EN BANC
G.R. Nos. 212140-41, January 21, 2015
SENATOR JINGGOY EJERCITO ESTRADA, Petitioner, v. BERSAMIN, OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION AND ATTY. LEVITO D. BALIGOD, Respondents.
D E C I S I O N
CARPIO, J.:
It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine.This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary restraining order and/or Writ of Preliminary Injunction enjoining respondents Office of the Ombudsman (Ombudsman), Field Investigation Office (FIO) of the Ombudsman, National Bureau of Investigation (NBI), and Atty. Levito D. Baligod (Atty. Baligod) (collectively, respondents), from conducting further proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 until the present Petition has been resolved with finality; and (2) this Court’s declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen. Estrada) was denied due process of law, and that the Order of the Ombudsman dated 27 March 2014 and the proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to and affected by the issuance of the challenged 27 March 2014 Order are void.- Paderanga v. Drilon1
Sen. Estrada’s request was made “[p]ursuant to the right of a respondent ‘to examine the evidence submitted by the complainant which he may not have been furnished’ (Section 3[b], Rule 112 of the Rules of Court) and to ‘have access to the evidence on record’ (Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman).”7chanRoblesvirtualLawlibrary
(a) Affidavit of [co-respondent] Ruby Tuason (Tuason); (b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan); (c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata); (d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos); (e) Consolidated Reply of complainant NBI, if one had been filed; and (f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional witnesses for the Complainants.6
This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b], Rule 112 of the Rules of Court and Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman] do not entitle respondent [Sen. Estrada] to be furnished all the filings of the respondents.On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint Resolution9 which found probable cause to indict Sen. Estrada and his co-respondents with one count of plunder and 11 counts of violation of Section 3(e) of RA No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint Resolution dated 28 March 2014) dated 7 April 2014. Sen. Estrada prayed for the issuance of a new resolution dismissing the charges against him.
Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:ChanRoblesVirtualawlibrary(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause …Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure of the Office of the Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on April 10, 1990]:ChanRoblesVirtualawlibraryxxx xxx xxx
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant.a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen. Estrada] a copy of the Complaint and its supporting affidavits and documents; and this Office complied with this requirement when it furnished [Sen. Estrada] with the foregoing documents attached to the Orders to File Counter-Affidavit dated 19 November 2013 and 25 November 2013.
b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.
It is to be noted that there is no provision under this Office’s Rules of Procedure which entitles respondent to be furnished all the filings by the other parties, e.g. the respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L. Relampagos themselves are all respondents in these cases. Under the Rules of Court as well as the Rules of Procedure of the Office of the Ombudsman, the respondents are only required to furnish their counter-affidavits and controverting evidence to the complainant, and not to the other respondents.
To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary investigation depend on the rights granted to him by law and these cannot be based on whatever rights he believes [that] he is entitled to or those that may be derived from the phrase “due process of law.”
Thus, this Office cannot grant his motion to be furnished with copies of all the filings by the other parties. Nevertheless, he should be furnished a copy of the Reply of complainant NBI as he is entitled thereto under the rules; however, as of this date, no Reply has been filed by complainant NBI.
WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings is DENIED. He is nevertheless entitled to be furnished a copy of the Reply if complainant opts to file such pleading.8 (Emphases in the original)
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED 27 MARCH 2014, ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.10Sen. Estrada also claimed that under the circumstances, he has “no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, except through this Petition.”11 Sen. Estrada applied for the issuance of a temporary restraining order and/or writ of preliminary injunction to restrain public respondents from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397. Finally, Sen. Estrada asked for a judgment declaring that (a) he has been denied due process of law, and as a consequence thereof, (b) the Order dated 27 March 2014, as well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to and affected by the issuance of the 27 March 2014 Order, are void.12chanRoblesvirtualLawlibrary
While it is true that Senator Estrada’s request for copies of Tuason, Cunanan, Amata, Relampagos, Figura, Buenaventura and Sevidal’s affidavits was denied by Order dated 27 March 2014 and before the promulgation of the assailed Joint Resolution, this Office thereafter re-evaluated the request and granted it by Order dated 7 May 2014 granting his request. Copies of the requested counter-affidavits were appended to the copy of the Order dated 7 May 2014 transmitted to Senator Estrada through counsel.On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents), through the Office of the Solicitor General, filed their Comment to the present Petition. The public respondents argued that:ChanRoblesVirtualawlibrary
This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7 May 2014 Order to formally respond to the above-named co-respondents’ claims.
