissal of petitioners' petition for
certiorari filed before the CA was due to a mere technicality, it is only appropriate
that this case be remanded to the said appellate court for its resolution on the merits.
WHEREFORE, the petition is GRANTED. The Resolutions dated May 22,
2017 and March 12, 2018 of the Court of Appeals in CA-G.R. SP No. 150130 are
hereby REVERSED and SET ASIDE. Accordingly, this case is REMANDED to the
Court of Appeals for its resolution on the merits.
SO ORDERED.
Carpio, Caguioa, J.C. Reyes, Jr. and Hernando, * JJ., concur.
||| (Mina v. Court of Appeals, G.R. No. 239521, [January 28, 2019])

THIRD DIVISION

[G.R. No. 189402. May 6, 2010.]

LIGAYA SANTOS and ROBERT BUNDA, petitioners, vs.

DOMINGO I. ORDA, JR., respondent.

DECISION

NACHURA, J : p

This is a petition for review on certiorari under Rule 45 of the Rules of Court,
seeking to reverse and set aside the Court of Appeals (CA) Decision 1 dated May 20,
2009 and its Resolution 2 dated September 10, 2009. The assailed Decision reversed
and set aside the Orders dated September 30, 2005 and December 28, 2005 of the
Regional Trial Court (RTC) of Parañaque City, Branch 274, 3 while the assailed
Resolution denied the motion for reconsideration filed by petitioners Ligaya Santos
(Ligaya) and Robert Bunda (Robert). aCTHEA

The facts of the case follow:

On April 2, 2001, Francis Orda (Francis), the son of respondent Domingo
Orda, Jr., was shot to death in Parañaque City. He was then twenty years old and an
engineering student. 4
A certain Gina Azarcon (Gina) executed her sworn statement that she saw
three male persons perpetrate the crime; two of them, later identified as Rolly Tonion
(Rolly) and Jhunrey Soriano (Jhunrey), shot Francis inside his car. The City
Prosecutor of Parañaque City thus filed an Information for the crime of murder
against Rolly and Jhunrey, docketed as Criminal Case No. 01-0425. They pleaded
"Not Guilty" during arraignment. 5
Two more witnesses, Ernesto Regala (Ernesto) and his son, Dennis, surfaced.
Dennis testified that before Francis was shot to death, the former went to the office of
Ligaya, who was then a Barangay Chairperson, to deliver collections from the public
toilet. When Dennis failed to return home, Ernesto proceeded to fetch him. They then
saw Ligaya hand a gun to accused Rolly, saying, "Gusto ko malinis na trabaho at
walang bulilyaso, baka makaligtas na naman si Orda." They learned the following
day that, instead of respondent, it was Francis who was killed. Thereafter, Rolly asked
Dennis to return to Ligaya the gun that Rolly used, but Dennis rebuffed such request.
Ligaya later instructed Dennis to monitor the activities of respondent. 6 Hence, the
Information was filed against Ligaya and a certain Edna Cortez. Upon further
testimony of Gina, an Amended Information was filed implicating more accused,
including petitioner Robert. 7
Gina, Ernesto and Dennis later recanted their testimonies. On June 11, 2002,
the Department of Justice (DOJ) issued a Joint Resolution directing the City
Prosecutor to cause the withdrawal of the Informations for murder against the
accused, holding that the prosecution witnesses' testimonies were not credible because
of their recantation. On motion of the prosecution, the RTC, Branch 258, issued an
Order dated July 5, 2005, allowing the withdrawal of the Informations against the
accused and consequently recalling the warrants for their arrest. 8
Respondent elevated the matter to the CA in CA-G.R. SP No. 72962. The CA
nullified the aforesaid Order, declaring that RTC, Branch 258, committed grave abuse
of discretion in allowing the withdrawal of the Informations without making an
independent evaluation on the merits of the case. On final review, this Court affirmed
the CA decision in G.R. No. 158236 on September 1, 2004. Unsatisfied, Ligaya filed
a motion for reconsideration. 9
Pending the resolution of her motion, Ligaya filed an Urgent Petition for Bail
before the RTC of Parañaque City, Branch 257, where the cases were subsequently
re-raffled to upon the inhibition of the Presiding Judge of Branch 258. In opposition
to the motion, the prosecution presented anew two witnesses, Sabino Frias (Sabino)
and Jonas Agnote (Jonas). Sabino testified that, on that fateful day, he heard gunshots
and saw three armed men run towards the parked van where Ligaya was. Jonas, on the
other hand, revealed that Ligaya approached him to contact a hired killer who would
be willing to assassinate respondent. He then contacted a certain "Dagul" to do the
job. Jonas was likewise tasked to change the plate number of Ligaya's van. On
December 29, 2004, the RTC debunked the petition for bail. 10 THIAaD

Meanwhile, in G.R. No. 158236, the Court finally resolved petitioners' motion
for reconsideration, holding that the RTC, Branch 258, 11 must make an independent
evaluation of the records before allowing the withdrawal of the Informations against
petitioners. This impelled Ligaya to file before the RTC, Branch 257, an Urgent
Motion to Resolve Anew and on the Merits Previous Motion to Withdraw Criminal
Informations Pursuant to the DOJ Finding on Lack of Probable Cause. 12
The aforesaid incidents were assigned for resolution to the RTC, Branch 274,
to which the case was re-raffled upon the inhibition of the Presiding Judge of Branch
257. 13
On September 30, 2005, the RTC issued an Order 14 dismissing the case for
murder, ratiocinating that no probable cause existed to indict them for their crime.
Consequently, it lifted the warrants for their arrests and ordered their immediate
release from detention. The prosecution's motion for reconsideration was denied on
December 28, 2005. 15
Aggrieved, respondent filed a Petition for Certiorari before the CA, claiming
that the RTC committed grave abuse of discretion in finding that no probable cause
existed against the accused.
On May 20, 2009, the CA granted the petition, the dispositive portion of which
reads:

WHEREFORE, the Petition for Certiorari is hereby GRANTED. The

Orders dated 30 September 2005 and 28 December 2005 of the Regional Trial
Court of Parañaque City, Branch 274, are REVERSED and SET ASIDE. The
Executive Judge of the Regional Trial Court of Parañaque City is DIRECTED
to cause the re-raffle of Criminal Case No. 01-0921 for appropriate proceedings.

SO ORDERED. 16

The CA concluded that the RTC turned a deaf ear to the crucial testimonial
evidence of the prosecution that, more likely than not, the crime charged was
committed by the accused. It specifically pointed out that Sabino positively identified
the accused and related in detail their supposed participation in killing Francis. The
court could not also ignore the statements made by Jonas at the risk of incriminating
himself. With these, the CA found it necessary that a full blown trial be conducted to
unearth the truth behind their testimonies. In disregarding the evidence presented by
the prosecution, the CA declared that, indeed, the RTC committed grave abuse of
discretion. It, however, clarified that, in making the above pronouncements, the court
was not enunciating that the accused were guilty of the crime charged. 17 For possible
bias and prejudice, the court likewise ordered the inhibition of the Presiding Judge
and the subsequent re-raffle of the case. 18 HSCATc

On motion of petitioners, the CA clarified that the reversal of the RTC Orders
carried with it the reversal of the trial court's finding that petitioners were entitled to
bail. 19
Hence, the present petition raising the following issues:

(a) Sec. 1, Rule 41 of the Rules of Court defines what are to be appealed.

"Appeal may be taken from a judgment or final order that completely
disposes of the case." The September 30, 2005 order of the RTC of Parañaque
City dismissing the information for murder "disposes of the action in its
entirety and leaves nothing more to be done to complete the relief sought."
Hence, the remedy of the People of the Philippines is appeal. [Dy Chun vs.
Mendoza, L-25461, October 4, 1968, 25 SCRA 431] The People and the private
complainant did not appeal the September 30, 2005 Joint Order. Hence, the
same became final and executory.

(b) "Once a decision becomes final, even the court which rendered it

cannot lawfully alter or modify the same especially where the alteration or
modification is material or substantial." [Samson vs. Montejo, 9 SCRA 419;
De la Cruz vs. Plaridel Surety and Insurance Co., 10 SCRA 727; Ocampo vs.
Caluag, 19 SCRA 971]

(c) On March 24, 2006, two (2) months after the September 30, 2005
final order has become final and executory, the private complainant Fiscal
Domingo Orda, Jr. filed with the Court of Appeals a petition for certiorari
questioning the orders of September 30, 2005 and December 28, 2005.
Certiorari could not be a substitute for a lost appeal. "Where petitioner has
failed to file a timely appeal from the trial court's order, it could not longer
avail of the remedy of the special civil action for certiorari in lieu of his lost
right of appeal." [Mabuhay Insurance & Guaranty, Inc. vs. Court of Appeals,
32 SCRA 245; Mathay, Jr. vs. Court of Appeals, 312 SCRA 91]

(d) The findings of fact of the Regional Trial Court of Parañaque City

that there is no probable cause to warrant the filing of the information against
the petitioners cannot be reviewed in the petition for certiorari because only
jurisdictional issues may be raised in a certiorari proceedings. In a certiorari
petition, "the court is confined to question of jurisdiction. The reason is that
the function of the writ of certiorari is to keep an inferior court within its
jurisdiction and not to correct errors of procedure or mistakes in the
judge's finding or conclusion." [Pacis vs. Averia, 18 SCRA 907; Albert vs.
 Court of First Instance of Manila, Brancg n VI, 23 SCRA 948; Estrada vs. Sto.
Domingo, 28 SCRA 890] cIECaS

(e) Moreover, "the findings and conclusions of the trial court

command great respect and weight because the trial court has the
opportunity to see and observe the demeanor of witnesses which the
appellate court does not have." [People vs. Cristobal, L-13062, January 28,
1961, 1 SCRA 151; Medina vs. Collector of Internal Revenue, L-151113,
January 28, 1961, 1 SCRA 302; Tuason vs. Luzon Stevedoring Company, Inc.,
L-13541, January 28, 1961, 1 SCRA 189; People vs. Sarmiento, L-19146, May
31, 1963, 8 SCRA 263]

(f) The Joint Order of September 30, 2005 was issued by the Regional
Trial Court in compliance with the decision of the Supreme Court that the trial
court must act on the issue of probable cause using its own discretion.
Reversing the September 30, 2005 Joint Order is like reversing the Supreme
Court. 

(g) The Court of Appeals denied the motion for reconsideration citing

Sec. 1, Rule 41 of the Rules of Court providing "that an order dismissing the
action without prejudice is not appealable." The Court of Appeals ruled that
the remedy from the finding of fact and final order dismissing the information
"is to file a special civil action under Rule 65."

(h) The final order of September 30, 2005 does not state that the
dismissal is "without prejudice." There is nothing in the order of September
30, 2005 from which we could derive that the dismissal of the action is
"without prejudice." While it may be true that the defense of double jeopardy
may not be invoked by the petitioners simply because they were not yet
arraigned, it does not follow that another information for murder could be filed
against them on the same evidence that the court dismissed the information for
lack of probable cause. A new information could still be filed against the
petitioners but the same must not be based on the same evidence already
repudiated in the September 30, 2005 order. 20

Simply put, the issues for resolution are: 1) whether a special civil action for
certiorari under Rule 65 of the Rules of Court is the correct remedy in assailing the
RTC decision allowing the withdrawal of the Informations and consequently
dismissing the case for lack of probable cause; and 2) whether the CA erred in finding
that there was probable cause against petitioners.
We grant the petition. DEcITS

On the first issue, the petition for certiorari filed by respondent under Rule 65
of the Rules of Court is inappropriate. It bears stressing that the Order of the RTC,
granting the motion of the prosecution to withdraw the Informations and ordering the
case dismissed, is final because it disposed of the case and terminated the proceedings
therein, leaving nothing to be done by the court. Thus, the proper remedy is appeal. 21
Respondent filed with the CA the special civil action for certiorari under Rule
65 of the Rules of Court instead of an ordinary appeal, not because it was the only
plain, speedy, and adequate remedy available to him under the law, but, obviously, to
make up for the loss of his right to an ordinary appeal. It is elementary that the special
civil action of certiorari is not and cannot be a substitute for an appeal, where the
latter remedy is available, as it was in this case. A special civil action under Rule 65
cannot cure a party's failure to timely appeal the assailed decision or resolution. Rule
65 is an independent action that cannot be availed of as a substitute for the lost
remedy of an ordinary appeal. 22
To be sure, a petition for certiorari is dismissible for being the wrong remedy.
Indeed, we have noted a number of exceptions to this general rule, to wit: 1) when
public welfare and the advancement of public policy dictate; 2) when the broader
interest of justice so requires; 3) when the writs issued are null and void; 4) when the
questioned order amounts to an oppressive exercise of judicial authority; 5) when, for
persuasive reasons, the rules may be relaxed to relieve a litigant of an injustice not
commensurate with his failure to comply with the prescribed procedure; or 6) in other
meritorious cases. 23
None of the above exceptions are present in the instant case; hence, we apply
the general rule. Respondent not having availed himself of the proper remedy to assail
the dismissal of the case against petitioners, the dismissal has become final and
executory. 24
For reasons that will be discussed below, even on the merits of the case, the
CA erred in reversing the Orders of the RTC.
The task of the Presiding Judge when an Information is filed with the court is
first and foremost to determine the existence or non-existence of probable cause for
the arrest of the accused. Probable cause is such set of facts and circumstances that
would lead a reasonably discreet and prudent man to believe that the offense charged
in the Information or any offense included therein has been committed by the person
sought to be arrested. In determining probable cause, the average man weighs the
facts and circumstances without resorting to the calibrations of the rules of evidence
of which he has no technical knowledge. He relies on common sense. A finding of
probable cause needs only to rest on evidence showing that, more likely than not, a
crime has been committed and that it was committed by the accused. Probable cause
demands more than suspicion; it requires less than evidence that would justify
conviction. 25 HcDaAI

Moreover, when confronted with a motion to withdraw an Information on the

ground of lack of probable cause based on a resolution of the DOJ Secretary, the
bounden duty of the trial court is to make an independent assessment of the merits of
such motion. Having acquired jurisdiction over the case, the trial court is not bound
by such resolution, but is required to evaluate it before proceeding further with the
trial and should embody such assessment in the order disposing the motion. 26
Records show that the RTC, on motion of the prosecution, allowed the
withdrawal of the Informations for murder, holding that the prosecution witnesses'
testimonies were not credible. Pursuant to the Court's Decision in G.R. No. 158236,
the RTC reviewed anew the records of the case and made an independent evaluation
of the evidence presented to ascertain the existence or non-existence of probable
cause to indict the petitioners. After such evaluation, the court, on September 30,
2005, dismissed the case for murder against the accused, including petitioners herein,
ratiocinating that no probable cause existed to indict them for their crime.
Consequently, it lifted the warrants for their arrest and ordered their immediate release
from detention. The prosecution's motion for reconsideration was denied on
December 28, 2005.
A closer scrutiny of the Order of the RTC reveals that the Presiding Judge
allowed the withdrawal of the Informations, consequently dismissed the case against
petitioners, and lifted the warrants for their arrest on the following grounds: 1) the
incredibility of the earlier statements of Gina, Ernesto and Dennis because of their
subsequent recantation; 27 2) the improbability that Dennis and Ernesto saw and
heard the conversations of the accused in view of the counter-evidence submitted by
Ligaya, showing the physical set-up of her residence or building, the kind of door she
maintained thereat, and the inner private room she had; 28 3) the lack or insufficiency
of evidence at the level of prosecution for purposes of determining probable cause; 29
and 4) the incredibility of the testimonies of Sabino and Jonas because of the absence
of corroborating evidence. 30
Given the foregoing, we find that the RTC did not err in finding that no
probable cause existed to indict the petitioners for the crime of murder. Neither did it
gravely abuse its discretion in making said conclusion. There was no hint of
whimsicality, nor of gross and patent abuse of discretion as would amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to
act at all in contemplation of law on the part of the Presiding Judge. 31 On the
contrary, he came to the conclusion that there was no probable cause for petitioners to
commit murder, by applying basic precepts of criminal law to the facts, allegations
and evidence on record. Said conclusion was thoroughly explained in detail in the
lengthy Order dated September 30, 2005. We would like to stress that the purpose of
the mandate of the judge to first determine probable cause is to insulate from the very
start those falsely charged with crimes from the tribulations, expenses and anxiety of a
public trial. 32
HCIaDT

WHEREFORE, premises considered, the petition is GRANTED. The Court

of Appeals Decision dated May 20, 2009 and its Resolution dated September 10, 2009
 are REVERSED and SET ASIDE. The Orders of the Regional Trial Court, Branch
274, dated September 30, 2005 and December 28, 2005 are REINSTATED.

SO ORDERED.

Corona, Velasco, Jr., Peralta and Mendoza, JJ., concur. 

||| (Santos v. Orda, Jr., G.R. No. 189402, [May 6, 2010], 634 PHIL 452-463)

SECOND DIVISION

[A.M. No. RTJ-14-2367. January 13, 2014.]

(formerly OCA I.P.I. No. 12-3879-RTJ)

SR. REMY ANGELA JUNIO, SPC and JOSEPHINE D. LORICA,

complainants, vs. JUDGE MARIVIC A. CACATIAN-BELTRAN,
BRANCH 3, REGIONAL TRIAL COURT, TUGUEGARAO CITY,
CAGAYAN, respondent.

RESOLUTION

BRION, J : p

For our resolution is the Report and Recommendation 1 dated August 13, 2013 of
the Office of the Court Administrator (OCA) in OCA I.P.I. No. 12-3879-RTJ.

The Antecedents

Claire Ann Campos, a 17-year old student, filed an affidavit-complaint for

violation of Republic Act (R.A.) No. 7610 (the Child Abuse Law) and R.A. No. 7277
(the Magna Carta for the Disabled) before the Tuguegarao City Prosecution Office
against Sr. Remy Angela Junio and Dr. Josephine D. Lorica, the President and the Dean
of the School of Health Services, respectively, of St. Paul University of the Philippines
(SPUP).

In her complaint, Claire alleged that she was refused enrolment by SPUP for the
B.S. Nursing course in her sophomore year because of her cleft palate; she alleged that
the refusal was made despite her completion of SPUP's College Freshmen Program
Curriculum.
 In its resolution dated August 22, 2008, the prosecutor's office found probable
cause to indict Junio and Lorica of the crimes charged, and recommended the filing of the
corresponding informations against them.

On September 8, 2008, Junio and Lorica appealed the August 22, 2008 resolution
of the prosecutor's office, but Undersecretary Jose Vicente Salazar of the Department of
Justice (DOJ) denied their petition for review in his resolution of February 24, 2011.

On March 31, 2011, the prosecutor's office filed two informations against Junio
and Lorica for violations of Section 10 (a), Article VI, in relation with Article 3 (a) and
(b) of R.A. No. 7610, and Section 12 of R.A. No. 7277 before the Regional Trial Court
(RTC), Branch 4, Tuguegarao City, presided by Judge Lyliha Aquino.

On April 27, 2011, the cases were assigned to Judge Marivic A. Cacatian-Beltran
of the RTC, Branch 3, Tuguegarao City, due to the inhibition of Judge Aquino.

On April 4, 2011, Junio and Lorica sought a reconsideration of the DOJ's February
24, 2011 resolution.

On May 5, 2011, the RTC found probable cause to issue warrants of arrest against
Junio and Lorica. Accordingly, it issued the warrants of arrest against them.cCaEDA

On May 24, 2011, Lorica posted bail for her provisional liberty.

On May 25, 2011, Junio and Lorica filed an urgent motion to hold in abeyance
further proceedings and to recall warrants of arrest. Junio posted bail on the same day.

In its order dated June 14, 2011, the RTC denied Junio and Lorica's urgent motion
to hold in abeyance further proceedings and to recall warrants of arrest.

Meanwhile, DOJ Secretary Leila de Lima granted Junio and Lorica's motion for
reconsideration and set aside the February 24, 2011 resolution of Undersecretary Salazar.
Accordingly, in her resolution dated August 8, 2011, she directed the Cagayan Provincial
Prosecutor to immediately cause the withdrawal of the informations for violations of R.A.
Nos. 7610 and 7277 against Junio and Lorica for lack of probable cause.

On August 12, 2011, Junio and Lorica filed a manifestation and motion before the
RTC, praying for the cancellation of their scheduled arraignment, and for the dismissal of
the cases against them.

On September 5, 2011, the City Prosecutor, Junio and Lorica filed a joint motion
to withdraw informations in view of Secretary De Lima's August 8, 2011 resolution.
 On September 14, 2011, Judge Cacatian-Beltran issued an order stating that "the
motion relative to the resolution of the Department of Justice is deemed submitted for
resolution." 2

On December 20, 2011, Junio, Lorica and the City Prosecutor filed a joint motion
for resolution.

In its order of January 6, 2012, the RTC denied the joint motion to withdraw
informations for lack of merit.

The City Prosecutor, Junio and Lorica moved to reconsider this order, but the RTC
denied their motion in its order dated April 10, 2012.

The Administrative Complaint

Junio and Lorica filed an affidavit-complaint against Judge Cacatian-Beltran for

violation of Rules 1.02, 3.01, 3.02, and 3.05 of the Code of Judicial Conduct. They
alleged that Judge Cacatian-Beltran only resolved the joint motion to withdraw
informations after almost four months from the time it was submitted for resolution. They
claimed that four months was beyond the period prescribed by existing rules for the
resolution of simple motions.

Junio and Lorica further alleged that Judge Cacatian-Beltran "arrogated unto
herself the role of a prosecutor and a judge" 3 when she insisted that they stand for trial
although she did not find any grave abuse of discretion on the part of Justice Secretary De
Lima. aETAHD

In her comment, Judge Cacatian-Beltran explained that Junio and Lorica might
have conducted a follow-up of the motions to dismiss at Branch 4 where the records of
the criminal cases had been retained, and that the staff of Branch 4 failed to inform her of
any follow-up by Junio and Lorica and/or by their counsel. She maintained that she "lost
no time in finishing the draft" 4 of her January 6, 2012 order when the joint motion for
resolution was brought to her attention.

Judge Cacatian-Beltran maintained that the RTC was not bound by the findings of
the Secretary of Justice since her court had already acquired jurisdiction over the case.
She added that she made an independent assessment of the evidence before denying the
motion. She further stated that she acted promptly on all other incidents in the case.

The OCA's Report and Recommendation

In its Report and Recommendation dated August 13, 2013, the OCA
recommended that: (1) the administrative complaint against Judge Cacatian-Beltran be
dismissed for being judicial in nature; and (2) Judge Cacatian-Beltran be admonished to
strictly comply with the reglementary periods to act on pending motions and other
incidents in her court.

The OCA held that errors committed by a judge in the exercise of his adjudicative
functions cannot be corrected through administrative proceedings. It explained that the
aberrant acts allegedly committed by Judge Cacatian-Beltran relate to the exercise of her
judicial functions, and added that only judicial errors tainted with fraud, dishonesty, gross
ignorance, bad faith or deliberate intent to do an injustice should be administratively
sanctioned.

The OCA, nonetheless, ruled that Judge Cacatian-Beltran should be admonished to

be more mindful of the reglementary periods to resolve pending motions.

Our Ruling

After due consideration, we approve and adopt the OCA's recommendations as

our own ruling.

Delay in resolving a motion

Section 15 (1), Article VIII of the Constitution requires lower court judges to
decide a case within the period of ninety (90) days. Rule 3.05, Canon 3 of the Code of
Judicial Conduct likewise holds that judges should administer justice without delay and
directs every judge to dispose of the courts' business promptly within the period
prescribed by law. Rules prescribing the time within which certain acts must be done are
indispensable to prevent needless delays in the orderly and speedy disposition of cases.
Thus, the ninety (90) day period is mandatory. This mandate applies even to motions or
interlocutory matters or incidents pending before a magistrate. 5

In the present case, the City Prosecutor's joint motion to withdraw informations
was deemed submitted for resolution on September 14, 2011. Judge Cacatian-Beltran,
however, did not act on the motion within the prescribed three (3) month period (or up to
December 13, 2011), and instead ruled on it only on January 6, 2012.

In her defense, Judge Cacatian-Beltran explained that Junio and Lorica might have
conducted a follow-up of the motions to dismiss at Branch 4 where the records of the
criminal cases were retained, and that the staff of Branch 4 failed to inform her of any
follow-up by Junio and Lorica and/or their counsel. We note, however, that Branch 4 is
paired with Judge Cacatian-Beltran's Branch 3 per Circular No. 7-74, as amended by SC
Circular No. 19-98. Since Criminal Case Nos. 14053-54 had been assigned to Judge
Cacatian-Beltran, it was incumbent upon her to update herself on the developments in
these consolidated cases; she should have kept her own record of cases and noted therein
the status of each case to ensure prompt and effective action. To do this, Judge Cacatian-
Beltran should have adopted a record management system and organized her docket —
an approach that she appears not to have done. IDSETA

Sections 9 and 11, Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-
10-SC, classifies undue delay in rendering a decision or order as a less serious charge,
with the following administrative sanctions: (a) suspension from office without salary
and other benefits for not less than one (1) nor more than three (3) months; or (b) a fine
of more than P10,000.00 but not exceeding P20,000.00.

However, the records are bereft of any evidence showing that there had been
undue delay (as shown by the records), any attendant bad faith, any intent to prejudice a
party to the case, or some other ulterior ends. The OCA, in fact, pointedly ruled that the
inaction was not attended with malice: Judge Cacatian-Beltran resolved the joint motion
to withdraw informations two (2) days after she learned of its existence on January 4,
2012.

To our mind, these circumstances are sufficient to mitigate the liability of Judge
Cacatian-Beltran and keep us from imposing a fine or suspension from office.
Accordingly, we find sufficient and warranted the OCA's recommended penalty of
admonition.

Denial of the joint motion to withdraw informations

The trial court is not bound to adopt the resolution of the Secretary of Justice
since it is mandated to independently evaluate or assess the merits of the case; in the
exercise of its discretion, it may agree or disagree with the recommendation of the
Secretary of Justice. Reliance on the resolution of the Secretary of Justice alone would be
an abdication of the trial court's duty and jurisdiction to determine a prima facie case. 6
We stress that once a criminal complaint or information is filed in court, any disposition
of the case (whether it be a dismissal, an acquittal or a conviction of the accused) rests
within the exclusive jurisdiction, competence, and discretion of the trial court; it is the
best and sole judge of what to do with the case before it. 7

In resolving a motion to dismiss a case or to withdraw the information filed by the

public prosecutor (on his own initiative or pursuant to the directive of the Secretary of
Justice), either for insufficiency of evidence in the possession of the prosecutor or for
lack of probable cause, the trial court should not merely rely on the findings of the public
prosecutor or of the Secretary of Justice that no crime had been committed or that the
evidence in the possession of the public prosecutor is insufficient to support a judgment
of conviction of the accused. 8 To do so is to surrender a power constitutionally vested in
the Judiciary to the Executive.
 In the present case, Judge Cacatian-Beltran does not appear to have arbitrarily
denied the joint motion to withdraw informations. The records show that she evaluated
and assessed the informations, the resolution of the City Prosecutor, the affidavit and
reply-affidavit of the complainants, the counter-affidavit and rejoinder and the appeal
memorandum of Junio and Lorica, and the supporting documents attached to them.

In her January 6, 2012 order, Judge Cacatian-Beltran notably explained the basis
for her denial. No proof whatsoever exists in all these, showing that bad faith, malice or
any corrupt purpose attended the issuance of her order. It is also important to note in this
regard that the issue of whether Judge Cacatian-Beltran correctly denied the joint motion
to withdraw informations, despite the finding of Secretary De Lima of lack of probable
cause, is judicial in nature: Junio and Lorica's remedy under the circumstances should
have been made with the proper court for the appropriate judicial action, not with the
OCA by means of an administrative complaint.

We also find unmeritorious Junio and Lorica's argument that Judge Cacatian-
Beltran "arrogated unto herself the role of a prosecutor and a judge" 9 when she insisted
that the accused stand trial although she did not find any grave abuse of discretion on the
part of Justice Secretary de Lima. When a court acts, whether its action is consistent or
inconsistent with a prosecutor's recommendation, it rules on the prosecutor's action and
does not thereby assume the role of a prosecutor. The case of Hipos, Sr. v. Bay 10 best
explains why we so rule: CAIaHS

To clarify, we never stated in Ledesma that a judge is allowed to deny a

Motion to Withdraw Information from the prosecution only when there is grave
abuse of discretion on the part of the prosecutors moving for such withdrawal.
Neither did we rule therein that where there is no grave abuse of discretion on
the part of the prosecutors, the denial of the Motion to Withdraw Information is
void. What we held therein is that a trial judge commits grave abuse of
discretion if he denies a Motion to Withdraw Information without an
independent and complete assessment of the issues presented in such
Motion.

With the independent and thorough assessment and evaluation of the merits of the
joint motion to withdraw information that Judge Cacatian-Beltran undertook before
dismissing it, she acted as a judge should and can in no way be said to have assumed the
role of a prosecutor. The parties, for their part, are not without any remedy as the Rules of
Court amply provide for the remedy against a judicial action believed to be grossly
abusive when the remedy of direct appeal is not available. We cannot rule on this point in
the present case, however, as this is a matter not before us in this administrative recourse
against Judge Cacatian-Beltran.

WHEREFORE, premises considered, we APPROVE AND ADOPT as our own

the August 13, 2013 Report and Recommendation of the Office of the Court
Administrator. Judge Marivic A. Cacatian-Beltran is hereby ADMONISHED and
REMINDED that she should dispose of her cases within the period required by law.

SO ORDERED.

Carpio, Del Castillo, Perez and Perlas-Bernabe, JJ., concur.

(Junio v. Cacatian-Beltran, A.M. No. RTJ-14-2367, [January 13, 2014], 724 PHIL 1-
|||

12)

SECOND DIVISION

[G.R. No. 178947. June 26, 2013.]

VIRGINIA DE LOS SANTOS-DIO, as authorized representative of

H.S. EQUITIES, LTD., and WESTDALE ASSETS, LTD., petitioner,
vs. THE HONORABLE COURT OF APPEALS, JUDGE RAMON S.
CAGUIOA, in his capacity as Presiding Judge of Branch 74, Regional
Trial Court, Olongapo City, and TIMOTHY J. DESMOND,
respondents.

[G.R. No. 179079. June 26, 2013.]

PEOPLE OF THE PHILIPPINES, petitioner, vs. TIMOTHY J.

DESMOND, respondent.

DECISION

PERLAS-BERNABE, J : p

Before the Court are consolidated petitions for review on certiorari 1 assailing the
November 8, 2006 Decision 2 and July 19, 2007 Resolution 3 of the Court of Appeals
(CA) in CA-G.R. SP No. 88285, upholding the validity of the trial court's dismissal of
separate criminal informations for estafa against private respondent Timothy J. Desmond
(Desmond) due to lack of probable cause.

The Facts
 In 2001, petitioner Virginia De Los Santos-Dio (Dio), the majority stockholder of
H.S. Equities, Ltd. (HS Equities) and authorized representative of Westdale Assets, Ltd.
(Westdale), 4 was introduced to Desmond, the Chairman and Chief Executive Officer
(CEO) of the Subic Bay Marine Exploratorium, Inc. (SBMEI), and the authorized
representative of Active Environments, Inc. and JV China, Inc. (JV China), the majority
shareholder of SBMEI. 5 After some discussion on possible business ventures, Dio, on
behalf of HS Equities, decided to invest a total of US $1,150,000.00 6 in SBMEI's Ocean
Adventure Marine Park (Ocean Adventure), a theme park to be constructed at the Subic
Bay Freeport Zone which, when operational, would showcase live performances of false-
killer whales and sea lions. In this relation, Dio claimed that Desmond led her to believe
that SBMEI had a capital of US$5,500,000.00, inclusive of the value of the marine
mammals to be used in Ocean Adventure, 7 and also guaranteed substantial returns on
investment. 8 Desmond even presented a Business Plan, indicating that: (a) Ocean
Adventure's "attendance will rise from 271,192 in 2001 to just over 386,728 in 2006, with
revenues rising from US$4,420,000.00 million to US$7,290,000.00 million in the same
time frame"; (b) "[e]arly investors are expected to reap an annual return of 23% in 2001,
rising to 51% in 2006"; and (c) "[f]ully priced shares [would yield a 19% return] in 2001,
rising to 42% in 2006." 9 Thus, on January 18, 2002, a Subscription Agreement 10 was
executed by Desmond, as representative of SBMEI and JV China, and Dio, as
representative of HS Equities.

While no Certificate of Stock was issued either to HS Equities or to Dio, HS

Equities was expressly granted minority protection rights in a subsequent Subscription
and Shareholders Agreement 11 dated March 12, 2002, stating that there shall be "a
nominee of [the] Subscriber to be elected as Treasurer/Chief Financial Officer, who may
not be removed by the Board of Directors without the affirmative vote of the Subscriber."
12 Accordingly, Dio was elected as a member of SBMEI's Board of Directors and further
appointed as its Treasurer. 13 The parties later executed two (2) Investor's Convertible
Promissory Notes — one dated April 4, 2001 14 and another dated May 8, 2001 15 —
covering HS Equities' infusion of a total of US $1,000,000.00 for the purpose of
purchasing machinery, equipment, accessories, and materials to be used for the
construction of Ocean Adventure.

In June 2002, Dio, this time on behalf of Westdale, invested another US

$1,000,000.00 16 in a separate business venture, called the Miracle Beach Hotel Project
(Miracle Beach), which involved the development of a resort owned by Desmond
adjoining Ocean Adventure. They agreed that the said investment would be used to settle
SBMEI's P40,000,000.00 loan obligation to First Metro Investment Corporation and for
the construction of 48 lodging units/cabanas. 17 However, when the corresponding
subscription agreement was presented to Dio by SBMEI for approval, it contained a
clause stating that the "funds in the Subscription Bank Account" were also to be used for
the "[f]unding of Ocean Adventure's Negative Cash Flow not exceeding
[US$200,000.00]." 18 This was in conflict with the exclusive purpose and intent of
Westdale's investment in Miracle Beach and as such, Dio refused to sign the subscription
agreement. cIDHSC

Dio further claimed that she found out that, contrary to Desmond's representations,
SBMEI actually had no capacity to deliver on its guarantees, and that in fact, as of 2001,
it was incurring losses amounting to P62,595,216.00. 19 She likewise claimed to have
discovered false entries in the company's books and financial statements — specifically,
its overvaluation of the marine animals and its non-disclosure of the true amount of JV
China's investment 20 — which prompted her to call for an audit investigation.
Consequently, Dio discovered that, without her knowledge and consent, Desmond made
certain disbursements from Westdale's special account, meant only for Miracle Beach
expenditures (special account), and diverted a total of US$72,362.78 therein for the
operating expenses of Ocean Adventure. 21 When Desmond refused to execute an
undertaking to return the diverted funds, Dio, in her capacity as Treasurer of SBMEI,
suspended the release of the remaining funds in the aforesaid special account. 22

Eventually, after Dio was ousted as Director and Treasurer of SBMEI, 23 she
filed, on April 19, 2004, two (2) criminal complaints 24 (subject criminal complaints) for
estafa (a) through false pretenses under Article 315 (1) (b) 25 of the Revised Penal Code
26 (RPC); and (b) with unfaithfulness or abuse of confidence through misappropriation or
conversion under Article 315 (2) (a) 27 of the RPC, both against Desmond before the
Olongapo City Prosecutor's Office (City Prosecutor's Office), docketed as IS Nos. 04-M-
992 and 04-M-993.

In defense, Desmond maintained that his representation of himself as Chairman

and CEO of SBMEI was not a sham and that Dio has not even proven that he did not
have the expertise and qualifications to double her investment. Among others, he also
denied having been fired from Beijing Landa Aquarium Co. Ltd. for his supposed
incompetence and mismanagement. He further asserted that it was not deceitful to value
the marine mammals at US$3,720,000.00 as equity contribution of JV China in SBMEI,
notwithstanding the fact that two (2) false killer whales had already perished before the
company could start operations. This is because the said valuation, in any case, would be
based on the collective income-earning capacity of the entire animal operating system
derived from revenues generated by marine park attendance and admission fees. 28

In reply, Dio insisted that SBMEI, at the outset, never had sufficient assets or
resources of its own because, contrary to Desmond's claims, the total amount of
US$2,300,000.00 it purportedly invested in buildings and equipment actually came from
the investments Dio's company made in SBMEI. 29

After the preliminary investigation, the City Prosecutor issued a Resolution 30

dated August 26, 2004, finding probable cause against Desmond for the abovementioned
crimes, to wit: HCSEcI
 The foregoing clearly applies in the instant two (2) cases as borne out by
the following facts, to with [sic]: (1) Desmond, as the Chairman and Chief
Executive Office of SBMEI and in order to persuade Dio to invest, represented
that he possessed the necessary influence, expertise and resources (in terms of
credit and property) for the project knowing the same to be false as he never had
the capital for the project as borne out by his correspondences with Dio; and (2)
Dio fell for these misrepresentations and the lure of profit offered by Desmond,
thereby being induced to invest the amounts of $1,150,000.00 and
$1,000,000.00 to the damage and prejudice of her company.

The elements of the crimes charged were thus established in these cases,
namely Dio parted with her money upon the prodding and enticement of
respondent on the false pretense that he had the capacity and resources for the
proposed project. In the end, Dio was not able to get her money back, thus
causing her damage and prejudice. Moreover, such defraudation or
misappropriation having been committed by Desmond through his company
SBMEI involving funds solicited from Dio as a member of the general public in
contravention of the public interest, the probable cause clearly exists to indict
Desmond for the crime of Estafa under Article 315 (1)(b) and (2)(a) of the
Revised Penal Code in relation to PD No. 1689. 31

In view of the foregoing, corresponding criminal informations 32 (subject

informations) were filed with the Regional Trial Court of Olongapo City, Branch 74
(RTC), docketed as Criminal Case Nos. 516-2004 and 515-2004. The accusatory portions
thereof read as follows: TADIHE

Criminal Case No. 516-2004 33

That in or about and sometime in early 2001, in Olongapo City,

Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, being the officer of Subic Bay Marine Exploration, Inc.
(SBMEI), acting as a syndicate and by means of deceit, did then and there,
wilfully, unlawfully and feloniously defraud H.S. EQUITIES LIMITED,
represented in this case by Virginia S. Delos Santos-Dio in the following
manner, to wit: the said accused by means of false manifestations and fraudulent
representations which he made to said Virginia S. Delos Santos-Dio to the effect
that he had the expertise and qualifications, as well as the resources, influence,
credit and business transaction with the Subic Bay Metropolitan Authority
(SBMA) and other financing institutions to ensure the viability of the Subic Bay
Marine Exploration Ocean Adventure Project (SBMEOA), which he
represented to be a qualified and legally existing investment enterprise with
capacity to solicit investment from the general public, by submitting documents
for the purpose, which representations he knew to be false and fraudulent and
the supporting documents are similarly spurious and were only made in order to
induce said Virginia S. Delos Santos-Dio to invest and deliver as in fact she
invested and delivered a total amount of One Million One Hundred Fifty
 Thousand US Dollars ($1,150,000.00) to the said accused on the strength of said
manifestations and representations and supporting documents, and said accused,
once in possession of the said amount, misapplied, converted and
misappropriated the same to his own personal use and benefit, to the damage
and prejudice of H.S. Equities Limited in the amount of US $1,150,000.00 or
Php57,500,000.00 Pesos, the dollar computed at the rate of Php50.00 to [US]
$1.00 which was the prevailing rate of exchange of a dollar to peso at the time
of the commission of the offense.

CONTRARY TO LAW.

Criminal Case No. 515-2004 34

That in or about and sometime during the period from June 2002 to July
2002, in Olongapo City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there, wilfully,
unlawfully and feloniously defraud Westdale Assets, Limited represented in this
case by Virginia S. Delos Santos-Dio in the following manner to wit: the said
accused received in trust and for administration from the said Virginia S. Delos
Santos-Dio the amount of One Million US Dollars ($1,000,000.00) under the
express obligation of using the same to pay the loan facility of the Subic Bay
Marine Exploration, Inc. (SBMEI) with First Metro Investment Corporation and
to fund the construction and development of the Miracle Beach Project but the
said accused, once in possession of the said amount, with grave abuse of
confidence and with intent to defraud, misapplied, misappropriated and
converted the same for his own use and benefit by devoting it to a purpose or
use different from that agreed upon and despite repeated demands made upon
him to account for and to return the said amount, he failed and refused and still
fails and refuses to do so, to the damage and prejudice of the said Westdale
Assets, Limited in the amount of US $1,000,000.00 or its equivalent to FIFTY
MILLION (Php50,000,000.00) Pesos, Philippine Currency, the dollar being
computed at the rate of Php50.00 to $1.00 which was the prevailing rate of
exchange at the commission of the offense, to the damage and prejudice of the
latter in the aforementioned amount. aTEScI

CONTRARY TO LAW.

Aggrieved, Desmond filed a Motion for Reconsideration, 35 as well as a Motion

to Withdraw Filed Informations. 36 He also filed before the RTC a Motion to Defer
Further Proceedings and to Defer Issuance of Warrant of Arrest 37 but subsequently
withdrew the same and filed, instead, a Motion for Judicial Determination of Probable
Cause. 38

The RTC Ruling

 In an Order 39 dated October 21, 2004, the RTC ruled in favor of Desmond and
declared that no probable cause exists for the crimes charged against him since the
elements of estafa were not all present, to wit:

First, the element of misrepresentation or deceit found in par. 2 (a)

Article 315 of the Revised Penal Code is absent. It must be emphasized that the
promises allegedly made to the complainant by the accused that her company's
investment will significantly increase, clearly appeared in the Subic Bay Marine
Exploration, Inc.'s ("SBMEI", for brevity) printed business plan dated January
12, 2001 (Annex "A", Complaint-Affidavit dated 19 April 2004). Verily, this is
SBMEI's representation or "come on" to would-be investors and not a personal
assurance of the accused. The fact that accused was the company's Chief
Executive Officer and Chairman of the Board of Directors is of no moment in
the absence of any evidence to show that accused personally prepared the
business plan thereby making the alleged "rosy picture" his own personal
enticements to the complainant. Therefore, there being a dearth of evidence
pointing to the accused as author of the SBMEI's business plan, any
misrepresentation or deceit committed cannot be personally attributed to him.

Furthermore, the court cannot find any sufficient evidence that the
accused personally assured the complainant about his so-called power, influence
and credit with the SBMA and other financial institutions that would supposedly
insure the viability and profitability of the project. Note that nowhere in the
Complaint-Affidavit of the private complainant are there specific factual
allegations that would show that the accused had personal business meetings
with the SBMA and said financial institutions. As to how and in what manner
and scope accused exercised such alleged power, influence and credit over these
juridical entities remain a bare and self-serving averment in the absence of any
factual detail or account.

Finally, it cannot be gainsaid [sic] that accused was the one who
personally valuated the marine mammals contributed by JV China, Incorporated
to the Subic Bay Marine Exploration, Inc. as capital amounting to US$3.724
Million. Evidence clearly point to an independent valuation done by a third
party namely Beijing Landa Aquarium that valued the marine mammals under
the Buy-Out Agreement dated September 9, 1998. Needless to state, the onus is
on complainant to controvert this valuation. Again, however, no adequate proof
was adduced along this line. HSIaAT

Second, the element of personal misappropriation by the accused under

par. 1(b) Article 315 of the Revised Penal Code is likewise not present. While it
may be conceded that there was money utilized to pay salaries of expatriates
and staff as well as the cost of utilities amounting to US$72,272.00 complainant
failed to show that said money was taken from her companies' investments in
SBMEI. It must be pointed out that other than complainant's bare allegation,
there was no document presented categorically stating that the investment of
 complainant's companies were earmark for a particular payment or project.
Hence, when the investment entered SBMEI's financial coffers, the same
presumably were co-mingled with other monies of the corporation.