In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his right to procedural due process.13 (Emphasis supplied)
I. PETITIONER [SEN. ESTRADA] WAS NOT DENIED DUE PROCESS OF LAW.On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated that Sen. Estrada’s resort to a Petition for Certiorari under Rule 65 is improper. Sen. Estrada should have either filed a motion for reconsideration of the 27 March 2014 Order or incorporated the alleged irregularity in his motion for reconsideration of the 28 March 2014 Joint Resolution. There was also no violation of Sen. Estrada’s right to due process because there is no rule which mandates that a respondent such as Sen. Estrada be furnished with copies of the submissions of his co-respondents.
II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.A. LITIS PENDENTIA EXISTS IN THIS CASE.III. PETITIONER IS NOT ENTITLED TO A WRIT OF PRELIMINARY INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER.14
B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW.
a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;Sen. Estrada argues that the Petition is not rendered moot by the subsequent issuance of the 7 May 2014 Joint Order because there is a recurring violation of his right to due process. Sen. Estrada also insists that there is no forum shopping as the present Petition arose from an incident in the main proceeding, and that he has no other plain, speedy, and adequate remedy in the ordinary course of law. Finally, Sen. Estrada reiterates his application for the issuance of a temporary restraining order and/or writ of preliminary injunction to restrain public respondents from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.cralawred
b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;
c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;
d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;
e) Counter-Affidavit of Victor Roman Cojamco Cacal dated 11 December 2013 (to the FIO Complaint);
f) Counter-Affidavit of Victor Roman Cojamco Cacal dated 22 January 2014 (to the NBI Complaint);
g) Two (2) counter-affidavits of Ma. Julie A. Villaralvo-Johnson both dated 14 March 2014;
h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;
i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;
j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and
k) Counter-affidavit of Francisco B. Figura dated 08 January 2014.
From the Revised Rules of Criminal Procedure, Rule 112: Preliminary InvestigationSen. Estrada claims that the denial of his Request for the counter-affidavits of his co-respondents violates his constitutional right to due process. Sen. Estrada, however, fails to specify a law or rule which states that it is a compulsory requirement of due process in a preliminary investigation that the Ombudsman furnish a respondent with the counter-affidavits of his co-respondents. Neither Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman supports Sen. Estrada’s claim.
Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.
Section 4. Resolution of investigating prosecutor and its review. — If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct any other assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.
From the Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7, Rule II: Procedure in Criminal Cases
Section 1. Grounds. — A criminal complaint may be brought for an offense in violation of R.A. 3019, as amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the Revised Penal Code, and for such other offenses committed by public officers and employees in relation to office.
Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
Sec. 3. Preliminary investigation; who may conduct. — Preliminary investigation may be conducted by any of the following:
1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;
4) Investigating Officials authorized by law to conduct preliminary investigations; or
5) Lawyers in the government service, so designated by the Ombudsman.
Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:
a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.
c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall have access to the evidence on record.
d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of particulars be entertained. If respondent desires any matter in the complainant’s affidavit to be clarified, the particularization thereof may be done at the time of clarificatory questioning in the manner provided in paragraph (f) of this section.
e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or having been served, does not comply therewith, the complaint shall be deemed submitted for resolution on the basis of the evidence on record.
f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath.
g) Upon the termination of the preliminary investigation, the investigating officer shall forward the records of the case together with his resolution to the designated authorities for their appropriate action thereon.
No information may be filed and no complaint may be dismissed without the written authority or approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all other cases.x x x x
Sec. 6. Notice to parties. — The parties shall be served with a copy of the resolution as finally approved by the Ombudsman or by the proper Deputy Ombudsman.
Sec. 7. Motion for reconsideration. — a) Only one (1) motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, the same to be filed within fifteen (15) days from notice thereof with the Office of the Ombudsman, or the proper deputy ombudsman as the case may be.x x x x
b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding Information in court on the basis of the finding of probable cause in the resolution subject of the motion. (Emphasis supplied)
Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending on whether the cases to which they are meant to apply are criminal, civil or administrative in character. In criminal actions, proof beyond reasonable doubt is required for conviction; in civil actions and proceedings, preponderance of evidence, as support for a judgment; and in administrative cases, substantial evidence, as basis for adjudication. In criminal and civil actions, application of the Rules of Court is called for, with more or less strictness. In administrative proceedings, however, the technical rules of pleading and procedure, and of evidence, are not strictly adhered to; they generally apply only suppletorily; indeed, in agrarian disputes application of the Rules of Court is actually prohibited.17It should be underscored that the conduct of a preliminary investigation is only for the determination of probable cause, and “probable cause merely implies probability of guilt and should be determined in a summary manner. A preliminary investigation is not a part of the trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence.”18 Thus, the rights of a respondent in a preliminary investigation are limited to those granted by procedural law.