Moreover and more revealing, is the fact that again there was no
showing that it was accused who personally caused the payment of these
expenses allegedly in violation of the objective of the investment. It must be
noted that SBMEI is a corporation and not a single proprietorship. Being a
corporation, expenses paid of such a kind as utilities and salaries are not
authorized personally and solely by the President nor the Chief Executive
Officer nor even by the Chairman of the Board for that matter. These are
corporate acts that are passed through board resolutions. Hence, these corporate
acts can in no way be considered personal acts of the accused. Yet, he was
singled out among all 5 members of the Board of Directors who presumably, in
the ordinary course of business, approved by resolution the payments of such
utilities and salaries. Consequently, there is again insufficiency of evidence that
the accused alone caused the payment of these salaries and utilities for the sole
purpose of pocketing the money thereby using the same for personal gain. 40

Consequently, the RTC denied the issuance of a warrant of arrest and hold
departure order against Desmond and ordered the dismissal of the cases against him:

WHEREFORE, foregoing considered, the subject motion for judicial

determination of probable cause is favorably granted. There being no probable
cause, the cases against the accused must be dismissed as they are hereby
DISMISSED. The motions to issue warrant of arrest and Hold Departure Order
as well as the prayer for provisional remedy are necessarily DENIED.

SO ORDERED. 41

Given the RTC's dismissal of the foregoing criminal cases, the City Prosecutor's
Office filed motion for reconsideration which was, however, denied. As such, it filed a
petition for certiorari and mandamus 42 before the CA on the ground of grave abuse of
discretion. Relatedly, Dio also filed a petition-in-intervention 43 before the CA, praying
for the reinstatement of the subject criminal complaints.

The CA Ruling

In its November 8, 2006 Decision, 44 the CA upheld the RTC's authority to

dismiss a criminal case if in the process of determining probable cause for issuing a
warrant of arrest, it also finds the evidence on record insufficient to establish probable
cause. It explained that such dismissal is an exercise of judicial discretion sanctioned
under Section 6 (a), Rule 112 of the Revised Rules of Criminal Procedure. On this score,
the CA evaluated the evidence presented and agreed with the RTC's conclusions that
there was no sufficient basis showing that Desmond committed estafa by means of false
pretenses. Neither was it established that the money sourced from petitioner Dio was
converted by respondent Desmond for some other purpose other than that for which it
was intended. Pertinent portions of the CA Decision restated the RTC's observations in
this wise:
cSIHCA

In the instant case, the alleged false representations by Desmond which

allegedly induced private complainants H.S. Equities, Ltd. ("H.S. Equities") and
Dio, to part with their money are not supported by the facts on record. First, the
alleged false representation employed by Desmond with respect to his expertise
and qualifications in the form of influence, credit and business transactions with
the Subic Bay Metropolitan Authority (SBMA) and financial institutions and
such resources to enable private complainants to double its investment with
SBMEI has not been shown to be false.

Indeed, nowhere in the documentary evidence presented by private

complainants that allegedly contained the above false representations does it
show that it was private respondent himself who made such representation.
Notably, the SBMEI's Business Plan dated January 12, 2001 to which private
complainants anchor such allegation does not indicate that the representations
made therein came personally from Desmond. In addition, neither does it appear
from such document that the statements therein were used as a form of a
personal assurance coming from Desmond that private complainants would
indeed double the amount they had invested with SBMEI. If at all, we agree
with the trial court that statements made in the said business plan were merely a
form of enticement to encourage would-be investors from [sic] investing in
such kind of business undertaking.

Moreover, we likewise agree with the trial court that no factual

allegations were made by private complainants as to how such false pretense of
power and influence was made upon them by Desmond and which convinced
private complainants to part with their money. It bears stressing that the
allegations of false pretense of power and influence in a case of estafa are mere
conclusions of law which must be substantiated at the very least by
circumstances which would show that the person accused of committing estafa
did indeed commit acts of false representations. As the records show, there was
no misrepresentation on the part of Desmond that he is the Chairman and Chief
Executive Officer of SBMEI which is a corporation engaged in the business of
developing marine parks. Significantly, the records likewise show that SBMEI
did indeed build and develop a marine park in Subic Bay (Ocean Adventure) for
the purposes stated in its business plan and had entered into a long-term lease
agreement with SBMA. Documentary evidence in the form of the Report of
Independent Auditors to SBMEI shows the amount of investment the
corporation had invested in the said business undertaking. For instance, the
corporation had invested the amount of P106,788,219.00 in buildings and
equipment alone. It has also assets consisting of marine mammals which are
necessary for the operation of the marine park. In this respect, we cannot
subscribe to private complainants' contention that there was misrepresentation
on the part of private respondent that he had overvalued the worth of the marine
mammals it had purchased from Beijing Landa Aquarium Co., Ltd. of the
Republic of China. This claim of private complainants of the deceitful acts
employed by Desmond in overpricing the value of the marine animals for
US$3.724 Million when in fact the sea animals were only valued for one U.S.
dollar was not corroborated by the evidence on hand. EaIcAS

xxx xxx xxx

In the same manner, the facts in the case at bar that would allegedly
constitute a criminal charge of estafa under par. 1(b) are wanting. Be it noted
that under the said paragraph, estafa with unfaithfulness or abuse of confidence
through misappropriation or conversion of the money, goods or any other
personal property must be received in trust, on commission, for administration,
or under any other obligation which involves the duty to make delivery thereof
or to return the same. It is not amiss to note that a perusal of private
complainants' Complaint-Affidavit shows that subject money in the amount of
US$ 1,000,000.00 to be used for the Miracle Beach Project was placed in a
special account with Equitable-PCI Bank. As the records show, the said funds
were placed by Dio under the control of Fatima Paglicawan, an employee of
Westdale, such that, no money can be withdrawn from the special account
without the signature of the said employee, Desmond and a certain John
Corcoran. Therefore, at such time, it cannot be said that the funds were received
for administration or already under the juridical possession of Desmond.
Meanwhile, we would like to emphasize that to constitute conversion, it
presupposes that the thing has been devoted to a purpose or use different from
that agreed upon. Verily, a facial examination of the Journal Voucher and
Check Voucher pertaining to the withdrawals made on such account clearly
shows that the disbursements were not only authorized by Paglicawan but
likewise indicated that the purpose for such withdrawals was to cover payments
for BIR taxes and the salaries of local employees and expatriates.

To repeat, these withdrawals as well as the purpose thereof were known

to Paglicawan when [sic] she authorized the disbursements. Paglicawan, who
was designated by private complainant Dio to control the release of the said
funds is presumed to have acted under the latter's authority. Such
miscommunication between Dio and Paglicawan with respect to the purpose of
the funds does not make out a case of estafa there being no abuse of confidence
or conversion to speak of taking into account that the said funds were released
under the presumed authority of private complainants through Paglicawan, and
which were indeed used for the purpose for which it was withdrawn. That being
the case, there can be no damage or prejudice to Westdale and Dio as there was
no disturbance in the property rights of Westdale and Dio in the said funds since
the same were used for the purpose for which it was disbursed.
 Then again, we agree with the trial court that there is no sufficient
evidence adduced to support the criminal charges of estafa against Desmond. As
pointed out by the trial court, while private respondent is the Chairman and
Chief Executive Officer of SBMEI, there is no showing that he had personally
and solely authorized the application of the above funds for the payment of
expenses not directly connected with the Miracle Beach Project. Nor does it
appear that as Chairman and Chief Executive Officer, Desmond has been
appointed to execute, on his own, such corporate acts. 45 (Citations omitted)

The City Prosecutor and Dio filed their respective motions for reconsideration
which were both denied in a Resolution 46 dated July 19, 2007.

Hence, the instant petitions. IDCScA

The Issue Before the Court

The primordial issue in this case is whether or not the CA erred in finding no
grave abuse of discretion on the part of the RTC when it dismissed the subject
informations for lack of probable cause.

The Court's Ruling

The petitions are meritorious.

Determination of probable cause may be either executive or judicial.

The first is made by the public prosecutor, during a preliminary investigation,

where he is given broad discretion to determine whether probable cause exists for the
purpose of filing a criminal information in court. Whether or not that function has been
correctly discharged by the public prosecutor, i.e., whether or not he has made a correct
ascertainment of the existence of probable cause in a case, is a matter that the trial court
itself does not and may not be compelled to pass upon. 47

The second is one made by the judge to ascertain whether a warrant of arrest
should be issued against the accused. In this respect, the judge must satisfy himself that,
on the basis of the evidence submitted, there is a necessity for placing the accused under
custody in order not to frustrate the ends of justice. If the judge, therefore, finds no
probable cause, the judge cannot be forced to issue the arrest warrant. 48 Notably, since
the judge is already duty-bound to determine the existence or non-existence of probable
cause for the arrest of the accused immediately upon the filing of the information, the
filing of a motion for judicial determination of probable cause becomes a mere
superfluity, 49 if not a deliberate attempt to cut short the process by asking the judge to
weigh in on the evidence without a full-blown trial.
 In the case of Co v. Republic, 50 the Court emphasized the settled distinction
between an executive and a judicial determination of probable cause, viz.: 51

We reiterate that preliminary investigation should be distinguished as to

whether it is an investigation for the determination of a sufficient ground for the
filing of the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest. The first kind of
preliminary investigation is executive in nature. It is part of the prosecution's
job. The second kind of preliminary investigation which is more properly called
preliminary examination is judicial in nature and is lodged with the judge. DHIETc

On this score, it bears to stress that a judge is not bound by the resolution of the
public prosecutor who conducted the preliminary investigation and must himself
ascertain from the latter's findings and supporting documents whether probable cause
exists for the purpose of issuing a warrant of arrest. This prerogative is granted by no less
than the Constitution which provides that "no warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce." 52

While a judge's determination of probable cause is generally confined to the

limited purpose of issuing arrest warrants, Section 5 (a), 53 Rule 112 of the Revised
Rules of Criminal Procedure explicitly states that a judge may immediately dismiss a
case if the evidence on record clearly fails to establish probable cause, 54 viz.:

SEC. 5. When warrant of arrest may issue. — (a) By the Regional Trial
Court. — Within ten (10) days from the filing of the complaint or information,
the judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. If he finds probable cause, he
shall issue a warrant of arrest, or acommitment order if the accused had already
been arrested, pursuant to a warrant issued by the judge who conducted
preliminary investigation or when the complaint or information was filed
pursuant to Section 7 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional evidence within
five (5) days from notice and the issue must be resolved by the court within
thirty (30) days from the filing of the complaint or information. (Emphasis and
underscoring supplied)

In this regard, so as not to transgress the public prosecutor's authority, it must be

stressed that the judge's dismissal of a case must be done only in clear-cut cases when
the evidence on record plainly fails to establish probable cause — that is when the
records readily show uncontroverted, and thus, established facts which unmistakably
negate the existence of the elements of the crime charged. On the contrary, if the
evidence on record shows that, more likely than not, the crime charged has been
committed and that respondent is probably guilty of the same, the judge should not
dismiss the case and thereon, order the parties to proceed to trial. In doubtful cases,
however, the appropriate course of action would be to order the presentation of additional
evidence. 55

In other words, once the information is filed with the court and the judge proceeds
with his primordial task of evaluating the evidence on record, he may either: (a) issue a
warrant of arrest, if he finds probable cause; (b) immediately dismiss the case, if the
evidence on record clearly fails to establish probable cause; and (c) order the prosecutor
to submit additional evidence, in case he doubts the existence of probable cause. 56

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

Lest it be misconceived, trial judges will do well to remember that when a

perceived gap in the evidence leads to a "neither this nor that" conclusion, a purposeful
resolution of the ambiguity is preferable over a doubtful dismissal of the case. Verily, a
judge's discretion to dismiss a case immediately after the filing of the information in court
is appropriate only when the failure to establish probable cause can be clearly inferred
from the evidence presented and not when its existence is simply doubtful. After all, it
cannot be expected that upon the filing of the information in court the prosecutor would
have already presented all the evidence necessary to secure a conviction of the accused,
the objective of a previously-conducted preliminary investigation being merely to
determine whether there is sufficient ground to engender a well-founded belief that a
crime has been committed and that the respondent is probably guilty thereof and should
be held for trial. 59 In this light, given that the lack of probable cause had not been
clearly established in this case, the CA erred, and the RTC gravely abused its discretion,
by ruling to dismiss Criminal Case Nos. 515-2004 and 516-2004. Indeed, these cases
must stand the muster of a full-blown trial where the parties could be given, as they
should be given, the opportunity to ventilate their respective claims and defenses, on the
basis of which the court a quo can properly resolve the factual disputes therein.

WHEREFORE, the petitions are GRANTED. The November 8, 2006 Decision

and July 19, 2007 Resolution of the Court of Appeals in CA-G.R. SP No. 88285 which
affin-ned the October 21, 2004 Order of Dismissal issued by the Regional Trial Court of
Olongapo City, Branch 74 are SET ASIDE. The two (2) criminal informations for estafa
against respondents Timothy J. Desmond in Criminal Case Nos. 515-2004 and 516-2004
are hereby REINSTATED. Accordingly, the trial court is directed to proceed with the
arraignment of the accused and the trial of the case with dispatch. TESICD

SO ORDERED.

(De Los Santos-Dio v. Court of Appeals, G.R. Nos. 178947 & 179079, [June 26, 2013],
|||

712 PHIL 288-310)

THIRD DIVISION

[G.R. No. 180661. December 11, 2013.]

GEORGE ANTIQUERA y CODES, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

ABAD, J : p

This case is about a supposed warrantless arrest and a subsequent search prompted
by the police officers' chance sighting through an ajar door of the accused engaged in pot
session.

The Facts and the Case

On January 13, 2004 the second Assistant City Prosecutor of Pasay City charged
the accused George Codes Antiquera * and Corazon Olivenza Cruz with illegal
possession of paraphernalia for dangerous drugs 1 before the Regional Trial Court (RTC)
of Pasay City in Criminal Case 04-0100-CFM. 2 Since the accused Cruz jumped bail, the
court tried her in absentia. 3

The prosecution evidence shows that at around 4:45 a.m. of February 11, 2004,
PO1 Gregorio Recio, PO1 Laurence Cabutihan, P/Insp. Eric Ibon, PO1 Rodelio Rania,
and two civilian operatives on board a patrol car and a tricycle were conducting a police
visibility patrol on David Street, Pasay City, when they saw two unidentified men rush
out of house number 107-C and immediately boarded a jeep. DcSACE

Suspecting that a crime had been committed, the police officers approached the
house from where the men came and peeked through the partially opened door. PO1
Recio and PO1 Cabutihan saw accused Antiquera holding an improvised tooter and a
pink lighter. Beside him was his live-in partner, Cruz, who was holding an aluminum foil
and an improvised burner. They sat facing each other at the living room. This prompted
the police officers to enter the house, introduce themselves, and arrest Antiquera and
Cruz. 4

While inspecting the immediate surroundings, PO1 Cabutihan saw a wooden

jewelry box atop a table. It contained an improvised burner, wok, scissors, 10 small
transparent plastic sachets with traces of white crystalline substance, improvised scoop,
and seven unused strips of aluminum foil. The police officers confiscated all these and
brought Antiquera and Cruz to the Drug Enforcement Unit of the Philippine National
Police in Pasay City for further investigation and testing. 5

A forensic chemical officer examined the confiscated drug paraphernalia and

found them positive for traces of methamphetamine hydrochloride or "shabu." 6

Accused Antiquera gave a different story. He said that on the date and time in
question, he and Cruz were asleep in their house when he was roused by knocking on the
door. When he went to open it, three armed police officers forced themselves into the
house. One of them shoved him and said, "D'yan ka lang, pusher ka." He was handcuffed
and someone instructed two of the officers to go to his room. The police later brought
accused Antiquera and Cruz to the police station and there informed them of the charges
against them. They were shown a box that the police said had been recovered from his
house. 7

On July 30, 2004 the RTC rendered a Decision 8 that found accused Antiquera
and Cruz guilty of the crime charged and sentenced them to a prison term ranging from
six months and one day to two years and four months, and to pay a fine of P10,000.00
each and the costs of the suit.
DTCSHA

The RTC said that the prosecution proved beyond reasonable doubt that the police
caught accused Antiquera and Cruz in the act of using shabu and having drug
paraphernalia in their possession. Since no ill motive could be attributed to PO1 Recio
and PO1 Cabutihan, the court accorded full faith and credit to their testimony and
rejected the self-serving claim of Antiquera.

The trial court gave no weight to accused Antiquera's claim of illegal arrest, given
PO1 Recio and PO1 Cabutihan's credible testimony that, prior to their arrest, they saw
Antiquera and Cruz in a pot session at their living room and in possession of drug
paraphernalia. The police officers were thus justified in arresting the two without a
warrant pursuant to Section 5, Rule 113 of the Rules of Criminal Procedure. 9 IHDCcT
 On appeal, the Court of Appeals (CA) rendered a Decision 10 on September 21,
2007 affirming in full the decision of the trial court. The accused moved for
reconsideration but the CA denied it. 11 The accused is now before this Court seeking
acquittal.

The Issue Presented

The issue in this case is whether or not the CA erred in finding accused Antiquera
guilty beyond reasonable doubt of illegal possession of drug paraphernalia based on the
evidence of the police officers that they saw him and Cruz in the act of possessing drug
paraphernalia.

Ruling of the Court

The prosecution's theory, upheld by both the RTC and the CA, is that it was a case
of valid warrantless arrest in that the police officers saw accused Antiquera and Cruz
through the door of their house, in the act of having a pot session. That valid warrantless
arrest gave the officers the right as well to search the living room for objects relating to
the crime and thus seize the paraphernalia they found there.

The prosecution contends that, since the seized paraphernalia tested positive for
shabu, they were no doubt used for smoking, consuming, administering, injecting,
ingesting, or introducing dangerous drug into the body in violation of Section 12 of
Republic Act 9165. That the accused tested negative for shabu, said the prosecution, had
no bearing on the crime charged which was for illegal possession of drug paraphernalia,
not for illegal use of dangerous drugs. The prosecution added that even assuming that the
arrest of the accused was irregular, he is already considered to have waived his right to
question the validity of his arrest when he voluntarily submitted himself to the court's
jurisdiction by entering a plea of not guilty. 12
aDcETC

Section 5 (a), Rule 113 of the Rules of Criminal Procedure provides that a "peace
officer or a private person may, without a warrant, arrest a person when, in his presence,
the person to be arrested has committed, is actually committing, or is attempting to
commit an offense." This is an arrest in flagrante delicto. 13 The overt act constituting
the crime is done in the presence or within the view of the arresting officer. 14

But the circumstances here do not make out a case of arrest made in flagrante
delicto.

1. The police officers claim that they were alerted when they saw two unidentified
men suddenly rush out of 107 David Street, Pasay City. Since they suspected that a crime
had been committed, the natural thing for them to do was to give chase to the jeep that
the two fleeing men boarded, given that the officers were in a patrol car and a tricycle.
Running after the fleeing suspects was the more urgent task but the officers instead gave
priority to the house even when they heard no cry for help from it.

2. Admittedly, the police officers did not notice anything amiss going on in the
house from the street where they stood. Indeed, even as they peeked through its partially
opened door, they saw no activity that warranted their entering it. Thus, PO1 Cabutihan
testified:

THE COURT:

Q By the way, Mr. Cabutihan, when you followed your companion towards the
open door, how was the door open? Was it totally open, or was it
partially open?

A It was partially open Your Honor.

Q By how much, 1/3, 1/2? Only by less than one (1) foot?

A More or less 4 to 6 inches, Your Honor.

Q So how were you able to know, to see the interior of the house if the door
was only open by 6 inches? Or did you have to push the door? EHcaAI

A We pushed the door, Your Honor.

xxx xxx xxx

Q Were you allowed to just go towards the door of the house, push its door and
peeped inside it, as a police officer?

A Kasi po naghinala po kami baka may. . .

Q Are you not allowed to — Are you not required to get a search warrant before
you can search the interior of the house?

A Yes, Your Honor. cAaDHT

Q What do you mean by yes? Would you first obtain a search warrant before
searching the interior of the house?

A Yes, Your Honor.

Q So why did you not a [sic] secure a search warrant first before you tried to
investigate the house, considering your admission that you suspected
that there was something wrong inside the house?
 A Because we saw them that they were engaged in pot session, Your Honor.

Q But before you saw them, you just had to push the door wide open to
peep through its opening because you did not know what was
happening inside?

A Yes, Your Honor. 15 (Emphasis supplied) ISCaDH

Clearly, no crime was plainly exposed to the view of the arresting officers that
authorized the arrest of accused Antiquera without warrant under the above-mentioned
rule. Considering that his arrest was illegal, the search and seizure that resulted from it
was likewise illegal. 16 Consequently, the various drug paraphernalia that the police
officers allegedly found in the house and seized are inadmissible, having proceeded from
an invalid search and seizure. Since the confiscated drug paraphernalia is the very corpus
delicti of the crime charged, the Court has no choice but to acquit the accused. 17

One final note. The failure of the accused to object to the irregularity of his arrest
by itself is not enough to sustain his conviction. A waiver of an illegal warrantless arrest
does not carry with it a waiver of the inadmissibility of evidence seized during the illegal
warrantless arrest. 18

WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated
September 21, 2007 and Resolution dated November 16, 2007 of the Court of Appeals in
CA-G.R. CR 28937 and ACQUITS the accused George Antiquera y Codes of the crime
of which he is charged for lack of evidence sufficient to establish his guilt beyond
reasonable doubt. The Court further ORDERS the cancellation and release of the bail
bond he posted for his provisional liberty.

SO ORDERED. TcDIaA

Velasco, Jr., Peralta, Mendoza and Leonen, JJ., concur.

(Antiquera y Codes v. People, G.R. No. 180661, [December 11, 2013], 723 PHIL 425-
|||

432)

THIRD DIVISION

[G.R. No. 213225. April 4, 2018.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENANTE

COMPRADO y BRONOLA, accused-appellant.
 DECISION

MARTIRES, J : p

This is an appeal from the Decision 1 dated 19 May 2014, of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 01156 which affirmed the Decision 2 dated 18
April 2013, of the Regional Trial Court, Branch 25, Misamis Oriental (RTC), in
Criminal Case No. 2011-671 finding Renante Comprado y Bronola (accused-
appellant) guilty of illegal possession of marijuana. caITAC

THE FACTS

On 19 July 2011, accused-appellant was charged with violation of Section 11,

Article 2 of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002. The Information reads:
That on July 15, 2011, at more or less eleven o'clock in the evening,
along the national highway, Puerto, Cagayan de Oro City, Philippines and
within the jurisdiction of the Honorable Court, the above-named accused,
without being authorized by law to possess or use any dangerous drugs, did
then and there, wilfully, unlawfully and criminally have in his possession,
control and custody 3,200 grams of dried fruiting tops of suspected marijuana,
which substance, after qualitative examination conducted by the Regional
Crime Laboratory, Office No. 10, Cagayan de Oro City, tested positive for
marijuana, a dangerous drug, with the said accused, knowing the substance to
be a dangerous drug. 3
Upon his arraignment on 8 August 2011, accused-appellant pleaded not guilty
to the crime charged. Thereafter, trial on the merits ensued.

Version of the Prosecution

On 15 July 2011, at 6:30 in the evening, a confidential informant (CI) sent a

text message to Police Inspector Dominador Orate, Jr. (P/Insp. Orate), then Deputy
Station Commander of Police Station 6, Puerto, Cagayan de Oro City, that an alleged
courier of marijuana together with a female companion, was sighted at Cabanglasan,
Bukidnon. The alleged courier had in his possession a backpack containing marijuana
and would be traveling from Bukidnon to Cagayan de Oro City. At 9:30 in the
evening, the CI called P/Insp. Orate to inform him that the alleged drug courier had
boarded a bus with body number 2646 and plate number KVP 988 bound for Cagayan
de Oro City. The CI added that the man would be carrying a backpack in black and
violet colors with the marking "Lowe Alpine." Thus, at about 9:45 in the evening, the
police officers stationed at Police Station 6 put up a checkpoint in front of the station.
4
 At 11:00 o'clock in the evening, the policemen stopped the bus bearing the said
body and plate numbers. P/Insp. Orate, Police Officer 3 Teodoro de Oro (PO3 De
Oro), Senior Police Officer 1 Benjamin Jay Reycitez (SPO1 Reycitez), and PO1 Rexie
Tenio (PO1 Tenio) boarded the bus and saw a man matching the description given to
them by the CI. The man was seated at the back of the bus with a backpack placed on
his lap. After P/Insp. Orate asked the man to open the bag, the police officers saw a
transparent cellophane containing dried marijuana leaves. 5
SPO1 Reycitez took photos of accused-appellant and the cellophane bag
containing the dried marijuana leaves. 6 PO3 De Oro, in the presence of accused-
appellant, marked the bag "RCB-2" and the contents of the bag "RCB-1." 7
Thereafter, PO1 Tenio and PO3 De Oro brought accused-appellant and the seized bag
to the PNP Crime Laboratory for examination. 8 On 16 July 2011, at around 1:40 in
the morning, Police Senior Inspector Charity Caceres (PSI Caceres) of the PNP
Crime Laboratory Office 10, Cagayan de Oro City, received the requests for
examination and the specimen. PSI Caceres, after conducting qualitative examination
of the specimen, issued Chemistry Report No. D-253-2011 9 stating that the dried
leaves seized from accused-appellant were marijuana and which weighed 3,200
grams.

Version of the Defense

Accused-appellant denied ownership of the bag and the marijuana. He

maintains that on 15 July 2011, at around 6:30 in the evening, he and his girlfriend
went to the house of a certain Freddie Nacorda in Aglayan, Bukidnon, to collect the
latter's debt. When they were about to leave, Nacorda requested him to carry a bag to
Cagayan de Oro City.
When they reached Malaybalay City, Bukidnon, their vehicle was stopped by
three (3) police officers. All of the passengers were ordered to alight from the vehicle
for baggage inspection. The bag was opened and they saw a transparent cellophane
bag containing marijuana leaves. At around 9:00 o'clock in the evening, accused-
appellant, his girlfriend, and the police officers who arrested them boarded a bus
bound for Cagayan de Oro City.
When the bus approached Puerto, Cagayan de Oro City, the police officers told
the bus driver to stop at the checkpoint. The arresting officers took photos of accused-
appellant and his girlfriend inside the bus. They were then brought to the police
station where they were subjected to custodial investigation without the assistance of
counsel. 10

The RTC Ruling

In its decision, the RTC found accused-appellant guilty of illegal possession of

marijuana. It held that accused-appellant's uncorroborated claim that he was merely
requested to bring the bag to Cagayan de Oro City, did not prove his innocence; mere
possession of the illegal substance already consummated the crime and good faith was
not even a defense. The RTC did not lend credence to accused-appellant's claim that
he was arrested in Malaybalay City, Bukidnon, because it was unbelievable that the
police officers would go out of their jurisdiction in Puerto, Cagayan de Oro City, just
to apprehend accused-appellant in Bukidnon. The fallo reads:
WHEREFORE, premises considered, this Court finds the accused
RENANTE COMPRADO y BRONOLA GUILTY BEYOND
REASONABLE DOUBT of the crime defined and penalized under
Section 11, [7], Article II of R.A. No. 9165, as charged in the Information,
and hereby sentences him to suffer the penalty of LIFE
IMPRISONMENT, and to pay the Fine of Five Hundred Thousand Pesos
[P500,000.00], without subsidiary penalty in case of non-payment of fine.
Let the penalty imposed on the accused be a lesson and an example to
all who have criminal propensity, inclination and proclivity to commit the
same forbidden acts, that crime does not pay, and that the pecuniary gain and
benefit which one can derive from possessing drugs, or other illegal
substance, or from committing any other acts penalized under Republic Act
9165, cannot compensate for the penalty which one will suffer if ever he is
prosecuted and penalized to the full extent of the law. 11
ICHDca

Aggrieved, accused-appellant appealed before the CA.

The CA Ruling

In its decision, the CA affirmed the conviction of accused-appellant. It opined

that accused-appellant submitted to the jurisdiction of the court because he raised no
objection as to the irregularity of his arrest before his arraignment. The CA reasoned
that the seized items are admissible in evidence because the search and seizure of the
illegal narcotics were made pursuant to a search of a moving vehicle. It added that
while it was admitted by the arresting police officers that no representatives from the
media and other personalities required by law were present during the operation and
during the taking of the inventory, noncompliance with Section 21, Article II of R.A.
No. 9165 was not fatal and would not render inadmissible accused-appellant's arrest
or the items seized from him because the prosecution was able to show that the
integrity and evidentiary value of the seized items had been preserved. The CA
disposed the case in this wise:
WHEREFORE, the appeal is DISMISSED. The Judgment dated 18
April 2013 of the Regional Trial Court of Misamis Oriental, 10th Judicial
Region, Branch 25 in Criminal Case No. 2011-671 is hereby affirmed in toto.
12
Hence, this appeal.
 ISSUES

I. Whether accused-appellant's arrest was valid;

II. Whether the seized items are admissible in evidence; and
III. Whether accused-appellant is guilty of the crime charged.

OUR RULING

The Court finds for accused-appellant.

I.

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. 13
The Bill of Rights requires that a search and seizure must be carried out with a
judicial warrant; otherwise, any evidence obtained from such warrantless search is
inadmissible for any purpose in any proceeding. 14 This proscription, however,
admits of exceptions, namely: 1) Warrantless search incidental to a lawful arrest; 2)
Search of evidence in plain view; 3) Search of a moving vehicle; 4) Consented
warrantless search; 5) Customs search; 6) Stop and Frisk; and 7) Exigent and
emergency circumstances. 15

II.

A stop-and-frisk search is often confused with a warrantless search incidental

to a lawful arrest. However, the distinctions between the two have already been
settled by the Court in Malacat v. CA: 16
In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of the arrest is
questioned in a large majority of these cases, e.g., whether an arrest was
merely used as a pretext for conducting a search. In this instance, the law
requires that there first be a lawful arrest before a search can be made —
the process cannot be reversed. At bottom, assuming a valid arrest, the
arresting officer may search the person of the arrestee and the area within
which the latter may reach for a weapon or for evidence to destroy, and seize
 any money or property found which was used in the commission of the crime,
or the fruit of the crime, or that which may be used as evidence, or which
might furnish the arrestee with the means of escaping or committing violence.
xxx xxx xxx
We now proceed to the justification for and allowable scope of a
"stop-and-frisk" as a "limited protective search of outer clothing for weapons,"
as laid down in Terry, thus:
We merely hold today that where a police officer
observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity
may be afoot and that the persons with whom he is dealing
may be armed and presently dangerous, where in the course
of investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where nothing
in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others' safety, he is entitled [to]
the protection of himself and others in the area to conduct a
carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be
used to assault him. Such a search is a reasonable search
under the Fourth Amendment.
Other notable points of Terry are that while probable cause is not required to
conduct a "stop and frisk" it nevertheless holds that mere suspicion or a hunch
will not validate a "stop and frisk." A genuine reason must exist, in light of
the police officer's experience and surrounding conditions, to warrant the
belief that the person detained has weapons concealed about him. Finally,
a "stop-and-frisk" serves a two-fold interest: (1) the general interest of
effective crime prevention and detection, which underlies the recognition that
a police officer may, under appropriate circumstances and in an appropriate
manner, approach a person for purposes of investigating possible criminal
behavior even without probable cause; and (2) the more pressing interest of
safety and self-preservation which permit the police officer to take steps to
assure himself that the person with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be used against the police officer.
17 (emphases supplied and citations omitted) TCAScE

III.

A valid stop-and-frisk was illustrated in the cases of Posadas v. CA (Posadas),

18 Manalili v. CA (Manalili), 19 and People v. Solayao (Solayao). 20
In Posadas, two policemen were conducting a surveillance within the premises
of the Rizal Memorial Colleges when they spotted the accused carrying a buri bag and
acting suspiciously. They approached the accused and identified themselves as police
officers. The accused attempted to flee but his attempt to get away was thwarted by
the policemen who then checked the buri bag wherein they found guns, ammunition,
and a grenade. 21
In Manalili, police officers were patrolling the Caloocan City cemetery when
they chanced upon a man who had reddish eyes and was walking in a swaying
manner. When this person tried to avoid the policemen, the latter approached him and
introduced themselves as police officers. The policemen then asked what he was
holding in his hands, but he tried to resist. 22
In Solayao, police operatives were carrying out an intelligence patrol to verify
reports on the presence of armed persons roaming around the barangays of Caibiran,
Biliran. Later on, they met the group of accused-appellant. The police officers became
suspicious when they observed that the men were drunk and that accused-appellant
himself was wearing a camouflage uniform or a jungle suit. Upon seeing the
government agents, accused-appellant's companions fled. Thus, the police officers
found justifiable reason to stop and frisk the accused. 23

IV.

On the other hand, the Court found no sufficient justification in the stop and
frisk committed by the police in People v. Cogaed (Cogaed). 24 In that case, the
police officers received a message from an informant that one Marvin Buya would be
transporting marijuana from Barangay Lun-Oy, San Gabriel, La Union, to the
Poblacion of San Gabriel, La Union. A checkpoint was set up and when a passenger
jeepney from Barangay Lun-Oy arrived at the checkpoint, the jeepney driver
disembarked and signaled to the police officers that the two male passengers were
carrying marijuana.
SPO1 Taracatac approached the two male passengers who were later identified
as Victor Cogaed and Santiago Dayao. SPO1 Taracatac asked Cogaed and Dayao
what their bags contained. Cogaed and Dayao told SPO1 Taracatac that they did not
know since they were transporting the bags as a favor for their barrio mate named
Marvin. After this exchange, Cogaed opened the blue bag, revealing three bricks of
what looked like marijuana. The Court, in that case, invalidated the search and seizure
ruling that there were no suspicious circumstances that preceded the arrest. Also, in
Cogaed, there was a discussion of various jurisprudence wherein the Court adjudged
that there was no valid stop-and-frisk:
The circumstances of this case are analogous to People v. Aruta. In
that case, an informant told the police that a certain "Aling Rosa" would be
bringing in drugs from Baguio City by bus. At the bus terminal, the police
officers prepared themselves. The informant pointed at a woman crossing the
street and identified her as "Aling Rosa." The police apprehended "Aling
 Rosa," and they alleged that she allowed them to look inside her bag. The bag
contained marijuana leaves.
In Aruta, this court found that the search and seizure conducted was
illegal. There were no suspicious circumstances that preceded Aruta's arrest
and the subsequent search and seizure. It was only the informant that
prompted the police to apprehend her. The evidence obtained was not
admissible because of the illegal search. Consequently, Aruta was acquitted.
Aruta is almost identical to this case, except that it was the jeepney
driver, not the police's informant, who informed the police that Cogaed was
"suspicious."
The facts in Aruta are also similar to the facts in People v. Aminnudin.
Here, the National Bureau of Investigation (NBI) acted upon a tip, naming
Aminnudin as somebody possessing drugs. The NBI waited for the vessel to
arrive and accosted Aminnudin while he was disembarking from a boat. Like
in the case at bar, the NBI inspected Aminnudin's bag and found bundles of
what turned out to be marijuana leaves. The court declared that the search and
seizure was illegal. Aminnudin was acquitted.
xxx xxx xxx
People v. Chua also presents almost the same circumstances. In this
case, the police had been receiving information that the accused was
distributing drugs in "different karaoke bars in Angeles City." One night, the
police received information that this drug dealer would be dealing drugs at the
Thunder Inn Hotel so they conducted a stakeout. A car "arrived and parked" at
the hotel. The informant told the police that the man parked at the hotel was
dealing drugs. The man alighted from his car. He was carrying a juice box.
The police immediately apprehended him and discovered live ammunition and
drugs in his person and in the juice box he was holding.
Like in Aruta, this court did not find anything unusual or suspicious
about Chua's situation when the police apprehended him and ruled that
"[t]here was no valid 'stop-and-frisk.'" 25 (citations omitted)
The Court finds that the totality of the circumstances in this case is not
sufficient to incite a genuine reason that would justify a stop-and-frisk search on
accused-appellant. An examination of the records reveals that no overt physical act
could be properly attributed to accused-appellant as to rouse suspicion in the minds of
the arresting officers that he had just committed, was committing, or was about to
commit a crime. P/Insp. Orate testified as follows:
[Prosecutor Vicente]:
Q: On that date Mr. Witness, at about 6:30 in the evening, what happened, if
any?
A: At about 6:30 in the evening, I received an information from our
Confidential Informant reporting that an alleged courier of marijuana
were sighted in their place, Sir.
 xxx xxx xxx
[Court]:
Q: Aside from the sighting of this alleged courier of marijuana, what else was
relayed to you if there were anything else?
A: Our Confidential Informant told me that two persons, a male and a female
were having in their possession a black pack containing marijuana, Sir.
cTDaEH

xxx xxx xxx

[Prosecutor Vicente:]
Q: And then, after you received the information through your cellphone, what
happened next, Mr. Witness?
A: So, I prepared a team to conduct an entrapment operation in order to
intercept these two persons, Sir.
Q: You said that the Informant informed you that the subject was still in
Cabanglasan?
A: Yes, Sir.
Q: How did you entrap the subject when he was still in Cabanglasan?
A: I am planning to conduct a check point because according to my Confidential
Informant the subject person is from Gingoog City, Sir.
Q: According to the information, how will he go here?
A: He will be travelling by bus, Sir.
Q: What bus?
A: Bachelor, Sir.
Q: And then, what happened next Mr. Witness?
A: At about 9:30 in the evening my Confidential Informant again called and
informed me that the subject person is now boarding a bus going to
Cagayan de Oro City, Sir.
Q: What did he say about the bus, if he said anything, Mr. Witness?
A: My agent was able to identify the body number of the bus, Bus No. 2646.
Q: Bearing Plate No.?
A: Bearing Plate No. KVP 988, Sir.
Q: What was he bringing at that time, according to the information?
A: According to my agent, these two persons were bringing along with them a
back pack color black violet with markings LOWE ALPINE.
Q: Then, what happened next, Mr. Witness?
 A: We set up a check point in front of our police station and we waited for the
bus to come over, Sir.
xxx xxx xxx
Q: About 11 o'clock in the evening, what happened, Mr. Witness?
A: When we sighted the bus we flagged down the bus.
Q: After you flagged down the bus, what happened next?
A: We went on board the said bus, Sir.
xxx xxx xxx
Q: What happened next?
A: We went to the back of the bus and I saw a man carrying a back pack, a
black violet which was described by the Confidential Informant, the
back pack which was placed on his lap.
xxx xxx xxx
Q: After you saw them, what happened next?
A: We were able to identify the back pack and the description of the courier, so,
we asked him to please open the back pack.
xxx xxx xxx
Q: What happened next?
A: When he opened the back pack, we found marijuana leaves, the back pack
containing cellophane which the cellophane containing marijuana
leaves. 26
In his dissent from Esquillo v. People, 27 Justice Lucas P. Bersamin
emphasizes that there should be "presence of more than one seemingly innocent
activity from which, taken together, warranted a reasonable inference of criminal
activity." This principle was subsequently recognized in the recent cases of Cogaed 28
and Sanchez v. People. 29 In the case at bar, accused-appellant was just a passenger
carrying his bag. There is nothing suspicious much less criminal in said act.
Moreover, such circumstance, by itself, could not have led the arresting officers to
believe that accused-appellant was in possession of marijuana.

V.

As regards search incidental to a lawful arrest, it is worth emphasizing that a

lawful arrest must precede the search of a person and his belongings; the process
cannot be reversed. 30 Thus, it becomes imperative to determine whether accused-
appellant's warrantless arrest was valid.
 Section 5, Rule 113 of the Rules of Criminal Procedure enumerates the
instances wherein a peace officer or a private person may lawfully arrest a person
even without a warrant:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another.
Paragraph (a) of Section 5 is commonly known as an in flagrante delicto arrest.
For a warrantless arrest of an accused caught in flagrante delicto to be valid, two
requisites must concur: (1) the person to be arrested must execute an overt act
indicating that he has just committed, is actually committing, or is attempting to
commit a crime; and (2) such overt act is done in the presence or within the view of
the arresting officer. 31 On the other hand, the elements of an arrest effected in hot
pursuit under paragraph (b) of Section 5 (arrest effected in hot pursuit) are: first, an
offense has just been committed; and second, the arresting officer has probable cause
to believe based on personal knowledge of facts or circumstances that the person to be
arrested has committed it. 32 cSaATC

Here, without the tip provided by the confidential informant, accused-appellant

could not be said to have executed any overt act in the presence or within the view of
the arresting officers which would indicate that he was committing the crime of illegal
possession of marijuana. Neither did the arresting officers have personal knowledge
of facts indicating that accused-appellant had just committed an offense. Again,
without the tipped information, accused-appellant would just have been any other bus
passenger who was minding his own business and eager to reach his destination. It
must be remembered that warrantless arrests are mere exceptions to the constitutional
right of a person against unreasonable searches and seizures, thus, they must be
strictly construed against the government and its agents. While the campaign against
proliferation of illegal drugs is indeed a noble objective, the same must be conducted
in a manner which does not trample upon well-established constitutional rights. Truly,
the end does not justify the means.

VI.
 The appellate court, in convicting accused-appellant, reasoned that the search
and seizure is valid because it could be considered as search of a moving vehicle:
Warrantless search and seizure of moving vehicles are allowed in
recognition of the impracticability of securing a warrant under said
circumstances as the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant may be sought. Peace officers in such cases,
however, are limited to routine checks where the examination of the vehicle is
limited to visual inspection. When a vehicle is stopped and subjected to an
extensive search, such would be constitutionally permissible only if the
officers made it upon probable cause, i.e., upon a belief, reasonably arising
out of circumstances known to the seizing officer, that an automobile or other
vehicle contains [an] item, article or object which by law is subject to seizure
and destruction. 33
The search in this case, however, could not be classified as a search of a
moving vehicle. In this particular type of search, the vehicle is the target and not a
specific person. Further, in search of a moving vehicle, the vehicle was intentionally
used as a means to transport illegal items. It is worthy to note that the information
relayed to the police officers was that a passenger of that particular bus was carrying
marijuana such that when the police officers boarded the bus, they searched the bag of
the person matching the description given by their informant and not the cargo or
contents of the said bus. Moreover, in this case, it just so happened that the alleged
drug courier was a bus passenger. To extend to such breadth the scope of searches on
moving vehicles would open the floodgates to unbridled warrantless searches which
can be conducted by the mere expedient of waiting for the target person to ride a
motor vehicle, setting up a checkpoint along the route of that vehicle, and then
stopping such vehicle when it arrives at the checkpoint in order to search the target
person.

VII.

Any evidence obtained in violation of the right against unreasonable searches

and seizures shall be inadmissible for any purpose in any proceeding. 34 This
exclusionary rule instructs that evidence obtained and confiscated on the occasion of
such unreasonable searches and seizures are deemed tainted and should be excluded
for being the proverbial fruit of a poisonous tree. In other words, evidence obtained
from unreasonable searches and seizures shall be inadmissible in evidence for any
purpose in any proceeding. 35
Without the confiscated marijuana, no evidence is left to convict accused-
appellant. Thus, an acquittal is warranted, despite accused-appellant's failure to object
to the regularity of his arrest before arraignment. The legality of an arrest affects only
the jurisdiction of the court over the person of the accused. A waiver of an illegal,
 warrantless arrest does not carry with it a waiver of the inadmissibility of evidence
seized during an illegal warrantless arrest. 36
WHEREFORE, the appeal is GRANTED. The 19 May 2014 Decision of the
Court of Appeals in CA-G.R. CR-HC No. 01156 is REVERSED and SET ASIDE.
Accused-appellant Renante Comprado y Bronola is ACQUITTED and ordered
RELEASED from detention unless he is detained for any other lawful cause. The
Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision
and to report to this Court the action taken hereon within five (5) days from receipt.
SO ORDERED.
Velasco, Jr., Bersamin, Leonen and Gesmundo, JJ., concur.
||| (People v. Comprado y Bronola, G.R. No. 213225, [April 4, 2018])

FIRST DIVISION

[G.R. No. 189806. January 12, 2011.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO

MANLANGIT y TRESBALLES, accused-appellant.

DECISION

VELASCO, JR., J : p

The Case
This is an appeal from the August 28, 2009 Decision 1 of the Court of Appeals
(CA) in CA-G.R. CR-H.C. No. 03273, which affirmed in toto the Decision dated July
12, 2007 2 in Criminal Case Nos. 03-4735 and 03-4961 of the Regional Trial Court
(RTC), Branch 64 in Makati City. The RTC found accused-appellant Francisco
Manlangit y Tresballes guilty of drug-sale and drug-use penalized by Republic Act
No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.
The Facts

On November 25, 2003, an information was filed charging Manlangit with

violating Section 5, Article II of RA 9165, as follows:

That on or about the 24th day of November 2003, in the City of Makati,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, not being lawfully authorized by law, did then and there
 willfully and feloniously sell, give away, distribute and deliver zero point zero
four (0.04) gram of Methylamphetamine Hydrochloride (shabu), which is a
dangerous drug. 3

On December 11, 2003, another information was filed against Manlangit for
breach of Sec. 15, Art. II of RA 9165, to wit:

That sometime on or before or about the 24th day of November 2003, in

the City of Makati, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, not being authorized by law to use dangerous
drugs, and having been arrested and found positive for use of
Methylamphetamine, after a confirmatory test, did then and there willfully,
unlawfully and feloniously use Methylamphetamine, a dangerous drug in
violation of the said law. 4

During the arraignment for both cases, Manlangit pleaded not guilty.
Afterwards, the cases were tried jointly.
At the trial of the case, the prosecution adduced evidence as follows: HCaEAT

On November 24, 2003, the Makati Anti-Drug Abuse Council (MADAC)

Cluster 4 office received information from an informant that a certain "Negro" was
selling prohibited drugs along Col. Santos Street at Brgy. South Cembo, Makati City.
The MADAC thereafter coordinated with the Anti-Illegal Drugs Special Operations
Task Force (AIDSTOF) and the Philippine Drug Enforcement Agency to conduct a
joint MADAC-police buy-bust operation. A team was assembled composed of several
members of the different offices, among which Police Officer 2 Virginio Costa was
designated as the team leader, with MADAC operative Wilfredo Serrano as the
poseur-buyer and Roberto Bayona as his back-up. The team prepared buy-bust money
for the operation, marking two (2) one hundred peso (PhP100) bills with the initials
"AAM."
Upon arrival on Col. Santos Street, Brgy. Cembo, Makati City, the team
spotted Manlangit standing in front of his house. The informant approached
Manlangit and convinced the latter that Serrano wanted to purchase shabu from him.
Manlangit asked Serrano how much shabu he wanted, to which Serrano replied that
he wanted two hundred pesos (PhP200) worth of shabu. Manlangit went inside his
house and later reappeared with a plastic sachet containing a white crystalline
substance. Manlangit handed over the plastic sachet to Serrano who, in turn, gave
Manlangit the marked money. Then Serrano gave the pre-arranged signal of lighting a
cigarette to indicate to the rest of the team that the buy-bust operation had been
consummated. Thus, the rest of the team approached Manlangit and proceeded to
arrest him while informing him of constitutional rights and the reason for his arrest.
The marked money was recovered from Manlangit's pocket. The plastic sachet was
then marked with the initials "FTM" and sent to the Philippine National Police (PNP)
crime laboratory in Camp Crame, Quezon City for analysis. The PNP crime
laboratory identified the white crystalline substance as Methylamphetamine
Hydrochloride in Chemistry Report No. D-1190-03. Manlangit was also brought to
the PNP crime laboratory for a drug test, which yielded a positive result for use of
Methylamphetamine Hydrochloride. 5
Manlangit denied that such buy-bust operation was conducted and claimed that
the recovered shabu was not from him. He claimed that he was pointed out by a
certain Eli Ballesteros to Serrano and Bayona. Thereafter, he was allegedly detained
at the Barangay Hall of Brgy. Pitogo. There, he was allegedly interrogated by Serrano
as to the location of the shabu and its proceeds, as well as the identity of the drug
pushers in the area. He also claimed that whenever he answered that he did not know
what Serrano was talking about, he was boxed in the chest. Later on, he said that he
was brought to Camp Crame for drug testing. 6
On July 12, 2007, the RTC rendered a Decision, the dispositive portion of
which reads:

WHEREFORE, premises considered, judgment is hereby rendered as

follows:

1) In Criminal Case No. 03-4735, finding accused Francisco Manlangit y

Tresballes GUILTY BEYOND REASONABLE DOUBT of Violation of
Section 5, Art II, RA 9165 (drug-sale) and sentencing him to suffer the
penalty of life imprisonment and to pay a fine in the amount of
P500,000.00. Said accused shall be given credit for the period of his
preventive detention.

2) In Criminal Case No. 03-4735, 7 finding accused Francisco Manlangit y

Tresballes GUILTY BEYOND REASONABLE DOUBT of Violation of
Section 15, Art II, RA 9165 (drug-use), and sentencing him to undergo
rehabilitation for at least six (6) months in a government rehabilitation
Center under the auspices of the Bureau of Correction subject to the
provisions of Article VIII, RA 9165.

It is further ordered that the plastic sachet containing shabu, subject of

Criminal Case No. 03-4735, be transmitted to the Philippine Drug Enforcement
Agency (PDEA) for the latter's appropriate action.

SO ORDERED. 8

From such Decision, Manlangit interposed an appeal with the CA. ACDTcE

In his Brief, accused-appellant Manlangit claimed that the prosecution failed to

prove his guilt beyond reasonable doubt. To support such contention, accused-
appellant claimed that there was no buy-bust operation conducted. He pointed out that
he was not in the list of suspected drug pushers of MADAC or of the AIDSTOF. He
further emphasized that the buy-bust operation was conducted without first
conducting a surveillance or test buy to determine the veracity of the report made by
the informant. He assailed the fact that despite knowledge of his identity and location,
the buy-bust team failed to secure even a search warrant.
Accused-appellant also raised the issue that the buy-bust team failed to comply
with the procedure for the custody and control of seized prohibited drugs under Sec.
21 of RA 9165. He argued that the presumption of regularity in the performance of
official function was overturned by the officers' failure to follow the required
procedure in the conduct of a buy-bust operation, as well as the procedure in the
proper disposition, custody, and control of the subject specimen.
On August 28, 2009, the CA rendered the decision which affirmed the RTC's
Decision dated July 12, 2007. It ruled that contrary to accused-appellant's contention,
prior surveillance is not a prerequisite for the validity of a buy-bust operation. The
case was a valid example of a warrantless arrest, accused-appellant having been
caught in flagrante delicto. The CA further stated that accused-appellant's
unsubstantiated allegations are insufficient to show that the witnesses for the
prosecution were actuated by improper motive, in this case the members of the buy-
bust team; thus, their testimonies are entitled to full faith and credit. After examining
the testimonies of the witnesses, the CA found them credible and found no reason to
disturb the RTC's findings. Finally, the CA found that chain of evidence was not
broken.
Hence, the instant appeal.
In a Manifestation (In lieu of Supplemental Brief) dated February 22, 2010,
accused-appellant expressed his desire not to file a supplemental brief and reiterated
the same arguments already presented before the trial and appellate courts.
The Issues
The issues, as raised in the Brief for the Accused-Appellant dated September
29, 2008, are:

1. The Court a quo gravely erred in convicting the accused-appellant despite the
prosecution's failure to prove his built beyond reasonable doubt. 9

2. The Court a quo gravely erred in finding that the procedure for the custody
and control of prohibited drugs was complied with. 10

The Ruling of the Court

The appeal is bereft of merit.

First Issue:
 Accused-appellant's guilt was proved beyond reasonable doubt
The first paragraph of Sec. 5 of RA 9165 punishes the act of selling dangerous
drugs. It provides:

Section 5. Sale, Trading, Administration, Dispensation, Delivery,

Distribution and Transportation of Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals. — The penalty of life imprisonment to
death and a fine ranging from Five hundred thousand pesos (P500,000.00)
to Ten million pesos (P10,000,000.00) shall be imposed upon any person,
who, unless authorized by law, shall sell, trade, administer, dispense, deliver,
give away to another, distribute, dispatch in transit or transport any dangerous
drug, including any and all species of opium poppy regardless of the
quantity and purity involved, or shall act as a broker in any of such
transactions. (Emphasis supplied.)

While Sec. 15, RA 9165 states:

Section 15. Use of Dangerous Drugs. — A person apprehended or

arrested, who is found to be positive for use of any dangerous drug, after a
confirmatory test, shall be imposed a penalty of a minimum of six (6)
months rehabilitation in a government center for the first offense, subject
to the provisions of Article VIII of this Act. If apprehended using any
dangerous drug for the second time, he/she shall suffer the penalty of
imprisonment ranging from six (6) years and one (1) day to twelve (12) years
and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred
thousand pesos (P200,000.00): Provided, That this Section shall not be
applicable where the person tested is also found to have in his/her possession
such quantity of any dangerous drug provided for under Section 11 of this Act,
in which case the provisions stated therein shall apply. (Emphasis supplied.) DSETac 

People v. Macatingag 11 prescribed the requirements for the successful

prosecution of the crime of illegal sale of dangerous drugs, as follows.

The elements necessary for the prosecution of illegal sale of drugs are
(1) the identity of the buyer and the seller, the object, and consideration; and (2)
the delivery of the thing sold and the payment therefor. What is material to the
prosecution for illegal sale of dangerous drugs is the proof that the transaction
or sale actually took place, coupled with the presentation in court of evidence of
corpus delicti.

The pieces of evidence found in the records amply demonstrate that all the
elements of the crimes charged were satisfied. The lower courts gave credence to the
prosecution witnesses' testimonies, which established the guilt of accused-appellant
for the crimes charged beyond reasonable doubt. The testimonies — particularly those
of the police officers involved, which both the RTC and the CA found credible — are
now beyond question. As the Court ruled in Aparis v. People: 12

As to the question of credibility of the police officers who served as

principal witnesses for the prosecution, settled is the rule that prosecutions
involving illegal drugs depend largely on the credibility of the police officers
who conducted the buy-bust operation. It is a fundamental rule that findings of
the trial courts which are factual in nature and which involve credibility are
accorded respect when no glaring errors; gross misapprehension of facts; or
speculative, arbitrary, and unsupported conclusions can be gathered from such
findings. The reason for this is that the trial court is in a better position to decide
the credibility of witnesses, having heard their testimonies and observed their
deportment and manner of testifying during the trial. The rule finds an even
more stringent application where said findings are sustained by the Court of
Appeals, as in the present case.

Moreover, accused-appellant's defense of denial, without substantial evidence

to support it, cannot overcome the presumption of regularity of the police officers'
performance of official functions. Thus, the Court ruled in People v. Llamado: 13

In cases involving violations of Dangerous Drugs Act, credence should

be given to the narration of the incident by the prosecution witnesses especially
when they are police officers who are presumed to have performed their duties
in a regular manner, unless there be evidence to the contrary. Moreover, in the
absence of proof of motive to falsely impute such a serious crime against
the appellant, the presumption of regularity in the performance of official
duty, as well as the findings of the trial court on the credibility of witnesses,
shall prevail over appellant's self-serving and uncorroborated denial.
(Emphasis supplied.)

Contrary to accused-appellant's challenge to the validity of the buy-bust

operation, the Court categorically stated in Quinicot v. People that a prior surveillance
or test buy is not required for a valid buy-bust operation, as long as the operatives are
accompanied by their informant, thus:

Settled is the rule that the absence of a prior surveillance or test buy
does not affect the legality of the buy-bust operation. There is no textbook
method of conducting buy-bust operations. The Court has left to the discretion
of police authorities the selection of effective means to apprehend drug dealers.
A prior surveillance, much less a lengthy one, is not necessary, especially where
the police operatives are accompanied by their informant during the entrapment.
Flexibility is a trait of good police work. We have held that when time is of the
essence, the police may dispense with the need for prior surveillance. In the
instant case, having been accompanied by the informant to the person who
was peddling the dangerous drugs, the policemen need not have conducted
 any prior surveillance before they undertook the buy-bust operation. 14
(Emphasis supplied.)

Furthermore, accused-appellant's contention that the buy-bust team should

have procured a search warrant for the validity of the buy-bust operation is misplaced.
The Court had the occasion to address this issue in People v. Doria: 15 AICEDc

We also hold that the warrantless arrest of accused-appellant Doria is not

unlawful. Warrantless arrests are allowed in three instances as provided by
Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit:

"Sec. 5. Arrest without warrant; when lawful. — A peace officer

or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit an
offense;

(b) When an offense has in fact just been committed, and he has

personal knowledge of facts indicating that the person to be arrested has
committed it; and

(c) When the person to be arrested is a prisoner who escaped

from a penal establishment or place where he is serving final judgment
or temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another."

Under Section 5 (a), as above-quoted, a person may be arrested without

a warrant if he "has committed, is actually committing, or is attempting to
commit an offense." Appellant Doria was caught in the act of committing an
offense. When an accused is apprehended in flagrante delicto as a result of a
buy-bust operation, the police are not only authorized but duty-bound to arrest
him even without a warrant.

The Court reiterated such ruling in People v. Agulay: 16

Accused-appellant contends his arrest was illegal, making the sachets of

shabu allegedly recovered from him inadmissible in evidence. Accused-
appellant's claim is devoid of merit for it is a well-established rule that an arrest
made after an entrapment operation does not require a warrant inasmuch as it is
considered a valid "warrantless arrest," in line with the provisions of Rule 113,
Section 5(a) of the Revised Rules of Court, to wit:

Section 5. Arrest without warrant; when lawful. — A peace

officer or a private person may, without a warrant, arrest a person:
 (a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense.

A buy-bust operation is a form of entrapment which in recent years has

been accepted as a valid and effective mode of apprehending drug pushers. In a
buy-bust operation, the idea to commit a crime originates from the offender,
without anybody inducing or prodding him to commit the offense. If carried out
with due regard for constitutional and legal safeguards, a buy-bust operation
deserves judicial sanction.

Second Issue:
The chain of custody of the seized drug was unbroken
Accused-appellant contends that the arresting officers did not comply with the
requirements for the handling of seized dangerous drugs as provided for under Sec. 21
(1) of RA 9165: TCaEAD

Section 21. Custody and Disposition of Confiscated, Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. — The PDEA shall take charge and have custody of all
dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition in
the following manner:

(1) The apprehending team having initial custody and control of

the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy
thereof; (Emphasis supplied.)

In particular, accused-appellant argues that:

While the marking of the specimen was done in the place of incident by
MADAC operative Soriano, the inventory of the item was done at Cluster 4.
There was no photograph made of the plastic sachet in the presence of the
accused, media, any elected local official, or the DOJ representatives, in clear
violation of Section 21, R.A. No. 9165. 17
 Based on such alleged failure of the buy-bust team to comply with the
procedural requirements of Sec. 21, RA 9165, accused-appellant posits that he should,
therefore, be acquitted. Such reasoning is flawed.
In People v. Rosialda, 18 the Court addressed the issue of chain of custody of
dangerous drugs, citing People v. Rivera, as follows:

Anent the second element, Rosialda raises the issue that there is a
violation of Sec. 21, Art. II of RA 9165, particularly the requirement that the
alleged dangerous drugs seized by the apprehending officers be photographed
"in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel." Rosialda argues
that such failure to comply with the provision of the law is fatal to his
conviction.

This contention is untenable.

The Court made the following enlightening disquisition on this matter in

People v. Rivera:

The procedure to be followed in the custody and handling of seized

dangerous drugs is outlined in Section 21, paragraph 1, Article II of Republic
Act No. 9165 which stipulates:

(1) The apprehending team having initial custody and control of

the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy
thereof. 

The same is implemented by Section 21(a), Article II of the

Implementing Rules and Regulations of Republic Act No. 9165, viz.: cACEHI

(a) The apprehending team having initial custody and control of

the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy
thereof: Provided, further, that non-compliance with these
requirements under justifiable grounds, as long as the integrity and
the evidentiary value of the seized items are properly preserved by
 the apprehending officer/team, shall not render void and invalid
such seizures of and custody over said items.

The failure of the prosecution to show that the police officers

conducted the required physical inventory and photograph of the evidence
confiscated pursuant to said guidelines, is not fatal and does not
automatically render accused-appellant's arrest illegal or the items
seized/confiscated from him inadmissible. Indeed, the implementing rules
offer some flexibility when a proviso added that 'non-compliance with these
requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such seizures of
and custody over said items.' The same provision clearly states as well, that it
must still be shown that there exists justifiable grounds and proof that the
integrity and evidentiary value of the evidence have been preserved.

This Court can no longer find out what justifiable reasons existed, if any,
since the defense did not raise this issue during trial. Be that as it may, this
Court has explained in People v. Del Monte that what is of utmost
importance is the preservation of the integrity and evidentiary value of the
seized items, as the same would be utilized in the determination of the guilt
or innocence of the accused. The existence of the dangerous drug is a
condition sine qua non for conviction for the illegal sale of dangerous drugs.
The dangerous drug itself constitutes the very corpus delicti of the crime and the
fact of its existence is vital to a judgment of conviction. Thus, it is essential that
the identity of the prohibited drug be established beyond doubt. The chain of
custody requirement performs the function of ensuring that the integrity and
evidentiary value of the seized items are preserved, so much so that unnecessary
doubts as to the identity of the evidence are removed.

To be admissible, the prosecution must show by records or

testimony, the continuous whereabouts of the exhibit at least between the
time it came into possession of the police officers and until it was tested in
the laboratory to determine its composition up to the time it was offered in
evidence. (Emphasis supplied.)

Here, accused-appellant does not question the unbroken chain of evidence. His
only contention is that the buy-bust team did not inventory and photograph the
specimen on site and in the presence of accused-appellant or his counsel, a
representative from the media and the Department of Justice, and any elected public
official. However, as ruled by the Court in Rosialda, as long as the chain of custody
remains unbroken, even though the procedural requirements provided for in Sec. 21 of
RA 9165 was not faithfully observed, the guilt of the accused will not be affected.
And as aptly ruled by the CA, the chain of custody in the instant case was not
broken as established by the facts proved during trial, thus:
 Lastly, the contention of appellant, that the police officers failed to
comply with the provisions of paragraph 1, Section 21 of R.A. No. 9165 for the
proper procedure in the custody and disposition of the seized drugs, is
untenable. Record shows that Serrano marked the confiscated sachet of shabu in
the presence of appellant at the place of incident and was turned over properly
to the investigating officer together with the marked buy-bust money.
Afterwards, the confiscated plastic sachet suspected to be containing "shabu"
was brought to the forensic chemist for examination. Likewise, the members of
the buy-bust team executed their "Pinagsanib na Salaysay sa Pag-aresto"
immediately after the arrest and at the trial, Serrano positively identified the
seized drugs. Indeed, the prosecution evidence had established the unbroken
chain of custody of the seized drugs from the buy-bust team, to the investigating
officer and to the forensic chemist. Thus, there is no doubt that the prohibited
drug presented before the court a quo was the one seized from appellant and that
indeed, he committed the crimes imputed against him.

WHEREFORE, the appeal is DENIED. The CA's August 28, 2009 Decision in
CA-G.R. CR-H.C. No. 03273 is hereby AFFIRMED IN TOTO. SCaDAE

No costs.

SO ORDERED.

Corona, C.J., Leonardo-de Castro, Del Castillo and Perez, JJ., concur.

(People v. Manlangit y Tresballes, G.R. No. 189806, [January 12, 2011], 654 PHIL
|||

427-443)

EN BANC

[G.R. No. 197930. April 17, 2018.]

EFRAIM C. GENUINO, ERWIN F. GENUINO and SHERYL G.

SEE, petitioners, vs. HON. LEILA M. DE LIMA, in her capacity as
Secretary of Justice, and RICARDO V. PARAS III, in his capacity as
Chief State Counsel, CRISTINO L. NAGUIAT, JR. and the
BUREAU OF IMMIGRATION, respondents.

[G.R. No. 199034. April 17, 2018.]

MA. GLORIA MACAPAGAL-ARROYO, petitioner, vs. HON.

LEILA M. DE LIMA, as Secretary of the Department of Justice and
 RICARDO A. DAVID, JR., as Commissioner of the Bureau of
Immigration, respondents.

[G.R. No. 199046. April 17, 2018.]

JOSE MIGUEL T. ARROYO, petitioner, vs. HON. LEILA M. DE

LIMA, as Secretary of the Department of Justice and RICARDO V.
PARAS III, as Chief State Counsel, Department of Justice and
RICARDO A. DAVID, JR., in his capacity as Commissioner, Bureau
of Immigration, respondents.

DECISION

REYES, JR., J : p

These consolidated Petitions for Certiorari and Prohibition with Prayer for the
Issuance of Temporary Restraining Orders (TRO) and/or Writs of Preliminary
Injunction under Rule 65 of the Rules of Court assail the constitutionality of
Department of Justice (DOJ) Circular No. 41, series of 2010, otherwise known as the
"Consolidated Rules and Regulations Governing Issuance and Implementation of
Hold Departure Orders, Watchlist Orders and Allow Departure Orders," on the
ground that it infringes on the constitutional right to travel.
CAIHTE

Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek to annul
and set aside the following orders issued by the former DOJ Secretary Leila De Lima
(De Lima), pursuant to DOJ Circular No. 41, thus:
1. Watchlist Order No. ASM-11-237 dated August 9, 2011; 1
2. Amended Watchlist Order No. 2011-422 dated September 6, 2011; 2 and
3. Watchlist Order No. 2011-573 dated October 27, 2011. 3
In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA) further
seeks the invalidation of the Order 4 dated November 8, 2011, denying her application
for an Allow-Departure Order (ADO).
Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino (Efraim), Erwin
F. Genuino (Erwin) and Sheryl Genuino-See (Genuinos) pray for the nullification of
the Hold-Departure Order 5 (HDO) No. 2011-64 dated July 22, 2011 issued against
them.

Antecedent Facts
 On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ
Circular No. 17, prescribing rules and regulations governing the issuance of HDOs.
The said issuance was intended to restrain the indiscriminate issuance of HDOs which
impinge on the people's right to travel.
On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued DOJ
Circular No. 18, prescribing rules and regulations governing the issuance and
implementation of watchlist orders. In particular, it provides for the power of the DOJ
Secretary to issue a Watchlist Order (WLO) against persons with criminal cases
pending preliminary investigation or petition for review before the DOJ. Further, it
states that the DOJ Secretary may issue an ADO to a person subject of a WLO who
intends to leave the country for some exceptional reasons. 6 Even with the
promulgation of DOJ Circular No. 18, however, DOJ Circular No. 17 remained the
governing rule on the issuance of HDOs by the DOJ.
On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued the
assailed DOJ Circular No. 41, consolidating DOJ Circular Nos. 17 and 18, which will
govern the issuance and implementation of HDOs, WLOs, and ADOs. Section 10 of
DOJ Circular No. 41 expressly repealed all rules and regulations contained in DOJ
Circular Nos. 17 and 18, as well as all instructions, issuances or orders or parts thereof
which are inconsistent with its provisions.
After the expiration of GMA's term as President of the Republic of the
Philippines and her subsequent election as Pampanga representative, criminal
complaints were filed against her before the DOJ, particularly:
(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria
Macapagal-Arroyo, et al., for plunder; 7
(b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria
Macapagal-Arroyo, et al., for plunder, malversation and/or illegal use of
OWWA funds, graft and corruption, violation of the Omnibus Election Code
(OEC), violation of the Code of Conduct and Ethical Standards for Public
Officials, and qualified theft; 8 and
(c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria Macapagal-
Arroyo, et al., for plunder, malversation, and/or illegal use of public funds,
graft and corruption, violation of the OEC, violation of the Code of Conduct
and Ethical Standards for Public Officials and qualified theft. 9
In view of the foregoing criminal complaints, De Lima issued DOJ WLO No.
2011-422 dated August 9, 2011 against GMA pursuant to her authority under DOJ
Circular No. 41. She also ordered for the inclusion of GMA's name in the Bureau of
Immigration (BI) watchlist. 10 Thereafter, the BI issued WLO No. ASM-11-237, 11
implementing De Lima's order.
On September 6, 2011, De Lima issued DOJ Amended WLO No. 2011-422
against GMA to reflect her full name "Ma. Gloria M. Macapagal-Arroyo" in the BI
Watchlist. 12 WLO No. 2011-422, as amended, is valid for a period of 60 days, or
until November 5, 2011, unless sooner terminated or otherwise extended. This was
lifted in due course by De Lima, in an Order dated November 14, 2011, following the
expiration of its validity. 13
Meanwhile, on October 20, 2011, two criminal complaints for Electoral
Sabotage and Violation of the OEC were filed against GMA and her husband, Jose
Miguel Arroyo (Miguel Arroyo), among others, with the DOJ-Commission on
Elections (DOJ-COMELEC) Joint Investigation Committee on 2004 and 2007
Election Fraud, 14 specifically:
(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact
Finding Team vs. Gloria Macapagal-Arroyo, et al., (for the Province of
Maguindanao), for electoral sabotage/violation of the OEC and COMELEC
Rules and Regulations; 15 and
(b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel III vs.
Gloria Macapagal-Arroyo, et al., for electoral sabotage. 16
Following the filing of criminal complaints, De Lima issued DOJ WLO No.
2011-573 against GMA and Miguel Arroyo on October 27, 2011, with a validity
period of 60 days, or until December 26, 2011, unless sooner terminated or otherwise
extended. 17 DETACa

In three separate letters dated October 20, 2011, October 21, 2011, and October
24, 2011, GMA requested for the issuance of an ADO, pursuant to Section 7 of DOJ
Circular No. 41, so that she may be able to seek medical attention from medical
specialists abroad for her hypoparathyroidism and metabolic bone mineral disorder.
She mentioned six different countries where she intends to undergo consultations and
treatments: United States of America, Germany, Singapore, Italy, Spain and Austria.
18 She likewise undertook to return to the Philippines, once her treatment abroad is
completed, and participate in the proceedings before the DOJ. 19 In support of her
application for ADO, she submitted the following documents, viz.:
1. Second Endorsement dated September 16, 2011 of Speaker Feliciano
Belmonte, Jr. to the Secretary of Foreign Affairs, of her Travel Authority;
2. First Endorsement dated October 19, 2011 20 of Artemio A. Adasa, OIC
Secretary General of the House of Representatives, to the Secretary of Foreign
Affairs, amending her Travel Authority to include travel to Singapore, Spain
and Italy;
3. Affidavit dated October 21, 2011, 21 stating the purpose of travel to
Singapore, Germany and Austria;
4. Medical Abstract dated October 22, 2011, 22 signed by Dr. Roberto
Mirasol (Dr. Mirasol);
5. Medical Abstract dated October 24, 2011, 23 signed by Dr. Mario Ver;
 6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and Associates,
detailing the schedule of consultations with doctors in Singapore.
To determine whether GMA's condition necessitates medical attention abroad,
the Medical Abstract prepared by Dr. Mirasol was referred to then Secretary of the
Department of Health, Dr. Enrique Ona (Dr. Ona) for his expert opinion as the chief
government physician. On October 28, 2011, Dr. Ona, accompanied by then
Chairperson of the Civil Service Commission, Francisco Duque, visited GMA at her
residence in La Vista Subdivision, Quezon City. Also present at the time of the visit
were GMA's attending doctors who explained her medical condition and the surgical
operations conducted on her. After the visit, Dr. Ona noted that "Mrs. Arroyo is
recuperating reasonably well after having undergone a series of three major
operations." 24
On November 8, 2011, before the resolution of her application for ADO, GMA
filed the present Petition for Certiorari and Prohibition under Rule 65 of the Rules of
Court with Prayer for the Issuance of a TRO and/or Writ of Preliminary Injunction,
docketed as G.R. No. 199034, to annul and set aside DOJ Circular No. 41 and WLOs
issued against her for allegedly being unconstitutional. 25
A few hours thereafter, Miguel Arroyo filed a separate Petition for Certiorari
and Prohibition under the same rule, with Prayer for the Issuance of a TRO and/or a
Writ of Preliminary Injunction, likewise assailing the constitutionality of DOJ
Circular No. 41 and WLO No. 2011-573. His petition was docketed as G.R. No.
199046. 26
Also, on November 8, 2011, De Lima issued an Order, 27 denying GMA's
application for an ADO, based on the following grounds:
First, there appears to be discrepancy on the medical condition of the
applicant as stated in her affidavit, on the other hand, and the medical abstract
of the physicians as well as her physician's statements to Secretary Ona during
the latter's October 28, 2011 visit to the Applicant, on the other.
xxx xxx xxx
Second, based on the medical condition of Secretary Ona, there
appears to be no urgent and immediate medical emergency situation for
Applicant to seek medical treatment abroad. x x x.
xxx xxx xxx
Third, Applicant lists several countries as her destination, some of
which were not for purposes of medical consultation, but for attending
conferences. x x x.
xxx xxx xxx
Fourth, while the Applicant's undertaking is to return to the
Philippines upon the completion of her medical treatment, this means that her
 return will always depend on said treatment, which, based on her presentation
of her condition, could last indefinitely. x x x.
xxx xxx xxx
Fifth, x x x. Applicant has chosen for her destination five (5)
countries, namely, Singapore, Germany, Austria, Spain and Italy, with which
the Philippines has no existing extradition treaty. x x x.
xxx xxx xxx
IN VIEW OF THE FOREGOING, the application for an Allow
Departure Order (ADO) of Congresswoman MA. GLORIA M.
MACAPAGAL-ARROYO is hereby DENIED for lack of merit.
SO ORDERED. 28
On November 9, 2011, De Lima, together with her co-respondents, Ricardo V.
Paras, III, Chief State Counsel of the DOJ and Ricardo A. David, Jr., who was then BI
Commissioner, (respondents) filed a Very Urgent Manifestation and Motion 29 in
G.R. Nos. 199034 and 199046, praying (1) that they be given a reasonable time to
comment on the petitions and the applications for a TRO and/or writ of preliminary
injunction before any action on the same is undertaken by the Court; (2) that the
applications for TRO and/or writ of preliminary injunction be denied for lack of merit,
and; (3) that the petitions be set for oral arguments after the filing of comments
thereto. 30
On November 13, 2011, GMA filed a Supplemental Petition 31 which included
a prayer to annul and set aside the Order dated November 8, 2011, denying her
application for ADO. On the following day, GMA filed her Comment/Opposition 32
to the respondents' Very Urgent Manifestation and Motion dated November 9, 2011,
in G.R. No. 199034.
On November 15, 2011, the Court issued Resolution, 33 ordering the
consolidation of G.R. Nos. 199034 and 199046, and requiring the respondents to file
their comment thereto not later than November 18, 2011. The Court likewise resolved
to issue a TRO in the consolidated petitions, enjoining the respondents from enforcing
or implementing DOJ Circular No. 41 and WLO Nos. ASM-11-237 dated August 9,
2011, 2011-422 dated September 6, 2011, and 2011-573 dated October 27, 2011,
subject to the following conditions, to wit:
(i) The petitioners shall post a cash bond of Two Million Pesos
(P2,000,000.00) payable to this Court within five (5) days from notice hereof.
Failure to post the bond within the aforesaid period will result in the automatic
lifting of the temporary restraining order;aDSIHc

(ii) The petitioners shall appoint a legal representative common to both of

them who will receive subpoena, orders and other legal processes on their
behalf during their absence. The petitioners shall submit the name of the legal
representative, also within five (5) days from notice hereof; and
 (iii) If there is a Philippine embassy or consulate in the place where they will
be traveling, the petitioners shall inform said embassy or consulate by
personal appearance or by phone of their whereabouts at all times; 34
On the very day of the issuance of the TRO, the petitioners tendered their
compliance 35 with the conditions set forth in the Resolution dated November 15,
2011 of the Court and submitted the following: (1) a copy of Official Receipt No.
0030227-SC-EP, showing the payment of the required cash bond of Two Million
Pesos (P2,000,000.00); 36 (2) certification from the Fiscal and Management and
Budget Office of the Supreme Court, showing that the cash bond is already on file
with the office; 37 (3) special powers of attorney executed by the petitioners,
appointing their respective lawyers as their legal representatives; 38 and (4) an
undertaking to report to the nearest consular office in the countries where they will
travel. 39
At around 8:00 p.m. on the same day, the petitioners proceeded to the Ninoy
Aquino International Airport (NAIA), with an aide-de-camp and a private nurse, to
take their flights to Singapore. However, the BI officials at NAIA refused to process
their travel documents which ultimately resulted to them not being able to join their
flights. 40
On November 17, 2011, GMA, through counsel, filed an Urgent Motion 41 for
Respondents to Cease and Desist from Preventing Petitioner GMA from Leaving the
Country. She strongly emphasized that the TRO issued by the Court was immediately
executory and that openly defying the same is tantamount to gross disobedience and
resistance to a lawful order of the Court. 42 Not long after, Miguel Arroyo followed
through with an Urgent Manifestation, 43 adopting and repleading all the allegations
in GMA's motion.
On November 16, 2011, the respondents filed a Consolidated Urgent Motion
for Reconsideration and/or to Lift TRO, 44 praying that the Court reconsider and set
aside the TRO issued in the consolidated petitions until they are duly heard on the
merits. In support thereof, they argue that the requisites for the issuance of a TRO and
writ of preliminary injunction were not established by the petitioners. To begin with,
the petitioners failed to present a clear and mistakable right which needs to be
protected by the issuance of a TRO. While the petitioners anchor their right in esse on
the right to travel under Section 6, Article III of the 1987 Constitution, the said right is
not absolute. One of the limitations on the right to travel is DOJ Circular No. 41,
which was issued pursuant to the rule-making powers of the DOJ in order to keep
individuals under preliminary investigation within the jurisdiction of the Philippine
criminal justice system. With the presumptive constitutionality of DOJ Circular No.
41, the petitioners cannot claim that they have a clear and unmistakable right to leave
the country as they are the very subject of the mentioned issuance. 45 Moreover, the
issuance of a TRO will effectively render any judgment on the consolidated petitions
moot and academic. No amount of judgment can recompense the irreparable injury
that the state is bound to suffer if the petitioners are permitted to leave the Philippine
jurisdiction. 46
On November 18, 2011, the Court issued a Resolution, 47 requiring De Lima
to show cause why she should not be disciplinarily dealt with or held in contempt of
court for failure to comply with the TRO. She was likewise ordered to immediately
comply with the TRO by allowing the petitioners to leave the country. At the same
time, the Court denied the Consolidated Urgent Motion for Reconsideration and/or to
Lift TRO dated November 16, 2011 filed by the Office of the Solicitor General. 48
On even date, the COMELEC, upon the recommendation of the Joint DOJ-
COMELEC Preliminary Investigation Committee, filed an information for the crime
of electoral sabotage under Section 43 (b) of Republic Act (R.A.) No. 9369 against
GMA, among others, before the Regional Trial Court (RTC) of Pasay City, which was
docketed as R-PSY-11-04432-CR 49 and raffled to Branch 112. A warrant of arrest
for GMA was forthwith issued.
Following the formal filing of an Information in court against GMA, the
respondents filed an Urgent Manifestation with Motion to Lift TRO. 50 They argue
that the filing of the information for electoral sabotage against GMA is a supervening
event which warrants the lifting of the TRO issued by this Court. They asseverate that
the filing of the case vests the trial court the jurisdiction to rule on the disposition of
the case. The issue therefore on the validity of the assailed WLOs should properly be
raised and threshed out before the RTC of Pasay City where the criminal case against
GMA is pending, to the exclusion of all other courts. 51
Also, on November 18, 2011, the COMELEC issued a Resolution, dismissing
the complaint for violation of OEC and electoral sabotage against Miguel Arroyo,
among others, which stood as the basis for the issuance of WLO No. 2011-573.
Conformably, the DOJ issued an Order dated November 21, 2011, 52 lifting WLO
No. 2011-573 against Miguel Arroyo and ordering for the removal of his name in the
BI watchlist.
Thereafter, the oral arguments on the consolidated petitions proceeded as
scheduled on November 22, 2011, despite requests from the petitioners' counsels for
an earlier date. Upon the conclusion of the oral arguments on December 1, 2011, the
parties were required to submit their respective memoranda. 53
Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22, 2011 54
was issued against Genuinos, among others, after criminal complaints for
Malversation, as defined under Article 217 of the Revised Penal Code (RPC), and
Violation of Sections 3 (e), (g), (h) and (i) of R.A. No. 3019 were filed against them
by the Philippine Amusement and Gaming Corporation (PAGCOR), through its
Director, Eugene Manalastas, with the DOJ on June 14, 2011, for the supposed
diversion of funds for the film "Baler." This was followed by the filing of another
complaint for Plunder under R.A. No. 7080, Malversation under Article 217 of the
RPC and Violation of Section 3 of R.A. No. 3019, against the same petitioners, as
well as members and incorporators of BIDA Production, Inc. Wildformat, Inc. and
Pencil First, Inc., for allegedly siphoning off PAGCOR funds into the coffers of
BIDA entities. Another complaint was thereafter filed against Efraim and Erwin was
filed before the Office of the Ombudsman for violation of R.A. No. 3019 for allegedly
releasing PAGCOR funds intended for the Philippine Sports Commission directly to
the Philippine Amateur Swimming Association, Inc. 55 In a Letter 56 dated July 29,
2011 addressed to Chief State Counsel Ricardo Paras, the Genuinos, through counsel,
requested that the HDO against them be lifted. This plea was however denied in a
Letter 57 dated August 1, 2011 which prompted the institution of the present petition
by the Genuinos. In a Resolution 58 dated April 21, 2015, the Court consolidated the
said petition with G.R. Nos. 199034 and 199046.
The Court, after going through the respective memoranda of the parties and
their pleadings, sums up the issues for consideration as follows:

WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL REVIEW;

II

WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR NO.
41; and

III

WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ SECRETARY

GUILTY OF CONTEMPT OF COURT. ETHIDa

Ruling of the Court

The Court may exercise its power of

judicial review despite the filing of
information for electoral sabotage
against GMA

It is the respondents' contention that the present petitions should be dismissed

for lack of a justiciable controversy. They argue that the instant petitions had been
rendered moot and academic by (1) the expiration of the WLO No. 422 dated August
9, 2011, as amended by the Order dated September 6, 2011; 59 (2) the filing of an
information for electoral sabotage against GMA, 60 and; (3) the lifting of the WLO
No. 2011-573 dated November 14, 2011 against Miguel Arroyo and the subsequent
deletion of his name from the BI watchlist after the COMELEC en banc dismissed the
case for electoral sabotage against him. 61
The power of judicial review is articulated in Section 1, Article VIII of the
1987 Constitution which reads:
Section 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. 62
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or controversy
calling for the exercise of judicial power; (2) the person challenging the act must have
the standing to question the validity of the subject act or issuance; otherwise stated, he
must have a personal and substantial interest in the case such that he has sustained, or
will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case. 63
Except for the first requisite, there is no question with respect to the existence
of the three (3) other requisites. Petitioners have the locus standi to initiate the
petition as they claimed to have been unlawfully subjected to restraint on their right to
travel owing to the issuance of WLOs against them by authority of DOJ Circular No.
41. Also, they have contested the constitutionality of the questioned issuances at the
most opportune time.
The respondents, however, claim that the instant petitions have become moot
and academic since there is no longer any actual case or controversy to resolve
following the subsequent filing of an information for election sabotage against GMA
on November 18, 2011 and the lifting of WLO No. 2011-573 against Miguel Arroyo
and the deletion of his name from the BI watchlist after the dismissal of the complaint
for electoral sabotage against him.
To be clear, "an actual case or controversy involves a conflict of legal right, an
opposite legal claims susceptible of judicial resolution. It is definite and concrete,
touching the legal relations of parties having adverse legal interest; a real and
substantial controversy admitting of specific relief." 64 When the issues have been
resolved or when the circumstances from which the legal controversy arose no longer
exist, the case is rendered moot and academic. "A moot and academic case is one that
ceases to present a justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value." 65
The Court believes that the supervening events following the filing of the
instant petitions, while may have seemed to moot the instant petitions, will not
preclude it from ruling on the constitutional issues raised by the petitioners. The
Court, after assessing the necessity and the invaluable gain that the members of the
bar, as well as the public may realize from the academic discussion of the
constitutional issues raised in the petition, resolves to put to rest the lingering
constitutional questions that abound the assailed issuance. This is not a novel
occurrence as the Court, in a number of occasions, took up cases up to its conclusion
notwithstanding claim of mootness.
In Evelio Javier vs. The Commission on Elections, 66 the Court so
emphatically stated, thus:
The Supreme Court is not only the highest arbiter of legal questions
but also the conscience of the government. The citizen comes to us in quest of
law but we must also give him justice. The two are not always the same.
There are times when we cannot grant the latter because the issue has been
settled and decision is no longer possible according to the law. But there are
also times when although the dispute has disappeared, as in this case, it
nevertheless cries out to be resolved. Justice demands that we act then, not
only for the vindication of the outraged right, though gone, but also for the
guidance of and as a restraint upon the future. 67
In Prof. David vs. Pres. Macapagal-Arroyo, 68 the Court proceeded in ruling
on the constitutionality of Presidential Proclamation (PP) No. 1017 in which GMA
declared a state of national emergency, and General Order No. 5 (G.O. No. 5), which
ordered the members of the Armed Forces of the Philippines and the Philippine
National Police to carry all necessary actions to suppress acts of terrorism and lawless
violence, notwithstanding the issuance of PP 1021 lifting both issuances. The Court
articulated, thus:
The Court holds that President Arroyo's issuance of PP 1021 did not
render the present petitions moot and academic. During the eight (8) days that
PP 1017 was operative, the police officers, according to petitioners,
committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These are
the vital issues that must be resolved in the present petitions. It must be
stressed that unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal contemplation,
inoperative.
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the
 paramount public interest is involved; third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and
the public; and fourth, the case is capable of repetition yet evading review. 69
(Citations omitted and emphasis supplied)
In the instant case, there are exceptional circumstances that warrant the Court's
exercise of its power of judicial review. The petitioners impute the respondents of
violating their constitutional right to travel through the enforcement of DOJ Circular
No. 41. They claim that the issuance unnecessarily places a restraint on the right to
travel even in the absence of the grounds provided in the Constitution. cSEDTC

There is also no question that the instant petitions involved a matter of public
interest as the petitioners are not alone in this predicament and there can be several
more in the future who may be similarly situated. It is not far fetched that a similar
challenge to the constitutionality of DOJ Circular No. 41 will recur considering the
thousands of names listed in the watch list of the DOJ, who may brave to question the
supposed illegality of the issuance. Thus, it is in the interest of the public, as well as
for the education of the members of the bench and the bar, that this Court takes up the
instant petitions and resolves the question on the constitutionality of DOJ Circular No.
41.

The Constitution is inviolable and

supreme of all laws

We begin by emphasizing that the Constitution is the fundamental, paramount

and supreme law of the nation; it is deemed written in every statute and contract. 70 If
a law or an administrative rule violates any norm of the Constitution, that issuance is
null and void and has no effect.
The Constitution is a testament to the living democracy in this jurisdiction. It
contains the compendium of the guaranteed rights of individuals, as well as the
powers granted to and restrictions imposed on government officials and
instrumentalities. It is that lone unifying code, an inviolable authority that demands
utmost respect and obedience.
The more precious gifts of democracy that the Constitution affords us are
enumerated in the Bill of Rights contained in Article III. In particular, Section 1
thereof provides:
Section 1.  No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
The guaranty of liberty does not, however, imply unbridled license for an
individual to do whatever he pleases, for each is given an equal right to enjoy his
liberties, with no one superior over another. Hence, the enjoyment of one's liberties
must not infringe on anyone else's equal entitlement.
 Surely, the Bill of Rights operates as a protective cloak under which the
individual may assert his liberties. Nonetheless, "the Bill of Rights itself does not
purport to be an absolute guaranty of individual rights and liberties. Even liberty
itself, the greatest of all rights, is not unrestricted license to act according to one's will.
It is subject to the far more overriding demands and requirements of the greater
number." 71
It is therefore reasonable that in order to achieve communal peace and public
welfare, calculated limitations in the exercise of individual freedoms are necessary.
Thus, in many significant provisions, the Constitution itself has provided for
exceptions and restrictions to balance the free exercise of rights with the equally
important ends of promoting common good, public order and public safety.
The state's exercise of police power is also well-recognized in this jurisdiction
as an acceptable limitation to the exercise of individual rights. In Philippine
Association of Service Exporters, Inc. vs. Drilon, 72 it was defined as the inherent and
plenary power in the State which enables it to prohibit all things hurtful to the
comfort, safety, and welfare of society. It is rooted in the conception that men in
organizing the state and imposing upon its government limitations to safeguard
constitutional rights did not intend thereby to enable an individual citizen or a group
of citizens to obstruct unreasonably the enactment of such salutary measures
calculated to ensure communal peace, safety, good order, and welfare. 73
Still, it must be underscored that in a constitutional government like ours,
liberty is the rule and restraint the exception. 74 Thus, restrictions in the exercise of
fundamental liberties are heavily guarded against so that they may not unreasonably
interfere with the free exercise of constitutional guarantees.