A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial. The quantum of evidence now required in preliminary investigation is such evidence sufficient to “engender a well founded belief” as to the fact of the commission of a crime and the respondent's probable guilt thereof. A preliminary investigation is not the occasion for the full and exhaustive display of the parties’ evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. We are in accord with the state prosecutor’s findings in the case at bar that there exists prima facie evidence of petitioner’s involvement in the commission of the crime, it being sufficiently supported by the evidence presented and the facts obtaining therein.Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital portion of the Court of Appeals’ reasoning. This Court quoted from the Court of Appeals’ decision: “x x x [A]dmissions made by Peñaloza in his sworn statement are binding only on him. Res inter alios acta alteri nocere non debet. The rights of a party cannot be prejudiced by an act, declaration or omission of another.” In OMB-C-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estrada’s co-respondents can in no way prejudice Sen. Estrada. Even granting Justice Velasco’s argument that the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-039720 mentioned the testimonies of Sen. Estrada’s co-respondents like Tuason and Cunanan, their testimonies were merely corroborative of the testimonies of complainants’ witnesses Benhur Luy, Marina Sula, and Merlina Suñas and were not mentioned in isolation from the testimonies of complainants’ witnesses.
Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion and Hanopol are inadmissible as to him since he was not granted the opportunity of cross-examination.
It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine. Thus, even if petitioner was not given the opportunity to cross-examine Galarion and Hanopol at the time they were presented to testify during the separate trial of the case against Galarion and Roxas, he cannot assert any legal right to cross-examine them at the preliminary investigation precisely because such right was never available to him. The admissibility or inadmissibility of said testimonies should be ventilated before the trial court during the trial proper and not in the preliminary investigation.
Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and control over the conduct of a preliminary investigation. If by its very nature a preliminary investigation could be waived by the accused, we find no compelling justification for a strict application of the evidentiary rules. In addition, considering that under Section 8, Rule 112 of the Rules of Court, the record of the preliminary investigation does not form part of the record of the case in the Regional Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by the trial court if not presented in evidence by the prosecuting fiscal. And, even if the prosecution does present such testimonies, petitioner can always object thereto and the trial court can rule on the admissibility thereof; or the petitioner can, during the trial, petition said court to compel the presentation of Galarion and Hanopol for purposes of cross-examination.19 (Emphasis supplied)
(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. x x x.The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA24 (GSIS): “what Ang Tibay failed to explicitly state was, prescinding from the general principles governing due process, the requirement of an impartial tribunal which, needless to say, dictates that one called upon to resolve a dispute may not sit as judge and jury simultaneously, neither may he review his decision on appeal.”25 The GSIS clarification affirms the non-applicability of the Ang Tibay guidelines to preliminary investigations in criminal cases: The investigating officer, which is the role that the Office of the Ombudsman plays in the investigation and prosecution of government personnel, will never be the impartial tribunal required in Ang Tibay, as amplified in GSIS. The purpose of the Office of the Ombudsman in conducting a preliminary investigation, after conducting its own fact-finding investigation, is to determine probable cause for filing an information, and not to make a final adjudication of the rights and obligations of the parties under the law, which is the purpose of the guidelines in Ang Tibay. The investigating officer investigates, determines probable cause, and prosecutes the criminal case after filing the corresponding information.
(2) Not only must the party be given an opportunity to present his case and adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. x x x.
(3) “While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, x x x.”
(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be “substantial.” “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” x x x.
(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. x x x.
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. x x x.
(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it.23
A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, while probable cause demands more than “bare suspicion,” it requires “less than evidence which would justify . . . conviction.” A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v. Hernandez,28 that the “rights conferred upon accused persons to participate in preliminary investigations concerning themselves depend upon the provisions of law by which such rights are specifically secured, rather than upon the phrase ‘due process of law’.” This reiterates Justice Jose P. Laurel’s oft-quoted pronouncement in Hashim v. Boncan29 that “the right to a preliminary investigation is statutory, not constitutional.” In short, the rights of a respondent in a preliminary investigation are merely statutory rights, not constitutional due process rights. An investigation to determine probable cause for the filing of an information does not initiate a criminal action so as to trigger into operation Section 14(2), Article III of the Constitution.30 It is the filing of a complaint or information in court that initiates a criminal action.31chanRoblesvirtualLawlibrary
Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary.27
In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where probable cause is needed to be established:
“The substance of all the definitions” of probable cause “is a reasonable ground for belief of guilt.” McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at 161. And this “means less than evidence which would justify condemnation” or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. Carroll v. United States, 267 U. S. 132, 162.