The right to travel and its limitations

The right to travel is part of the "liberty" of which a citizen cannot be deprived
without due process of law. 75 It is part and parcel of the guarantee of freedom of
movement that the Constitution affords its citizen. Pertinently, Section 6, Article III of
the Constitution provides:
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest of
national security, public safety or public health, as may be provided by law.
Liberty under the foregoing clause includes the right to choose one's residence,
to leave it whenever he pleases and to travel wherever he wills. 76 Thus, in Zacarias
Villavicencio vs. Justo Lucban, 77 the Court held illegal the action of the Mayor of
Manila in expelling women who were known prostitutes and sending them to Davao
in order to eradicate vices and immoral activities proliferated by the said subjects. It
was held that regardless of the mayor's laudable intentions, no person may compel
another to change his residence without being expressly authorized by law or
regulation.
It is apparent, however, that the right to travel is not absolute. There are
constitutional, statutory and inherent limitations regulating the right to travel. Section
6 itself provides that the right to travel may be impaired only in the interest of national
security, public safety or public health, as may be provided by law. In Silverio vs.
Court of Appeals, 78 the Court elucidated, thus:
Article III, Section 6 of the 1987 Constitution should be interpreted to
mean that while the liberty of travel may be impaired even without Court
Order, the appropriate executive officers or administrative authorities are not
armed with arbitrary discretion to impose limitations. They can impose limits
only on the basis of "national security, public safety, or public health" and
"as may be provided by law," a limitive phrase which did not appear in the
1973 text (The Constitution, Bernas, Joaquin G., S.J., Vol. I, First Edition,
1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a
reaction to the ban on international travel imposed under the previous regime
when there was a Travel Processing Center, which issued certificates of
eligibility to travel upon application of an interested party. 79 (Emphasis ours)
Clearly, under the provision, there are only three considerations that may
permit a restriction on the right to travel: national security, public safety or public
health. As a further requirement, there must be an explicit provision of statutory law
or the Rules of Court 80 providing for the impairment. The requirement for a
legislative enactment was purposely added to prevent inordinate restraints on the
person's right to travel by administrative officials who may be tempted to wield
authority under the guise of national security, public safety or public health. This is in
keeping with the principle that ours is a government of laws and not of men and also
with the canon that provisions of law limiting the enjoyment of liberty should be
construed against the government and in favor of the individual. 81 SDAaTC

The necessity of a law before a curtailment in the freedom of movement may

be permitted is apparent in the deliberations of the members of the Constitutional
Commission. In particular, Fr. Joaquin Bernas, in his sponsorship speech, stated thus:
On Section 5, in the explanation on page 6 of the annotated provisions,
it says that the phrase "and changing the same" is taken from the 1935
version; that is, changing the abode. The addition of the phrase WITHIN THE
LIMITS PRESCRIBED BY LAW ensures that, whether the rights be
impaired on order of a court or without the order of a court, the impairment
must be in accordance with the prescriptions of law; that is, it is not left to the
discretion of any public officer. 82
It is well to remember that under the 1973 Constitution, the right to travel is
compounded with the liberty of abode in Section 5 thereof, which reads:
Section 5, 1973 Constitution: The liberty of abode and of travel shall
not, be impaired except upon lawful order of the court, or when necessary in
 the interest of national security, public safety, or public health. (Emphasis
ours)
The provision, however, proved inadequate to afford protection to ordinary
citizens who were subjected to "hamletting" under the Marcos regime. 83 Realizing
the loophole in the provision, the members of the Constitutional Commission agreed
that a safeguard must be incorporated in the provision in order to avoid this unwanted
consequence. Thus, the Commission meticulously framed the subject provision in
such a manner that the right cannot be subjected to the whims of any administrative
officer. In addressing the loophole, they found that requiring the authority of a law
most viable in preventing unnecessary intrusion in the freedom of movement, viz.:
MR. NOLLEDO. x x x
   My next question is with respect to Section 5, lines 8 to 12 of page 2. It says
here that the liberty of abode shall not be impaired except upon lawful
order of the court or — underscoring the word "or" — when necessary
in the interest of national security, public safety or public health. So, in
the first part, there is the word "court"; in the second part, it seems that
the question rises as to who determines whether it is in the interest of
national security, public safety, or public health. May it be determined
merely by administrative authorities?
FR. BERNAS.
   The understanding we have of this is that, yes, it may be determined by
administrative authorities provided that they act, according to line 9,
within the limits prescribed by law. For instance when this thing came
up; what was in mind were passport officers. If they want to deny a
passport on the first instance, do they have to go to court? The position
is, they may deny a passport provided that the denial is based on the
limits prescribed by law. The phrase "within the limits prescribed by
law" is something which is added here. That did not exist in the old
provision. 84
During the discussions, however, the Commission realized the necessity of
separating the concept of liberty of abode and the right to travel in order to avoid
untoward results. Ultimately, distinct safeguards were laid down which will protect
the liberty of abode and the right to travel separately, viz.:
MR. TADEO.
   Mr. Presiding Officer, anterior amendment on Section 5, page 2, line 11.
Iminumungkahi kong alisin iyong mga salitang nagmumula sa "or"
upang maiwasan natin ang walang pakundangang paglabag sa liberty of
abode sa ngalan ng national security at pagsasagawa ng "hamletting" ng
kung sinu-sino na lamang. Kapag inalis ito, maisasagawa lamang ang
"hamletting" upon lawful order of the court. x x x.
xxx xxx xxx
MR. RODRIGO.
   Aside from that, this includes the right to travel?
FR. BERNAS.
   Yes.
MR. RODRIGO.
   And there are cases when passports may not be granted or passports already
granted may be cancelled. If the amendment is approved, then passports
may not be cancelled unless it is ordered by the court. Is that the
intention? x x x
FR. BERNAS.
   Yes
MR. RODRIGO.
   But another right is involved here and that is to travel.
SUSPENSION OF SESSION
FR. BERNAS.
   Mr. Presiding Officer, may I request a suspension so that we can separate the
liberty of abode and or changing the same from the right to travel,
because they may necessitate different provisions.
THE PRESIDING OFFICER (Mr. Bengzon).
   The session is suspended. acEHCD

xxx xxx xxx

RESUMPTION OF SESSION
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Bengzon).
   The session is resumed. Commissioner Bernas is recognized.
FR. BERNAS.
   The proposal is amended to read:
   "The liberty of abode and of changing the same within the limits prescribed
by law, shall not be impaired except upon lawful order of the court.
NEITHER SHALL THE RIGHT TO TRAVEL BE IMPAIRED
EXCEPT IN THE INTEREST OF NATIONAL SECURITY, PUBLIC
SAFETY, OR PUBLIC HEALTH AS MAY BE PROVIDED BY LAW.
THE PRESIDING OFFICER (Mr. Bengzon).
The Committee has accepted the amendment, as amended. Is there any
objection? (Silence) The Chair hears none; the amendment, as amended,
is approved. 85
 It is clear from the foregoing that the liberty of abode may only be impaired by
a lawful order of the court and, on the one hand, the right to travel may only be
impaired by a law that concerns national security, public safety or public health.
Therefore, when the exigencies of times call for a limitation on the right to travel, the
Congress must respond to the need by explicitly providing for the restriction in a law.
This is in deference to the primacy of the right to travel, being a constitutionally-
protected right and not simply a statutory right, that it can only be curtailed by a
legislative enactment.
Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M.
Drilon, 86 the Court upheld the validity of the Department Order No. 1, Series of
1988, issued by the Department of Labor and Employment, which temporarily
suspended the deployment of domestic and household workers abroad. The measure
was taken in response to escalating number of female workers abroad who were
subjected to exploitative working conditions, with some even reported physical and
personal abuse. The Court held that Department Order No. 1 is a valid
implementation of the Labor Code, particularly, the policy to "afford protection to
labor." Public safety considerations justified the restraint on the right to travel.
Further, in Leave Division, Office of the Administrative Services (OAS)-Office
of the Court Administrator (OCA) vs. Wilma Salvation P. Heusdens, 87 the Court
enumerated the statutes which specifically provide for the impairment of the right to
travel, viz.:
Some of these statutory limitations [to the right to travel] are the following:
1] The Human Security Act of 2010 or [R.A.] No. 9372. The law restricts the
right to travel of an individual charged with the crime of terrorism even
though such person is out on bail.
2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said
law, the Secretary of Foreign Affairs or his authorized consular officer may
refuse the issuance of, restrict the use of, or withdraw, a passport of a Filipino
citizen.
3] The "Anti-Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant
to the provisions thereof, the [BI], in order to manage migration and curb
trafficking in persons, issued Memorandum Order Radir No. 2011-011,
allowing its Travel Control and Enforcement Unit to "offload passengers with
fraudulent travel documents, doubtful purpose of travel, including possible
victims of human trafficking" from our ports.
4] The Migrant Workers and Overseas Filipinos Act of 1995 or R.A. No.
8042, as amended by R.A. No. 10022. In enforcement of said law, the
Philippine Overseas Employment Administration (POEA) may refuse to issue
deployment permit to a specific country that effectively prevents our migrant
workers to enter such country.
 5] The Act on Violence against Women and Children or R.A. No. 9262. The
law restricts movement of an individual against whom the protection order is
intended.
6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the
Inter-Country Adoption Board may issue rules restrictive of an adoptee's right
to travel "to protect the Filipino child from abuse, exploitation, trafficking
and/or sale or any other practice in connection with adoption which is
harmful, detrimental, or prejudicial to the child." 88
In any case, when there is a dilemma between an individual claiming the
exercise of a constitutional right vis-à-vis the state's assertion of authority to restrict
the same, any doubt must, at all times, be resolved in favor of the free exercise of the
right, absent any explicit provision of law to the contrary.

The issuance of DOJ Circular No. 41

has no legal basis

Guided by the foregoing disquisition, the Court is in quandary of identifying

the authority from which the DOJ believed its power to restrain the right to travel
emanates. To begin with, there is no law particularly providing for the authority of the
secretary of justice to curtail the exercise of the right to travel, in the interest of
national security, public safety or public health. As it is, the only ground of the former
DOJ Secretary in restraining the petitioners, at that time, was the pendency of the
preliminary investigation of the Joint DOJ-COMELEC Preliminary Investigation
Committee on the complaint for electoral sabotage against them. 89
To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment
which underwent the scrutiny and concurrence of lawmakers, and submitted to the
President for approval. It is a mere administrative issuance apparently designed to
carry out the provisions of an enabling law which the former DOJ Secretary believed
to be Executive Order (E.O.) No. 292, otherwise known as the "Administrative Code
of 1987." She opined that DOJ Circular No. 41 was validly issued pursuant to the
agency's rule-making powers provided in Sections 1 and 3, Book IV, Title III, Chapter
1 of E.O. No. 292 and Section 50, Chapter 11, Book IV of the mentioned Code.
Indeed, administrative agencies possess quasi-legislative or rule-making
powers, among others. It is the "power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute and the doctrine
of non-delegability and separability of powers." 90 In the exercise of this power, the
rules and regulations that administrative agencies promulgate should be within the
scope of the statutory authority granted by the legislature to the administrative
agency. It is required that the regulation be germane to the objects and purposes of the
law, and be not in contradiction to, but in conformity with, the standards prescribed
by law. They must conform to and be consistent with the provisions of the enabling
statute in order for such rule or regulation to be valid. 91SDHTEC
 It is, however, important to stress that before there can even be a valid
administrative issuance, there must first be a showing that the delegation of legislative
power is itself valid. It is valid only if there is a law that (a) is complete in itself,
setting forth therein the policy to be executed, carried out, or implemented by the
delegate; and (b) fixes a standard the limits of which are sufficiently determinate and
determinable to which the delegate must conform in the performance of his functions.
92
A painstaking examination of the provisions being relied upon by the former
DOJ Secretary will disclose that they do not particularly vest the DOJ the authority to
issue DOJ Circular No. 41 which effectively restricts the right to travel through the
issuance of WLOs and HDOs. Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O.
No. 292 reads:
Section 1. Declaration of Policy. — It is the declared policy of the
State to provide the government with a principal law agency which shall be
both its legal counsel and prosecution arm; administer the criminal justice
system in accordance with the accepted processes thereof consisting in the
investigation of the crimes, prosecution of offenders and administration of
the correctional system; implement the laws on the admission and stay of
aliens, citizenship, land titling system, and settlement of land problems
involving small landowners and member of indigenous cultural minorities;
and provide free legal services to indigent members of the society.
xxx xxx xxx
Section 3. Powers and Functions. — to accomplish its mandate, the
Department shall have the following powers and functions:
(1) Act as principal law agency of the government and as legal counsel
and representative thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and
administer the probation and correction system;
xxx xxx xxx
(6) Provide immigration and naturalization regulatory services and
implement the laws governing citizenship and the admission and
stay of aliens;
(7) Provide legal services to the national government and its
functionaries, including government-owned and controlled
corporations and their subsidiaries;
(8) Such other functions as may be provided by law. (Emphasis
supplied)
A plain reading of the foregoing provisions shows that they are mere general
provisions designed to lay down the purposes of the enactment and the broad
enumeration of the powers and functions of the DOJ. In no way can they be
interpreted as a grant of power to curtail a fundamental right as the language of the
provision itself does not lend to that stretched construction. To be specific, Section 1
is simply a declaration of policy, the essence of the law, which provides for the
statement of the guiding principle, the purpose and the necessity for the enactment.
The declaration of policy is most useful in statutory construction as an aid in the
interpretation of the meaning of the substantive provisions of the law. It is preliminary
to the substantive portions of the law and certainly not the part in which the more
significant and particular mandates are contained. The suggestion of the former DOJ
Secretary that the basis of the issuance of DOJ Circular No. 41 is contained in the
declaration of policy of E.O. No. 292 not only defeats logic but also the basic style of
drafting a decent piece of legislation because it supposes that the authors of the law
included the operative and substantive provisions in the declaration of policy when its
objective is merely to introduce and highlight the purpose of the law.
Succinctly, "a declaration of policy contained in a statute is, like a preamble,
not a part of the substantive portions of the act. Such provisions are available for
clarification of ambiguous substantive portions of the act, but may not be used to
create ambiguity in other substantive provisions." 93
In the same way, Section 3 does not authorize the DOJ to issue WLOs and
HDOs to restrict the constitutional right to travel. There is even no mention of the
exigencies stated in the Constitution that will justify the impairment. The provision
simply grants the DOJ the power to investigate the commission of crimes and
prosecute offenders, which are basically the functions of the agency. However, it does
not carry with it the power to indiscriminately devise all means it deems proper in
performing its functions without regard to constitutionally-protected rights. The
curtailment of a fundamental right, which is what DOJ Circular No. 41 does, cannot
be read into the mentioned provision of the law. Any impairment or restriction in the
exercise of a constitutional right must be clear, categorical and unambiguous. For the
rule is that:
Constitutional and statutory provisions control with respect to what
rules and regulations may be promulgated by an administrative body, as well
as with respect to what fields are subject to regulation by it. It may not make
rules and regulations which are inconsistent with the provisions of the
Constitution or a statute, particularly the statute it is administering or which
created it, or which are in derogation of, or defeat, the purpose of a statute. 94
The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No. 292,
which simply provides for the types of issuances that administrative agencies, in
general, may issue. It does not speak of any authority or power but rather a mere
clarification on the nature of the issuances that may be issued by a secretary or head
of agency. The innocuous provision reads as follows:
Section 50. General Classification of Issuances. — The administrative
issuances of Secretaries and heads of bureaus, offices and agencies shall be in
the form of circulars or orders.
 (1) Circulars shall refer to issuance prescribing policies, rules and
regulations, and procedures promulgated pursuant to law, applicable to
individuals and organizations outside the Government and designed to
supplement provisions of the law or to provide means for carrying them out,
including information relating thereto; and
(2) Orders shall refer to issuances directed to particular offices, officials, or
employees, concerning specific matters including assignments, detail and
transfer of personnel, for observance or compliance by all concerned.
(Emphasis Ours)
In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O. 292 cited
in the memorandum of the former DOJ Secretary cannot justify the restriction on the
right to travel in DOJ Circular No. 41. The memorandum particularly made reference
to Subsections 3, 4 and 9 which state:
Section 7. Powers and Functions of the Secretary. — The Secretary shall:
(1) Advise the President in issuing executive orders, regulations, proclamations
and other issuances, the promulgation of which is expressly vested by
law in the President relative to matters under the jurisdiction of the
Department; AScHCD

(2) Establish the policies and standards for the operation of the Department
pursuant to the approved programs of governments;
(3) Promulgate rules and regulations necessary to carry out department
objectives, policies, functions, plans, programs and projects;
(4) Promulgate administrative issuances necessary for the efficient
administration of the offices under the Secretary and for proper
execution of the laws relative thereto. These issuances shall not
prescribe penalties for their violation, except when expressly
authorized by law;
xxx xxx xxx
(9) Perform such other functions as may be provided by law. (Emphasis Ours)
It is indisputable that the secretaries of government agencies have the power to
promulgate rules and regulations that will aid in the performance of their functions.
This is adjunct to the power of administrative agencies to execute laws and does not
require the authority of a law. This is, however, different from the delegated
legislative power to promulgate rules of government agencies.
The considered opinion of Mr. Justice Carpio in Abakada Guro Party List
(formerly AASJS), et al. vs. Hon. Purisima, et al. 95 is illuminating:
The inherent power of the Executive to adopt rules and regulations to
execute or implement the law is different from the delegated legislative power
to prescribe rules. The inherent power of the Executive to adopt rules to
execute the law does not require any legislative standards for its exercise
 while the delegated legislative power requires sufficient legislative standards
for its exercise.
xxx xxx xxx
Whether the rule-making power by the Executive is a delegated
legislative power or an inherent Executive power depends on the nature of the
rule-making power involved. If the rule-making power is inherently a
legislative power, such as the power to fix tariff rates, the rule-making power
of the Executive is a delegated legislative power. In such event, the delegated
power can be exercised only if sufficient standards are prescribed in the law
delegating the power.
If the rules are issued by the President in implementation or execution
of self-executory constitutional powers vested in the President, the rule-
making power of the President is not a delegated legislative power. x x x. The
rule is that the President can execute the law without any delegation of power
from the legislature. Otherwise, the President becomes a mere figure-head and
not the sole Executive of the Government. 96
The questioned circular does not come under the inherent power of the
executive department to adopt rules and regulations as clearly the issuance of HDO
and WLO is not the DOJ's business. As such, it is a compulsory requirement that there
be an existing law, complete and sufficient in itself, conferring the expressed authority
to the concerned agency to promulgate rules. On its own, the DOJ cannot make rules,
its authority being confined to execution of laws. This is the import of the terms
"when expressly provided by law" or "as may be provided by law" stated in Sections
7 (4) and 7 (9), Chapter 2, Title III, Book IV of E.O. 292. The DOJ is confined to
filling in the gaps and the necessary details in carrying into effect the law as enacted.
97 Without a clear mandate of an existing law, an administrative issuance is ultra
vires.
Consistent with the foregoing, there must be an enabling law from which DOJ
Circular No. 41 must derive its life. Unfortunately, all of the supposed statutory
authorities relied upon by the DOJ did not pass the completeness test and sufficient
standard test. The DOJ miserably failed to establish the existence of the enabling law
that will justify the issuance of the questioned circular.
That DOJ Circular No. 41 was intended to aid the department in realizing its
mandate only begs the question. The purpose, no matter how commendable, will not
obliterate the lack of authority of the DOJ to issue the said issuance. Surely, the DOJ
must have the best intentions in promulgating DOJ Circular No. 41, but the end will
not justify the means. To sacrifice individual liberties because of a perceived good is
disastrous to democracy. In Association of Small Landowners in the Philippines, Inc.
vs. Secretary of Agrarian Reform, 98 the Court emphasized:
One of the basic principles of the democratic system is that where the
rights of the individual are concerned, the end does not justify the means. It is
 not enough that there be a valid objective; it is also necessary that the means
employed to pursue it be in keeping with the Constitution. Mere expediency
will not excuse constitutional shortcuts. There is no question that not even the
strongest moral conviction or the most urgent public need, subject only to a
few notable exceptions, will excuse the bypassing of an individual's rights. It
is no exaggeration to say that a person invoking a right guaranteed under
Article III of the Constitution is a majority of one even as against the rest of
the nation who would deny him that right. 99
The DOJ would however insist that the resulting infringement of liberty is
merely incidental, together with the consequent inconvenience, hardship or loss to the
person being subjected to the restriction and that the ultimate objective is to preserve
the investigative powers of the DOJ and public order. 100 It posits that the issuance
ensures the presence within the country of the respondents during the preliminary
investigation. 101 Be that as it may, no objective will ever suffice to legitimize
desecration of a fundamental right. To relegate the intrusion as negligible in view of
the supposed gains is to undermine the inviolable nature of the protection that the
Constitution affords.
Indeed, the DOJ has the power to investigate the commission of crimes and
prosecute offenders. Its zealousness in pursuing its mandate is laudable but more
admirable when tempered by fairness and justice. It must constantly be reminded that
in the hierarchy of rights, the Bill of Rights takes precedence over the right of the
State to prosecute, and when weighed against each other, the scales of justice tilt
towards the former. 102 Thus, in Allado vs. Diokno, 103 the Court declared, viz.:
The sovereign power has the inherent right to protect itself and its
people from vicious acts which endanger the proper administration of justice;
hence, the State has every right to prosecute and punish violators of the law.
This is essential for its self-preservation, nay, its very existence. But this does
not confer a license for pointless assaults on its citizens. The right of the State
to prosecute is not a carte blanche for government agents to defy and
disregard the rights of its citizens under the Constitution. 104
The DOJ stresses the necessity of the restraint imposed in DOJ Circular No. 41
in that to allow the petitioners, who are under preliminary investigation, to exercise an
untrammelled right to travel, especially when the risk of flight is distinctly high will
surely impede the efficient and effective operation of the justice system. The absence
of the petitioners, it asseverates, would mean that the farthest criminal proceeding
they could go would be the filing of the criminal information since they cannot be
arraigned in absentia. 105
The predicament of the DOJ is understandable yet untenable for relying on
grounds other what is permitted within the confines of its own power and the nature
of preliminary investigation itself. The Court, in Paderanga vs. Drilon, 106 made a
clarification on the nature of a preliminary investigation, thus:
 A preliminary investigation is x x x an inquiry or proceeding for the
purpose of determining whether there is sufficient ground to engender a well
founded belief that a crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty thereof, and should be
held for trial. x x x A preliminary investigation is not the occasion for the full
and exhaustive display of the parties' evidence; it is for the presentation of
such evidence only as may engender a well grounded belief that an offense
has been committed and that the accused is probably guilty thereof. 107 AcICHD

It bears emphasizing that the conduct of a preliminary investigation is an

implement of due process which essentially benefits the accused as it accords an
opportunity for the presentation of his side with regard to the accusation. 108 The
accused may, however, opt to waive his presence in the preliminary investigation. In
any case, whether the accused responds to a subpoena, the investigating prosecutor
shall resolve the complaint within 10 days after the filing of the same.
The point is that in the conduct of a preliminary investigation, the presence of
the accused is not necessary for the prosecutor to discharge his investigatory duties. If
the accused chooses to waive his presence or fails to submit countervailing evidence,
that is his own lookout. Ultimately, he shall be bound by the determination of the
prosecutor on the presence of probable cause and he cannot claim denial of due
process.
The DOJ therefore cannot justify the restraint in the liberty of movement
imposed by DOJ Circular No. 41 on the ground that it is necessary to ensure presence
and attendance in the preliminary investigation of the complaints. There is also no
authority of law granting it the power to compel the attendance of the subjects of a
preliminary investigation, pursuant to its investigatory powers under E.O. No. 292. Its
investigatory power is simply inquisitorial and, unfortunately, not broad enough to
embrace the imposition of restraint on the liberty of movement.
That there is a risk of flight does not authorize the DOJ to take the situation
upon itself and draft an administrative issuance to keep the individual within the
Philippine jurisdiction so that he may not be able to evade criminal prosecution and
consequent liability. It is an arrogation of power it does not have; it is a usurpation of
function that properly belongs to the legislature.
Without a law to justify its action, the issuance of DOJ Circular No. 41 is an
unauthorized act of the DOJ of empowering itself under the pretext of dire exigency
or urgent necessity. This action runs afoul the separation of powers between the three
branches of the government and cannot be upheld. Even the Supreme Court, in the
exercise of its power to promulgate rules is limited in that the same shall not diminish,
increase, or modify substantive rights. 109 This should have cautioned the DOJ,
which is only one of the many agencies of the executive branch, to be more
scrutinizing in its actions especially when they affect substantive rights, like the right
to travel.
 The DOJ attempts to persuade this Court by citing cases wherein the
restrictions on the right to travel were found reasonable, i.e., New York v. O'Neill, 110
Kwong vs. Presidential Commission on Good Government 111 and PASEI.
It should be clear at this point that the DOJ cannot rely on PASEI to support its
position for the reasons stated earlier in this disquisition. In the same manner, Kant
Kwong is not an appropriate authority since the Court never ruled on the
constitutionality of the authority of the PCGG to issue HDOs in the said case. On the
contrary, there was an implied recognition of the validity of the PCGG's Rules and
Regulations as the petitioners therein even referred to its provisions to challenge the
PCGG's refusal to lift the HDOs issued against them despite the lapse of the period of
its effectivity. The petitioners never raised any issue as to the constitutionality of
Section 2 of the PCGG Rules and Regulations but only questioned the agency's non-
observance of the rules particularly on the lifting of HDOs. This is strikingly different
from the instant case where the main issue is the constitutionality of the authority of
the DOJ Secretary to issue HDOs under DOJ Circular No. 41.
Similarly, the pronouncement is New York does not lend support to the
respondents' case. In the said case, the respondent therein questioned the
constitutionality of a Florida statute entitled "Uniform Law to Secure the Attendance
of Witnesses from Within or Without a State in Criminal Proceedings," under which
authority a judge of the Court of General Sessions, New York County requested the
Circuit Court of Dade County, Florida, where he was at that time, that he be given
into the custody of New York authorities and be transported to New York to testify in
a grand jury proceeding. The US Supreme Court upheld the constitutionality of the
law, ruling that every citizen, when properly summoned, has the obligation to give
testimony and the same will not amount to violation of the freedom to travel but, at
most, a mere temporary interference. The clear deviation of the instant case from New
York is that in the latter case there is a law specifically enacted to require the
attendance of the respondent to court proceedings to give his testimony, whenever it is
needed. Also, after the respondent fulfils his obligation to give testimony, he is
absolutely free to return in the state where he was found or to his state of residence, at
the expense of the requesting state. In contrast, DOJ Circular No. 41 does not have an
enabling law where it could have derived its authority to interfere with the exercise of
the right to travel. Further, the respondent is subjected to continuing restraint in his
right to travel as he is not allowed to go until he is given, if he will ever be given, an
ADO by the secretary of justice.

The DOJ cannot issue DOJ Circular

No. 41 under the guise of police
power

The DOJ's reliance on the police power of the state cannot also be
countenanced. Police power pertains to the "state authority to enact legislation that
may interfere with personal liberty or property in order to promote the general
welfare." 112 "It may be said to be that inherent and plenary power in the State which
enables it to prohibit all things hurtful to the comfort, safety, and welfare of society."
113 Verily, the exercise of this power is primarily lodged with the legislature but may
be wielded by the President and administrative boards, as well as the lawmaking
bodies on all municipal levels, including the barangay, by virtue of a valid delegation
of power. 114
It bears noting, however, that police power may only be validly exercised if (a)
the interests of the public generally, as distinguished from those of a particular class,
require the interference of the State, and (b) the means employed are reasonably
necessary to the attainment of the object sought to be accomplished and not unduly
oppressive upon individuals. 115
On its own, the DOJ cannot wield police power since the authority pertains to
Congress. Even if it claims to be exercising the same as the alter ego of the President,
it must first establish the presence of a definite legislative enactment evidencing the
delegation of power from its principal. This, the DOJ failed to do. There is likewise
no showing that the curtailment of the right to travel imposed by DOJ Circular No. 41
was reasonably necessary in order for it to perform its investigatory duties.
In any case, the exercise of police power, to be valid, must be reasonable and
not repugnant to the Constitution. 116 It must never be utilized to espouse actions that
violate the Constitution. Any act, however noble its intentions, is void if it violates the
Constitution. 117 In the clear language of the Constitution, it is only in the interest of
national security, public safety and public health that the right to travel may be
impaired. None one of the mentioned circumstances was invoked by the DOJ as its
premise for the promulgation of DOJ Circular No. 41. TAIaHE

DOJ Circular No. 41 transcends

constitutional limitations

Apart from lack of legal basis, DOJ Circular No. 41 also suffers from other
serious infirmities that render it invalid. The apparent vagueness of the circular as to
the distinction between a HDO and WLO is violative of the due process clause. An
act that is vague "violates due process for failure to accord persons, especially the
parties targeted by it, fair notice of the conduct to avoid and leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of
the Government muscle." 118 Here, the distinction is significant as it will inform the
respondents of the grounds, effects and the measures they may take to contest the
issuance against them. Verily, there must be a standard by which a HDO or WLO
may be issued, particularly against those whose cases are still under preliminary
investigation, since at that stage there is yet no criminal information against them
which could have warranted the restraint.
 Further, a reading of the introductory provisions of DOJ Circular No. 41 shows
that it emanates from the DOJ's assumption of powers that is not actually conferred to
it. In one of the whereas clauses of the issuance, it was stated, thus:
WHEREAS, while several Supreme Court circulars, issued through the
Office of the Court Administrator, clearly state that "[HDO] shall be issued
only in criminal cases within the exclusive jurisdiction of the [RTCs]," said
circulars are, however, silent with respect to cases falling within the
jurisdiction of courts below the RTC as well as those pending determination
by government prosecution offices;
Apparently, the DOJ's predicament which led to the issuance of DOJ Circular
No. 41 was the supposed inadequacy of the issuances of this Court pertaining to
HDOs, the more pertinent of which is SC Circular No. 39-97. 119 It is the DOJ's
impression that with the silence of the circular with regard to the issuance of HDOs in
cases falling within the jurisdiction of the MTC and those still pending investigation,
it can take the initiative in filling in the deficiency. It is doubtful, however, that the
DOJ Secretary may undertake such action since the issuance of HDOs is an exercise
of this Court's inherent power "to preserve and to maintain the effectiveness of its
jurisdiction over the case and the person of the accused." 120 It is an exercise of
judicial power which belongs to the Court alone, and which the DOJ, even as the
principal law agency of the government, does not have the authority to wield.
Moreover, the silence of the circular on the matters which are being addressed
by DOJ Circular No. 41 is not without good reasons. Circular No. 39-97 was
specifically issued to avoid indiscriminate issuance of HDOs resulting to the
inconvenience of the parties affected as the same could amount to an infringement on
the right and liberty of an individual to travel. Contrary to the understanding of the
DOJ, the Court intentionally held that the issuance of HDOs shall pertain only to
criminal cases within the exclusive jurisdiction of the RTC, to the exclusion of
criminal cases falling within the jurisdiction of the MTC and all other cases. The
intention was made clear with the use of the term "only." The reason lies in seeking
equilibrium between the state's interest over the prosecution of the case considering
the gravity of the offense involved and the individual's exercise of his right to travel.
Thus, the circular permits the intrusion on the right to travel only when the criminal
case filed against the individual is within the exclusive jurisdiction of the RTC, or
those that pertains to more serious crimes or offenses that are punishable with
imprisonment of more than six years. The exclusion of criminal cases within the
jurisdiction of the MTC is justified by the fact that they pertain to less serious
offenses which is not commensurate with the curtailment of a fundamental right.
Much less is the reason to impose restraint on the right to travel of respondents of
criminal cases still pending investigation since at that stage no information has yet
been filed in court against them. It is for these reasons that Circular No. 39-97
mandated that HDO may only be issued in criminal cases filed with the RTC and
withheld the same power from the MTC.
 Remarkably, in DOJ Circular No. 41, the DOJ Secretary went overboard by
assuming powers which have been withheld from the lower courts in Circular No. 39-
97. In the questioned circular, the DOJ Secretary may issue HDO against the accused
in criminal cases within the jurisdiction of the MTC 121 and against defendants,
respondents and witnesses in labor or administrative cases, 122 no matter how
unwilling they may be. He may also issue WLO against accused in criminal cases
pending before the RTC, 123 therefore making himself in equal footing with the RTC,
which is authorized by law to issue HDO in the same instance. The DOJ Secretary
may likewise issue WLO against respondents in criminal cases pending preliminary
investigation, petition for review or motion for reconsideration before the DOJ. 124
More striking is the authority of the DOJ Secretary to issue a HDO or WLO motu
proprio, even in the absence of the grounds stated in the issuance if he deems
necessary in the interest of national security, public safety or public health. 125
It bears noting as well that the effect of the HDO and WLO in DOJ Circular
No. 41 is too obtrusive as it remains effective even after the lapse of its validity period
as long as the DOJ Secretary does not approve the lifting or cancellation of the same.
Thus, the respondent continually suffers the restraint in his mobility as he awaits a
favorable indorsement of the government agency that requested for the issuance of the
HDO or WLO and the affirmation of the DOJ Secretary even as the HDO or WLO
against him had become functus officio with its expiration.
It did not also escape the attention of the Court that the DOJ Secretary has
authorized himself to permit a person subject of HDO or WLO to travel through the
issuance of an ADO upon showing of "exceptional reasons" to grant the same. The
grant, however, is entirely dependent on the sole discretion of the DOJ Secretary
based on his assessment of the grounds stated in the application.
The constitutional violations of DOJ Circular No. 41 are too gross to brush
aside particularly its assumption that the DOJ Secretary's determination of the
necessity of the issuance of HDO or WLO can take the place of a law that authorizes
the restraint in the right to travel only in the interest of national security, public safety
or public health. The DOJ Secretary has recognized himself as the sole authority in
the issuance and cancellation of HDO or WLO and in the determination of the
sufficiency of the grounds for an ADO. The consequence is that the exercise of the
right to travel of persons subject of preliminary investigation or criminal cases in
court is indiscriminately subjected to the discretion of the DOJ Secretary.
This is precisely the situation that the 1987 Constitution seeks to avoid — for
an executive officer to impose restriction or exercise discretion that unreasonably
impair an individual's right to travel — thus, the addition of the phrase, "as may be
provided by law" in Section 6, Article III thereof. In Silverio, the Court underscored
that this phraseology in the 1987 Constitution was a reaction to the ban on
international travel imposed under the previous regime when there was a Travel
Processing Center, which issued certificates of eligibility to travel upon application of
an interested party. 126 The qualifying phrase is not a mere innocuous appendage. It
secures the individual the absolute and free exercise of his right to travel at all times
unless the more paramount considerations of national security, public safety and
public health call for a temporary interference, but always under the authority of a
law.

The subject WLOs and the restraint

on the right to travel.

In the subject WLOs, the illegal restraint on the right to travel was subtly
incorporated in the wordings thereof. For better illustration, the said WLOs are hereby
reproduced as follows: cDHAES

WLO No. ASM-11-237 127

(Watchlist)
In re: GLORIA M. MACAPAGAL-ARROYO
ORDER
On 09 August 2011, Hon. Leila M. De Lima, Secretary of the
Department of Justice issued an order docketed as Watchlist Order No. 2011-
422 directing the Bureau of Immigration to include the name GLORIA M.
MACAPAGAL-ARROYO in the Bureau's Watchlist.
It appears that GLORIA M. MACAPAGAL-ARROYO is the
subject of an investigation by the Department of Justice in connection with the
following cases:

Docket No. Title of the Case Offense/s Charged

XVI-INV-10H- Danilo A. Lihaylihay Plunder

00251 vs. Gloria Macapagal-
Arroyo

XVIX-INV-11D- Francisco I. Chavez vs. Plunder,

00170 Gloria Macapagal- Malversation and/or
Arroyo Illegal use of
OWWA Funds, Graft
and Corruption,
Violation of The
Omnibus Election
Code, Violation of
the Code of Ethical
Standards for Public
Officials, and
Qualified Theft
 XVI-INV-11F- Francisco I. Chavez vs. Plunder,
00238 Gloria Macapagal- Malversation and/or
Arroyo, Jocelyn "Joc- Illegal use of Public
Joc" Bolante, Ibarra Funds, Graft and
Poliquit, et al. Corruption, Violation
of The Omnibus
Election Code,
Violation of the Code
of Ethical Standards
for Public Officials,
and Qualified Theft

Based on the foregoing and pursuant to Department of Justice

Circular No. 41 (Consolidated Rules and Regulations Governing the Issuance
and Implementation of Hold Departure Orders, Watchlist Orders, and Allow
Departure Orders) dated 25 May 2010, we order the inclusion of the name
GLORIA M. MACAPAGAL-ARROYO in the Watchlist.
This watchlist shall be valid for sixty (60) days unless sooner revoked
or extended.
The Airport Operation Division and Immigration Regulation Division
Chiefs shall implement this Order.
Notify the Computer Section.
SO ORDERED.
09 August 2011 (Emphasis ours)
Watchlist Order No. 2011-422 128
In re: Issuance of Watchlist
Order against MA. GLORIA M.
MACAPAGAL-ARROYO
AMENDED ORDER
Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an
investigation by this Department in connection with the following cases: TCAScE

Docket No. Title of the Case Offense/s Charged

XVI-INV-10H- Danilo A. Lihaylihay Plunder

00251 versus Gloria
Macapagal-Arroyo

XVIX-INV-11D- Francisco I. Chavez Plunder,

00170 versus Gloria Malversation and/or
Macapagal-Arroyo Illegal Use of
OWWA Funds, Graft
 and Corruption,
Violation of the
Omnibus Election
Code, Violation of
the Code of Ethical
Standards for Public
Officials, and
Qualified Theft

XVI-INV-11F- Francisco I. Chavez Plunder,

00238 versus Gloria Malversation and/or
Macapagal-Arroyo, Illegal Use of Public
Jocelyn "Joc-Joc" Funds, Graft and
Bolante, Ibarra Corruption, Violation
Poliquit, et al. of the Omnibus
Election Code,
Violation of the Code
of Ethical Standards
for Public Officials,
and Qualified Theft

Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated

May 25, 2010 (Consolidated Rules and Regulations Governing the Issuance
and Implementation of Hold Departure Orders, Watchlist Orders, and Allow
Departure Orders), the undersigned hereby motu proprio issues a Watchlist
Order against Ma. Gloria M. Macapagal-Arroyo.
Accordingly, the Commissioner of Immigration, Manila, is hereby
ordered to INCLUDE in the Bureau of Immigration's Watchlist the name of
Ma. Gloria M. Macapagal-Arroyo.
Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period of
sixty (60) days from issuance unless sooner terminated or extended.
SO ORDERED.
City of Manila, September 6, 2011. (Emphasis ours)
Watchlist Order (WLO)
No. 2011-573 129
IN RE: Issuance of WLO against
BENJAMIN ABALOS, SR., et al.
ORDER
Pursuant to Section 2(c) of Department Circular No. 41 dated May
25, 2010 (Consolidated Rules and Regulations Governing the Issuance and
Implementation of Hold Departure Orders, Watchlist Orders, and Allow
 Departure Orders), after careful evaluation, finds the Application for the
Issuance of WLO against the following meritorious;
xxx xxx xxx
12. MA. GLORIA M. MACAPAGAL-ARROYO
Address: Room MB-2, House of Representatives
Quezon City
xxx xxx xxx
 

Ground for WLO Issuance: Pendency of the case,

entitled "DOJ-COMELEC
Fact Finding Committee v.
Benjamin Abalos Sr., et
al.," for Electoral
Sabotage/Omnibus Election
Code docketed as DOJ-
COMELEC Case No. 001-
2011

1. MA. GLORIA M. MACAPAGAL-ARROYO

Address: Room MB-2, House of Representatives
Quezon City
2. JOSE MIGUEL TUASON ARROYO
Address: L.T.A. Bldg. 118 Perea St.
Makati City
xxx xxx xxx

Ground for WLO Issuance: Pendency of the case,

entitled "Aquilino Pimentel
III v. Gloria Macapagal-
Arroyo, et al.," for Electoral
Sabotage docketed as DOJ-
COMELEC Case No. 002-
2011.