These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.36
The determination of probable cause needs only to rest on evidence showing that more likely than not, a crime has been committed and there is enough reason to believe that it was committed by the accused. It need not be based on clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt. What is merely required is “probability of guilt.” Its determination, too, does not call for the application of rules or standards of proof that a judgment of conviction requires after trial on the merits. Thus, in concluding that there is probable cause, it suffices that it is believed that the act or omission complained of constitutes the very offense charged.Justice Brion’s pronouncement in Unilever that “the determination of probable cause does not depend on the validity or merits of a party’s accusation or defense or on the admissibility or veracity of testimonies presented” correctly recognizes the doctrine in the United States that the determination of probable cause can rest partially, or even entirely, on hearsay evidence, as long as the person making the hearsay statement is credible. In United States v. Ventresca,38 the United States Supreme Court held:ChanRoblesVirtualawlibrary
It is also important to stress that the determination of probable cause does not depend on the validity or merits of a party’s accusation or defense or on the admissibility or veracity of testimonies presented. As previously discussed, these matters are better ventilated during the trial proper of the case. As held in Metropolitan Bank & Trust Company v. Gonzales:ChanRoblesVirtualawlibraryProbable cause has been defined as the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. x x x. The term does not mean “actual or positive cause” nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge. (Boldfacing and italicization supplied)
While a warrant may issue only upon a finding of “probable cause,” this Court has long held that “the term ‘probable cause’ . . . means less than evidence which would justify condemnation,” Locke v. United States, 7 Cranch 339, 11 U.S. 348, and that a finding of “probable cause” may rest upon evidence which is not legally competent in a criminal trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311. As the Court stated in Brinegar v. United States, 338 U.S. 160, 173, “There is a large difference between the two things to be proved (guilt and probable cause), as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.” Thus, hearsay may be the basis for issuance of the warrant “so long as there . . . [is] a substantial basis for crediting the hearsay.” Jones v. United States, supra, at 362 U.S. 272. And, in Aguilar, we recognized that “an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,” so long as the magistrate is “informed of some of the underlying circumstances” supporting the affiant’s conclusions and his belief that any informant involved “whose identity need not be disclosed . . .” was “credible” or his information “reliable.” Aguilar v. Texas, supra, at 378 U.S. 114. (Emphasis supplied)Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. However, in administrative cases, where rights and obligations are finally adjudicated, what is required is “substantial evidence” which cannot rest entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial evidence because substantial evidence excludes hearsay evidence while substantial basis can include hearsay evidence. To require the application of Ang Tibay, as amplified in GSIS, in preliminary investigations will change the quantum of evidence required in determining probable cause from evidence of likelihood or probability of guilt to substantial evidence of guilt.
The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to exhaust all the administrative remedies available to her before the Ombudsman. This ruling is legally correct as exhaustion of administrative remedies is a requisite for the filing of a petition for certiorari. Other than this legal significance, however, the ruling necessarily carries the direct and immediate implication that the petitioner has been granted the opportunity to be heard and has refused to avail of this opportunity; hence, she cannot claim denial of due process. In the words of the CA ruling itself: “Petitioner was given the opportunity by public respondent to rebut the affidavits submitted by private respondent. . . and had a speedy and adequate administrative remedy but she failed to avail thereof for reasons only known to her.”Ruivivar applies with even greater force to the present Petition because here the affidavits of Sen. Estrada’s co-respondents were furnished to him before the Ombudsman rendered her 4 June 2014 Joint Order. In Ruivivar, the affidavits were furnished after the Ombudsman issued a decision.
For a fuller appreciation of our above conclusion, we clarify that although they are separate and distinct concepts, exhaustion of administrative remedies and due process embody linked and related principles. The “exhaustion” principle applies when the ruling court or tribunal is not given the opportunity to re-examine its findings and conclusions because of an available opportunity that a party seeking recourse against the court or the tribunal’s ruling omitted to take. Under the concept of “due process,” on the other hand, a violation occurs when a court or tribunal rules against a party without giving him or her the opportunity to be heard. Thus, the exhaustion principle is based on the perspective of the ruling court or tribunal, while due process is considered from the point of view of the litigating party against whom a ruling was made. The commonality they share is in the same “opportunity” that underlies both. In the context of the present case, the available opportunity to consider and appreciate the petitioner’s counter-statement of facts was denied the Ombudsman; hence, the petitioner is barred from seeking recourse at the CA because the ground she would invoke was not considered at all at the Ombudsman level. At the same time, the petitioner – who had the same opportunity to rebut the belatedly-furnished affidavits of the private respondent’s witnesses – was not denied and cannot now claim denial of due process because she did not take advantage of the opportunity opened to her at the Ombudsman level.
The records show that the petitioner duly filed a motion for reconsideration on due process grounds (i.e., for the private respondent’s failure to furnish her copies of the affidavits of witnesses) and on questions relating to the appreciation of the evidence on record. The Ombudsman acted on this motion by issuing its Order of January 17, 2003 belatedly furnishing her with copies of the private respondent’s witnesses, together with the “directive to file, within ten (10) days from receipt of this Order, such pleading which she may deem fit under the circumstances.”
Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to file a “Manifestation” where she took the position that “The order of the Ombudsman dated 17 January 2003 supplying her with the affidavits of the complainant does not cure the 04 November 2002 order,” and on this basis prayed that the Ombudsman’s decision “be reconsidered and the complaint dismissed for lack of merit.”
For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration dated 27 January 2003 and prayed for the denial of the petitioner’s motion.
In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for reconsideration after finding no basis to alter or modify its ruling. Significantly, the Ombudsman fully discussed in this Order the due process significance of the petitioner’s failure to adequately respond to the belatedly-furnished affidavits. The Ombudsman said:ChanRoblesVirtualawlibrary“Undoubtedly, the respondent herein has been furnished by this Office with copies of the affidavits, which she claims she has not received. Furthermore, the respondent has been given the opportunity to present her side relative thereto, however, she chose not to submit countervailing evidence or argument. The respondent, therefore (sic), cannot claim denial of due process for purposes of assailing the Decision issued in the present case. On this score, the Supreme Court held in the case of People v. Acot, 232 SCRA 406, that “a party cannot feign denial of due process where he had the opportunity to present his side”. This becomes all the more important since, as correctly pointed out by the complainant, the decision issued in the present case is deemed final and unappealable pursuant to Section 27 of Republic Act 6770, and Section 7, Rule III of Administrative Order No. 07. Despite the clear provisions of the law and the rules, the respondent herein was given the opportunity not normally accorded, to present her side, but she opted not to do so which is evidently fatal to her cause.” [emphasis supplied].Under these circumstances, we cannot help but recognize that the petitioner’s cause is a lost one, not only for her failure to exhaust her available administrative remedy, but also on due process grounds. The law can no longer help one who had been given ample opportunity to be heard but who did not take full advantage of the proffered chance.45
3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in OMB-C-C-13-0313 and OMB-C-C-13-0397, raising as sole issue the finding of probable cause in the Joint Resolution dated 28 March 2014.Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed that the Ombudsman reconsider and issue a new resolution dismissing the charges against him. However, in this Motion for Reconsideration, Sen. Estrada assailed the Ombudsman’s 27 March 2014 Joint Order denying his Request, and that such denial is a violation of his right to due process.
Such Motion for Reconsideration has yet to be resolved by the Office of the Ombudsman.49 (Emphasis supplied)
8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112, Section 4 of the Rules of Court] and principles. A reading of the Joint Resolution will reveal that various pieces of evidence which Senator Estrada was not furnished with – hence, depriving him of the opportunity to controvert the same – were heavily considered by the Ombudsman in finding probable cause to charge him with Plunder and with violations of Section 3(e) of R.A. No. 3019.The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June 2014 Joint Order. Clearly, Sen. Estrada expressly raised in his Motion for Reconsideration with the Ombudsman the violation of his right to due process, the same issue he is raising in this petition.x x x x
11. Notably, under dated 20 March 2014, Senator Estrada filed a “Request to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings,” pursuant to the right of a respondent “to examine the evidence submitted by the complainant which he may not have been furnished” (Section 3[b], Rule 112 of the Rules of Court), and to “have access to the evidence on record” (Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman).
However, notwithstanding the gravity of the offenses leveled against Senator Estrada and the law’s vigilance in protecting the rights of an accused, the Special Panel of Investigators, in an Order dated 27 March 2014, unceremoniously denied the request on the ground that “there is no provision under this Office’s Rules of Procedure which entitles respondent to be furnished all the filings by the other parties x x x x.” (Order dated 27 March 2013, p. 3)
As such, Senator Estrada was not properly apprised of the evidence offered against him, which were eventually made the bases of the Ombudsman’s finding of probable cause.50
17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of probable cause, which he maintains is without legal or factual basis, but also that such finding of probable cause was premised on evidence not disclosed to him, including those subject of his Request to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings dated 20 March 2014.Sen. Estrada has not been candid with this Court. His claim that the finding of probable cause was the “sole issue” he raised before the Ombudsman in his Motion for Reconsideration dated 7 April 2014 is obviously false.
In particular, the Office of the Ombudsman used as basis for the Joint Resolution the following documents -none of which were ever furnished Sen. Estrada prior to the issuance of the challenged Joint Resolution, despite written request.
- Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February 2014;
- Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;
- Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;
- Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;
- Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and
- Philippine Daily Inquirer Online Edition news article entitled “Benhur Luy upstages Napoles in Senate Hearing” by Norman Bordadora and TJ Borgonio, published on 06 March 2014,
x x x xII
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT RESOLUTION DATED 28 MARCH 2014 AND CHALLENGED JOINT ORDER DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADA’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND TO EQUAL PROTECTION OF THE LAWS.x x x x
2.17 x x x x
Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even arbitrarily limited the filing of Sen. Estrada’s comment to the voluminous documents comprising the documents it furnished Sen. Estrada to a “non-extendible” period of five (5) days, making it virtually impossible for Sen. Estrada to adequately study the charges leveled against him and intelligently respond to them. The Joint Order also failed to disclose the existence of other counter-affidavits and failed to furnish Sen. Estrada copies of such counter-affidavits.51
x x x [D]espite the fact that what the petitioners filed was a petition for certiorari, a recourse that – in the usual course and because of its nature and purpose – is not covered by the rule on forum shopping. The exception from the forum shopping rule, however, is true only where a petition for certiorari is properly or regularly invoked in the usual course; the exception does not apply when the relief sought, through a petition for certiorari, is still pending with or has as yet to be decided by the respondent court, tribunal or body exercising judicial or quasi-judicial body, e.g., a motion for reconsideration of the order assailed via a petition for certiorari under Rule 65, as in the present case. This conclusion is supported and strengthened bySen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of due process by the Ombudsman even as his Motion for Reconsideration raising the very same issue remained pending with the Ombudsman. This is plain and simple forum shopping, warranting outright dismissal of this Petition.cralawredSection 1, Rule 65 of the Revised Rules of Court which provides that the availability of a remedy in the ordinary course of law precludes the filing of a petition for certiorari; under this rule, the petition’s dismissal is the necessary consequence if recourse to Rule 65 is prematurely taken.To be sure, the simultaneous remedies the petitioners sought could result in possible conflicting rulings, or at the very least, to complicated situations, between the RTC and the Court of Appeals. An extreme possible result is for the appellate court to confirm that the RTC decision is meritorious, yet the RTC may at the same time reconsider its ruling and recall its order of dismissal. In this eventuality, the result is the affirmation of the decision that the court a quo has backtracked on. Other permutations depending on the rulings of the two courts and the timing of these rulings are possible. In every case, our justice system suffers as this kind of sharp practice opens the system to the possibility of manipulation; to uncertainties when conflict of rulings arise; and at least to vexation for complications other than conflict of rulings. Thus, it matters not that ultimately the Court of Appeals may completely agree with the RTC; what the rule on forum shopping addresses are the possibility and the actuality of its harmful effects on our judicial system.55
Endnotes:
* On official leave.
1 273 Phil. 290, 299 (1991). Emphasis supplied.
2 Under Rule 65 of the 1997 Rules of Civil Procedure.
3 OMB-C-C-13-0313 charges the following respondents:
1. Jose “Jinggoy” P. Ejercito Estrada, Senator of the Republic of the Philippines;
2. Janet Lim Napoles, private respondent;
3. Pauline Therese Mary C. Labayen, Deputy Chief of Staff, Office of Sen. Estrada;
4. Ruby Tuason, private respondent;
5. Alan A. Javellana, President, National Agribusiness Corporation (NABCOR);
6. Gondelina G. Amata, President, National Livelihood Development Corporation (NLDC);
7. Antonio Y. Ortiz, Director General, Technology Resource Center (TRC);
8. Mylene T. Encarnacion, private respondent, President, Countrywide Agri and Rural Economic and Development Foundation, Inc. (CARED);
9. John Raymund S. De Asis, private respondent, President, Kaupdanan Para sa Mangunguma Foundation, Inc. (KPMFI);
10. Dennis L. Cunanan, Deputy Director General, TRC;
11. Victor Roman Cojamco Cacal, Paralegal, NABCOR;
12. Romulo M. Relevo, employee, NABCOR;
13. Maria Ninez P. Guañizo, bookkeeper, officer-in-charge, Accounting Division, NABCOR;
14. Ma. Julie Asor Villaralvo-Johnson, chief accountant, NABCOR;
15. Rhodora Butalad Mendoza, Director for Financial Management Services and Vice President for Administration and Finance, NABCOR;
16. Gregoria G. Buenaventura, employee, NLDC;
17. Alexis Gagni Sevidal, Director IV, NLDC;
18. Sofia Daing Cruz, Chief Financial Specialist, NLDC/Project Management Assistant IV, NLDC;
19. Chita Chua Jalandoni, Department Manager III, NLDC;
20. Francisco Baldoza Figura, employee, TRC;
21. Marivic V. Jover, chief accountant, TRC;
22. Mario L. Relampagos, Undersecretary for Operations, Department of Budget and Management (DBM);
23-25. Rosario Nuñez (aka Leah), Lalaine Paule (aka Lalaine), Marilou Bare (Malou), employees at the Office of the Undersecretary for Operations, DBM; and
26. John and Jane Does
4 OMB-C-C-13-0397 charges the following respondents for Plunder and Violation of Sec. 3(e) of RA 3019:
1. Jose “Jinggoy” P. Ejercito Estrada, Senator of the Republic of the Philippines;
2. Pauline Therese Mary C. Labayen, Director IV/Deputy Chief of Staff, Office of Sen. Estrada;
3. Antonio Y. Ortiz, Director General, TRC;
4. Alan Alunan Javellana, President, NABCOR;
5. Victor Roman Cacal, Paralegal, NABCOR;
6. Maria Ninez P. Guañizo, bookkeeper, officer-in-charge, Accounting Division, NABCOR;
7. Romulo M. Relevo, employee, NABCOR;
8. Ma. Julie Asor Villaralvo-Johnson, chief accountant, NABCOR;
9. Rhodora Butalad Mendoza, Director, NABCOR;
10. Ma. Rosalinda Lacsamana, Director III, TRC;
11. Marivic V. Jover, Accountant III, TRC;
12. Dennis L. Cunanan, Deputy Director General, TRC;
13. Evelyn Sucgang, employee, NLDC;
14. Chita Chua Jalandoni, Department Manager III, NLDC;
15. Emmanuel Alexis G. Sevidal, Director IV, NLDC;
16. Sofia D. Cruz, Chief Financial Specialist, NLDC; and
17. Janet Lim Napoles, private respondent.
5 These were Tuason, Amata, Buenaventura, Sevidal, Cruz; Sucgang, Javellana, Cacal, Villaralvo- Johnson, Mendoza, Guañizo, Cunanan, Jover, Figura, Nuñez, Paule, Bare, and Relampagos.
6Rollo, p. 745.
7 Id.
8 Id. at 34-36. Signed by M.A. Christian O. Uy, Graft Investigation and Prosecution Officer IV, Chairperson, Special Panel of Investigators per Office Order No. 349, Series of 2013.
9 Id. at 579-698. Approved and signed by Ombudsman Conchita Carpio Morales; signed by M.A. Christian O. Uy, Graft Investigation and Prosecution Officer IV, Chairperson, with Ruth Laura A. Mella, Graft Investigation and Prosecution Officer II, Francisca M. Serfino, Graft Investigation and Prosecution Officer II, Anna Francesca M. Limbo, Graft Investigation and Prosecution Officer II, and Jasmine Ann B. Gapatan, Graft Investigation and Prosecution Officer I, as members of the Special Panel of Investigators per Office Order No. 349, Series of 2013.
10 Id. at 9.
11 Id. at 3.
12 Id. at 27-28.
13 Joint Order, OMB-C-C-13-0313 and OMB-C-C-13-0397, p. 20.
14 Id. at 769. Signed by Francis H. Jardeleza, Solicitor General (now Associate Justice of this Court); Karl B. Miranda, Assistant Solicitor General; Noel Cezar T. Segovia, Senior State Solicitor; Lester O. Fiel, State Solicitor; Omar M. Diaz, State Solicitor; Michael Geronimo R. Gomez, Associate Solicitor; Irene Marie P. Qua, Associate Solicitor; Patrick Joseph S. Tapales, Associate Solicitor; Ronald John B. Decano, Associate Solicitor; and Alexis Ian P. Dela Cruz, Attorney II.
15 G.R. No. 170512, 5 October 2011, 658 SCRA 626.
16 Sec. 3, Rule V of the Rules of Procedure of the Office of the Ombudsman reads:
Section 3. Rules of Court, application. – In all matters not covered by these rules, the Rules of Court shall apply in a suppletory manner, or by analogy whenever practicable and convenient.
17Manila Electric Company v. NLRC, et al., G.R. No. L-60054, 2 July 1991, 198 SCRA 681, 682. Citations omitted.
18Webb v. Hon. De Leon, 317 Phil. 758 (1995).
19 Supra note 1, at 299-300.
20 http://www.ombudsman.gov.ph/docs/pressreleases/Senator%20Estrada.pdf (last accessed 7 September 2014).
21 The citation for Ang Tibay is 69 Phil. 635 (1940).
22 Id. at 641-642.
23 Id. at 642-644. Citations omitted
24 357 Phil. 511 (1998).
25 Id. at 533.
26 See Ledesma v. Court of Appeals, 344 Phil. 207 (1997). See also United States v. Grant and Kennedy,18 Phil. 122 (1910).
27Webb v. Hon. De Leon, supra note 18, at 789. Emphasis supplied.
28Lozada v. Hernandez, etc., et al., 92 Phil. 1051, 1053 (1953).
29 71 Phil. 216 (1941).
30 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.
31Crespo v. Judge Mogul, 235 Phil. 465 (1987).
32Mariñas v. Hon. Siochi, etc., et al., 191 Phil. 698, 718 (1981).
33 See Dequito v. Arellano, 81 Phil. 128, 130 (1948), citing 32 CJS 456.
34Bustos v. Lucero, 81 Phil. 640, 644 (1948).
35 The Fourth Amendment of the United States Constitution reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” See also Ocampo v. United States, 234 U.S. 91 (1914).
36Brinegar v. United States, 338 U.S. 160, 175-176 (1949).