Accordingly, the Commissioner of Immigration, Manila, is hereby

ordered to INCLUDE in the Bureau of Immigration's Watchlist, the names of
the above-named persons.
This Order is valid for a period of sixty (60) days from the date of its
issuance unless sooner terminated or otherwise extended.
SO ORDERED.
On the other hand, HDO No. 2011-64 issued against the petitioners in G.R. No.
197930 pertinently states:
 Hold Departure Order (HDO)
No. 2011-64 130
In re: Issuance of HDO against
EFRAIM C. GENUINO, ET AL.
ORDER
After a careful evaluation of the application, including the documents
attached thereto, for the issuance of Hold Departure Order (HDO) against the
above-named persons filed pursuant to this Department's Circular (D.C.) No.
41 (Consolidated Rules and Regulations Governing the Issuance and
Implementation of Hold Departure Orders, Watchlist Orders, and Allow
Departure Orders) dated May 25, 2010, we find the application meritorious.
Accordingly, the Commissioner of Immigration, Manila, is hereby
ordered to INCLUDE in the Bureau of Immigration's Watchlist the names of
EFRAIM C. GENUINO, SHERYLL F. GENUINO-SEE, ERWIN F.
GENUINO, RAFAEL "BUTCH" A. FRANCISCO, EDWARD "DODIE" F.
KING, RENE C. FIGUEROA, ATTY. CARLOS R. BAUTISTA, JR.,
EMILIO "BOYET" B. MARCELO, RODOLFO SORIANO, JR., AND
JOHNNY G. TAN. cTDaEH

Name: EFRAIM C. GENUINO

Nationality: Filipino

Last known address: No. 42 Lapu Lapu Street,

Magallanes Village, Makati
City

Ground for HDO Issuance: Malversation, Violation of the

Anti-Graft and Corrupt
Practices Act, Plunder

Details of the Case: Pending before the National

Prosecution Service,
Department of Justice (NPS
Docket No. XV-INV-11F-
00229)

  Pending before the Office of

the Ombudsman

  (Case No. CPL-C-11-1297)

  Pending before the National

Prosecution Service,
 Department of Justice

  (I.S. No. XVI-INV-11G-

00248)

   

Name: SHERYLL F. GENUINO-SEE

Nationality: Filipino

Last known address: No. 32-a Paseo Parkview,

Makati City

Ground for HDO Issuance: Malversation, Violation of the

Anti-Graft and Corrupt
Practices Act, Plunder

Details of the Case: Pending before the National

Prosecution Service,
Department of Justice

  (I.S. No. XVI-INV-11G-

00248)

   

Name: ERWIN F. GENUINO

Nationality: Filipino

Last known address: No. 5 J.P. Rizal Extension,

COMEMBO, Makati City

Ground for HDO Issuance: Malversation, Violation of the

Anti-Graft and Corrupt
Practices Act, Plunder

Details of the Case: Pending before the National

Prosecution Service,
Department of Justice (NPS
Docket No. XV-INV-11F-
00229)

  Pending before the National

Prosecution Service,
 Department of Justice

  (I.S. No. XVI-INV-11G-

00248)

xxx xxx xxx

Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period of
five (5) years unless sooner terminated.
SO ORDERED. (Emphasis ours)
On its face, the language of the foregoing issuances does not contain an
explicit restraint on the right to travel. The issuances seemed to be a mere directive
from to the BI officials to include the named individuals in the watchlist of the
agency. Noticeably, however, all of the WLOs contained a common reference to DOJ
Circular No. 41, where the authority to issue the same apparently emanates, and from
which the restriction on the right to travel can be traced. Section 5 thereof provides,
thus:
Section 5. HDO/WLO Lifting or Cancellation. — In the lifting or
cancellation of the HDO/WLO issued pursuant to this Circular, the following
shall apply:
(a) The HDO may be lifted or cancelled under any of the following grounds:
1. When the validity period of the HDO as provided for in the preceding
section has already expired;
2. When the accused subject of the HDO has been allowed to leave
the country during the pendency of the case, or has been
acquitted of the charge, or the case in which the warrant/order of
arrest was issued has been dismissed or the warrant/order of
arrest has been recalled;
3. When the civil or labor case or case before an administrative agency
of the government wherein the presence of the alien subject of
the HDO/WLO has been dismissed by the court or by
appropriate government agency, or the alien has been discharged
as a witness therein, or the alien has been allowed to leave the
country;
(b) The WLO may be lifted or cancelled under any of the following grounds:
1. When the validity period of the WLO as provided for in the preceding
section has already expired;
2. When the accused subject of the WLO has been allowed by the
court to leave the country during the pendency of the case, or
has been acquitted of the charge; and
 3. When the preliminary investigation is terminated, or when the
petition for review, or motion for reconsideration has been
denied and/or dismissed.
xxx xxx xxx
That the subject of a HDO or WLO suffers restriction in the right to travel is
implied in the fact that under Sections 5 (a) (2) and 5 (b) (2), the concerned individual
had to seek permission to leave the country from the court during the pendency of the
case against him. Further, in 5 (b) (3), he may not leave unless the preliminary
investigation of the case in which he is involved has been terminated.
In the same manner, it is apparent in Section 7 of the same circular that the
subject of a HDO or WLO cannot leave the country unless he obtains an ADO. The
said section reads as follows:
Section 7. Allow Departure Order (ADO). — Any person subject
of HDO/WLO issued pursuant to this Circular who intends, for some
exceptional reasons, to leave the country may, upon application under oath
with the Secretary of Justice, be issued an ADO.
The ADO may be issued upon submission of the following
requirements:
(a) Affidavit stating clearly the purpose, inclusive period of the date of travel,
and containing an undertaking to immediately report to the DOJ upon return;
and cSaATC

(b) Authority to travel or travel clearance from the court or appropriate

government office where the case upon which the issued HDO/WLO was
based is pending, or from the investigating prosecutor in charge of the subject
case.
By requiring an ADO before the subject of a HDO or WLO is allowed to leave
the country, the only plausible conclusion that can be made is that its mere issuance
operates as a restraint on the right to travel. To make it even more difficult, the
individual will need to cite an exceptional reason to justify the granting of an ADO.
The WLO also does not bear a significant distinction from a HDO, thereby
giving the impression that they are one and the same or, at the very least,
complementary such that whatever is not covered in Section 1, 131 which pertains to
the issuance of HDO, can conveniently fall under Section 2, 132 which calls for the
issuance of WLO. In any case, there is an identical provision in DOJ Circular No. 41
which authorizes the Secretary of Justice to issue a HDO or WLO against anyone,
motu proprio, in the interest of national security, public safety or public health. With
this all-encompassing provision, there is nothing that can prevent the Secretary of
Justice to prevent anyone from leaving the country under the guise of national
security, public safety or public health.
The exceptions to the right to travel
are limited to those stated in Section
6, Article III of the Constitution

The DOJ argues that Section 6, Article III of the Constitution is not an
exclusive enumeration of the instances wherein the right to travel may be validly
impaired. 133 It cites that this Court has its own administrative issuances restricting
travel of its employees and that even lower courts may issue HDO even on grounds
outside of what is stated in the Constitution. 134
The argument fails to persuade.
It bears reiterating that the power to issue HDO is inherent to the courts. The
courts may issue a HDO against an accused in a criminal case so that he may be dealt
with in accordance with law. 135 It does not require legislative conferment or
constitutional recognition; it co-exists with the grant of judicial power. In Defensor-
Santiago vs. Vasquez, 136 the Court declared, thus:
Courts possess certain inherent powers which may be said to be
implied from a general grant of jurisdiction, in addition to those expressly
conferred on them. These inherent powers are such powers as are necessary
for the ordinary and efficient exercise of jurisdiction; or essential to the
existence, dignity and functions of the court, as well as to the due
administration of justice; or are directly appropriate, convenient and suitable
to the execution of their granted powers; and include the power to maintain
the court's jurisdiction and render it effective in behalf of the litigants. 137
The inherent powers of the courts are essential in upholding its integrity and
largely beneficial in keeping the people's faith in the institution by ensuring that it has
the power and the means to enforce its jurisdiction.
As regards the power of the courts to regulate foreign travels, the Court, in
Leave Division, explained:
With respect to the power of the Court, Section 5 (6), Article VIII of
the 1987 Constitution provides that the Supreme Court shall have
administrative supervision over all courts and the personnel thereof. This
provision empowers the Court to oversee all matters relating to the effective
supervision and management of all courts and personnel under it. Recognizing
this mandate, Memorandum Circular No. 26 of the Office of the President,
dated July 31, 1986, considers the Supreme Court exempt and with authority
to promulgate its own rules and regulations on foreign travels. Thus, the Court
came out with OCA Circular No. 49-2003 (B).
Where a person joins the Judiciary or the government in general, he or
she swears to faithfully adhere to, and abide with, the law and the
corresponding office rules and regulations. These rules and regulations, to
which one submits himself or herself, have been issued to guide the
government officers and employees in the efficient performance of their
 obligations. When one becomes a public servant, he or she assumes certain
duties with their concomitant responsibilities and gives up some rights like the
absolute right to travel so that public service would not be prejudiced. 138
It is therefore by virtue of its administrative supervision over all courts and
personnel that this Court came out with OCA Circular No. 49-2003, which provided
for the guidelines that must be observed by employees of the judiciary seeking to
travel abroad. Specifically, they are required to secure a leave of absence for the
purpose of foreign travel from this Court through the Chief Justice and the Chairmen
of the Divisions, or from the Office of the Court Administrator, as the case may be.
This is "to ensure management of court dockets and to avoid disruption in the
administration of justice." 139
OCA Circular No. 49-2003 is therefore not a restriction, but more properly, a
regulation of the employee's leave for purpose of foreign travel which is necessary for
the orderly administration of justice. To "restrict" is to restrain or prohibit a person
from doing something; to "regulate" is to govern or direct according to rule. 140 This
regulation comes as a necessary consequence of the individual's employment in the
judiciary, as part and parcel of his contract in joining the institution. For, if the
members of the judiciary are at liberty to go on leave any time, the dispensation of
justice will be seriously hampered. Short of key personnel, the courts cannot properly
function in the midst of the intricacies in the administration of justice. At any rate, the
concerned employee is not prevented from pursuing his travel plans without
complying with OCA Circular No. 49-2003 but he must be ready to suffer the
consequences of his non-compliance.
The same ratiocination can be said of the regulations of the Civil Service
Commission with respect to the requirement for leave application of employees in the
government service seeking to travel abroad. The Omnibus Rules Implementing Book
V of E.O. No. 292 states the leave privileges and availment guidelines for all
government employees, except those who are covered by special laws. The filing of
application for leave is required for purposes of orderly personnel administration. In
pursuing foreign travel plans, a government employee must secure an approved leave
of absence from the head of his agency before leaving for abroad.
To be particular, E.O. No. 6 dated March 12, 1986, as amended by
Memorandum Order (MO) No. 26 dated July 31, 1986, provided the procedure in the
disposition of requests of government officials and employees for authority to travel
abroad. The provisions of this issuance were later clarified in the Memorandum
Circular No. 18 issued on October 27, 1992. Thereafter, on September 1, 2005, E.O.
No. 459 was issued, streamlining the procedure in the disposition of requests of
government officials and employees for authority to travel abroad. Section 2 thereof
states:cHDAIS

Section 2. Subject to Section 5 hereof, all other government officials

and employees seeking authority to travel abroad shall henceforth seek
 approval from their respective heads of agencies, regardless of the length
of their travel and the number of delegates concerned. For the purpose of this
paragraph, heads of agencies refer to the Department Secretaries or their
equivalents. (Emphasis ours)
The regulation of the foreign travels of government employees was deemed
necessary "to promote efficiency and economy in the government service." 141 The
objective was clearly administrative efficiency so that government employees will
continue to render public services unless they are given approval to take a leave of
absence in which case they can freely exercise their right to travel. It should never be
interpreted as an exception to the right to travel since the government employee
during his approved leave of absence can travel wherever he wants, locally or abroad.
This is no different from the leave application requirements for employees in private
companies.
The point is that the DOJ may not justify its imposition of restriction on the
right to travel of the subjects of DOJ Circular No. 41 by resorting to an analogy.
Contrary to its claim, it does not have inherent power to issue HDO, unlike the courts,
or to restrict the right to travel in anyway. It is limited to the powers expressly granted
to it by law and may not extend the same on its own accord or by any skewed
interpretation of its authority.

The key is legislative enactment

The Court recognizes the predicament which compelled the DOJ to issue the
questioned circular but the solution does not lie in taking constitutional shortcuts.
Remember that the Constitution "is the fundamental and paramount law of the nation
to which all other laws must conform and in accordance with which all private rights
are determined and all public authority administered." 142 Any law or issuance,
therefore, must not contradict the language of the fundamental law of the land;
otherwise, it shall be struck down for being unconstitutional.
Consistent with the foregoing, the DOJ may not promulgate rules that have a
negative impact on constitutionally-protected rights without the authority of a valid
law. Even with the predicament of preventing the proliferation of crimes and evasion
of criminal responsibility, it may not overstep constitutional boundaries and skirt the
prescribed legal processes.
That the subjects of DOJ Circular No. 41 are individuals who may have
committed a wrong against the state does not warrant the intrusion in the enjoyment
of their basic rights. They are nonetheless innocent individuals and suspicions on their
guilt do not confer theirs lesser privileges to enjoy. As emphatically pronounced in
Secretary of National Defense vs. Manalo, et al., 143 "the constitution is an
overarching sky that covers all in its protection. It affords protection to citizens
without distinction. Even the most despicable person deserves the same respect in the
enjoyment of his rights as the upright and abiding.
 Let it also be emphasized that this Court fully realizes the dilemma of the DOJ.
The resolution of the issues in the instant petitions was partly aimed at encouraging
the legislature to do its part and enact the necessary law so that the DOJ may be able
to pursue its prosecutorial duties without trampling on constitutionally-protected
rights. Without a valid legislation, the DOJ's actions will perpetually be met with legal
hurdles to the detriment of the due administration of justice. The challenge therefore
is for the legislature to address this problem in the form of a legislation that will
identify permissible intrusions in the right to travel. Unless this is done, the
government will continuously be confronted with questions on the legality of their
actions to the detriment of the implementation of government processes and
realization of its objectives.
In the meantime, the DOJ may remedy its quandary by exercising more
vigilance and efficiency in the performance of its duties. This can be accomplished by
expediency in the assessment of complaints filed before its office and in the prompt
filing of information in court should there be an affirmative finding of probable cause
so that it may legally request for the issuance of HDO and hold the accused for trial.
Clearly, the solution lies not in resorting to constitutional shortcuts but in an efficient
and effective performance of its prosecutorial duties.
The Court understands the dilemma of the government on the effect of the
declaration of unconstitutionality of DOJ Circular No. 41, considering the real
possibility that it may be utilized by suspected criminals, especially the affluent ones,
to take the opportunity to immediately leave the country. While this is a legitimate
concern, it bears stressing that the government is not completely powerless or
incapable of preventing their departure or having them answer charges that may be
subsequently filed against them. In his Separate Concurring Opinion, Mr. Justice
Carpio, pointed out that Republic Act No. (R.A.) 8239, otherwise known as the
Philippine Passport Act of 1996, explicitly grants the Secretary of Foreign Affairs or
any of the authorized consular officers the authority to issue verify, restrict, cancel or
refuse the issuance of a passport to a citizen under the circumstances mentioned in
Section 4 144 thereof. Mr. Justice Tijam, on the other hand, mentioned Memorandum
Circular No. 036, which was issued pursuant to R.A. No. 9208 or the Anti-Trafficking
in Persons Act of 2003, as amended by R.A. No. 10364 or the Expanded Anti-
Trafficking in Persons Acts of 2012, which authorizes the BI to hold the departure of
suspected traffickers or trafficked individuals. He also noted that the Commissioner of
BI has the authority to issue a HDO against a foreigner subject of deportation
proceedings in order to ensure his appearance therein. Similarly, the proposal of Mr.
Justice Velasco for the adoption of new set of rules which will allow the issuance of a
precautionary warrant of arrest offers a promising solution to this quandary. This, the
Court can do in recognition of the fact that laws and rules of procedure should evolve
as the present circumstances require.
Contempt charge against respondent
De Lima

It is well to remember that on November 18, 2011, a Resolution 145 was issued
requiring De Lima to show cause why she should not be disciplinarily dealt or be held
in contempt for failure to comply with the TRO issued by this Court.
In view, however, of the complexity of the facts and corresponding full
discussion that it rightfully deserves, the Court finds it more fitting to address the
same in a separate proceeding. It is in the interest of fairness that there be a complete
and exhaustive discussion on the matter since it entails the imposition of penalty that
bears upon the fitness of the respondent as a member of the legal profession. The
Court, therefore, finds it proper to deliberate and resolve the charge of contempt
against De Lima in a separate proceeding that could accommodate a full opportunity
for her to present her case and provide a better occasion for the Court to deliberate on
her alleged disobedience to a lawful order.
WHEREFORE, in view of the foregoing disquisition, Department of Justice
Circular No. 41 is hereby declared UNCONSTITUTIONAL. All issuances which
were released pursuant thereto are hereby declared NULL and VOID.
The Clerk of Court is hereby DIRECTED to REDOCKET the Resolution of
the Court dated November 28, 2011, which required respondent Leila De Lima to
show cause why she should not be cited in contempt, as a separate petition. ISHCcT

SO ORDERED.
Leonardo-de Castro, Peralta, Bersamin, Del Castillo, Perlas-Bernabe,
Jardeleza, Martires, Tijam and Gesmundo, JJ., concur.
Sereno, * C.J., is on indefinite leave.
Carpio, J., see concurring opinion.
Velasco, Jr., J., see separate concurring opinion.
Leonen, J., see separate opinion.
Caguioa, ** J., took no part.
Separate Opinions
CARPIO, Acting C.J., concurring:

I concur.

The constitutionality of the assailed

administrative circular remains justiciable.
 Preliminarily, the consolidated petitions continue to present a justiciable
controversy. Neither the expiration of the watchlist orders issued by Leila M. De
Lima (respondent) as former Secretary of Justice nor the filing of Information for
electoral sabotage against petitioner Gloria Macapagal-Arroyo (GMA) rendered the
cases moot.
A case becomes moot when it ceases to present a justiciable controversy such
that its adjudication would not yield any practical value or use. 1 Where the petition is
one for certiorari seeking the nullification of an administrative issuance for having
been issued with grave abuse of discretion, obtaining the other reliefs prayed for in
the course of the proceedings will not render the entire petition moot altogether. In
COCOFED-Philippine Coconut Producers Federation, Inc. v. Commission on
Elections (COMELEC), 2 the Court thus explained:
A moot and academic case is one that ceases to present a justiciable
controversy because of supervening events so that a declaration thereon would
be of no practical use or value.
In the present case, while the COMELEC counted and tallied the votes
in favor of COCOFED showing that it failed to obtain the required number of
votes, participation in the 2013 elections was merely one of the reliefs
COCOFED prayed for. The validity of the COMELEC's resolution, cancelling
COCOFED's registration, remains a very live issue that is not dependent on
the outcome of the elections. 3 (Citations omitted)
Similarly, where an accused assails via certiorari the judgment of conviction
rendered by the trial court, his subsequent release on parole will not render the
petition academic. 4 Precisely, if the sentence imposed upon him is void for lack of
jurisdiction, the accused should not have been paroled, but unconditionally released
since his detention was illegal. 5 In the same vein, even when the certification election
sought to be enjoined went on as scheduled, a petition for certiorari does not become
moot considering that the petition raises jurisdictional errors that strike at the very
heart of the validity of the certification election itself. 6 Indeed, an allegation of a
jurisdictional error is a justiciable controversy that would prevent the mootness of a
special civil action for certiorari. 7
Here, the consolidated petitions for certiorari and prohibition assail the
constitutionality of Department of Justice (DOJ) Circular No. 041-10, 8 on which
respondent based her issuance of watchlist and hold-departure orders against
petitioners. Notably, DOJ Circular No. 041-10 was not issued by respondent herself,
but by Alberto C. Agra as then Acting Secretary of Justice during the Arroyo
Administration. It became effective on 2 July 2010. 9 In fact, the assailed issuance
remains in effect. To be sure, whether the watchlist and hold-departure orders issued
by respondent against petitioners subsequently expired or were lifted is not
determinative of the constitutionality of the circular. Hence, the Court is duty-bound
to pass upon the constitutionality of DOJ Circular No. 041-10, being a justiciable
issue rather than an exception to the doctrine of mootness.
DOJ Circular No. 041-10 is an invalid
impairment of the right to travel, and
therefore, unconstitutional.

Proceeding now to the substantive issue, I agree that DOJ Circular No. 041-10
violates the constitutional right to travel.
Section 6, Article III of the Constitution reads:
SEC. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health, as may be provided by
law. (Emphasis supplied)
As above-quoted, the right to travel is not absolute. However, while it can be
restricted, the only permissible grounds for restriction are national security, public
safety, and public health, which grounds must at least be prescribed by an act of
Congress. In only two instances can the right to travel be validly impaired even
without a statutory authorization. The first is when a court forbids the accused from
leaving Philippine jurisdiction in connection with a pending criminal case. 10 The
second is when Congress, pursuant to its power of legislative inquiry, issues a
subpoena or arrest order against a person. 11
The necessity for a legislative enactment expressly providing for a valid
impairment of the right to travel finds basis in no less than the fundamental law of the
land. Under Section 1, Article VI of the Constitution, the legislative power is vested
in Congress. Hence, only Congress, and no other entity or office, may wield the
power to make, amend, or repeal laws. 12
Accordingly, whenever confronted with provisions interspersed with phrases
like "in accordance with law" or "as may be provided by law," the Court turns to acts
of Congress for a holistic constitutional construction. To illustrate, in interpreting the
clause "subject to such limitations as may be provided by law" in relation to the right
to information, the Court held in Gonzales v. Narvasa 13 that it is Congress that will
prescribe these reasonable conditions upon the access to information:
The right to information is enshrined in Section 7 of the Bill of Rights
which provides that —
The right of the people to information on matters of
public concern shall be recognized. Access to official records,
and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by
law. CAacTH
 Under both the 1973 and 1987 Constitution, this is a self-executory
provision which can be invoked by any citizen before the courts. This was our
ruling in Legaspi v. Civil Service Commission, wherein the Court classified
the right to information as a public right and "when a mandamus proceeding
involves the assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that the petitioner is a citizen, and therefore, part of
the general 'public' which possesses the right." However, Congress may
provide for reasonable conditions upon the access to information. Such
limitations were embodied in Republic Act No. 6713, otherwise known as the
"Code of Conduct and Ethical Standards for Public Officials and Employees,"
which took effect on March 25, 1989. This law provides that, in the
performance of their duties, all public officials and employees are obliged to
respond to letters sent by the public within fifteen (15) working days from
receipt thereof and to ensure the accessibility of all public documents for
inspection by the public within reasonable working hours, subject to the
reasonable claims of confidentiality. 14 (Emphasis supplied; Citations
omitted)
In Tondo Medical Center Employees Association v. Court of Appeals, 15 the
Court made a jurisprudential survey on the interpretation of constitutional provisions
that are not self-executory and held that it is Congress that will breathe life into these
provisions:
As a general rule, the provisions of the Constitution are considered
self-executing, and do not require future legislation for their enforcement. For
if they are not treated as self-executing, the mandate of the fundamental law
can be easily nullified by the inaction of Congress. However, some provisions
have already been categorically declared by this Court as non self-executing.
In Tañada v. Angara, the Court specifically set apart the sections
found under Article II of the 1987 Constitution as non self-executing and
ruled that such broad principles need legislative enactments before they can be
implemented:
By its very title, Article II of the Constitution is a
"declaration of principles and state policies." x x x These
principles in Article II are not intended to be self-executing
principles ready for enforcement through the courts. They are
used by the judiciary as aids or as guides in the exercise of its
power of judicial review, and by the legislature in its
enactment of laws.
In Basco v. Philippine Amusement and Gaming Corporation, this
Court declared that Sections 11, 12, and 13 of Article II; Section 13 of Article
XIII; and Section 2 of Article XIV of the 1987 Constitution are not self-
executing provisions. In Tolentino v. Secretary of Finance, the Court referred
to Section 1 of Article XIII and Section 2 of Article XIV of the Constitution
as moral incentives to legislation, not as judicially enforceable rights. These
provisions, which merely lay down a general principle, are distinguished from
 other constitutional provisions as non self-executing and, therefore, cannot
give rise to a cause of action in the courts; they do not embody judicially
enforceable constitutional rights.
Some of the constitutional provisions invoked in the present case were
taken from Article II of the Constitution — specifically, Sections 5, 9, 10, 11,
13, 15 and 18 — the provisions of which the Court categorically ruled to be
non self-executing in the aforecited case of Tañada v. Angara. 16 (Emphasis
supplied; citations omitted)
In Ang Bagong Bayani-OFW Labor Party v. COMELEC, 17 the Court
construed the constitutional provisions on the party-list system and held that the
phrases "in accordance with law" and "as may be provided by law" authorized
Congress "to sculpt in granite the lofty objective of the Constitution," to wit:
That political parties may participate in the party-list elections does not
mean, however, that any political party — or any organization or group for
that matter — may do so. The requisite character of these parties or
organizations must be consistent with the purpose of the party-list system, as
laid down in the Constitution and RA 7941. Section 5, Article VI of the
Constitution, provides as follows:
"(1) The House of Representatives shall be composed
of not more than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of
their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national,
regional, and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty
per centum of the total number of representatives including
those under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated
to party-list representatives shall be filled, as provided by law,
by selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the religious
sector."
xxx xxx xxx
The foregoing provision on the party-list system is not self-executory.
It is, in fact, interspersed with phrases like "in accordance with law" or
"as may be provided by law"; it was thus up to Congress to sculpt in
granite the lofty objective of the Constitution. x x x. 18 (Italicization in the
original; boldfacing supplied)
 Unable to cite any specific law on which DOJ Circular No. 041-10 is based,
respondent invokes Executive Order No. 292, otherwise known as the Revised
Administrative Code of 1987. In particular, respondent cites the DOJ's mandate to
"investigate the commission of crimes" and "provide immigration x x x regulatory
services," as well as the DOJ Secretary's rule-making power. 19
I disagree.
In the landmark case of Ople v. Torres, 20 an administrative order was
promulgated restricting the right to privacy without a specific law authorizing the
restriction. The Office of the President justified its legality by invoking the Revised
Administrative Code of 1987. The Court rejected the argument and nullified the
assailed issuance for being unconstitutional as the Revised Administrative Code of
1987 was too general a law to serve as basis for the curtailment of the right to privacy,
thus:
We now come to the core issues. Petitioner claims that A.O. No. 308 is
not a mere administrative order but a law and hence, beyond the power of the
President to issue. He alleges that A.O. No. 308 establishes a system of
identification that is all-encompassing in scope, affects the life and liberty of
every Filipino citizen and foreign resident, and more particularly, violates
their right to privacy.
IAETDc

Petitioner's sedulous concern for the Executive not to trespass on the

lawmaking domain of Congress is understandable. The blurring of the
demarcation line between the power of the Legislature to make laws and the
power of the Executive to execute laws will disturb their delicate balance of
power and cannot be allowed. Hence, the exercise by one branch of
government of power belonging to another will be given a stricter scrutiny by
this Court.
xxx xxx xxx
Prescinding from these precepts, we hold that A.O. No. 308 involves a
subject that is not appropriate to be covered by an administrative order. An
administrative order is:
"Sec. 3. Administrative Orders. — Acts of the President
which relate to particular aspects of governmental operation in
pursuance of his duties as administrative head shall be
promulgated in administrative orders."
An administrative order is an ordinance issued by the President which
relates to specific aspects in the administrative operation of government. It
must be in harmony with the law and should be for the sole purpose of
implementing the law and carrying out the legislative policy. We reject the
argument that A.O. No. 308 implements the legislative policy of the
Administrative Code of 1987. The Code is a general law and
"incorporates in a unified document the major structural, functional and
procedural principles of governance" and "embodies changes in
 administrative structures and procedures designed to serve the people."
The Code is divided into seven (7) Books: Book I deals with Sovereignty and
General Administration, Book II with the Distribution of Powers of the three
branches of Government, Book III on the Office of the President, Book IV on
the Executive Branch, Book V on the Constitutional Commissions, Book VI
on National Government Budgeting, and Book VII on Administrative
Procedure. These Books contain provisions on the organization, powers and
general administration of the executive, legislative and judicial branches of
government, the organization and administration of departments, bureaus and
offices under the executive branch, the organization and functions of the
Constitutional Commissions and other constitutional bodies, the rules on the
national government budget, as well as guidelines for the exercise by
administrative agencies of quasi-legislative and quasi-judicial powers. The
Code covers both the internal administration of government, i.e., internal
organization, personnel and recruitment, supervision and discipline, and the
effects of the functions performed by administrative officials on private
individuals or parties outside government. 21 (Citations omitted)
Indeed, EO 292 is a law of general application. 22 Pushed to the hilt, the
argument of respondent will grant carte blanche to the Executive in promulgating
rules that curtail the enjoyment of constitutional rights even without the sanction of
Congress. To repeat, the Executive is limited to executing the law. It cannot make,
amend or repeal a law, much less a constitutional provision.
For the same reason, in the Court's jurisprudence concerning the overseas
travel of court personnel during their approved leaves of absence and with no pending
criminal case before any court, I have consistently maintained that only a law, not
administrative rules, can authorize the Court to impose administrative sanctions for
the employee's failure to obtain a travel permit:
Although the constitutional right to travel is not absolute, it can only
be restricted in the interest of national security, public safety, or public health,
as may be provided by law. As held in Silverio v. Court of Appeals:
Article III, Section 6 of the 1987 Constitution should be
interpreted to mean that while the liberty of travel may be
impaired even without court order, the appropriate executive
officers or administrative authorities are not armed with
arbitrary discretion to impose limitations. They can impose
limits only on the basis of "national security, public safety, or
public health" and "as may be provided by law," a limitive
phrase which did not appear in the 1973 text x x x. Apparently,
the phraseology in the 1987 Constitution was a reaction to the
ban on international travel imposed under the previous regime
when there was a Travel Processing Center, which issued
certificates of eligibility to travel upon application of an
interested party x x x.
 The constitutional right to travel cannot be impaired without due
process of law. Here, due process of law requires the existence of a law
regulating travel abroad, in the interest of national security, public safety or
public health. There is no such law applicable to the travel abroad of
respondent. Neither the OCA nor the majority can point to the existence of
such a law. In the absence of such a law, the denial of respondent's right to
travel abroad is a gross violation of a fundamental constitutional right.
xxx xxx xxx
Furthermore, respondent's travel abroad, during her approved leave,
did not require approval from anyone because respondent, like any other
citizen, enjoys the constitutional right to travel within the Philippines or
abroad. Respondent's right to travel abroad, during her approved leave, cannot
be impaired "except in the interest of national security, public safety, or public
health, as may be provided by law." Not one of these grounds is present in this
case. 23 (Citations omitted)
While the Revised Administrative Code of 1987 cannot lend credence to a
valid impairment of the right to travel, Republic Act No. (RA) 8239, otherwise known
as the Philippine Passport Act of 1996, expressly allows the Secretary of Foreign
Affairs or any of the authorized consular officers to cancel the passport of a
citizen. Section 4 of RA 8239 reads:
SEC. 4. Authority to Issue, Deny, Restrict or Cancel. — Upon the
application of any qualified Filipino citizen, the Secretary of Foreign Affairs
or any of his authorized consular officer may issue passports in accordance
with this Act.
Philippine consular officers in a foreign country shall be authorized by
the Secretary to issue, verify, restrict, cancel or refuse a passport in the area of
jurisdiction of the Post in accordance with the provisions of this Act.
In the interest of national security, public safety and public health, the
Secretary or any of the authorized consular officers may, after due hearing and
in their proper discretion, refuse to issue a passport, or restrict its use or
withdraw or cancel a passport: Provided, however, That such act shall not
mean a loss or doubt on the person's citizenship: Provided, further, That the
issuance of a passport may not be denied if the safety and interest of the
Filipino citizen is at stake: Provided, finally, That refusal or cancellation of a
passport would not prevent the issuance of a Travel Document to allow for a
safe return journey by a Filipino to the Philippines. DcHSEa

The identical language between the grounds to cancel passports under the
above-quoted provision and the grounds to impair the right to travel under Section 6,
Article III of the Constitution is not by accident cognizant of the fact that passport
cancellations necessarily entail an impairment of the right. Congress intentionally
copied the latter to obviate expanding the grounds for restricting the right to travel.
 Can the DFA Secretary, under Section 4 of RA 8239, cancel the passports of
persons under preliminary investigation? The answer depends on the nature of the
crime for which the passport holders are being investigated on. If the crime affects
national security and public safety, the cancellation squarely falls within the ambit of
Section 4. Thus, passport holders facing preliminary investigation for the following
crimes are subject to the DFA Secretary's power under Section 4:
(1) Title One, (Crimes against National Security and the Law of Nations), Title
Three (Crimes against Public Order), Title Eight (Crimes against
Persons), Title Nine (Crimes against Liberty), Title Ten (Crimes against
Property) and Title Eleven (Crimes against Chastity), Book II of the
Revised Penal Code;
(2) Section 261 (Prohibited Acts), paragraphs (e), 24 (f), 25 (p), 26 (q), 27 (s),
28 and (u) 29 of the Omnibus Election Code; 30 and
(3) Other related election laws such as Section 27 (b) of RA 7874, as amended
by RA 9369. 31
Indeed, the phrases "national security" and "public safety," which recur in the
text of the Constitution as grounds for the exercise of powers or curtailment of rights,
32 are intentionally broad to allow interpretative flexibility, but circumscribed at the
same time to prevent limitless application. At their core, these concepts embrace acts
undermining the State's existence or public security. At their fringes, they cover acts
disrupting individual or communal tranquility. Either way, violence or potential of
violence features prominently.
Thus understood, the "public safety" ground under Section 4 of RA 8239
unquestionably includes violation of election-related offenses carrying the potential of
disrupting the peace, such as electoral sabotage which involves massive tampering of
votes (in excess of 10,000 votes). Not only does electoral sabotage desecrate electoral
processes, but it also arouses heated passion among the citizenry, driving some to
engage in mass actions and others to commit acts of violence. The cancellation of
passports of individuals investigated for this crime undoubtedly serves the interest of
public safety, much like individuals under investigation for robbery, kidnapping, and
homicide, among others. 33
As to whether respondent must be cited in contempt for allegedly defying the
Temporary Restraining Order issued by the Court, I agree that it cannot be resolved
simultaneously with these consolidated petitions. Until the contempt charge is
threshed out in a separate and proper proceeding, I defer expressing my view on this
issue.
Accordingly, I vote to GRANT the petitions and to declare DOJ Circular No.
041-10, and the assailed Watchlist Orders issued pursuant to the circular,
UNCONSTITUTIONAL for being contrary to Section 6, Article III of the
Constitution. As regards, the contempt charge against respondent, I DEFER any
opinion on this issue until it is raised in a separate and proper proceeding.
VELASCO, JR., J., concurring:

I concur with the ponencia of my esteemed colleague, Justice Andres B. Reyes,

Jr.
That the right to travel and to freedom of movement are guaranteed protection
by no less than the fundamental law of our land brooks no argument. While these
rights are not absolute, the delimitation thereof must rest on specific circumstances
that would warrant the intrusion of the State. As mandated by Section 6 of the Bill of
Rights, any curtailment of the people's freedom of movement must indispensably be
grounded on an intrinsically valid law, and only whenever necessary to protect
national security, public safety, or public health, thus:
SEC. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health, as may be provided by law.
(Emphasis and underscoring supplied)
The Department of Justice (DOJ) Circular No. 41 cannot be the law pertained
to in the provision. As pointed out in the ponencia, it is but an administrative issuance
that requires an enabling law to be valid. 1
Jurisprudence dictates that the validity of an administrative issuance is hinged
on compliance with the following requirements: 1) its promulgation is authorized by
the legislature; 2) it is promulgated in accordance with the prescribed procedure; 3) it
is within the scope of the authority given by the legislature; and 4) it is reasonable. 2
The DOJ, thus, exceeded its jurisdiction when it assumed to wield the power to issue
hold departure orders (HDOs) and watchlist orders (WLOs), and allow department
orders which unduly infringe on the people's right to travel absent any specific
legislation expressly vesting it with authority to do so.
I, therefore, concur that DOJ Circular No. 41 is without basis in law and is,
accordingly, unconstitutional.
With the declaration of nullity of DOJ Circular No. 41, our law enforcers are
left in a quandary and without prompt recourse for preventing persons strongly
suspected of committing criminal activities from evading the reach of our justice
system by fleeing to other countries.
Justice Antonio T. Carpio, in his Separate Concurring Opinion, makes mention
of Republic Act No. 8239, otherwise known as the Philippine Passport Act of 1996,
which expressly allows the Secretary of Foreign Affairs or any of the authorized
consular officers to cancel the passport of a citizen, even those of persons under
preliminary investigations, for crimes affecting national security and public safety.
This course of action, while undoubtedly a legally viable solution to the DOJ's
dilemma, would nevertheless require the conduct of a hearing, pursuant to Section 4 3
of the law. This would inevitably alert the said persons of interest of the cause and
purpose of the cancellation of their passports that could, in turn, facilitate, rather than
avert, their disappearance to avoid the processes of the court.
As an alternative solution, it is my humble submission that the above
predicament can be effectively addressed through the ex-parte issuance of
precautionary warrants of arrest (PWAs) and/or precautionary hold departure orders
(PHDOs) prior to the filing of formal charges and information against suspected
criminal personalities. SCaITA

The issuance of PWAs or PHDOs is moored on Section 2, Article III of the

Bill of Rights of the Constitution, to wit:
Section 2. x x x 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. (Emphasis supplied)
It bears noting that the warrant clause permits the issuance of warrants,
whether it be a search warrant or a warrant of arrest, even prior to the filing of a
criminal complaint or information in court. This interpretation finds support in the
crafting of the provisions in our Rules of Criminal Procedure that govern the issuance
of search warrants. As stated in Sections 4 to 6 4 of Rule 126, a search warrant may be
issued by the courts if, after personally examining the complainants/applicants and the
witnesses produced, they are convinced that probable cause exists for the issuance
thereof. The rules do not require that 1) a criminal action or even a complaint must
have already been filed against an accused; and that 2) persons of interest are notified
of such application before law enforcement may avail of this remedy. The application
for and issuance of a search warrant are not conditioned on the existence of a criminal
action or even a complaint before an investigating prosecutor against any person.
Anchored on Section 2, Article III of the Constitution, a rule on precautionary
warrant of arrest, akin to a search warrant, may be crafted by the Court. The
application will be done ex-parte, by a public prosecutor upon the initiative of our law
enforcement agencies, before an information is filed in court, and only in certain
serious crimes and offenses. Before filing the application, the public prosecutor shall
ensure that probable cause exists that the crime has been committed and that the
person sought to be arrested committed it. The law enforcement agencies may also opt
to ask for a PWA with PHDO or simply a PHDO.
The judge's determination of probable cause shall be done in accordance with
the requirements in Section 2, Article III of the Constitution. He shall set a hearing on
the application to personally examine under oath or affirmation, in form of searching
questions and answers, the applicant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements. If satisfied
of the existence of probable cause based on the application and its attachments, the
testimonies of the witnesses, and other evidence presented during the hearing, the
judge may issue the warrant and direct the Philippine National Police or the National
Bureau of Investigation to effect the arrest.
The suggested revision in the Rules, to my mind, will help solve the problem
caused by the declaration of nullity of the HDOs and WLOs issued by the DOJ. The
law enforcement agencies can apply for a PWA or PHDO to prevent suspects from
fleeing the country and to detain and arrest them at the airport. This may also solve
the problem of extrajudicial killings as the law enforcement agency is now provided
with an adequate remedy for the arrest of the criminals.
I vote to GRANT the petition.

LEONEN, J.:

I concur that Department of Justice Circular No. 41, series of 2010, is

unconstitutional. The Department of Justice is neither authorized by law nor does it
possess the inherent power to issue hold departure orders, watchlist orders, and allow
departure orders against persons under preliminary investigation.
However, I have reservations regarding the proposed doctrine that the right of
persons to travel can only be impaired by a legislative enactment as it can likewise be
burdened by other constitutional provisions.
The pertinent Constitutional provision on the right to travel is Article III,
Section 6, which states:
Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
(Emphasis supplied)
The right to travel, as a concept, was directly tackled in Marcos v. Manglapus,
1 an early case decided under the 1987 Constitution. It dealt specifically with the right
of former President Marcos to return to the Philippines. In resolving the case, this
Court distinguished between the right to return to one's country and the general right
to travel. The right to return to one's country was treated separately and deemed
excluded from the constitutionally protected right to travel. 2
In my view, the right to travel should not be given such a restrictive
interpretation. In the broad sense, the right to travel refers to the "right to move from
one place to another." 3 The delimitation set in Marcos effectively excludes instances
that may involve a curtailment on the right to travel within the Philippines and the
right to travel to the Philippines. This case presents us with an opportunity to revisit
Marcos and abandon its narrow and restrictive interpretation. In this regard, the
constitutional provision should be read to include travel within the Philippines and
travel to and from the Philippines.
 Undeniably, the right to travel is not absolute. Article III, Section 6 of the
Constitution states that any curtailment must be based on "national security, public
safety, or public health, as may be provided by law."
In interpreting this constitutional provision, the ponencia proposes that only a
statute or a legislative enactment may impair the right to travel.
Respectfully, I disagree. In my view, the phrase "as may be provided by law"
should not be literally interpreted to mean statutory law. Its usage should depend upon
the context in which it is written. As used in the Constitution, the word "law" does not
only refer to statutes but embraces the Constitution itself.
The Bill of Rights is replete with provisions that provide a similar phraseology.
For instance, both the due process clause and the equal protection clause under Article
III, Section 1 of the Constitution contain the word "law," thus:
Article III
BILL OF RIGHTS
Section 1. No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of the
laws. (Emphasis supplied)
However, the application of the due process and the equal protection clauses
has not been limited to statutory law. These two (2) principles have been tested even
against executive issuances.
In Ynot v. Intermediate Appellate Court, 4 the due process clause was deemed
to have been violated by an executive order which directed the outright confiscation
of carabaos transported from one province to another. In declaring the executive order
unconstitutional, this Court held: aTHCSE

[T]he challenged measure is an invalid exercise of the police power because

the method employed to conserve the carabaos is not reasonably necessary to
the purpose of the law and, worse, is unduly oppressive. Due process is
violated because the owner of the property confiscated is denied the right to
be heard in his defense and is immediately condemned and punished. The
conferment on the administrative authorities of the power to adjudge the guilt
of the supposed offender is a clear encroachment on judicial functions and
militates against the doctrine of separation of powers. There is, finally, also an
invalid delegation of legislative powers to the officers mentioned therein who
are granted unlimited discretion in the distribution of the properties arbitrarily
taken. For these reasons, we hereby declare Executive Order No. 626-A
unconstitutional. 5
In the same manner, this Court in Corona v. United Harbor Pilots Association
of the Philippines 6 invalidated an administrative order that restricted harbor pilots
from exercising their profession. The administrative order, which required harbor
pilots to undergo an annual performance evaluation as a condition for the continued
exercise of their profession, was considered a "deprivation of property without due
process of law." 7
In Biraogo v. Truth Commission, 8 the creation of the Philippine Truth
Commission by virtue of an executive order was deemed unconstitutional for
violating the equal protection clause. The classification under the executive order,
according to this Court, was unreasonable, thus:
Executive Order No. 1 should be struck down as violative of the equal
protection clause. The clear mandate of the envisioned truth commission is to
investigate and find out the truth "concerning the reported cases of graft and
corruption during the previous administration" only. The intent to single out
the previous administration is plain, patent and manifest. Mention of it has
been made in at least three portions of the questioned executive order.
Specifically, these are:
WHEREAS, there is a need for a separate body dedicated
solely to investigating and finding out the truth concerning the
reported cases of graft and corruption during the previous
administration, and which will recommend the prosecution of
the offenders and secure justice for all;
SECTION 1. Creation of a Commission. — There is hereby
created the PHILIPPINE TRUTH COMMISSION, hereinafter
referred to as the "COMMISSION," which shall primarily seek
and find the truth on, and toward this end, investigate reports of
graft and corruption of such scale and magnitude that shock
and offend the moral and ethical sensibilities of the people,
committed by public officers and employees, their co-
principals, accomplices and accessories from the private sector,
if any, during the previous administration; and thereafter
recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served
without fear or favor.
SECTION 2. Powers and Functions. — The Commission,
which shall have all the powers of an investigative body under
Section 37, Chapter 9, Book I of the Administrative Code of
1987, is primarily tasked to conduct a thorough fact-finding
investigation of reported cases of graft and corruption referred
to in Section 1, involving third level public officers and higher,
their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration and
thereafter submit its finding and recommendations to the
President, Congress and the Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration
is but just a member of a class, that is, a class of past administrations. It is not
a class of its own. Not to include past administrations similarly situated
 constitutes arbitrariness which the equal protection clause cannot sanction.
Such discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective retribution. 9
(Citations omitted)
In this regard, it is inaccurate to say that the right of persons to travel to and
from the Philippines can only be impaired by statutory law. It is also inaccurate to say
that the impairment should only be limited to national security, public safety, or
public health considerations for it to be valid.
For instance, the assailed department order in Philippine Association of Service
Exporters, Inc. v. Drilon 10 was not founded upon national security, public safety, or
public health but on the state's policy of affording protection to labor. 11 The
department order was deemed a valid restriction on the right to travel. 12
The term "law" in Article III, Section 6 can refer to the Constitution itself. This
can be understood by examining this Court's power to regulate foreign travel of court
personnel and the nature and functions of bail.
The power of this Court to regulate the foreign travel of court personnel does
not emanate from statutory law, nor is it based on national security, public safety, or
public health considerations. Rather, it is an inherent power flowing from Article III,
Section 5 (6) of the Constitution, which grants this Court the power of administrative
supervision over all courts and court personnel. 13
The nature and object of this Court's power to control the foreign travel of
court personnel were further explained in Leave Division, Office of Administrative
Services-Office of the Court Administrator v. Heusdens, 14 thus:
With respect to the power of the Court, Section 5 (6), Article VIII of
the 1987 Constitution provides that the "Supreme Court shall have
administrative supervision over all courts and the personnel thereof." This
provision empowers the Court to oversee all matters relating to the effective
supervision and management of all courts and personnel under it.
Recognizing this mandate, Memorandum Circular No. 26 of the Office of the
President, dated July 31, 1986, considers the Supreme Court exempt and with
authority to promulgate its own rules and regulations on foreign travels. Thus,
the Court came out with OCA Circular No. 49-2003 (B).
Where a person joins the Judiciary or the government in general, he or
she swears to faithfully adhere to, and abide with, the law and the
corresponding office rules and regulations. These rules and regulations, to
which one submits himself or herself, have been issued to guide the
government officers and employees in the efficient performance of their
obligations. When one becomes a public servant, he or she assumes certain
duties with their concomitant responsibilities and gives up some rights like the
absolute right to travel so that public service would not be prejudiced.
 As earlier stated, with respect to members and employees of the
Judiciary, the Court issued OCA Circular No. 49-2003 to regulate their
foreign travel in an unofficial capacity. Such regulation is necessary for the
orderly administration of justice. If judges and court personnel can go on
leave and travel abroad at will and without restrictions or regulations, there
could be a disruption in the administration of justice. A situation where the
employees go on mass leave and travel together, despite the fact that their
invaluable services are urgently needed, could possibly arise. For said
reason, members and employees of the Judiciary cannot just invoke and
demand their right to travel.
To permit such unrestricted freedom can result in disorder, if not
chaos, in the Judiciary and the society as well. In a situation where there is a
delay in the dispensation of justice, litigants can get disappointed and
disheartened. If their expectations are frustrated, they may take the law into
their own hands which results in public disorder undermining public safety.
In this limited sense, it can even be considered that the restriction or
regulation of a court personnel's right to travel is a concern for public safety,
one of the exceptions to the non-impairment of one's constitutional right to
travel. 15 (Citations omitted, emphasis supplied) cAaDHT

A person's right to bail before conviction is both guaranteed and limited under
the Constitution. Article III, Section 13 states:
Section 13. All persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before conviction,
be bailable by sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not
be required.
Courts have the jurisdiction to determine whether a person should be admitted
to bail. This jurisdiction springs from the Constitution itself, which imposes
limitations on the right to bail. However, the discretion of courts is not restricted to
the question of whether bail should be granted to an accused as Courts have the
inherent power "to prohibit a person admitted to bail from leaving the Philippines." 16
Regional Trial Courts, in particular, are empowered to issue hold departure orders in
criminal cases falling within their exclusive jurisdiction. 17 Persons admitted to bail
are required to seek permission before travelling abroad. 18
Similar to the power of this Court to control foreign travel of court personnel,
the power to restrict the travel of persons admitted to bail is neither based on a
legislative enactment nor founded upon national security, public safety, or public
health considerations. The power of courts to restrict the travel of persons on bail is
deemed a necessary consequence of the conditions imposed in a bail bond. 19 In
Manotoc v. Court of Appeals 20 this Court explained:
Rule 114, Section 1 of the Rules of Court defines bail as the security
required and given for the release of a person who is in the custody of the law,
 that he will appear before any court in which his appearance may be required
as stipulated in the bail bond or recognizance.
"Its object is to relieve the accused of imprisonment and the state of
the burden of keeping him, pending the trial, and at the same time, to put the
accused as much under the power of the court as if he were in custody of the
proper officer, and to secure the appearance of the accused so as to answer the
call of the court and do what the law may require of him."
The condition imposed upon petitioner to make himself available at all
times whenever the court requires his presence operates as a valid restriction
on his right to travel. As we have held in People v. Uy Tuising[:]
". . . the result of the obligation assumed by appellee (surety) to
hold the accused amenable at all times to the orders and
processes of the lower court, was to prohibit said accused from
leaving the jurisdiction of the Philippines, because, otherwise,
said orders and processes will be nugatory, and inasmuch as
the jurisdiction of the courts from which they issued does not
extend beyond that of the Philippines they would have no
binding force outside of said jurisdiction."
Indeed, if the accused were allowed to leave the Philippines without
sufficient reason, he may be placed beyond the reach of the courts.
"The effect of a recognizance or bail bond, when fully executed or
filed of record, and the prisoner released thereunder, is to transfer the custody
of the accused from the public officials who have him in their charge to
keepers of his own selection. Such custody has been regarded merely as a
continuation of the original imprisonment. The sureties become invested with
full authority over the person of the principal and have the right to prevent the
principal from leaving the state." 21 (Citations omitted)
Although Manotoc was decided under the 1973 Constitution, the nature and
functions of bail remain essentially the same under the 1987 Constitution. 22 Hence,
the principle laid down in Manotoc was reiterated in Silverio v. Court of Appeals 23
where this Court further explained that:
Article III, Section 6 of the 1987 Constitution should by no means be
construed as delimiting the inherent power of the Courts to use all means
necessary to carry their orders into effect in criminal cases pending before
them. When by law jurisdiction is conferred on a Court or judicial officer, all
auxiliary writs, process and other means necessary to carry it into effect may
be employed by such Court or officer.
xxx xxx xxx
. . . Holding an accused in a criminal case within the reach of the Courts by
preventing his departure from the Philippines must be considered as a valid
restriction on his right to travel so that he may be dealt with in accordance
with law. 24 (Citation omitted)
 Moreover, the power of courts to restrict the travel of persons out on bail is an
incident of its power to grant or deny bail. As explained in Santiago v. Vasquez: 25
Courts possess certain inherent powers which may be said to be
implied from a general grant of jurisdiction, in addition to those expressly
conferred on them. These inherent powers are such powers as are necessary
for the ordinary and efficient exercise of jurisdiction; or essential to the
existence, dignity and functions of the courts, as well as to the due
administration of justice; or are directly appropriate, convenient and suitable
to the execution of their granted powers; and include the power to maintain
the court's jurisdiction and render it effective in behalf of the litigants.
Therefore, while a court may be expressly granted the incidental
powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the
absence of prohibitive legislation, implies the necessary and usual incidental
powers essential to effectuate it, and, subject to existing laws and
constitutional provisions, every regularly constituted court has the power to do
all things that are reasonably necessary for the administration of justice within
the scope of its jurisdiction. Hence, demands, matters, or questions ancillary
or incidental to, or growing out of, the main action, and coming within the
above principles, may be taken cognizance of by the court and determined,
since such jurisdiction is in aid of its authority over the principal matter, even
though the court may thus be called on to consider and decide matters which,
as original causes of action, would not be within its cognizance.
Furthermore, a court has the inherent power to make interlocutory
orders necessary to protect its jurisdiction. Such being the case, with more
reason may a party litigant be subjected to proper coercive measures where he
disobeys a proper order, or commits a fraud on the court or the opposing
party, the result of which is that the jurisdiction of the court would be
ineffectual. What ought to be done depends upon the particular circumstances.
Turning now to the case at bar, petitioner does not deny and, as a
matter of fact, even made a public statement that she had every intention of
leaving the country allegedly to pursue higher studies abroad. We uphold the
course of action adopted by the Sandiganbayan in taking judicial notice of
such fact of petitioner's plan to go abroad and in thereafter issuing sua sponte
the hold departure order, in justified consonance with our preceding
disquisition. To reiterate, the hold departure order is but an exercise of
respondent court's inherent power to preserve and to maintain the
effectiveness of its jurisdiction over the case and the person of the accused. 26
HCaDIS

The Department of Justice is neither empowered by a specific law nor does it

possess the inherent power to restrict the right to travel of persons under criminal
investigation through the issuance of hold departure orders, watchlist orders, and
allow departure orders. Its mandate under the Administrative Code of 1987 to
"[i]nvestigate the commission of crimes [and] prosecute offenders" 27 cannot be
interpreted so broadly as to include the power to curtail a person's right to travel.
 Furthermore, Department Order No. 41, series of 2010 cannot be likened to the power
of the courts to restrict the travel of persons on bail as the latter presupposes that the
accused was arrested by virtue of a valid warrant and placed under the court's
jurisdiction. For these reasons, Department of Justice Circular No. 41, series of 2010,
is unconstitutional.
Parenthetically, I agree that the right to travel is part and parcel of an
individual's right to liberty, which cannot be impaired without due process of law. 28
The ponencia mentions Rubi v. Provincial Board of Mindoro. 29 In my view,
Rubi should always be cited with caution. In Rubi, the Mangyans of Mindoro were
forcibly removed from their habitat and were compelled to settle in a reservation
under pain of imprisonment for non-compliance. 30 Although the concepts of civil
liberty and due process were extensively discussed in the case, 31 this Court
nevertheless justified the government act on a perceived necessity to "begin the
process of civilization" of the Mangyans who were considered to have a "low degree
of intelligence" and as "a drag upon the progress of the State." 32
 
||| (Genuino v. De Lima, G.R. Nos. 197930, 199034 & 199046, [April 17, 2018])

SECOND DIVISION

[G.R. No. 172716. November 17, 2010.]

JASON IVLER y AGUILAR, petitioner, vs. HON. MARIA ROWENA

MODESTO-SAN PEDRO, Judge of the Metropolitan Trial Court,
Branch 71, Pasig City, and EVANGELINE PONCE, respondents.

DECISION

CARPIO, J : p

The Case
The petition seeks the review 1 of the Orders 2 of the Regional Trial Court of
Pasig City affirming sub-silencio a lower court's ruling finding inapplicable the
Double Jeopardy Clause to bar a second prosecution for Reckless Imprudence
Resulting in Homicide and Damage to Property. This, despite the accused's previous
conviction for Reckless Imprudence Resulting in Slight Physical Injuries arising from
the same incident grounding the second prosecution.
 The Facts
Following a vehicular collision in August 2004, petitioner Jason Ivler
(petitioner) was charged before the Metropolitan Trial Court of Pasig City, Branch 71
(MeTC), with two separate offenses: (1) Reckless Imprudence Resulting in Slight
Physical Injuries (Criminal Case No. 82367) for injuries sustained by respondent
Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence Resulting in
Homicide and Damage to Property (Criminal Case No. 82366) for the death of
respondent Ponce's husband Nestor C. Ponce and damage to the spouses Ponce's
vehicle. Petitioner posted bail for his temporary release in both cases.
On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case
No. 82367 and was meted out the penalty of public censure. Invoking this conviction,
petitioner moved to quash the Information in Criminal Case No. 82366 for placing
him in jeopardy of second punishment for the same offense of reckless imprudence.
SICDAa

The MeTC refused quashal, finding no identity of offenses in the two cases. 3
After unsuccessfully seeking reconsideration, petitioner elevated the matter to
the Regional Trial Court of Pasig City, Branch 157 (RTC), in a petition for certiorari
(S.C.A. No. 2803). Meanwhile, petitioner sought from the MeTC the suspension of
proceedings in Criminal Case No. 82366, including the arraignment on 17 May 2005,
invoking S.C.A. No. 2803 as a prejudicial question. Without acting on petitioner's
motion, the MeTC proceeded with the arraignment and, because of petitioner's
absence, cancelled his bail and ordered his arrest. 4 Seven days later, the MeTC
issued a resolution denying petitioner's motion to suspend proceedings and postponing
his arraignment until after his arrest. 5 Petitioner sought reconsideration but as of the
filing of this petition, the motion remained unresolved.
Relying on the arrest order against petitioner, respondent Ponce sought in the
RTC the dismissal of S.C.A. No. 2803 for petitioner's loss of standing to maintain the
suit. Petitioner contested the motion.
The Ruling of the Trial Court
In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803,
narrowly grounding its ruling on petitioner's forfeiture of standing to maintain S.C.A.
No. 2803 arising from the MeTC's order to arrest petitioner for his non-appearance at
the arraignment in Criminal Case No. 82366. Thus, without reaching the merits of
S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner sought
reconsideration but this proved unavailing. 6 HITEaS

Hence, this petition.

Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803
constrained him to forego participation in the proceedings in Criminal Case No.
82366. Petitioner distinguishes his case from the line of jurisprudence sanctioning
dismissal of appeals for absconding appellants because his appeal before the RTC was
a special civil action seeking a pre-trial relief, not a post-trial appeal of a judgment of
conviction. 7
Petitioner laments the RTC's failure to reach the merits of his petition in S.C.A.
2803. Invoking jurisprudence, petitioner argues that his constitutional right not to be
placed twice in jeopardy of punishment for the same offense bars his prosecution in
Criminal Case No. 82366, having been previously convicted in Criminal Case No.
82367 for the same offense of reckless imprudence charged in Criminal Case No.
82366. Petitioner submits that the multiple consequences of such crime are material
only to determine his penalty. CSTcEI

Respondent Ponce finds no reason for the Court to disturb the RTC's decision
forfeiting petitioner's standing to maintain his petition in S.C.A. 2803. On the merits,
respondent Ponce calls the Court's attention to jurisprudence holding that light
offenses (e.g., slight physical injuries) cannot be complexed under Article 48 of the
Revised Penal Code with grave or less grave felonies (e.g., homicide). Hence, the
prosecution was obliged to separate the charge in Criminal Case No. 82366 for the
slight physical injuries from Criminal Case No. 82367 for the homicide and damage
to property.
In the Resolution of 6 June 2007, we granted the Office of the Solicitor
General's motion not to file a comment to the petition as the public respondent judge
is merely a nominal party and private respondent is represented by counsel.
The Issues
Two questions are presented for resolution: (1) whether petitioner forfeited his
standing to seek relief in S.C.A. 2803 when the MeTC ordered his arrest following his
non-appearance at the arraignment in Criminal Case No. 82366; and (2) if in the
negative, whether petitioner's constitutional right under the Double Jeopardy Clause
bars further proceedings in Criminal Case No. 82366.
The Ruling of the Court
We hold that (1) petitioner's non-appearance at the arraignment in Criminal
Case No. 82366 did not divest him of personality to maintain the petition in S.C.A.
2803; and (2) the protection afforded by the Constitution shielding petitioner from
prosecutions placing him in jeopardy of second punishment for the same offense bars
further proceedings in Criminal Case No. 82366. ADETca

Petitioner's Non-appearance at the Arraignment in Criminal Case No. 82366 did

not Divest him of Standing to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the appellant's escape from custody or
violation of the terms of his bail bond are governed by the second paragraph of
Section 8, Rule 124, 8 in relation to Section 1, Rule 125, of the Revised Rules on
Criminal Procedure authorizing this Court or the Court of Appeals to "also, upon
motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes
from prison or confinement, jumps bail or flees to a foreign country during the
pendency of the appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit
to review judgments of convictions.
The RTC's dismissal of petitioner's special civil action for certiorari to review
a pre-arraignment ancillary question on the applicability of the Due Process Clause to
bar proceedings in Criminal Case No. 82366 finds no basis under procedural rules and
jurisprudence. The RTC's reliance on People v. Esparas 9 undercuts the cogency of
its ruling because Esparas stands for a proposition contrary to the RTC's ruling.
There, the Court granted review to an appeal by an accused who was sentenced to
death for importing prohibited drugs even though she jumped bail pending trial and
was thus tried and convicted in absentia. The Court in Esparas treated the mandatory
review of death sentences under Republic Act No. 7659 as an exception to Section 8
of Rule 124. 10
The mischief in the RTC's treatment of petitioner's non-appearance at his
arraignment in Criminal Case No. 82366 as proof of his loss of standing becomes
more evident when one considers the Rules of Court's treatment of a defendant who
absents himself from post-arraignment hearings. Under Section 21, Rule 114 11 of the
Revised Rules of Criminal Procedure, the defendant's absence merely renders his
bondsman potentially liable on its bond (subject to cancellation should the bondsman
fail to produce the accused within 30 days); the defendant retains his standing and,
should he fail to surrender, will be tried in absentia and could be convicted or
acquitted. Indeed, the 30-day period granted to the bondsman to produce the accused
underscores the fact that mere non-appearance does not ipso facto convert the
accused's status to that of a fugitive without standing.
EScAHT

Further, the RTC's observation that petitioner provided "no explanation why he
failed to attend the scheduled proceeding" 12 at the MeTC is belied by the records.
Days before the arraignment, petitioner sought the suspension of the MeTC's
proceedings in Criminal Case No. 82366 in light of his petition with the RTC in
S.C.A. No. 2803. Following the MeTC's refusal to defer arraignment (the order for
which was released days after the MeTC ordered petitioner's arrest), petitioner sought
reconsideration. His motion remained unresolved as of the filing of this petition.
Petitioner's Conviction in Criminal Case No. 82367 Bars his Prosecution in
Criminal Case No. 82366
The accused's negative constitutional right not to be "twice put in jeopardy of
punishment for the same offense" 13 protects him from, among others, post-
conviction prosecution for the same offense, with the prior verdict rendered by a court
of competent jurisdiction upon a valid information. 14 It is not disputed that
petitioner's conviction in Criminal Case No. 82367 was rendered by a court of
competent jurisdiction upon a valid charge. Thus, the case turns on the question
whether Criminal Case No. 82366 and Criminal Case No. 82367 involve the "same
offense." Petitioner adopts the affirmative view, submitting that the two cases concern
the same offense of reckless imprudence. The MeTC ruled otherwise, finding that
Reckless Imprudence Resulting in Slight Physical Injuries is an entirely separate
offense from Reckless Imprudence Resulting in Homicide and Damage to Property
"as the [latter] requires proof of an additional fact which the other does not." 15  

We find for petitioner. ITSCED

Reckless Imprudence is a Single Crime,

its Consequences on Persons and
Property are Material Only to Determine
the Penalty
The two charges against petitioner, arising from the same facts, were
prosecuted under the same provision of the Revised Penal Code, as amended, namely,
Article 365 defining and penalizing quasi-offenses. The text of the provision reads:

Imprudence and negligence. — Any person who, by reckless

imprudence, shall commit any act which, had it been intentional, would
constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correctional in its medium period; if it would have
constituted a less grave felony, the penalty of arresto mayor in its minimum and
medium periods shall be imposed; if it would have constituted a light felony, the
penalty of arresto menor in its maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an

act which would otherwise constitute a grave felony, shall suffer the penalty of
arresto mayor in its medium and maximum periods; if it would have constituted
a less serious felony, the penalty of arresto mayor in its minimum period shall
be imposed. cdrep

When the execution of the act covered by this article shall have only
resulted in damage to the property of another, the offender shall be punished by
a fine ranging from an amount equal to the value of said damages to three times
such value, but which shall in no case be less than twenty-five pesos.

A fine not exceeding two hundred pesos and censure shall be imposed
upon any person who, by simple imprudence or negligence, shall cause some
wrong which, if done maliciously, would have constituted a light felony.

In the imposition of these penalties, the court shall exercise their sound
discretion, without regard to the rules prescribed in Article sixty-four.

The provisions contained in this article shall not be applicable: ISDCaT

1. When the penalty provided for the offense is equal to or lower than
those provided in the first two paragraphs of this article, in which case the court
 shall impose the penalty next lower in degree than that which should be
imposed in the period which they may deem proper to apply.

2. When, by imprudence or negligence and with violation of the

Automobile Law, to death of a person shall be caused, in which case the
defendant shall be punished by prision correctional in its medium and
maximum periods.

Reckless imprudence consists in voluntary, but without malice, doing or

failing to do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person performing or failing to
perform such act, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding
persons, time and place.

Simple imprudence consists in the lack of precaution displayed in those

cases in which the damage impending to be caused is not immediate nor the
danger clearly manifest.ASTDCH

The penalty next higher in degree to those provided for in this article
shall be imposed upon the offender who fails to lend on the spot to the injured
parties such help as may be in this hand to give.

Structurally, these nine paragraphs are collapsible into four sub-groupings

relating to (1) the penalties attached to the quasi-offenses of "imprudence" and
"negligence" (paragraphs 1-2); (2) a modified penalty scheme for either or both quasi-
offenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial courts in imposing
penalties (paragraph 5); and (4) the definition of "reckless imprudence" and "simple
imprudence" (paragraphs 7-8). Conceptually, quasi-offenses penalize "the mental
attitude or condition behind the act, the dangerous recklessness, lack of care or
foresight, the imprudencia punible," 16 unlike willful offenses which punish the
intentional criminal act. These structural and conceptual features of quasi-offenses set
them apart from the mass of intentional crimes under the first 13 Titles of Book II of
the Revised Penal Code, as amended.
Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct
species of crime, separately defined and penalized under the framework of our penal
laws, is nothing new. As early as the middle of the last century, we already sought to
bring clarity to this field by rejecting in Quizon v. Justice of the Peace of Pampanga
the proposition that "reckless imprudence is not a crime in itself but simply a way of
committing it . . ." 17 on three points of analysis: (1) the object of punishment in
quasi-crimes (as opposed to intentional crimes); (2) the legislative intent to treat
quasi-crimes as distinct offenses (as opposed to subsuming them under the mitigating
circumstance of minimal intent) and; (3) the different penalty structures for quasi-
crimes and intentional crimes:
 The proposition (inferred from Art. 3 of the Revised Penal Code) that
"reckless imprudence" is not a crime in itself but simply a way of committing it
and merely determines a lower degree of criminal liability is too broad to
deserve unqualified assent. There are crimes that by their structure cannot be
committed through imprudence: murder, treason, robbery, malicious mischief,
etc. In truth, criminal negligence in our Revised Penal Code is treated as a mere
quasi offense, and dealt with separately from willful offenses. It is not a mere
question of classification or terminology. In intentional crimes, the act itself is
punished; in negligence or imprudence, what is principally penalized is the
mental attitude or condition behind the act, the dangerous recklessness, lack of
care or foresight, the imprudencia punible. . . .
ACHEaI

Were criminal negligence but a modality in the commission of felonies,

operating only to reduce the penalty therefor, then it would be absorbed in the
mitigating circumstances of Art. 13, specially the lack of intent to commit so
grave a wrong as the one actually committed. Furthermore, the theory would
require that the corresponding penalty should be fixed in proportion to the
penalty prescribed for each crime when committed willfully. For each penalty
for the willfull offense, there would then be a corresponding penalty for the
negligent variety. But instead, our Revised Penal Code (Art. 365) fixes the
penalty for reckless imprudence at arresto mayor maximum, to prision
correccional [medium], if the willful act would constitute a grave felony,
notwithstanding that the penalty for the latter could range all the way from
prision mayor to death, according to the case. It can be seen that the actual
penalty for criminal negligence bears no relation to the individual willful crime,
but is set in relation to a whole class, or series of crimes. 18 (Emphasis
supplied)

This explains why the technically correct way to allege quasi-crimes is to state that
their commission results in damage, either to person or property. 19
Accordingly, we found the Justice of the Peace in Quizon without jurisdiction
to hear a case for "Damage to Property through Reckless Imprudence," its jurisdiction
being limited to trying charges for Malicious Mischief, an intentional crime
conceptually incompatible with the element of imprudence obtaining in quasi-crimes.
Quizon, rooted in Spanish law 20 (the normative ancestry of our present day
penal code) and since repeatedly reiterated, 21 stands on solid conceptual foundation.
The contrary doctrinal pronouncement in People v. Faller 22 that "[r]eckless
impudence is not a crime in itself . . . [but] simply a way of committing it . . . ," 23 has
long been abandoned when the Court en banc promulgated Quizon in 1955 nearly two
decades after the Court decided Faller in 1939. Quizon rejected Faller's
conceptualization of quasi-crimes by holding that quasi-crimes under Article 365 are
distinct species of crimes and not merely methods of committing crimes. Faller found
expression in post-Quizon jurisprudence 24 only by dint of lingering doctrinal
confusion arising from an indiscriminate fusion of criminal law rules defining Article
365 crimes and the complexing of intentional crimes under Article 48 of the Revised
Penal Code which, as will be shown shortly, rests on erroneous conception of quasi-
crimes. Indeed, the Quizonian conception of quasi-crimes undergirded a related
branch of jurisprudence applying the Double Jeopardy Clause to quasi-offenses,
barring second prosecutions for a quasi-offense alleging one resulting act after a prior
conviction or acquittal of a quasi-offense alleging another resulting act but arising
from the same reckless act or omission upon which the second prosecution was based.
caADSE

Prior Conviction or Acquittal of

Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense
The doctrine that reckless imprudence under Article 365 is a single quasi-
offense by itself and not merely a means to commit other crimes such that conviction
or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-
offense, regardless of its various resulting acts, undergirded this Court's unbroken
chain of jurisprudence on double jeopardy as applied to Article 365 starting with
People v. Diaz, 25 decided in 1954. There, a full Court, speaking through Mr. Justice
Montemayor, ordered the dismissal of a case for "damage to property thru reckless
imprudence" because a prior case against the same accused for "reckless driving,"
arising from the same act upon which the first prosecution was based, had been
dismissed earlier. Since then, whenever the same legal question was brought before
the Court, that is, whether prior conviction or acquittal of reckless imprudence bars
subsequent prosecution for the same quasi-offense, regardless of the consequences
alleged for both charges, the Court unfailingly and consistently answered in the
affirmative in People v. Belga 26 (promulgated in 1957 by the Court en banc, per
Reyes, J.), Yap v. Lutero 27 (promulgated in 1959, unreported, per Concepcion, J.),
People v. Narvas 28 (promulgated in 1960 by the Court en banc, per Bengzon J.),
People v. Silva 29 (promulgated in 1962 by the Court en banc, per Paredes, J.),
People v. Macabuhay 30 (promulgated in 1966 by the Court en banc, per Makalintal,
J.), People v. Buan 31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L.,
acting C.J.), Buerano v. Court of Appeals 32 (promulgated in 1982 by the Court en
banc, per Relova, J.), and People v. City Court of Manila 33 (promulgated in 1983 by
the First Division, per Relova, J.). These cases uniformly barred the second
prosecutions as constitutionally impermissible under the Double Jeopardy Clause.  
The reason for this consistent stance of extending the constitutional protection
under the Double Jeopardy Clause to quasi-offenses was best articulated by Mr.
Justice J.B.L. Reyes in Buan, where, in barring a subsequent prosecution for "serious
physical injuries and damage to property thru reckless imprudence" because of the
accused's prior acquittal of "slight physical injuries thru reckless imprudence," with
both charges grounded on the same act, the Court explained: 34
 Reason and precedent both coincide in that once convicted or acquitted
of a specific act of reckless imprudence, the accused may not be prosecuted
again for that same act. For the essence of the quasi offense of criminal
negligence under article 365 of the Revised Penal Code lies in the execution of
an imprudent or negligent act that, if intentionally done, would be punishable
as a felony. The law penalizes thus the negligent or careless act, not the result
thereof. The gravity of the consequence is only taken into account to determine
the penalty, it does not qualify the substance of the offense. And, as the careless
act is single, whether the injurious result should affect one person or several
persons, the offense (criminal negligence) remains one and the same, and can
not be split into different crimes and prosecutions. 35 . . . (Emphasis supplied)
SCaITA

Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its
logical conclusion the reasoning of Quizon.
There is in our jurisprudence only one ruling going against this unbroken
line of authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v.
Estipona, 36 decided by the pre-war colonial Court in November 1940, allowed the
subsequent prosecution of an accused for reckless imprudence resulting in damage to
property despite his previous conviction for multiple physical injuries arising from the
same reckless operation of a motor vehicle upon which the second prosecution was
based. Estipona's inconsistency with the post-war Diaz chain of jurisprudence suffices
to impliedly overrule it. At any rate, all doubts on this matter were laid to rest in 1982
in Buerano. 37 There, we reviewed the Court of Appeals' conviction of an accused for
"damage to property for reckless imprudence" despite his prior conviction for "slight
and less serious physical injuries thru reckless imprudence," arising from the same act
upon which the second charge was based. The Court of Appeals had relied on
Estipona. We reversed on the strength of Buan: 38

Th[e] view of the Court of Appeals was inspired by the ruling of this
Court in the pre-war case of People vs. Estipona decided on November 14,
1940. However, in the case of People vs. Buan, 22 SCRA 1383 (March 29,
1968), this Court, speaking thru Justice J. B. L. Reyes, held that —

Reason and precedent both coincide in that once convicted or

acquitted of a specific act of reckless imprudence, the accused may not
be prosecuted again for that same act. For the essence of the quasi
offense of criminal negligence under Article 365 of the Revised Penal
Code lies in the execution of an imprudent or negligent act that, if
intentionally done, would be punishable as a felony. The law penalizes
thus the negligent or careless act, not the result thereof. The gravity of
the consequence is only taken into account to determine the penalty, it
does not qualify the substance of the offense. And, as the careless act is
single, whether the injurious result should affect one person or several
 persons, the offense (criminal negligence) remains one and the same,
and can not be split into different crimes and prosecutions. acEHSI

xxx xxx xxx

. . . the exoneration of this appellant, Jose Buan, by the Justice of

the Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge
of slight physical injuries through reckless imprudence, prevents his
being prosecuted for serious physical injuries through reckless
imprudence in the Court of First Instance of the province, where
both charges are derived from the consequences of one and the same
vehicular accident, because the second accusation places the
appellant in second jeopardy for the same offense. 39 (Emphasis
supplied)

Thus, for all intents and purposes, Buerano had effectively overruled Estipona.
It is noteworthy that the Solicitor General in Buerano, in a reversal of his
earlier stance in Silva, joined causes with the accused, a fact which did not escape the
Court's attention:

Then Solicitor General, now Justice Felix V. Makasiar, in his

MANIFESTATION dated December 12, 1969 (page 82 of the Rollo) admits
that the Court of Appeals erred in not sustaining petitioner's plea of double
jeopardy and submits that "its affirmatory decision dated January 28, 1969, in
Criminal Case No. 05123-CR finding petitioner guilty of damage to property
through reckless imprudence should be set aside, without costs." He stressed
that "if double jeopardy exists where the reckless act resulted into homicide and
physical injuries, then the same consequence must perforce follow where the
same reckless act caused merely damage to property-not death-and physical
injuries. Verily, the value of a human life lost as a result of a vehicular collision
cannot be equated with any amount of damages caused to a motors vehicle
arising from the same mishap." 40 (Emphasis supplied)

Hence, we find merit in petitioner's submission that the lower courts erred in
refusing to extend in his favor the mantle of protection afforded by the Double
Jeopardy Clause. A more fitting jurisprudence could not be tailored to petitioner's
case than People v. Silva, 41 a Diaz progeny. There, the accused, who was also
involved in a vehicular collision, was charged in two separate Informations with
"Slight Physical Injuries thru Reckless Imprudence" and "Homicide with Serious
Physical Injuries thru Reckless Imprudence." Following his acquittal of the former,
the accused sought the quashal of the latter, invoking the Double Jeopardy Clause.
The trial court initially denied relief, but, on reconsideration, found merit in the
accused's claim and dismissed the second case. In affirming the trial court, we quoted
with approval its analysis of the issue following Diaz and its progeny People v. Belga:
42

On June 26, 1959, the lower court reconsidered its Order of May 2, 1959
and dismissed the case, holding: —

[T]he Court believes that the case falls squarely within the
doctrine of double jeopardy enunciated in People v. Belga, . . . In the
case cited, Ciriaco Belga and Jose Belga were charged in the Justice of
the Peace Court of Malilipot, Albay, with the crime of physical injuries
through reckless imprudence arising from a collision between the two
automobiles driven by them (Crim. Case No. 88). Without the aforesaid
complaint having been dismissed or otherwise disposed of, two other
criminal complaints were filed in the same justice of the peace court, in
connection with the same collision one for damage to property through
reckless imprudence (Crim. Case No. 95) signed by the owner of one of
the vehicles involved in the collision, and another for multiple physical
injuries through reckless imprudence (Crim. Case No. 96) signed by the
passengers injured in the accident. Both of these two complaints were
filed against Jose Belga only. After trial, both defendants were acquitted
of the charge against them in Crim. Case No. 88. Following his
acquittal, Jose Belga moved to quash the complaint for multiple physical
injuries through reckless imprudence filed against him by the injured
passengers, contending that the case was just a duplication of the one
filed by the Chief of Police wherein he had just been acquitted. The
motion to quash was denied and after trial Jose Belga was convicted,
whereupon he appealed to the Court of First Instance of Albay. In the
meantime, the case for damage to property through reckless imprudence
filed by one of the owners of the vehicles involved in the collision had
been remanded to the Court of First Instance of Albay after Jose Belga
had waived the second stage of the preliminary investigation. After such
remand, the Provincial Fiscal filed in the Court of First Instance two
informations against Jose Belga, one for physical injuries through
reckless imprudence, and another for damage to property through
reckless imprudence. Both cases were dismissed by the Court of First
Instance, upon motion of the defendant Jose Belga who alleged double
jeopardy in a motion to quash. On appeal by the Prov. Fiscal, the order
of dismissal was affirmed by the Supreme Court in the following
language:

The question for determination is whether the acquittal of

Jose Belga in the case filed by the chief of police constitutes a
bar to his subsequent prosecution for multiple physical injuries
and damage to property through reckless imprudence.
 In the case of Peo[ple] v. F. Diaz, G.R. No. L-6518, prom.
March 30, 1954, the accused was charged in the municipal court of
Pasay City with reckless driving under sec. 52 of the Revised Motor
Vehicle Law, for having driven an automobile in a 'fast and reckless
manner . . . thereby causing an accident.' After the accused had pleaded
not guilty the case was dismissed in that court 'for failure of the
Government to prosecute'. But some time thereafter the city attorney
filed an information in the Court of First Instance of Rizal, charging the
same accused with damage to property thru reckless imprudence. The
amount of the damage was alleged to be P249.50. Pleading double
jeopardy, the accused filed a motion, and on appeal by the Government
we affirmed the ruling. Among other things we there said through Mr.
Justice Montemayor — THADEI

The next question to determine is the relation between the

first offense of violation of the Motor Vehicle Law prosecuted
before the Pasay City Municipal Court and the offense of
damage to property thru reckless imprudence charged in the
Rizal Court of First Instance. One of the tests of double jeopardy
is whether or not the second offense charged necessarily includes
or is necessarily included in the offense charged in the former
complaint or information (Rule 113, Sec. 9). Another test is
whether the evidence which proves one would prove the other
that is to say whether the facts alleged in the first charge if
proven, would have been sufficient to support the second charge
and vice versa; or whether one crime is an ingredient of the
other. . . . 

xxx xxx xxx

The foregoing language of the Supreme Court also disposes of

the contention of the prosecuting attorney that the charge for slight
physical injuries through reckless imprudence could not have been
joined with the charge for homicide with serious physical injuries
through reckless imprudence in this case, in view of the provisions of
Art. 48 of the Revised Penal Code, as amended. The prosecution's
contention might be true. But neither was the prosecution obliged to first
prosecute the accused for slight physical injuries through reckless
imprudence before pressing the more serious charge of homicide with
serious physical injuries through reckless imprudence. Having first
prosecuted the defendant for the lesser offense in the Justice of the Peace
Court of Meycauayan, Bulacan, which acquitted the defendant, the
prosecuting attorney is not now in a position to press in this case the
more serious charge of homicide with serious physical injuries through
reckless imprudence which arose out of the same alleged reckless
 imprudence of which the defendant have been previously cleared by the
inferior court. 43

Significantly, the Solicitor General had urged us in Silva to reexamine Belga

(and hence, Diaz) "for the purpose of delimiting or clarifying its application." 44 We
declined the invitation, thus:

The State in its appeal claims that the lower court erred in dismissing the
case, on the ground of double jeopardy, upon the basis of the acquittal of the
accused in the JP court for Slight Physical Injuries, thru Reckless Imprudence.
In the same breath said State, thru the Solicitor General, admits that the facts of
the case at bar, fall squarely on the ruling of the Belga case . . ., upon which the
order of dismissal of the lower court was anchored. The Solicitor General,
however, urges a re-examination of said ruling, upon certain considerations for
the purpose of delimiting or clarifying its application. We find, nevertheless,
that further elucidation or disquisition on the ruling in the Belga case, the facts
of which are analogous or similar to those in the present case, will yield no
practical advantage to the government. On one hand, there is nothing which
would warrant a delimitation or clarification of the applicability of the Belga
case. It was clear. On the other, this Court has reiterated the views expressed in
the Belga case, in the identical case of Yap v. Hon. Lutero, etc., L-12669, April
30, 1959. 45 (Emphasis supplied) DIHETS

Article 48 Does not Apply to Acts Penalized

Under Article 365 of the Revised Penal Code
The confusion bedeviling the question posed in this petition, to which the
MeTC succumbed, stems from persistent but awkward attempts to harmonize
conceptually incompatible substantive and procedural rules in criminal law, namely,
Article 365 defining and penalizing quasi-offenses and Article 48 on complexing of
crimes, both under the Revised Penal Code. Article 48 is a procedural device allowing
single prosecution of multiple felonies falling under either of two categories: (1) when
a single act constitutes two or more grave or less grave felonies (thus excluding from
its operation light felonies); 46 and (2) when an offense is a necessary means for
committing the other. The legislature crafted this procedural tool to benefit the
accused who, in lieu of serving multiple penalties, will only serve the maximum of the
penalty for the most serious crime.
In contrast, Article 365 is a substantive rule penalizing not an act defined as a
felony but "the mental attitude . . . behind the act, the dangerous recklessness, lack of
care or foresight . . .," 47 a single mental attitude regardless of the resulting
consequences. Thus, Article 365 was crafted as one quasi-crime resulting in one or
more consequences.
Ordinarily, these two provisions will operate smoothly. Article 48 works to
combine in a single prosecution multiple intentional crimes falling under Titles 1-13,
Book II of the Revised Penal Code, when proper; Article 365 governs the prosecution
of imprudent acts and their consequences. However, the complexities of human
interaction can produce a hybrid quasi-offense not falling under either models — that
of a single criminal negligence resulting in multiple non-crime damages to persons
and property with varying penalties corresponding to light, less grave or grave
offenses. The ensuing prosecutorial dilemma is obvious: how should such a quasi-
crime be prosecuted? Should Article 48's framework apply to "complex" the single
quasi-offense with its multiple (non-criminal) consequences (excluding those
amounting to light offenses which will be tried separately)? Or should the prosecution
proceed under a single charge, collectively alleging all the consequences of the single
quasi-crime, to be penalized separately following the scheme of penalties under
Article 365? IDTSaC

Jurisprudence adopts both approaches. Thus, one line of rulings (none of which
involved the issue of double jeopardy) applied Article 48 by "complexing" one quasi-
crime with its multiple consequences 48 unless one consequence amounts to a light
felony, in which case charges were split by grouping, on the one hand, resulting acts
amounting to grave or less grave felonies and filing the charge with the second level
courts and, on the other hand, resulting acts amounting to light felonies and filing the
charge with the first level courts. 49 Expectedly, this is the approach the MeTC
impliedly sanctioned (and respondent Ponce invokes), even though under Republic
Act No. 7691, 50 the MeTC has now exclusive original jurisdiction to impose the
most serious penalty under Article 365 which is prision correctional in its medium
period.
Under this approach, the issue of double jeopardy will not arise if the
"complexing" of acts penalized under Article 365 involves only resulting acts
penalized as grave or less grave felonies because there will be a single prosecution of
all the resulting acts. The issue of double jeopardy arises if one of the resulting acts is
penalized as a light offense and the other acts are penalized as grave or less grave
offenses, in which case Article 48 is not deemed to apply and the act penalized as a
light offense is tried separately from the resulting acts penalized as grave or less grave
offenses.
The second jurisprudential path nixes Article 48 and sanctions a single
prosecution of all the effects of the quasi-crime collectively alleged in one charge,
regardless of their number or severity, 51 penalizing each consequence separately.
Thus, in Angeles v. Jose, 52 we interpreted paragraph three of Article 365, in relation
to a charge alleging "reckless imprudence resulting in damage to property and less
serious physical injuries," as follows:

[T]he third paragraph of said article, . . . reads as follows: SCADIT

When the execution of the act covered by this article shall have
only resulted in damage to the property of another, the offender shall be
 punished by a fine ranging from an amount equal to the value of said
damage to three times such value, but which shall in no case be less than
25 pesos.

The above-quoted provision simply means that if there is only damage to

property the amount fixed therein shall be imposed, but if there are also
physical injuries there should be an additional penalty for the latter. The
information cannot be split into two; one for the physical injuries, and another
for the damage to property, . . . . 53 (Emphasis supplied)

By "additional penalty," the Court meant, logically, the penalty scheme under Article
365.
Evidently, these approaches, while parallel, are irreconcilable. Coherence in
this field demands choosing one framework over the other. Either (1) we allow the
"complexing" of a single quasi-crime by breaking its resulting acts into separate
offenses (except for light felonies), thus re-conceptualize a quasi-crime, abandon its
present framing under Article 365, discard its conception under the Quizon and Diaz
lines of cases, and treat the multiple consequences of a quasi-crime as separate
intentional felonies defined under Titles 1-13, Book II under the penal code; or (2) we
forbid the application of Article 48 in the prosecution and sentencing of quasi-crimes,
require single prosecution of all the resulting acts regardless of their number and
severity, separately penalize each as provided in Article 365, and thus maintain the
distinct concept of quasi-crimes as crafted under Article 365, articulated in Quizon
and applied to double jeopardy adjudication in the Diaz line of cases. TaCIDS

A becoming regard of this Court's place in our scheme of government denying

it the power to make laws constrains us to keep inviolate the conceptual distinction
between quasi-crimes and intentional felonies under our penal code. Article 48 is
incongruent to the notion of quasi-crimes under Article 365. It is conceptually
impossible for a quasi-offense to stand for (1) a single act constituting two or more
grave or less grave felonies; or (2) an offense which is a necessary means for
committing another. This is why, way back in 1968 in Buan, we rejected the Solicitor
General's argument that double jeopardy does not bar a second prosecution for slight
physical injuries through reckless imprudence allegedly because the charge for that
offense could not be joined with the other charge for serious physical injuries through
reckless imprudence following Article 48 of the Revised Penal Code:

The Solicitor General stresses in his brief that the charge for slight
physical injuries through reckless imprudence could not be joined with the
accusation for serious physical injuries through reckless imprudence, because
Article 48 of the Revised Penal Code allows only the complexing of grave or
less grave felonies. This same argument was considered and rejected by this
Court in the case of People vs. [Silva] . . .:  
 [T]he prosecution's contention might be true. But neither was the
prosecution obliged to first prosecute the accused for slight physical
injuries through reckless imprudence before pressing the more serious
charge of homicide with serious physical injuries through reckless
imprudence. Having first prosecuted the defendant for the lesser offense
in the Justice of the Peace Court of Meycauayan, Bulacan, which
acquitted the defendant, the prosecuting attorney is not now in a
position to press in this case the more serious charge of homicide with
serious physical injuries through reckless imprudence which arose out
of the same alleged reckless imprudence of which the defendant has
been previously cleared by the inferior court.

[W]e must perforce rule that the exoneration of this appellant . . . by the
Justice of the Peace . . . of the charge of slight physical injuries through reckless
imprudence, prevents his being prosecuted for serious physical injuries through
reckless imprudence in the Court of First Instance of the province, where both
charges are derived from the consequences of one and the same vehicular
accident, because the second accusation places the appellant in second jeopardy
for the same offense. 54 (Emphasis supplied) CDTHSI

Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of

charges under Article 365, irrespective of the number and severity of the resulting
acts, rampant occasions of constitutionally impermissible second prosecutions are
avoided, not to mention that scarce state resources are conserved and diverted to
proper use.
Hence, we hold that prosecutions under Article 365 should proceed from a
single charge regardless of the number or severity of the consequences. In imposing
penalties, the judge will do no more than apply the penalties under Article 365 for
each consequence alleged and proven. In short, there shall be no splitting of charges
under Article 365, and only one information shall be filed in the same first level court.
55
Our ruling today secures for the accused facing an Article 365 charge a
stronger and simpler protection of their constitutional right under the Double Jeopardy
Clause. True, they are thereby denied the beneficent effect of the favorable sentencing
formula under Article 48, but any disadvantage thus caused is more than compensated
by the certainty of non-prosecution for quasi-crime effects qualifying as "light
offenses" (or, as here, for the more serious consequence prosecuted belatedly). If it is
so minded, Congress can re-craft Article 365 by extending to quasi-crimes the
sentencing formula of Article 48 so that only the most severe penalty shall be imposed
under a single prosecution of all resulting acts, whether penalized as grave, less grave
or light offenses. This will still keep intact the distinct concept of quasi-offenses.
Meanwhile, the lenient schedule of penalties under Article 365, befitting crimes
occupying a lower rung of culpability, should cushion the effect of this ruling. CaDSHE
 WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2
February 2006 and 2 May 2006 of the Regional Trial Court of Pasig City, Branch
157. We DISMISS the Information in Criminal Case No. 82366 against petitioner
Jason Ivler y Aguilar pending with the Metropolitan Trial Court of Pasig City, Branch
71 on the ground of double jeopardy.

Let a copy of this ruling be served on the President of the Senate and the Speaker
of the House of Representatives.

SO ORDERED.

Carpio Morales, * Peralta, Abad and Mendoza, JJ., concur.

 
(Ivler y Aguilar v. Modesto-San Pedro, G.R. No. 172716, [November 17, 2010], 649
|||

PHIL 478-510)

SECOND DIVISION

[OCA IPI No. 17-4663-RTJ. March 7, 2018.]

ATTY. BERTENI C. CAUSING and PERCIVAL CARAG

MABASA, complainants, vs. PRESIDING JUDGE JOSE LORENZO
R. DELA ROSA, Regional Trial Court, Branch 4, Manila, respondent.

DECISION

CAGUIOA, J : p

Before the Court is the Complaint 1 dated January 6, 2017 filed before the
Office of the Court Administrator (OCA) by Atty. Berteni C. Causing (Atty. Causing)
and Percival Carag Mabasa a.k.a. Percy Lapid (Mabasa) against respondent Judge
Jose Lorenzo R. Dela Rosa (respondent Judge Dela Rosa), Presiding Judge, Regional
Trial Court (RTC), Branch (Br.) 4, Manila.IAETDc

Antecedents

Atty. Causing and his client, Mabasa (Complainants), charged respondent

Judge Dela Rosa with gross ignorance of the law, gross misconduct and gross
incompetence for reversing 2 the dismissal of Criminal Case Nos. 09-268685-86
entitled People v. Eleazar, et al. (Libel Cases), wherein Mabasa was one of the
accused.
Complainants alleged that the Libel Cases were dismissed by former Acting
Presiding Judge Gamor B. Disalo (Judge Disalo) in an Order 3 dated April 13, 2015
on the ground that the right of the accused to speedy trial had been violated. The
prosecution filed a Motion for Reconsideration of the April 13, 2015 Order before the
RTC Br. 4 Manila, now presided by respondent Judge Dela Rosa.
Respondent Judge Dela Rosa granted the prosecution's Motion for
Reconsideration in the assailed Resolution 4 dated November 23, 2015 (November
23, 2015 Resolution), the pertinent portions of which read:
xxx xxx xxx
In opposition thereto, counsel for the accused cites double jeopardy.
However, several settings of this Court showed that the resetting was on
motion of counsel for the accused and hence with the consent of the accused.
Further, the questioned Order dated April 13, 2015 has not yet attained
finality, so double jeopardy is not yet attached.
Further, the records of this case would show that the accused is not
entirely without blame as to why this case has been pending. Aside from that,
the accused filed a Motion to Quash as well as accused's Motion for
Reconsideration thereto resulting in the conduct of the arraignment only in the
last year of September.
The prosecution should be given its day in court. To deny the Motion
For Reconsideration is a (sic) deny to prosecute on the part of the prosecution.
5
Complainants questioned respondent Judge Dela Rosa's November 23, 2015
Resolution granting the prosecution's Motion for Reconsideration because, according
to them, it was elementary for respondent Judge Dela Rosa to know that the prior
dismissal of a criminal case due to a violation of the accused's right to speedy trial is
equivalent to a dismissal on the merits of the case and, as such, granting the
prosecution's Motion for Reconsideration was tantamount to a violation of the
constitutional right against double jeopardy. 6 Complainants averred further that it
was unacceptable, given respondent Judge Dela Rosa's position and the presumption
of his knowledge of the law, for him to have disregarded a rule as elementary as the
constitutional right of an accused against double jeopardy. 7
Complainants also criticized respondent Judge Dela Rosa's act of referring to
the Integrated Bar of the Philippines (IBP) Atty. Causing's two (2) separate posts on
his Facebook and blogspot accounts about the subject criminal cases. They reasoned
that respondent Judge Dela Rosa should have first required Atty. Causing to show
cause why he should not be cited in contempt for publicizing and taking his posts to
social media. Atty. Causing emphasized that the posts were presented using decent
words and thus, it was incorrect for respondent Judge Dela Rosa to refer his actions to
a disciplinary body such as the IBP. Atty. Causing further asserted that he did not
violate the sub judice 8 rule because this rule cannot be used to preserve the
unfairness and errors of respondent Judge Dela Rosa. 9
In a 1st Indorsement 10 dated January 16, 2017, the OCA directed respondent
Judge Dela Rosa to file his Comment within ten (10) days from receipt thereof. 11
In his Comment 12 dated March 13, 2017 (Comment), respondent Judge Dela
Rosa averred that he had already reversed the November 23, 2015 Resolution as early
as June 20, 2016 — or way before the filing of the Complaint on January 6, 2017 —
when he issued a Resolution 13 of even date, which states:
x x x While the records of the cases will show delay also attributable
to the defense and that this court was acting in the spirit of fairness, the April
13, 2015 Order of Hon. Disalo should be upheld to the prejudice of fairness.
Being caught between a rock and a hard place, liberality is afforded to the
accused. x x x
xxx xxx xxx
As the records would show that the Hon. Judge Disalo dismissed these
cases on the right of speedy trial, double jeopardy attaches. Hence, this Court's
Resolution dated November 23, 2015 is recalled and set aside. The dismissal
dated April 13, 2015 as dictated in the Order of Hon. Judge Disalo is
reinstated.
While the right of due process of the State may have been
circumvented, the interest of the private complainants with regard to the civil
aspect of the cases is protected as the dismissal of the subject criminal cases is
without prejudice to the pursuit of civil indemnity. 14
Respondent Judge Dela Rosa explained in his Comment that he had issued the
November 23, 2015 Resolution because, after studying the records, he discovered that
Complainants caused much of the delay in the proceedings. 15
Respondent Judge Dela Rosa then enumerated in his Comment the instances
wherein Complainants caused the delay in the proceedings in the Libel Cases:
1. While the warrant of arrest for Mabasa was issued on May 28, 2009, it was
only one (1) year and four (4) months after or on September 28, 2010
that Mabasa was detained; 16 DcHSEa

2. Mabasa filed a Motion to Dismiss on November 30, 2010; 17

3. The arraignment and pre-trial of the cases were reset after then Presiding
Judge Marcelino L. Sayo, Jr. (Judge Sayo) issued an Order dated April
6, 2011, which indicated that Mabasa, through counsel, moved that the
scheduled arraignment and pre-trial be reset in order "for the parties to
settle the civil aspect of these cases"; 18
 4. The counsel of Mabasa filed an Urgent Motion for Deferment dated June 9,
2011 requesting again for the re-scheduling of the arraignment and pre-
trial; 19
5. The pre-trial of the case was again rescheduled in an Order dated August 24,
2011 by the lower court due to the absence of Mabasa's co-accused,
Johnson L. Eleazar; 20
6. Mabasa filed a Motion to Quash dated October 11, 2011, citing the court's
lack of jurisdiction; 21
7. The lower court, in an Order dated June 27, 2012, rescheduled again the
arraignment and pre-trial, citing the absence of the private prosecutor,
Mabasa and his counsel; 22
8. Judge Sayo thereafter issued an Order dated November 28, 2012, directing
the issuance of warrants of arrest against Mabasa and co-accused Gloria
Galuno due to their continued non-appearance in court; 23
9. In an Order dated December 12, 2012, Judge Sayo lifted the warrants of
arrest against Mabasa and his other co-accused in the Libel Cases after
their counsel admitted that their non-appearance in the previous hearing
was due to the fault of their counsel's law office; 24
10. The hearing of the case on June 30, 2014 was rescheduled after Mabasa
moved for the resetting of the case due to the absence of his counsel; 25
11. In an Order by Judge Disalo dated August 11, 2014, counsel for Mabasa
was absent again. Mabasa was finally arraigned after the court
appointed one of the lawyers from the Public Attorney's Office as
counsel de oficio for Mabasa; 26
12. The Commissioner's Report dated September 23, 2014 stated that the
preliminary conference failed to push through due to the absence of
Mabasa and his counsel; 27 and
13. The initial date of the presentation of the prosecution evidence was set on
April 13, 2015 by the branch clerk of court. Notably, the cases against
Mabasa would be dismissed on the same day. 28
Respondent Judge Dela Rosa emphasized that the day the Libel Cases were
dismissed, i.e., on April 13, 2015, was actually the date set for the first actual trial of
the cases. He stressed that the delay of almost five (5) years in the subject cases was
attributable more to Mabasa than anyone else. 29
Respondent Judge Dela Rosa claimed that the November 23, 2015 Resolution
was issued in good faith and after evaluation of the evidence submitted by each party.
He denied that the same was motivated by bad faith, ill will, fraud, dishonesty,
corruption or caprice. In fact, Respondent Judge issued this as a matter of fairness —
that is, to give the private complainants in the Libel Cases an opportunity to pursue
against Mabasa and his co-accused the civil aspect of the Libel Cases. 30
Finally, respondent Judge Dela Rosa stressed how the filing of this
administrative complaint against him — on January 6, 2017, or after he had already
reversed the November 23, 2015 Resolution through his June 20, 2016 Resolution —
is pure harassment. 31

OCA Report and Recommendation

In a Report and Recommendation 32 dated June 28, 2017, the OCA

recommended that the administrative complaint against Judge Dela Rosa be dismissed
for lack of merit.
After considering the allegations in the Complaint and respondent Judge Dela
Rosa's Comment, the OCA found that in the absence of any proof that respondent
Judge Dela Rosa was ill-motivated in issuing the November 23, 2015 Order and that
he had, in fact, issued his June 20, 2016 Resolution reversing himself, the charge of
gross ignorance of the law should be dismissed.
The OCA ratiocinated as follows:
The main issue in this administrative complaint is rooted in respondent
Judge's issuance of the Order dated 23 November 201[5], reversing the
previous one dismissing the criminal cases on the ground of violation of the
right of the accused to speedy trial. Respondent Judge has already admitted
that he made a mistake in issuing the said order as this would have
constituted a violation of the right of the accused against double
jeopardy. To rectify his error, he granted the motion for reconsideration
filed by the accused. SCaITA

Although not without exceptions, it is settled that the function of a

motion for reconsideration is to point out to the court the error that it may
have committed and to give it a chance to correct itself. In "Republic of the
Philippines v. Abdulwahab A. Bayao, et al.," 33 the Court explains the general
rule that the purpose of a motion for reconsideration is to grant an opportunity
for the court to rectify any actual or perceived error attributed to it by re-
examination of the legal and factual circumstances of the case. The wisdom of
this rule is to expedite the resolution of the issues of the case at the level of the
trial court so it can take a harder look at the records to come up with a more
informed decision on the case. 34 (Emphasis supplied)
The OCA found that the records of the case show that respondent Judge Dela
Rosa admitted that he had erred in issuing the November 23, 2015 Order, but that he
had rectified such mistake. 35 The OCA held that this is precisely why our judicial
system has remedies for both the party-litigants and the court to avail of if need be. 36
The OCA asserted that it would be absurd to still hold respondent Judge Dela Rosa
liable despite his rectification through his June 20, 2016 Resolution. 37
As to the referral by respondent Judge Dela Rosa to the IBP of Atty. Causing's
act of posting matters pertaining to the pending criminal case on the internet, the OCA
disagreed with Atty. Causing's argument that respondent Judge Dela Rosa should
have first required him to show cause for having done so. 38 The OCA explained that
respondent Judge Dela Rosa cannot just exercise his contempt powers on a whim, if
not haphazardly, if he believes that he has other remedies to resort to, just like in this
case. 39

The Court's Ruling

In view of the foregoing, the Court hereby adopts and approves the findings of
facts and conclusions of law in the above-mentioned OCA Report and
Recommendation.
Gross ignorance of the law is the disregard of basic rules and settled
jurisprudence. 40 A judge may also be administratively liable if shown to have been
motivated by bad faith, fraud, dishonesty or corruption in ignoring, contradicting or
failing to apply settled law and jurisprudence. 41
The Court however has also ruled that "not every error or mistake of a judge in
the performance of his official duties renders him liable." 42
For liability to attach for ignorance of the law, the assailed order, decision or
actuation of the judge in the performance of official duties must not only be found
erroneous but, most importantly, it must also be established that he was moved by bad
faith, dishonesty, hatred, or some other like motive. As a matter of policy, in the
absence of fraud, dishonesty or corruption, the acts of a judge in his judicial capacity
are not subject to disciplinary action even though such acts are erroneous. 43
The Court agrees with the OCA that it would be absurd to hold respondent
Judge Dela Rosa liable for his November 23, 2015 Order when he had himself
rectified this in his subsequent June 20, 2016 Order. To rule otherwise would be to
render judicial office untenable, for no one called upon to try the facts or interpret the
law in the process of administering justice can be infallible in his judgment. 44 To
hold otherwise "would be nothing short of harassing judges to take the fantastic and
impossible oath of rendering infallible judgments." 45
Furthermore, nothing in the records of the case suggests that respondent Judge
Dela Rosa was motivated by bad faith, fraud, corruption, dishonesty or egregious
error in rendering his decision. Other than their bare assertions, Complainants failed
to substantiate their allegations with competent proof. Bad faith cannot be presumed
46 and this Court cannot conclude bad faith intervened when none was actually
proven. 47
 The Court likewise finds no merit in Complainants' allegation that respondent
Judge Dela Rosa should have first required Atty. Causing to show cause for his act of
posting matters pertaining to the pending criminal case on the internet. The Court
agrees with the OCA that respondent Judge Dela Rosa's act of referring the matter to
the IBP, an independent tribunal who exercises disciplinary powers over lawyers, was
a prudent and proper action to take for a trial court judge. The Court has explained, in
the case of Lorenzo Shipping Corporation v. Distribution Management Association of
the Philippines, 48 that judges' power to punish contempt must be exercised
judiciously and sparingly, not for retaliation or vindictiveness, viz.:
x x x [T]he power to punish for contempt of court is exercised on the
preservative and not on the vindictive principle, and only occasionally should
a court invoke its inherent power in order to retain that respect without which
the administration of justice must falter or fail. As judges[,] we ought to
exercise our power to punish contempt judiciously and sparingly, with utmost
restraint, and with the end in view of utilizing the power for the correction and
preservation of the dignity of the Court, not for retaliation or vindictiveness.
49
In fine, the administrative charge against respondent Judge Dela Rosa should
be, as it is hereby, dismissed.
WHEREFORE, the instant administrative complaint against respondent
Presiding Judge Jose Lorenzo R. Dela Rosa, Regional Trial Court, Branch 4, Manila
is hereby DISMISSED for lack of merit. aTHCSE

SO ORDERED.
Carpio, * Peralta, Perlas-Bernabe and Reyes, Jr., JJ., concur.
||| (Causing v. Dela Rosa, OCA IPI No. 17-4663-RTJ, [March 7, 2018])

EN BANC

[G.R. Nos. 206438 and 206458. July 31, 2018.]

CESAR MATAS CAGANG, petitioner, vs. SANDIGANBAYAN,

FIFTH DIVISION, QUEZON CITY; OFFICE OF THE
OMBUDSMAN; and PEOPLE OF THE PHILIPPINES, respondents.

[G.R. Nos. 210141-42. July 31, 2018.]

CESAR MATAS CAGANG, petitioner, vs. SANDIGANBAYAN,

FIFTH DIVISION, QUEZON CITY; OFFICE OF THE
OMBUDSMAN; and PEOPLE OF THE PHILIPPINES, respondents.
 DECISION

LEONEN, J : p

Every accused has the rights to due process and to speedy disposition of cases.
Inordinate delay in the resolution and termination of a preliminary investigation will
result in the dismissal of the case against the accused. Delay, however, is not
determined through mere mathematical reckoning but through the examination of the
facts and circumstances surrounding each case. Courts should appraise a reasonable
period from the point of view of how much time a competent and independent public
officer would need in relation to the complexity of a given case. Nonetheless, the
accused must invoke his or her constitutional rights in a timely manner. The failure to
do so could be considered by the courts as a waiver of right.aScITE

G.R. Nos. 206438 and 206458 are Petitions for Certiorari with an urgent
prayer for the issuance of a temporary restraining order and/or writ of preliminary
injunction 1 assailing the Resolutions dated September 12, 2012 2 and January 15,
2013 3 of the Sandiganbayan. The assailed Resolutions denied Cesar Matas Cagang's
(Cagang) Motion to Quash/Dismiss with Prayer to Void and Set Aside Order of
Arrest in Criminal Case Nos. SB-11-CRM-0456 and SB-11-CRM-0457.
G.R. Nos. 210141-42, on the other hand, refer to a Petition for Certiorari with
an urgent prayer for the issuance of a temporary restraining order and/or writ of
preliminary injunction 4 assailing the June 18, 2013 Order 5 and September 10, 2013
Resolution 6 of the Sandiganbayan. The assailed Resolutions denied Cagang's Motion
to Quash Order of Arrest in Criminal Case Nos. SB-11-CRM-0456 and SB-11-CRM-
0457.
Both Petitions question the Sandiganbayan's denial to quash the Informations
and Order of Arrest against Cagang despite the Office of the Ombudsman's alleged
inordinate delay in the termination of the preliminary investigation.
On February 10, 2003, the Office of the Ombudsman received an anonymous
complaint alleging that Amelia May Constantino, Mary Ann Gadian, and Joy Tangan
of the Vice Governor's Office, Sarangani Province committed graft and corruption by
diverting public funds given as grants or aid using barangay officials and cooperatives
as "dummies." The complaint was docketed as CPL-M-03-0163 and referred to the
Commission on Audit for audit investigation. A news report of Sun Star Davao dated
August 7, 2003 entitled "P61M from Sarangani coffers unaccounted" was also
docketed as CPL-M-03-0729 for the conduct of a fact-finding investigation. 7
On December 31, 2002, the Commission on Audit submitted its audit report
finding that the officials and employees of the Provincial Government of Sarangani
appear to have embezzled millions in public funds by sourcing out the funds from
grants, aid, and the Countrywide Development Fund of Representative Erwin
Chiongbian using dummy cooperatives and people's organizations. 8 In particular, the
Commission on Audit found that:
(1) There were releases of financial assistance intended for non-governmental
organizations/people's organizations and local government units that
were fraudulently and illegally made through inexistent local
development projects, resulting in a loss of P16,106,613.00;
(2) Financial assistance was granted to cooperatives whose officials and
members were government personnel or relatives of officials of
Sarangani, which resulted in the wastage and misuse of government
funds amounting to P2,456,481.00;
(3) There were fraudulent encashment and payment of checks, and frequent
travels of the employees of the Vice Governor's Office, which resulted
in the incurrence by the province of unnecessary fuel and oil expense
amounting to P83,212.34; and
(4) Inexistent Sagiptaniman projects were set up for farmers affected by
calamities, which resulted in wastage and misuse of government funds
amounting to P4,000,000.00. 9
On September 30, 2003, the Office of the Ombudsman issued a Joint Order
terminating Case Nos. CPL-M-03-0163 and CPL-M-03-0729. It concurred with the
findings of the Commission on Audit and recommended that a criminal case for
Malversation of Public Funds through Falsification of Public Documents and
Violation of Section 3 (e) of Republic Act No. 3019 be filed against the public
officers named by the Commission on Audit in its Summary of Persons that Could be
Held Liable on the Irregularities. The list involved 180 accused. 10 The case was
docketed as OMB-M-C-0487-J.
After considering the number of accused involved, its limited resources, and
the volumes of case records, the Office of the Ombudsman first had to identify those
accused who appeared to be the most responsible, with the intention to later on file
separate cases for the others. 11
In a Joint Order dated October 29, 2003, the accused were directed to file their
counter-affidavits and submit controverting evidence. The complainants were also
given time to file their replies to the counter-affidavits. There was delay in the release
of the order since the reproduction of the voluminous case record to be furnished to
the parties "was subjected to bidding and request of funds from the Central Office." 12
Only five (5) sets of reproductions were released on November 20, 2003 while the
rest were released only on January 15, 2004. 13 HEITAD

All impleaded elective officials and some of the impleaded appointive officials
filed a Petition for Prohibition, Mandamus, Injunction with Writ of Preliminary
Injunction and Temporary Restraining Order with Branch 28, Regional Trial Court of
Alabel, Sarangani. The Regional Trial Court issued a Temporary Restraining Order
enjoining the Office of the Ombudsman from enforcing its October 29, 2003 Joint
Order. 14
In an Order dated December 19, 2003, the Regional Trial Court dismissed the
Petition on the ground that the officials had filed another similar Petition with this
Court, which this Court had dismissed. 15 Thus, some of the accused filed their
counter-affidavits. 16
After what the Office of the Ombudsman referred to as "a considerable period
of time," it issued another Order directing the accused who had not yet filed their
counter-affidavits to file them within seven (7) days or they will be deemed to have
waived their right to present evidence on their behalf. 17
In a 293-page Resolution 18 dated August 11, 2004 in OMB-M-C-0487-J, the
Ombudsman found probable cause to charge Governor Miguel D. Escobar, Vice
Governor Felipe Constantino, Board Members, and several employees of the Office
of the Vice Governor of Sarangani and the Office of the Sangguniang Panlalawigan
with Malversation through Falsification of Public Documents and Violation of
Section 3 (e) of Republic Act No. 3019. 19 Then Tanodbayan Simeon V. Marcelo
(Tanodbayan Marcelo) approved the Resolution, noting that it was modified by his
Supplemental Order dated October 18, 2004. 20
In the Supplemental Order dated October 18, 2004, Tanodbayan Marcelo
ordered the conduct of further fact-finding investigations on some of the other
accused in the case. Thus, a preliminary investigation docketed as OMB-M-C-0480-K
was conducted on accused Hadji Moner Mangalen (Mangalen) and Umbra
Macagcalat (Macagcalat). 21
In the meantime, the Office of the Ombudsman filed an Information dated July
12, 2005, charging Miguel Draculan Escobar (Escobar), Margie Purisima Rudes
(Rudes), Perla Cabilin Maglinte (Maglinte), Maria Deposo Camanay (Camanay), and
Cagang of Malversation of Public Funds thru Falsification of Public Documents. 22
The Information read:
That on July 17, 2002 or prior subsequent thereto in Sarangani,
Philippines, and within the jurisdiction of this Honorable Court, accused
Miguel Draculan Escobar, being the Governor of the Province of Sarangani,
Margie Purisima Rudes, Board Member, Perla Cabilin Maglinte, Provincial
Administrator, Maria Deposo Carnanay, Provincial Accountant, and Cesar
Matas Cagang, Provincial Treasurer, and all high-ranking and accountable
public officials of the Provincial Government of Sarangani by reason of their
duties, conspiring and confederating with one another, while committing the
offense in relation to office, taking advantage of their respective positions, did
then and there willfully, unlawfully and feloniously take, convert and
misappropriate the amount of THREE HUNDRED SEVENTY[-]FIVE
THOUSAND PESOS (P375,000.00), Philippine Currency, in public funds
under their custody, and for which they are accountable, by falsifying or
causing to be falsified Disbursement Voucher No. 101-2002-7-10376 and its
 supporting documents, making it appear that financial assistance has been
sought by Amon Lacungam, the alleged President of Kalalong Fishermen's
Group of Brgy. Kalaong, Maitum, Sarangani, when in truth and in fact, the
accused knew fully well that no financial assistance had been requested by
Amon Lacungan and his association, nor did said Amon Lacungan and his
association receive the aforementioned amount, thereby facilitating the release
of the above-mentioned public funds in the amount of THREE HUNDRED
SEVENTY[-]FIVE THOUSAND PESOS (P375,000.00) through the
encashment by the accused of Development Bank of the Philippines (DBP)
Check No. 11521401 dated July 17, 2002, which amount they subsequently
misappropriated to their personal use and benefit, and despite demand, said
accused failed to return the said amount to the damage and prejudice of the
government and the public interest in the aforesaid sum.
CONTRARY TO LAW. 23
The Sandiganbayan docketed the case as Crim. Case No. 28331. Escobar,
Maglinte, and Cagang were arraigned on December 6, 2005 where they pleaded not
guilty. Rudes and Camanay remained at large. 24
On June 17, 2010, the Sandiganbayan rendered a Decision 25 in Crim. Case
No. 28331 acquitting Escobar, Maglinte, and Cagang for insufficiency of evidence.
Maglinte, however, was ordered to return P100,000.00 with legal interest to the
Province of Sarangani. The cases against Rudes and Camanay were archived until the
Sandiganbayan could acquire jurisdiction over their persons. 26 ATICcS

In a Memorandum 27 dated August 8, 2011 addressed to Ombudsman

Conchita Carpio Morales (Ombudsman Carpio Morales), Assistant Special Prosecutor
III Pilarita T. Lapitan reported that on April 12, 2005, a Resolution 28 was issued in
OMB-M-C-0480-K finding probable cause to charge Mangalen and Macagcalat with
Malversation of Public Funds through Falsification and Violation of Section 3 (e) of
Republic Act No. 3019. 29 Thus, it prayed for the approval of the attached
Informations:
It should be noted that in a Memorandum dated 10 December 2004
and relative to OMB-M-C-03-0487-J from which OMB-M-C-04-0480-K
originated, Assistant Special Prosecutor Maria Janina Hidalgo recommended
to Ombudsman Marcelo that the status of state witness be conferred upon
Gadian. This recommendation was approved by Ombudsman Marcelo on 20
December 2004. Hence, as may be noted[,] Gadian was no longer included as
respondent and accused in the Resolution dated 12 April 2005 and the
attached information.
Related cases that originated from OMB-M-C-03-0487-J for which no
further preliminary investigation is necessary were filed before the courts.
One of these cases is now docketed as Criminal Case No. 28293 and pending
before the Sandiganbayan, First Division. It is noteworthy that in its Order
dated 14 November 2006 the Sandiganbayan, First Division granted the
Motion to Dismiss of the counsel of Felipe Constantino after having submitted
 a duly certified true copy of his client's Death Certificate issued by the
National Statistics Office. Considering the fact therefore, there is a necessity
to drop Constantino as accused in this case and accordingly, revised the
attached Information.
An Information for Malversation through Falsification of Public
Documents is also submitted for your Honor's approval considering that no
such Information is attached to the records of this case.
VIEWED IN THE FOREGOING LIGHT, it is respectfully
recommended that, in view of his death, Felipe Constantino no longer be
considered as accused in this case and that the attached Informations be
approved. 30
Ombudsman Carpio Morales approved the recommendation on October 20,
2011. 31 Thus, on November 17, 2011, Informations 32 for Violation of Section 3 (e)
of Republic Act No. 3019 and Malversation of Public Funds through Falsification of
Public Documents were filed against Cagang, Camanay, Amelia Carmela Constantino
Zoleta (Zoleta), Macagcalat, and Mangalen. The Informations read:
[For Violation of Section 3(e), Republic Act No. 3019]
That on 20 September 2002, or sometime prior or subsequent thereto,
in Sarangani, Philippines, and within the jurisdiction of this Honorable Court,
accused Provincial Treasurer CESAR MATAS CAGANG, Provincial
Accountant MARIA DEPOSO CAMANAY, and Executive Assistant to Vice
Governor Felipe Katu Constantino, AMELIA CARMELA CONSTANTINO
ZOLETA, and then Vice-Governor and now deceased Felipe Katu
Constantino, all of the Provincial Government of Sarangani, committing the
offense in relation to the performance of their duties and functions, taking
advantage of their respective official positions, through manifest partiality,
evident bad faith or gross inexcusable negligence, conspiring and
confederating with Barangay Captain UMBRA ADAM MACAGCALAT and
HADJI MONER MANGALEN, the alleged President and Treasurer,
respectively of Kamanga Muslim-Christian Fishermen's Cooperative
("Cooperative"), did then and there willfully, unlawfully and feloniously
cause the disbursement of the amount of Three Hundred and Fifty Thousand
Pesos (P350,000.00) under SARO No. D-98000987 through Development
Bank of the Philippines Check No. 282398 dated 20 September 2002 and with
HADJI MONER MANGELEN as payee thereof, by falsifying Disbursement
Voucher No. 401-200209-148 dated 20 September 2002 and its supporting
documents to make it appear that financial assistance was requested and given
to the Cooperative, when in truth and in fact, neither was there a request for
financial assistance received by the said Cooperative after the check was
encashed, as herein accused, conspiring and confederating with each other,
did then and there malverse, embezzle, misappropriate and convert to their
own personal use and benefit the said amount of P350,000.00 thereby causing
undue injury to the government in the aforesaid amount.
 CONTRARY TO LAW.
[For Malversation of Public Funds thru Falsification of Public Documents]
That on 20 September 2002, or sometime prior or subsequent thereto,
in Sarangani, Philippines, and within the jurisdiction of this Honorable Court,
accused Provincial Treasurer CESAR MATAS CAGANG, and now deceased
Felipe Katu Constantino, being then the Provincial Treasurer and Vice-
Governor respectively, of the Province of Sarangani who, by reason of their
public positions, are accountable for and has control of public funds entrusted
and received by them during their incumbency as Provincial Treasurer and
Vice-Governor respectively, of said province, with accused Provincial
Accountant MARIA DEPOSO CAMANAY, and Executive Assistant to Vice
Governor Felipe Katu Constantino, AMELIA CARMELA CONSTANTINO
ZOLETA, and then Vice-Governor and now deceased Felipe Katu
Constantino, all of the Provincial Government of Sarangani, committing the
offense in relation to the performance of their duties and functions, taking
advantage of their respective official positions, conspiring and confederating
with Barangay Captain UMBRA ADAM MACAGCALAT and HADJI
MONER MANGALEN, the alleged President and Treasurer, respectively of
Kamanga Muslim-Christian Fishermen's Cooperative ("Cooperative"), did
then and there willfully, unlawfully and feloniously falsify or cause to be
falsified Disbursement Voucher No. 401-200209-148 dated 20 September
2002 and its supporting documents, by making it appear that financial
assistance in the amount of Three Hundred and Fifty Thousand Pesos
(P350,000.00) had been requested by the Cooperative, with CESAR MATAS
CAGANG, despite knowledge that the amount of P350,000.00 is to be
sourced out from SARO No. D-98000987, still certifying that cash is available
for financial assistance when Countrywide Development Funds could not be
disbursed for financial aids and assistance pursuant to DBM Circular No. 444,
and MARIA DEPOSO CAMANAY certifying as to the completeness and
propriety of the supporting documents despite non-compliance with
Commission on Audit Circular No. 96-003 prescribing the requirements for
disbursements of financial assistance and aids, thus facilitating the issuance of
Development Bank of the Philippines Check No. 282398 dated 20 September
2002 in the amount of P350,000.00 and in the name of HADJI MONER
MANGELEN, the alleged Treasurer of the Cooperative, when in truth and in
fact, neither was there a request for financial assistance received by the said
Cooperative after the check was encashed, as herein accused, conspiring and
confederating with each other, did then and there malverse, embezzle,
misappropriate and convert to their own personal use and benefit the said
amount of P350,000.00 thereby causing undue injury to the government in the
aforesaid amount. TIADCc

CONTRARY TO LAW. 33
The cases were docketed as Criminal Case Nos. SB-11-0456 and SB-11-0457.
 Cagang filed a Motion to Quash/Dismiss with Prayer to Void and Set Aside
Order of Arrest while Macagcalat and Mangalen separately filed their own Motion to
Quash/Dismiss with Prayer to Void and Set Aside Order of Arrest. Cagang argued
that there was an inordinate delay of seven (7) years in the filing of the Informations.
Citing Tatad v. Sandiganbayan 34 and Roque v. Ombudsman, 35 he argued that the
delay violated his constitutional rights to due process and to speedy disposition of
cases. 36 The Office of the Ombudsman, on the other hand, filed a
Comment/Opposition arguing that the accused have not yet submitted themselves to
the jurisdiction of the court and that there was no showing that delay in the filing was
intentional, capricious, whimsical, or motivated by personal reasons. 37
On September 10, 2012, the Sandiganbayan issued a Resolution 38 denying the
Motions to Quash/Dismiss. It found that Cagang, Macagcalat, and Mangalen
voluntarily submitted to the jurisdiction of the court by the filing of the motions. 39 It
also found that there was no inordinate delay in the issuance of the information,
considering that 40 different individuals were involved with direct participation in
more or less 81 different transactions. 40 It likewise found Tatad and Roque
inapplicable since the filing of the Informations was not politically motivated. 41 It
pointed out that the accused did not invoke their right to speedy disposition of cases
before the Office of the Ombudsman but only did so after the filing of the
Informations. 42
Cagang filed a Motion for Reconsideration 43 but it was denied in a Resolution
44 dated January 15, 2013. Hence, Cagang filed a Petition for Certiorari 45 with this
Court, docketed as G.R. Nos. 206438 and 206458. 46
In an Urgent Motion to Quash Order of Arrest 47 dated June 13, 2013 filed
before the Sandiganbayan, Cagang alleged that an Order of Arrest was issued against
him. 48 He moved for the quashal of the Order on the ground that he had a pending
Petition for Certiorari before this Court. 49
In an Order 50 dated June 28, 2013, the Sandiganbayan denied the Urgent
Motion to Quash Order of Arrest on the ground that it failed to comply with the three
(3)-day notice rule and that no temporary restraining order was issued by this Court.
Cagang filed a Motion for Reconsideration 51 but it was denied by the
Sandiganbayan in a Resolution 52 dated September 10, 2013. Hence, he filed a
Petition for Certiorari with an urgent prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction, 53 essentially seeking to
restrain the implementation of the Order of Arrest against him. This Petition was
docketed as G.R. Nos. 210141-42.
On February 5, 2014, this Court issued a Temporary Restraining Order 54 in
G.R. Nos. 210141-42 enjoining the Sandiganbayan from continuing with the
proceedings of the case and from implementing the warrant of arrest against Cagang.
This Court likewise consolidated G.R. Nos. 206438 and 206458 with G.R. Nos.
210141-42. 55 The Office of the Special Prosecutor submitted its separate Comments
56 to the Petitions on behalf of the People of the Philippines and the Office of the
Ombudsman. 57
Petitioner argues that the Sandiganbayan committed grave abuse of discretion
when it dismissed his Motion to Quash/Dismiss since the Informations filed against
him violated his constitutional rights to due process and to speedy disposition of
cases. Citing Tatad v. Sandiganbayan, 58 he argues that the Office of the Ombudsman
lost its jurisdiction to file the cases in view of its inordinate delay in terminating the
preliminary investigation almost seven (7) years after the filing of the complaint. 59
Petitioner further avers that the dismissal of cases due to inordinate delay is not
because the revival of the cases was politically motivated, as in Tatad, but because it
violates Article III, Section 16 of the Constitution 60 and Rule 112, Section 3 (f) 61 of
the Rules of Court. 62 He points out that the Sandiganbayan overlooked two (2)
instances of delay by the Office of the Ombudsman: the first was from the filing of
the complaint on February 10, 2003 to the filing of the Informations on November 17,
2011, and the second was from the conclusion of the preliminary investigation in
2005 to the filing of the Informations on November 17, 2011. 63 AIDSTE

Petitioner asserts that the alleged anomalous transactions in this case were
already thoroughly investigated by the Commission on Audit in its Audit Report;
thus, the Office of the Ombudsman should not have taken more than seven (7) years
to study the evidence needed to establish probable cause. 64 He contends that "[w]hen
the Constitution enjoins the Office of the Ombudsman to 'act promptly' on any
complaint against any public officer or employee, it has the concomitant duty to
speedily resolve the same." 65
Petitioner likewise emphasizes that the Sandiganbayan should have granted his
Motion to Quash Order of Arrest since there was a pending Petition before this Court
questioning the issuance of the Informations against him. He argues that the case
would become moot if the Order of Arrest is not quashed. 66
The Office of the Special Prosecutor, on the other hand, alleges that petitioner,
along with his co-accused Camanay, Zoleta, Macagcalat, and Magalen have remained
at large and cannot be located by the police, and that they have not yet surrendered or
been arrested. 67 It argues that the parameters necessary to determine whether there
was inordinate delay have been repeatedly explained by the Sandiganbayan in the
assailed Resolutions. It likewise points out that petitioner should have invoked his
right to speedy disposition of cases when the case was still pending before the Office
of the Ombudsman, not when the Information was already filed with the
Sandiganbayan. It argues further that Tatad was inapplicable since there were peculiar
circumstances which prompted this Court to dismiss the information due to inordinate
delay. 68
 The Office of the Special Prosecutor argues that the Sandiganbayan already
made a judicial determination of the existence of probable cause pursuant to its duty
under Rule 112, Section 5 of the Rules of Court. 69 It points out that a petition for
certiorari is not the proper remedy to question the denial of a motion to quash and
that the appropriate remedy should be to proceed to trial. 70
Procedurally, the issues before this Court are whether or not the pendency of a
petition for certiorari with this Court suspends the proceedings before the
Sandiganbayan, and whether or not the denial of a motion to quash may be the subject
of a petition for certiorari. This Court is also tasked to resolve the sole substantive
issue of whether or not the Sandiganbayan committed grave abuse of discretion in
denying petitioner Cesar Matas Cagang's Motion to Quash/Dismiss with Prayer to
Void and Set Aside Order of Arrest and Urgent Motion to Quash Order of Arrest on
the ground of inordinate delay.

To give full resolution to this case, this Court must first briefly pass upon the
procedural issues raised by the parties.
Contrary to petitioner's arguments, the pendency of a petition for certiorari
before this Court will not prevent the Sandiganbayan from proceeding to trial absent
the issuance of a temporary restraining order or writ of preliminary injunction. Under
Rule 65, Section 7 71 of the Rules of Court:
Section 7. Expediting proceedings; injunctive relief. — The court in which the
petition is filed may issue orders expediting the proceedings, and it may also
grant a temporary restraining order or a writ of preliminary injunction for the
preservation of the rights of the parties pending such proceedings. The petition
shall not interrupt the course of the principal case, unless a temporary
restraining order or a writ of preliminary injunction has been issued, enjoining
the public respondent from further proceeding with the case.
The public respondent shall proceed with the principal case within ten
(10) days from the filing of a petition for certiorari with a higher court or
tribunal, absent a temporary restraining order or a preliminary injunction, or
upon its expiration. Failure of the public respondent to proceed with the
principal case may be a ground for an administrative charge.
Since this Court did not issue injunctive relief when the Petition in G.R. Nos.
206438 and 206458 was filed, the Sandiganbayan cannot be faulted from proceeding
with trial. It was only upon the filing of the Petition in G.R. Nos. 210141-42 that this
Court issued a Temporary Restraining Order to enjoin the proceedings before the
Sandiganbayan.
As a general rule, the denial of a motion to quash is not appealable as it is
merely interlocutory. Likewise, it cannot be the subject of a petition for certiorari.
The denial of the motion to quash can still be raised in the appeal of a judgment of
conviction. The adequate, plain, and speedy remedy is to proceed to trial and to
determine the guilt or innocence of the accused. Thus, in Galzote v. Briones: 72 AaCTcI

. . . In the usual course of procedure, a denial of a motion to quash

filed by the accused results in the continuation of the trial and the
determination of the guilt or innocence of the accused. If a judgment of
conviction is rendered and the lower court's decision of conviction is
appealed, the accused can then raise the denial of his motion to quash not only
as an error committed by the trial court but as an added ground to overturn the
latter's ruling.
In this case, the petitioner did not proceed to trial but opted to
immediately question the denial of his motion to quash via a special civil
action for certiorari under Rule 65 of the Rules of Court.
As a rule, the denial of a motion to quash is an interlocutory order and
is not appealable; an appeal from an interlocutory order is not allowed under
Section 1 (b), Rule 41 of the Rules of Court. Neither can it be a proper subject
of a petition for certiorari which can be used only in the absence of an appeal
or any other adequate, plain and speedy remedy. The plain and speedy remedy
upon denial of an interlocutory order is to proceed to trial as discussed above.
73
Ordinarily, the denial of a motion to quash simply signals the commencement
of the process leading to trial. The denial of a motion to quash, therefore, is not
necessarily prejudicial to the accused. During trial, and after arraignment, prosecution
proceeds with the presentation of its evidence for the examination of the accused and
the reception by the court. Thus, in a way, the accused is then immediately given the
opportunity to meet the charges on the merits. Therefore, if the case is intrinsically
without any grounds, the acquittal of the accused and all his suffering due to the
charges can be most speedily acquired.
The rules and jurisprudence, thus, balance procedural niceties and the
immediate procurement of substantive justice. In our general interpretation, therefore,
the accused is normally invited to meet the prosecution's evidence squarely during
trial rather than skirmish on procedural points.
A party may, however, question the denial in a petition for certiorari if the
party can establish that the denial was tainted with grave abuse of discretion:
[A] direct resort to a special civil action for certiorari is an exception rather
than the general rule, and is a recourse that must be firmly grounded on
compelling reasons. In past cases, we have cited the interest of a "more
enlightened and substantial justice;" the promotion of public welfare and
public policy; cases that "have attracted nationwide attention, making it
essential to proceed with dispatch in the consideration thereof;" or judgments
on order attended by grave abuse of discretion, as compelling reasons to
justify a petition for certiorari.
 In grave abuse of discretion cases, certiorari is appropriate if the
petitioner can establish that the lower court issued the judgment or order
without or in excess of jurisdiction or with grave abuse of discretion, and the
remedy of appeal would not afford adequate and expeditious relief. The
petitioner carries the burden of showing that the attendant facts and
circumstances fall within any of the cited instances. 74
Petitioner alleges that the Sandiganbayan committed grave abuse of discretion
when it denied his Motion to Quash/Dismiss, insisting that the denial transgressed
upon his constitutional rights to due process and to speedy disposition of cases. A
petition for certiorari under Rule 65 is consistent with this theory.

II

The Constitution guarantees the right to speedy disposition of cases. Under

Article III, Section 16:
Section 16. All persons shall have the right to a speedy disposition of their
cases before all judicial, quasi-judicial, or administrative bodies.
The right to speedy disposition of cases should not be confused with the right
to a speedy trial, a right guaranteed under Article III, Section 14 (2) of the
Constitution:
Section 14.
xxx xxx xxx
(2) In all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against him,
to have a speedy, impartial, and public trial, to meet the witnesses face to face,
and to have compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been
duly notified and his failure to appear is unjustifiable.
EcTCAD

The right to a speedy trial is invoked against the courts in a criminal

prosecution. The right to speedy disposition of cases, however, is invoked even
against quasi-judicial or administrative bodies in civil, criminal, or administrative
cases before them. As Abadia v. Court of Appeals 75 noted:
The Bill of Rights provisions of the 1987 Constitution were precisely crafted
to expand substantive fair trial rights and to protect citizens from procedural
machinations which tend to nullify those rights. Moreover, Section 16, Article
III of the Constitution extends the right to a speedy disposition of cases to
cases "before all judicial, quasi-judicial and administrative bodies." This
protection extends to all citizens, including those in the military and covers
 the periods before, during and after the trial, affording broader protection than
Section 14(2) which guarantees merely the right to a speedy trial. 76
Both rights, nonetheless, have the same rationale: to prevent delay in the
administration of justice. In Corpuz v. Sandiganbayan: 77
The right of the accused to a speedy trial and to a speedy disposition of
the case against him was designed to prevent the oppression of the citizen by
holding criminal prosecution suspended over him for an indefinite time, and to
prevent delays in the administration of justice by mandating the courts to
proceed with reasonable dispatch in the trial of criminal cases. Such right to a
speedy trial and a speedy disposition of a case is violated only when the
proceeding is attended by vexatious, capricious and oppressive delays. The
inquiry as to whether or not an accused has been denied such right is not
susceptible by precise qualification. The concept of a speedy disposition is a
relative term and must necessarily be a flexible concept.
While justice is administered with dispatch, the essential ingredient is
orderly, expeditious and not mere speed. It cannot be definitely said how long
is too long in a system where justice is supposed to be swift, but deliberate. It
is consistent with delays and depends upon circumstances. It secures rights to
the accused, but it does not preclude the rights of public justice. Also, it must
be borne in mind that the rights given to the accused by the Constitution and
the Rules of Court are shields, not weapons; hence, courts are to give meaning
to that intent. 78
While the right to speedy trial is invoked against courts of law, the right to
speedy disposition of cases may be invoked before quasi-judicial or administrative
tribunals in proceedings that are adversarial and may result in possible criminal
liability. The right to speedy disposition of cases is most commonly invoked in fact-
finding investigations and preliminary investigations by the Office of the Ombudsman
since neither of these proceedings form part of the actual criminal prosecution. The
Constitution itself mandates the Office of the Ombudsman to "act promptly" on
complaints filed before it:
Section 12. The Ombudsman and his Deputies, as protectors of the people,
shall act promptly on complaints filed in any form or manner against public
officials or employees of the Government, or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations, and shall, in appropriate cases, notify the complainants of the
action taken and the result thereof. 79
As if to underscore the importance of its mandate, this constitutional command
is repeated in Republic Act No. 6770, 80 which provides:
Section 13. Mandate. — The Ombudsman and his Deputies, as protectors of
the people, shall act promptly on complaints filed in any form or manner
against officers or employees of the government, or of any subdivision,
agency or instrumentality thereof, including government-owned or controlled
 corporations, and enforce their administrative, civil and criminal liability in
every case where the evidence warrants in order to promote efficient service
by the Government to the people.
Neither the Constitution nor Republic Act No. 6770 provide for a specific
period within which to measure promptness. Neither do they provide for criteria
within which to determine what could already be considered as delay in the
disposition of complaints. Thus, judicial interpretation became necessary to determine
what could be considered "prompt" and what length of time could amount to
unreasonable or "inordinate delay."
The concept of inordinate delay was introduced in Tatad v. Sandiganbayan, 81
where this Court was constrained to apply the "radical relief" of dismissing the
criminal complaint against an accused due to the delay in the termination of the
preliminary investigation. HSAcaE

In Tatad, a report was submitted to the Legal Panel, Presidential Security

Command sometime in October 1974, charging Francisco S. Tatad (Tatad) with graft
and corruption during his stint as Minister of Public Information. In October 1979,
Tatad submitted his resignation. It was only on December 29, 1979 that a criminal
complaint was filed against him. Then President Ferdinand Marcos accepted his
resignation on January 26, 1980. On April 1, 1980, the Tanodbayan 82 referred the
complaint to the Criminal Investigation Service, Presidential Security Command for
fact-finding. On June 16, 1980, the Investigation Report was submitted finding Tatad
liable for violation of Republic Act No. 3019.
Tatad moved for the dismissal of the case but this was denied on July 26, 1982.
His motion for reconsideration was denied on October 5, 1982. Affidavits and
counter-affidavits were submitted on October 25, 1982. On July 5, 1985, the
Tanodbayan issued a resolution approving the filing of informations against Tatad.
Tatad filed a motion to quash on July 22, 1985. The motion to quash was denied by
the Sandiganbayan on August 9, 1985. The Sandiganbayan, however, ordered the
filing of an amended information to change the date of the alleged commission of the
offense. In compliance, the Tanodbayan submitted its amended information on
August 10, 1985. Tatad filed a motion for reconsideration but it was denied by the
Sandiganbayan on September 17, 1985. Hence, he filed a Petition for Certiorari and
Prohibition with this Court, questioning the filing of the cases with the
Sandiganbayan.
On April 10, 1986, this Court required the parties to move in the premises
considering the change in administration brought about by the EDSA Revolution and
the overthrow of the Marcos regime. On June 20, 1986, the new Tanodbayan
manifested that as the charges were not political in nature, the State would still pursue
the charges against Tatad.
 In resolving the issue of whether Tatad's constitutional rights to due process
and to speedy disposition of cases were violated, this Court took note that the finding
of inordinate delay applies in a case-to-case basis:
In a number of cases, this Court has not hesitated to grant the so-called
"radical relief" and to spare the accused from undergoing the rigors and
expense of a full-blown trial where it is clear that he has been deprived of due
process of law or other constitutionally guaranteed rights. Of course, it goes
without saying that in the application of the doctrine enunciated in those
cases, particular regard must be taken of the facts and circumstances peculiar
to each case. 83
This Court found that there were peculiar circumstances which attended the
preliminary investigation of the complaint, the most blatant of which was that the
1974 report against Tatad was only acted upon by the Tanodbayan when Tatad had a
falling out with President Marcos in 1979:
A painstaking review of the facts cannot but leave the impression that
political motivations played a vital role in activating and propelling the
prosecutorial process in this case. Firstly, the complaint came to life, as it
were, only after petitioner Tatad had a falling out with President Marcos.
Secondly, departing from established procedures prescribed by law for
preliminary investigation, which require the submission of affidavits and
counter-affidavits by the Tanodbayan referred the complaint to the
Presidential Security Command for fact-finding investigation and report.
We find such blatant departure from the established procedure as a
dubious, but revealing attempt to involve an office directly under the President
in the prosecution was politically motivated. We cannot emphasize too
strongly that prosecutors should not allow, and should avoid, giving the
impression that their noble office is being used or prostituted, wittingly or
unwittingly, for political ends or other purposes alien to, or subversive of, the
basic and fundamental objective of serving the interest of justice
evenhandedly, without fear or favor to any and all litigants alike, whether rich
or poor, weak or strong, powerless or mighty. Only by strict adherence to the
established procedure may the public's perception of the impartiality of the
prosecutor be enhanced. 84
Thus, the delay of three (3) years in the termination of the preliminary
investigation was found to have been inordinate delay, which was violative of
petitioner's constitutional rights:
We find the long delay in the termination of the preliminary
investigation by the Tanodbayan in the instant case to be violative of the
constitutional right of the accused to due process. Substantial adherence to the
requirements of the law governing the conduct of preliminary investigation,
including substantial compliance with the time limitation prescribed by the
law for the resolution of the case by the prosecutor, is part of the procedural
due process constitutionally guaranteed by the fundamental law. Not only
 under the broad umbrella of the due process clause, but under the
constitutionally guarantee of "speedy disposition" of cases as embodied in
Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions),
the inordinate delay is violative of the petitioner's constitutional rights. A
delay of close to three (3) years cannot be deemed reasonable or justifiable in
the light of the circumstance obtaining in the case at bar. We are not
impressed by the attempt of the Sandiganbayan to sanitize the long delay by
indulging in the speculative assumption that "the delay may be due to a
painstaking and grueling scrutiny by the Tanodbayan as to whether the
evidence presented during the preliminary investigation merited prosecution
of a former high-ranking government official." In the first place, such a
statement suggests a double standard of treatment, which must be
emphatically rejected. Secondly, three out of the five charges against the
petitioner were for his alleged failure to file his sworn statement of assets and
liabilities required by Republic Act No. 3019, which certainly did not involve
complicated legal and factual issues necessitating such "painstaking and
grueling scrutiny" as would justify a delay of almost three years in terminating
the preliminary investigation. The other two charges relating to alleged
bribery and alleged giving of unwarranted benefits to a relative, while
presenting more substantial legal and factual issues, certainly do not warrant
or justify the period of three years, which it took the Tanodbayan to resolve
the case. 85HESIcT

Political motivation, however, is merely one of the circumstances to be

factored in when determining whether the delay is inordinate. The absence of political
motivation will not prevent this Court from granting the same "radical relief." Thus, in
Angchangco v. Ombudsman, 86 this Court dismissed the criminal complaints even if
the petition filed before this Court was a petition for mandamus to compel the Office
of the Ombudsman to resolve the complaints against him after more than six (6) years
of inaction:
Here, the Office of the Ombudsman, due to its failure to resolve the
criminal charges against petitioner for more than six years, has transgressed
on the constitutional right of petitioner to due process and to a speedy
disposition of the cases against him, as well as the Ombudsman's own
constitutional duty to act promptly on complaints filed before it. For all these
past 6 years, petitioner has remained under a cloud, and since his retirement in
September 1994, he has been deprived of the fruits of his retirement after
serving the government for over 42 years all because of the inaction of
respondent Ombudsman. If we wait any longer, it may be too late for
petitioner to receive his retirement benefits, not to speak of clearing his name.
This is a case of plain injustice which calls for the issuance of the writ prayed
for. 87
As in Angchangco, this Court has applied the Tatad doctrine in Duterte v.
Sandiganbayan, 88 Roque v. Ombudsman, 89 Cervantes v. Sandiganbayan, 90 Lopez,
Jr. v. Ombudsman, 91 Licaros v. Sandiganbayan, 92 People v. SPO4 Anonas, 93
Enriquez v. Ombudsman, 94 People v. Sandiganbayan, First Division, 95 Inocentes v.
People, 96 Almeda v. Ombudsman, 97 People v. Sandiganbayan, Fifth Division, 98
Torres v. Sandiganbayan, 99 and Remulla v. Sandiganbayan. 100
This Court, however, emphasized that "[a] mere mathematical reckoning of the
time involved is not sufficient" 101 to rule that there was inordinate delay. Thus, it
qualified the application of the Tatad doctrine in cases where certain circumstances do
not merit the application of the "radical relief" sought.
Despite the promulgation of Tatad, however, this Court struggled to apply a
standard test within which to determine the presence of inordinate delay. Martin v.
Ver, 102 decided in 1983, attempted to introduce in this jurisdiction the "balancing
test" in the American case of Barker v. Wingo, thus:
[T]he right to a speedy trial is a more vague and generically different concept
than other constitutional rights guaranteed to accused persons and cannot be
quantified into a specified number of days or months, and it is impossible to
pinpoint a precise time in the judicial process when the right must be asserted
or considered waived . . .
[A] claim that a defendant has been denied his right to a speedy trial is subject
to a balancing test, in which the conduct of both the prosecution and the
defendant are weighed, and courts should consider such factors as length of
the delay, reason for the delay, the defendant's assertion or non-assertion of
his right, and prejudice to the defendant resulting from the delay, in
determining whether defendant's right to a speedy trial has been denied . . .
103
The Barker balancing test provides that courts must consider the following
factors when determining the existence of inordinate delay: first, the length of delay;
second, the reason for delay; third, the defendant's assertion or non-assertion of his or
her right; and fourth, the prejudice to the defendant as a result of the delay.
For a period of time, this balancing test appeared to be the best way to
determine the existence of inordinate delay. Thus, this Court applied both the Tatad
doctrine and the Barker balancing test in the 1991 case of Gonzales v.
Sandiganbayan: 104
It must be here emphasized that 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; or
when unjustified postponements of the trial are asked for and secured, or
when without cause or justifiable motive a long period of time is allowed to
elapse without the party having his case tried. Equally applicable is the
balancing test used to determine whether a defendant has been denied his right
to a speedy trial, or a speedy disposition of a case for that matter, in which the
conduct of both the prosecution and the defendant are weighed, and such
factors as length of the delay, reason for the delay, the defendant's assertion or
 non-assertion of his right, and prejudice to the defendant resulting from the
delay, are considered. 105caITAC

The combination of both Tatad and the balancing test was so effective that it
was again applied in Alvizo v. Sandiganbayan, 106 where this Court took note that:
[D]elays per se are understandably attendant to all prosecutions and are
constitutionally permissible, with the monition that the attendant delay must
not be oppressive. Withal, it must not be lost sight of that the concept of
speedy disposition of cases is a relative term and must necessarily be a
flexible concept. Hence, the doctrinal rule is that in the determination of
whether or not that right has been violated, the factors that may be considered
and balanced are the length of delay, the reasons for such delay, the assertion
or failure to assert such right by the accused, and the prejudice caused by the
delay. 107
Determining the length of delay necessarily involves a query on when a case is
deemed to have commenced. In Dansal v. Fernandez, 108 this Court recognized that
the right to speedy disposition of cases does not only include the period from which a
case is submitted for resolution. Rather, it covers the entire period of investigation
even before trial. Thus, the right may be invoked as early as the preliminary
investigation or inquest.
In criminal prosecutions, the investigating prosecutor is given a specific period
within which to resolve the preliminary investigation under Rule 112, Section 3 of the
Rules of Court. 109 Courts are likewise mandated to resolve cases within a specific
time frame. Article VIII, Section 15 of the Constitution provides:
Section 15. (1) All cases or matters filed after the effectivity of this
Constitution must be decided or resolved within twenty-four months from date
of submission for the Supreme Court, and, unless reduced by the Supreme
Court, twelve months for all lower collegiate courts, and three months for all
other lower courts.
(2) A case or matter shall be deemed submitted for decision or resolution upon
the filing of the last pending, brief, or memorandum required by the Rules of
Court or by the court itself.
(3) Upon the expiration of the corresponding period, a certification to this
effect signed by the Chief Justice or the presiding judge shall forthwith be
issued and a copy thereof attached to the record of the case or matter, and
served upon the parties. The certification shall state why a decision or
resolution has not been rendered or issued within said period.
(4) Despite the expiration of the applicable mandatory period, the court,
without prejudice to such responsibility as may have been incurred in
consequence thereof, shall decide or resolve the case or matter submitted
thereto for determination, without further delay.
 Under Republic Act No. 8493, or the Speedy Trial Act of 1998, the entire trial
period must not exceed 180 days, except as otherwise provided for by this Court. 110
The law likewise provides for a time limit of 30 days from the filing of the
information to conduct the arraignment, and 30 days after arraignment for trial to
commence. 111 In order to implement the law, this Court issued Supreme Court
Circular No. 38-98 112 reiterating the periods for the conduct of trial. It also provided
for an extended time limit from arraignment to the conduct of trial:
Section 7. Extended Time Limit. — Notwithstanding the provisions of the
preceding Sections 2 and 6 for the first twelve-calendar-month period
following its effectivity, the time limit with respect to the period from
arraignment to trial imposed by said provision shall be one hundred eighty
(180) days. For the second twelve-month period, the time limit shall be one
hundred twenty (120) days, and for the third twelve-month period the time
limit shall be eighty (80) days.
The Circular likewise provides for certain types of delay which may be
excluded in the running of the periods:
Section 9. Exclusions. — The following periods of delay shall be excluded in
computing the time within which trial must commence:
(a) Any period of delay resulting from other proceedings concerning the
accused, including but not limited to the following:
(1) delay resulting from an examination of the physical and
mental condition of the accused;
(2) delay resulting from proceedings with respect to other
criminal charges against the accused;
(3) delay resulting from extraordinary remedies against
interlocutory orders;
(4) delay resulting from pre-trial proceedings: Provided, that
the delay does not exceed thirty (30) days;
ICHDca

(5) delay resulting from orders of inhibition or proceedings

relating to change of venue of cases or transfer from other
courts;
(6) delay resulting from a finding of the existence of a valid
prejudicial question; and
(7) delay reasonably attributable to any period, not to exceed
thirty (30) days, during which any proceeding concerning the
accused is actually under advisement.
(b) Any period of delay resulting from the absence or unavailability of an
essential witness.
For purposes of this subparagraph, an essential witness shall be
considered absent when his whereabouts are unknown or his whereabouts
 cannot be determined by due diligence. An essential witness shall be
considered unavailable whenever his whereabouts are known but his presence
for trial cannot be obtained by due diligence.
(c) Any period of delay resulting from the fact that the accused is mentally
incompetent or physically unable to stand trial.
(d) If the information is dismissed upon motion of the prosecution and
thereafter a charge is filed against the accused for the same offense, any
period of delay from the date the charge was dismissed to the date the time
limitation would commence to run as to the subsequent charge had there been
no previous charge.
(e) A reasonable period of delay when the accused is joined for trial with a co-
accused over whom the court has not acquired jurisdiction, or as to whom the
time for trial has not run and no motion for separate trial has been granted.
(f) Any period of delay resulting from a continuance granted by any court
motu proprio or on motion of either the accused or his counsel or the
prosecution, if the court granted such continuance on the basis of his findings
set forth in the order that the ends of justice served by taking such action
outweigh the best interest of the public and the accused in a speedy trial.
These provisions have since been incorporated in Rule 119, Sections 1, 113 2,
114 3, 115 and 6 116 of the Rules of Court.
Several laws have also been enacted providing the time periods for disposition
of cases.
In Republic Act No. 6975, as amended by Republic Act No. 8551, resolution
of complaints against members of the Philippine National Police must be done within
ninety (90) days from the arraignment of the accused:
Section 55. Section 47 of Republic Act No. 6975 is hereby amended to read as
follows:
"Section 47. Preventive Suspension Pending Criminal Case. — Upon the
filing of a complaint or information sufficient in form and substance against a
member of the PNP for grave felonies where the penalty imposed by law is six
(6) years and one (1) day or more, the court shall immediately suspend the
accused from office for a period not exceeding ninety (90) days from
arraignment: provided, however, that if it can be shown by evidence that the
accused is harassing the complainant and/or witnesses, the court may order the
preventive suspension of the accused PNP member even if the charge is
punishable by a penalty lower than six (6) years and one (1) day: provided,
further, that the preventive suspension shall not be more than ninety (90) days
except if the delay in the disposition of the case is due to the fault, negligence
or petitions of the respondent: provided, finally, that such preventive
suspension may be sooner lifted by the court in the exigency of the service
upon recommendation of the chief, PNP. Such case shall be subject to
 continuous trial and shall be terminated within ninety (90) days from
arraignment of the accused."
Republic Act No. 9165, 117 Section 90 provides that trial for drug-related
offenses should be finished not later than 60 days from the filing of the information:
Section 90. Jurisdiction. —
xxx xxx xxx
Trial of the case under this Section shall be finished by the court not later than
sixty (60) days from the date of the filing of the information. Decision on said
cases shall be rendered within a period of fifteen (15) days from the date of
submission of the case for resolution. TCAScE

Republic Act No. 9372, 118 Section 48 mandates continuous trial on a daily
basis for cases of terrorism or conspiracy to commit terrorism:
Section 48. Continuous Trial. — In cases of terrorism or conspiracy to commit
terrorism, the judge shall set the continuous trial on a daily basis from
Monday to Friday or other short-term trial calendar so as to ensure speedy
trial.
Republic Act No. 9516 119 amends Presidential Decree No. 1866 120 to
provide for continuous trial for cases involving illegal or unlawful possession,
manufacture, dealing, acquisition, and disposition of firearms, ammunitions, and
explosives:
Section 4-B. Continuous Trial. — In cases involving violations of this Decree,
the judge shall set the case for continuous trial on a daily basis from Monday
to Friday or other short-term trial calendar so as to ensure speedy trial. Such
case shall be terminated within ninety (90) days from arraignment of the
accused.
Implementing rules and regulations have also provided for the speedy
disposition of cases. The Implementing Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases 121 provide that trial shall commence within three
(3) days from arraignment:
Section 21. Speedy Trial of Child Abuse Cases. — The trial of child abuse
cases shall take precedence over all other cases before the courts, except
election and habeas corpus cases. The trial in said cases shall commence
within three (3) days from the date the accused is arraigned and no
postponement of the initial hearing shall be granted except on account of the
illness of the accused or other grounds beyond his control.
The Revised Rules and Regulations Implementing Republic Act No. 9208, 122
as amended by Republic Act No. 10364, 123 mandates the speedy disposition of
trafficking cases:
Section 76. Speedy Disposition of [Trafficking in Persons] Cases. — Where
practicable and unless special circumstance require; otherwise, cases
 involving violation of R.A. No. 9208 shall be heard contiguously: with
hearing dates spaced not more than two weeks apart. Unnecessary delay
should be avoided, strictly taking into consideration the Speedy Trial Act and
SC Circular No. 38-98 dated 11 August 1998.
Laws and their implementing rules and regulations, however, do not generally
bind courts unless this Court adopts them in procedural rules. 124 In any case, this
Court has already made several issuances setting periods for the conduct of trial.
Rule 17, Section 1 of the Rules of Procedure in Environmental Cases 125
provide that trial must not exceed three (3) months from the issuance of the pre-trial
order:
Section 1. Continuous trial. — The court shall endeavor to conduct continuous
trial which shall not exceed three (3) months from the date of the issuance of
the pre-trial order.
Rule 14, Section 2 of the Rules of Procedure for Intellectual Property Rights
Cases 126 limits the period of presenting evidence to 60 days per party:
Section 2. Conduct of trial. — The court shall conduct hearings expeditiously
so as to ensure speedy trial. Each party shall have a maximum period of sixty
(60) days to present his evidence-in-chief on the trial dates agreed upon during
the pre-trial.
Supreme Court Administrative Order No. 25-2007 127 provides that trial in
cases involving the killings of political activists and members of the media must be
conducted within 60 days from its commencement:
The cases referred to herein shall undergo mandatory continuous trial and
shall be terminated within sixty (60) days from commencement of trial.
Judgment thereon shall be rendered within thirty (30) days from submission
for decision unless a shorter period is provided by law or otherwise directed
by this Court.
The Guidelines for Decongesting Holding Jails by Enforcing the Right of the
Accused to Bail and to Speedy Trial 128 provide for strict time limits that must be
observed:
Section 8. Observance of time limits. — It shall be the duty of the trial court,
the public or private prosecutor, and the defense counsel to ensure, subject to
the excluded delays specified in Rule 119 of the Rules of Court and the
Speedy Trial Act of 1998, compliance with the following time limits in the
prosecution of the case against a detained accused: cTDaEH

(a) The case of the accused shall be raffled and referred to the trial court to
which it is assigned within three days from the filing of the information;
(b) The court shall arraign the accused within ten (10) days from the date of
the raffle;
 (c) The court shall hold the pre-trial conference within thirty (30) days after
arraignment or within ten (10) days if the accused is under preventive
detention; provided, however, that where the direct testimonies of the
witnesses are to be presented through judicial affidavits, the court shall give
the prosecution not more than twenty (20) days from arraignment within
which to prepare and submit their judicial affidavits in time for the pre-trial
conference;
(d) After the pre-trial conference, the court shall set the trial of the case in the
pre-trial order not later than thirty (30) days from the termination of the pre-
trial conference; and
(e) The court shall terminate the regular trial within one hundred eighty (180)
days, or the trial by judicial affidavits within sixty (60) days, reckoned from
the date trial begins, minus the excluded delays or postponements specified in
Rule 119 of the Rules of Court and the Speedy Trial Act of 1998.
A dilemma arises as to whether the period includes proceedings in quasi-
judicial agencies before a formal complaint is actually filed. The Office of the
Ombudsman, for example, has no set periods within which to conduct its fact-finding
investigations. They are only mandated to act promptly. Thus, in People v.
Sandiganbayan, Fifth Division, 129 this Court stated that a fact-finding investigation
conducted by the Office of the Ombudsman should not be deemed separate from
preliminary investigation for the purposes of determining whether there was a
violation of the right to speedy disposition of cases:
The State further argues that the fact-finding investigation should not
be considered a part of the preliminary investigation because the former was
only preparatory in relation to the latter; and that the period spent in the
former should not be factored in the computation of the period devoted to the
preliminary investigation.
The argument cannot pass fair scrutiny.
The guarantee of speedy disposition under Section 16 of Article III of
the Constitution applies to all cases pending before all judicial, quasi-judicial
or administrative bodies. The guarantee would be defeated or rendered inutile
if the hair-splitting distinction by the State is accepted. Whether or not the
fact-finding investigation was separate from the preliminary investigation
conducted by the Office of the Ombudsman should not matter for purposes of
determining if the respondents' right to the speedy disposition of their cases
had been violated. 130 (Emphasis supplied)
People v. Sandiganbayan, Fifth Division 131 must be re-examined.
When an anonymous complaint is filed or the Office of the Ombudsman
conducts a motu proprio fact-finding investigation, the proceedings are not yet
adversarial. Even if the accused is invited to attend these investigations, this period
cannot be counted since these are merely preparatory to the filing of a formal
complaint. At this point, the Office of the Ombudsman will not yet determine if there
is probable cause to charge the accused.
This period for case build-up cannot likewise be used by the Office of the
Ombudsman as unbridled license to delay proceedings. If its investigation takes too
long, it can result in the extinction of criminal liability through the prescription of the
offense.
Considering that fact-finding investigations are not yet adversarial proceedings
against the accused, the period of investigation will not be counted in the
determination of whether the right to speedy disposition of cases was violated. Thus,
this Court now holds that for the purpose of determining whether inordinate delay
exists, a case is deemed to have commenced from the filing of the formal complaint
and the subsequent conduct of the preliminary investigation. In People v.
Sandiganbayan, Fifth Division, 132 the ruling that fact-finding investigations are
included in the period for determination of inordinate delay is abandoned.
With respect to fact-finding at the level of the Ombudsman, the Ombudsman
must provide for reasonable periods based upon its experience with specific types of
cases, compounded with the number of accused and the complexity of the evidence
required. He or she must likewise make clear when cases are deemed submitted for
decision. The Ombudsman has the power to provide for these rules and it is
recommended that he or she amend these rules at the soonest possible time. cSaATC

These time limits must be strictly complied with. If it has been alleged that
there was delay within the stated time periods, the burden of proof is on the defense to
show that there has been a violation of their right to speedy trial or their right to
speedy disposition of cases. The defense must be able to prove first, that the case took
much longer than was reasonably necessary to resolve, and second, that efforts were
exerted to protect their constitutional rights. 133
What may constitute a reasonable time to resolve a proceeding is not
determined by "mere mathematical reckoning." 134 It requires consideration of a
number of factors, including the time required to investigate the complaint, to file the
information, to conduct an arraignment, the application for bail, pre-trial, trial proper,
and the submission of the case for decision. 135 Unforeseen circumstances, such as
unavoidable postponements or force majeure, must also be taken into account.
The complexity of the issues presented by the case must be considered in
determining whether the period necessary for its resolution is reasonable. In
Mendoza-Ong v. Sandiganbayan 136 this Court found that "the long delay in
resolving the preliminary investigation could not be justified on the basis of the
records." 137 In Binay v. Sandiganbayan, 138 this Court considered "the complexity
of the cases (not run-of-the-mill variety) and the conduct of the parties' lawyers" 139
to determine whether the delay is justifiable. When the case is simple and the
evidence is straightforward, it is possible that delay may occur even within the given
periods. Defense, however, still has the burden to prove that the case could have been
resolved even before the lapse of the period before the delay could be considered
inordinate.
The defense must also prove that it exerted meaningful efforts to protect
accused's constitutional rights. In Alvizo v. Sandiganbayan, 140 the failure of the
accused to timely invoke the right to speedy disposition of cases may work to his or
her disadvantage, since this could indicate his or her acquiescence to the delay:
Petitioner was definitely not unaware of the projected criminal
prosecution posed against him by the indication of this Court as a
complementary sanction in its resolution of his administrative case. He
appears, however, to have been insensitive to the implications and
contingencies thereof by not taking any step whatsoever to accelerate the
disposition of the matter, which inaction conduces to the perception that the
supervening delay seems to have been without his objection hence impliedly
with his acquiescence. 141
In Dela Peña v. Sandiganbayan, 142 this Court equated this acquiescence as
one that could amount to laches, which results in the waiver of their rights:
[I]t is worthy to note that it was only on 21 December 1999, after the case was
set for arraignment, that petitioners raised the issue of the delay in the conduct
of the preliminary investigation. As stated by them in their Motion to
Quash/Dismiss, "[o]ther than the counter-affidavits, [they] did nothing." Also,
in their petition, they averred: "Aside from the motion for extension of time to
file counter-affidavits, petitioners in the present case did not file nor send any
letter-queries addressed to the Office of the Ombudsman for Mindanao which
conducted the preliminary investigation." They slept on their right — a
situation amounting to laches. The matter could have taken a different
dimension if during all those four years, they showed signs of asserting their
right to a speedy disposition of their cases or at least made some overt acts,
like filing a motion for early resolution, to show that they were not waiving
that right. Their silence may, therefore be interpreted as a waiver of such right.
As aptly stated in Alvizo, the petitioner therein was "insensitive to the
implications and contingencies" of the projected criminal prosecution posed
against him "by not taking any step whatsoever to accelerate the disposition of
the matter, which inaction conduces to the perception that the supervening
delay seems to have been without his objection, [and] hence impliedly with
his acquiescence." 143
This concept of acquiescence, however, is premised on the presumption that
the accused was fully aware that the preliminary investigation has not yet been
terminated despite a considerable length of time. Thus, in Duterte v. Sandiganbayan,
144 this Court stated that Alvizo would not apply if the accused were unaware that the
investigation was still ongoing:
Petitioners in this case, however, could not have urged the speedy
resolution of their case because they were completely unaware that the
 investigation against them was still on-going. Peculiar to this case, we
reiterate, is the fact that petitioners were merely asked to comment, and not
file counter-affidavits which is the proper procedure to follow in a preliminary
investigation. After giving their explanation and after four long years of being
in the dark, petitioners, naturally, had reason to assume that the charges
against them had already been dismissed. 145 cHDAIS

Similarly, in Coscolluela v. Sandiganbayan: 146

Records show that they could not have urged the speedy resolution of
their case because they were unaware that the investigation against them was
still on-going. They were only informed of the March 27, 2003 Resolution and
Information against them only after the lapse of six (6) long years, or when
they received a copy of the latter after its filing with the SB on June 19, 2009.
In this regard, they could have reasonably assumed that the proceedings
against them have already been terminated. This serves as a plausible reason
as to why petitioners never followed-up on the case altogether . . .
xxx xxx xxx
Being the respondents in the preliminary investigation proceedings, it
was not the petitioners' duty to follow up on the prosecution of their case.
Conversely, it was the Office of the Ombudsman's responsibility to expedite
the same within the bounds of reasonable timeliness in view of its mandate to
promptly act on all complaints lodged before it. As pronounced in the case of
Barker v. Wingo:
A defendant has no duty to bring himself to trial; the State has
that duty as well as the duty of insuring that the trial is
consistent with due process. 147
Justice Caguioa submits that this Court should depart from Dela Peña. He
explains that the third factor of the Barker balancing test, i.e., waiver by the accused,
was applied within the context of the Sixth Amendment 148 of the American
Constitution in that it presupposes that the accused has already been subjected to
criminal prosecution. He submits that as the right to speedy disposition of cases may
be invoked even before criminal prosecution has commenced, waiver by the accused
should be inapplicable.
The right to speedy disposition of cases, however, is invoked by a respondent
to any type of proceeding once delay has already become prejudicial to the
respondent. The invocation of the constitutional right does not require a threat to the
right to liberty. Loss of employment or compensation may already be considered as
sufficient to invoke the right. Thus, waiver of the right does not necessarily require
that the respondent has already been subjected to the rigors of criminal prosecution.
The failure of the respondent to invoke the right even when or she has already
suffered or will suffer the consequences of delay constitutes a valid waiver of that
right.
 While the Barker balancing test has American roots, a catena of cases has
already been decided by this Court, starting from Tatad, which have taken into
account the Philippine experience.
The reality is that institutional delay 149 a reality that the court must address.
The prosecution is staffed by overworked and underpaid government lawyers with
mounting caseloads. The courts' dockets are congested. This Court has already
launched programs to remedy this situation, such as the Judicial Affidavit Rule, 150
Guidelines for Decongesting Holding Jails by Enforcing the Right of the Accused to
Bail and to Speedy Trial, 151 and the Revised Guidelines for Continuous Trial. 152
These programs, however, are mere stepping stones. The complete eradication of
institutional delay requires these sustained actions.
Institutional delay, in the proper context, should not be taken against the State.
Most cases handled by the Office of the Ombudsman involve individuals who have
the resources and who engage private counsel with the means and resources to fully
dedicate themselves to their client's case. More often than not, the accused only
invoke the right to speedy disposition of cases when the Ombudsman has already
rendered an unfavorable decision. The prosecution should not be prejudiced by
private counsels' failure to protect the interests of their clients or the accused's lack of
interest in the prosecution of their case.
For the court to appreciate a violation of the right to speedy disposition of
cases, delay must not be attributable to the defense. 153 Certain unreasonable actions
by the accused will be taken against them. This includes delaying tactics like failing
to appear despite summons, filing needless motions against interlocutory actions, or
requesting unnecessary postponements that will prevent courts or tribunals to properly
adjudicate the case. When proven, this may constitute a waiver of the right to speedy
trial or the right to speedy disposition of cases.
If it has been alleged that there was delay beyond the given time periods, the
burden of proof shifts. The prosecution will now have the burden to prove that there
was no violation of the right to speedy trial or the right to speedy disposition of cases.
Gonzales v. Sandiganbayan 154 states that "vexatious, capricious, and oppressive
delays," "unjustified postponements of the trial," or "when without cause or justifiable
motive a long period of time is allowed to elapse without the party having his [or her]
case tried" 155 are instances that may be considered as violations of the right to
speedy disposition of cases. The prosecution must be able to prove that it followed
established procedure in prosecuting the case. 156 It must also prove that any delay
incurred was justified, such as the complexity of the cases involved or the vast
amount of evidence that must be presented. ISHCcT

The prosecution must likewise prove that no prejudice was suffered by the
accused as a result of the delay. Corpuz v. Sandiganbayan 157 defined prejudice to the
accused as:
 Prejudice should be assessed in the light of the interest of the defendant that
the speedy trial was designed to protect, namely: to prevent oppressive pre-
trial incarceration; to minimize anxiety and concerns of the accused to trial;
and to limit the possibility that his defense will be impaired. Of these, the
most serious is the last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system. There is also
prejudice if the defense witnesses are unable to recall accurately the events of
the distant past. Even if the accused is not imprisoned prior to trial, he is still
disadvantaged by restraints on his liberty and by living under a cloud of
anxiety, suspicion and often, hostility. His financial resources may be drained,
his association is curtailed, and he is subjected to public obloquy. 158
In Coscolluela v. Sandiganbayan: 159
Lest it be misunderstood, the right to speedy disposition of cases is not
merely hinged towards the objective of spurring dispatch in the administration
of justice but also to prevent the oppression of the citizen by holding a
criminal prosecution suspended over him for an indefinite time. Akin to the
right to speedy trial, its "salutary objective" is to assure that an innocent
person may be free from the anxiety and expense of litigation or, if otherwise,
of having his guilt determined within the shortest possible time compatible
with the presentation and consideration of whatsoever legitimate defense he
may interpose. This looming unrest as well as the tactical disadvantages
carried by the passage of time should be weighed against the State and in
favor of the individual. 160
The consequences of delay, however, do not only affect the accused. The
prosecution of the case will also be made difficult the longer the period of time
passes. In Corpuz v. Sandiganbayan: 161
Delay is a two-edge sword. It is the government that bears the burden
of proving its case beyond reasonable doubt. The passage of time may make it
difficult or impossible for the government to carry its burden. The
Constitution and the Rules do not require impossibilities or extraordinary
efforts, diligence or exertion from courts or the prosecutor, nor contemplate
that such right shall deprive the State of a reasonable opportunity of fairly
prosecuting criminals. As held in Williams v. United States, for the
government to sustain its right to try the accused despite a delay, it must show
two things: (a) that the accused suffered no serious prejudice beyond that
which ensued from the ordinary and inevitable delay; and (b) that there was
no more delay than is reasonably attributable to the ordinary processes of
justice. 162
The consequences of the prosecution's failure to discharge this burden are
severe. Rule 119, Section 9 of the Rules of Court requires that the case against the
accused be dismissed if there has been a violation of the right to speedy trial:
Section 9. Remedy where accused is not brought to trial within the time limit.
— If the accused is not brought to trial within the time limit required by
 Section 1(g), Rule 116 and Section 1, as extended by Section 6 of this rule, the
information may be dismissed on motion of the accused on the ground of
denial of his right to speedy trial. The accused shall have the burden of
proving the motion but the prosecution shall have the burden of going forward
with the evidence to establish the exclusion of time under section 3 of this
Rule. The dismissal shall be subject to the rules on double jeopardy.
Failure of the accused to move for dismissal prior to trial shall constitute a
waiver of the right to dismiss under this section.
Tatad, as qualified by Angchangco, likewise mandates the dismissal of the case
if there is a violation of the right to speedy disposition of cases. The immediate
dismissal of cases is also warranted if it is proven that there was malicious
prosecution, if the cases were politically motivated, or other similar instances. Once
these circumstances have been proven, there is no need for the defense to discharge its
burden to prove that the delay was inordinate. CAacTH

To summarize, inordinate delay in the resolution and termination of a

preliminary investigation violates the accused's right to due process and the speedy
disposition of cases, and may result in the dismissal of the case against the accused.
The burden of proving delay depends on whether delay is alleged within the periods
provided by law or procedural rules. If the delay is alleged to have occurred during
the given periods, the burden is on the respondent or the accused to prove that the
delay was inordinate. If the delay is alleged to have occurred beyond the given
periods, the burden shifts to the prosecution to prove that the delay was reasonable
under the circumstances and that no prejudice was suffered by the accused as a result
of the delay.
The determination of whether the delay was inordinate is not through mere
mathematical reckoning but through the examination of the facts and circumstances
surrounding the case. Courts should appraise a reasonable period from the point of
view of how much time a competent and independent public officer would need in
relation to the complexity of a given case. If there has been delay, the prosecution
must be able to satisfactorily explain the reasons for such delay and that no prejudice
was suffered by the accused as a result. The timely invocation of the accused's
constitutional rights must also be examined on a case-to-case basis.

III

This Court proceeds to determine whether respondent committed inordinate

delay in the resolution and termination of the preliminary investigation against
petitioner.
There is no showing that this case was attended by malice. There is no
evidence that it was politically motivated. Neither party alleges this fact. Thus, this
Court must analyze the existence and cause of delay.
 The criminal complaint against petitioner was filed on February 10, 2003. On
August 11, 2004, the Office of the Ombudsman issued a Resolution finding probable
cause against petitioner. This Resolution, however, was modified by the Resolution
dated October 18, 2004, which ordered the conduct of further fact-finding
investigation against some of the other respondents in the case. This further fact-
finding was resolved by the Office of the Ombudsman on April 12, 2005. On August
8, 2011, or six (6) years after the recommendation to file informations against
petitioner was approved by Tanodbayan Marcelo, Assistant Special Prosecutor II
Pilarita T. Lapitan submitted the informations for Ombudsman Carpio Morales'
review. Informations against petitioner were filed on November 17, 2011.
Six (6) years is beyond the reasonable period of fact-finding of ninety (90)
days. The burden of proving the justification of the delay, therefore, is on the
prosecution, or in this case, respondent.
Respondent alleged that the delay in the filing of the informations was justified
since it was still determining whether accused Mary Ann Gadian (Gadian) could be
utilized as a state witness and it still had to verify accused Felipe Constantino's death.
The recommendation, however, to utilize Gadian as a state witness was approved by
Tanodbayan Marcelo on December 20, 2004. 163 Felipe Constantino's death was
verified by the Sandiganbayan in its November 14, 2006 Order. 164 There is, thus,
delay from November 14, 2006 to August 8, 2011.
This Court finds, however, that despite the pendency of the case since 2003,
petitioner only invoked his right to speedy disposition of cases when the informations
were filed on November 17, 2011. Unlike in Duterte and Coscolluela, petitioner was
aware that the preliminary investigation was not yet terminated.
Admittedly, while there was delay, petitioner has not shown that he asserted
his rights during this period, choosing instead to wait until the information was filed
against him with the Sandiganbayan.
Furthermore, the case before the Sandiganbayan involves the alleged
malversation of millions in public money. The Sandiganbayan has yet to determine
the guilt or innocence of petitioner. In the Decision dated June 17, 2010 of the
Sandiganbayan acquitting petitioner in Crim. Case No. 28331:
We wish to iterate our observation gathered from the evidence on record that
the subject transaction is highly suspect. There is a seeming acceptance of the
use of questionable supporting documents to secure the release of public funds
in the province, and the apparent undue haste in the processing and eventual
withdrawal of such funds. However, obvious as the irregularities may be,
which can only lead to distrust in the ability of public officials to safeguard
public funds, we are limited to a review only of the evidence presented vis-à-
vis the charges brought forth before this Court. Thus, We cannot make any
pronouncement in regard to such seeming irregularities. 165 IAETDc
 The records of the case show that the transactions investigated are complex and
numerous. As respondent points out, there were over a hundred individuals
investigated, and eventually, 40 of them were determined to have been involved in 81
different anomalous transactions. 166 Even granting that the Commission on Audit's
Audit Report exhaustively investigated each transaction, "the prosecution is not bound
by the findings of the Commission on Audit; it must rely on its own independent
judgment in the determination of probable cause." 167 Delays in the investigation and
review would have been inevitable in the hands of a competent and independent
Ombudsman.
The dismissal of the complaints, while favorable to petitioner, would
undoubtedly be prejudicial to the State. "[T]he State should not be prejudiced and
deprived of its right to prosecute the criminal cases simply because of the ineptitude
or nonchalance of the Office of the Ombudsman." 168 The State is as much entitled to
due process as the accused. In People v. Leviste: 169
[I]t must be emphasized that the state, like any other litigant, is entitled to its
day in court, and to a reasonable opportunity to present its case. A hasty
dismissal such as the one in question, instead of unclogging dockets, has
actually increased the workload of the justice system as a whole and caused
uncalled-for delays in the final resolution of this and other cases. Unwittingly,
the precipitate action of the respondent court, instead of easing the burden of
the accused, merely prolonged the litigation and ironically enough,
unnecessarily delayed the case — in the process, causing the very evil it
apparently sought to avoid. Such action does not inspire public confidence in
the administration of justice. 170
This Court finds that there is no violation of the accused's right to speedy
disposition of cases considering that there was a waiver of the delay of a complex
case. Definitely, granting the present Petitions and finding grave abuse of discretion
on the part of the Sandiganbayan will only prejudice the due process rights of the
State.

IV

This Court now clarifies the mode of analysis in situations where the right to
speedy disposition of cases or the right to speedy trial is invoked.
First, the right to speedy disposition of cases is different from the right to
speedy trial. While the rationale for both rights is the same, the right to speedy trial
may only be invoked in criminal prosecutions against courts of law. The right to
speedy disposition of cases, however, may be invoked before any tribunal, whether
judicial or quasi-judicial. What is important is that the accused may already be
prejudiced by the proceeding for the right to speedy disposition of cases to be
invoked.
 Second, a case is deemed initiated upon the filing of a formal complaint prior
to a conduct of a preliminary investigation. This Court acknowledges, however, that
the Ombudsman should set reasonable periods for preliminary investigation, with due
regard to the complexities and nuances of each case. Delays beyond this period will
be taken against the prosecution. The period taken for fact-finding investigations prior
to the filing of the formal complaint shall not be included in the determination of
whether there has been inordinate delay.
Third, courts must first determine which party carries the burden of proof. If
the right is invoked within the given time periods contained in current Supreme Court
resolutions and circulars, 171 and the time periods that will be promulgated by the
Office of the Ombudsman, the defense has the burden of proving that the right was
justifiably invoked. If the delay occurs beyond the given time period and the right is
invoked, the prosecution has the burden of justifying the delay.
If the defense has the burden of proof, it must prove first, whether the case is
motivated by malice or clearly only politically motivated and is attended by utter lack
of evidence, and second, that the defense did not contribute to the delay.
Once the burden of proof shifts to the prosecution, the prosecution must prove
first, that it followed the prescribed procedure in the conduct of preliminary
investigation and in the prosecution of the case; second, that the complexity of the
issues and the volume of evidence made the delay inevitable; and third, that no
prejudice was suffered by the accused as a result of the delay.
Fourth, determination of the length of delay is never mechanical. Courts must
consider the entire context of the case, from the amount of evidence to be weighed to
the simplicity or complexity of the issues raised.DcHSEa

An exception to this rule is if there is an allegation that the prosecution of the

case was solely motivated by malice, such as when the case is politically motivated or
when there is continued prosecution despite utter lack of evidence. Malicious intent
may be gauged from the behavior of the prosecution throughout the proceedings. If
malicious prosecution is properly alleged and substantially proven, the case would
automatically be dismissed without need of further analysis of the delay.
Another exception would be the waiver of the accused to the right to speedy
disposition of cases or the right to speedy trial. If it can be proven that the accused
acquiesced to the delay, the constitutional right can no longer be invoked.
In all cases of dismissals due to inordinate delay, the causes of the delays must
be properly laid out and discussed by the relevant court.
Fifth, the right to speedy disposition of cases or the right to speedy trial must
be timely raised. The respondent or the accused must file the appropriate motion upon
the lapse of the statutory or procedural periods. Otherwise, they are deemed to have
waived their right to speedy disposition of cases.
 WHEREFORE, the Petitions are DENIED. The Temporary Restraining
Order dated February 5, 2014 is LIFTED. The Sandiganbayan is DIRECTED to
resolve Case No. SB-11-CRM-0456 and Case No. SB-11-CRM-0457 with due and
deliberate dispatch.
The period for the determination of whether inordinate delay was committed
shall commence from the filing of a formal complaint and the conduct of the
preliminary investigation. The periods for the resolution of the preliminary
investigation shall be that provided in the Rules of Court, Supreme Court Circulars,
and the periods to be established by the Office of the Ombudsman. Failure of the
defendant to file the appropriate motion after the lapse of the statutory or procedural
periods shall be considered a waiver of his or her right to speedy disposition of cases.
The ruling in People v. Sandiganbayan, Fifth Division 172 that fact-finding
investigations are included in the period for determination of inordinate delay is
ABANDONED.
SO ORDERED.
Carpio, Acting C.J., Leonardo-de Castro, Del Castillo, Tijam and Reyes, Jr.,
JJ., concur.
Velasco, Jr., J., please see concurring opinion.
Peralta, * Jardeleza, * Martires * and Gesmundo, * JJ., took no part.
Bersamin, J., I join the dissent of J. Caguioa.
Perlas-Bernabe, J., I join the concurring opinion of J. Velasco.
Caguioa, J., I dissent. See separate dissenting opinion.
(Cagang v. Sandiganbayan, Fifth Division, G.R. Nos. 206438, 206458 & 210141-42,
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[July 31, 2018])