37 G.R. No. 179367, 29 January 2014, 715 SCRA 36, 49-50. Citations omitted.
38 380 U.S. 102, 107-108 (1965).
39 See People v. Delos Santos, 386 Phil. 121 (2000). See also People v. Garcia, 346 Phil. 475 (1997).
40People v. Gallo, 374 Phil. 59 (1999). See also Echegaray v. Secretary of Justice, 361 Phil. 73 (1999); Bachrach Corporation v. Court of Appeals, 357 Phil. 483 (1998); Lee v. De Guzman, G.R. No. 90926, 187 SCRA 276, 6 July 1990; Philippine Veterans Bank v. Intermediate Appellate Court, 258-A Phil. 424 (1989); Sps. Lipana v. Development Bank of Rizal, 238 Phil. 246 (1987); Candelario v. Cañizares, 114 Phil. 672 (1962).
41 As enumerated in Tan v. CA, 341 Phil. 570, 576-578 (1997), the exceptions are:
(a) where the order is a patent nullity, as where the Court a quo had no jurisdiction;
(b) where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial Court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceedings was ex parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or where public interest is involved. (Citations omitted)
42Delos Reyes v. Flores, 628 Phil. 170 (2010); Cervantes v. Court of Appeals, 512 Phil. 210 (2005); Flores v. Sangguniang Panlalawigan of Pampanga, 492 Phil. 377 (2005). See also Bokingo v. Court of Appeals, 523 Phil. 186 (2006); Yao v. Perello, 460 Phil. 658 (2003).
43 587 Phil. 100 (2008).
44 G.R. No. 170512, 5 October 2011, 658 SCRA 626.
45 Supra note 43, at 113-116. Emphases in the original; citations omitted.
46 242 Phil. 563 (1988).
47 352 Phil. 557 (1998).
48 Supra note 46, at 576.
49Rollo, p. 30.
50 Id. at 789-791.
51 Petition for Certiorari, G.R. Nos. 212761-62, 20 June 2014, pp. 9-10, 13, 53.
52 For litis pendencia to lie, the following requisites must be satisfied:
1. Identity of parties or representation in both cases;
2. Identity of rights asserted and relief prayed for;
3. The relief must be founded on the same facts and the same basis; and
4. Identity of the two preceding particulars should be such that any judgment, which may be rendered in the other action, will, regardless of which party is successful, amount to res judicata on the action under consideration. Sherwill Development Corporation v. Sitio Sto. Niño Residents Association, Inc., 500 Phil. 288, 301 (2005), citing Sps. Tirona v. Alejo, 419 Phil. 285 (2001), further citing Tourist Duty Free Shops, Inc. v. Sandiganbayan, 380 Phil. 328 (2000).
53Madara v. Perello, 584 Phil. 613, 629 (2008).
54Sps. Tirona v. Alejo, 419 Phil. 285, 303 (2001).
55 Supra note 53, at 629-630. Boldfacing supplied; italicization in the original.
56Interorient Maritime Enterprises, Inc. v. NLRC, 330 Phil. 493, 502 (1996).
VELASCO, JR., J.:
Alleging that media reports suggested that his co-respondents and several witnesses made reference in their respective affidavits to his purported participation in the so-called “PDAF scam,” Sen. Estrada then filed in OMB-C-C-13-0313 a Request to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings dated March 20, 2014 (Request) so that he may be able to fully refute the allegations against him, if he finds the need to do so. Specifically, Sen. Estrada requested to be furnished with copies of the following:ChanRoblesVirtualawlibrary
1) Ruby Tuason (Tuason) – Two (2) Counter-Affidavits both dated February 21, 2014; 2) GondelinaAmata (Amata) – Counter-Affidavit dated December 26, 2013 to the OMB-FIO Complaint and Counter-Affidavit dated January 20, 2014 to the NBI Complaint; 3) Gregoria Buenaventura (Buenaventura) – Counter-Affidavit dated March 6, 2014; 4) Alexis Sevidal (Sevidal) – Counter-Affidavit dated January 15, 2014 to the NBI Complaint and Counter-Affidavit dated February 24, 2014 to the OMB-FIO Complaint; 5) Sofia D. Cruz (Cruz) – Counter-Affidavit dated January 31, 2014; 6) Evelyn Sucgang (Sucgang) – Counter-Affidavit dated February 11, 2014; 7) Alan Javellana (Javellana) – Two (2) Counter-Affidavits dated February 6, 2014; 8) Victor Roman CojamcoCacal (Cacal) – Counter-Affidavit dated December 11, 2013 to the OMB-FIO Complaint and Counter-Affidavit dated January 22, 2014 to the NBI Complaint; 9) Ma. Julie A. Villaralvo-Johnson (Johnson) – Two (2) Counter-Affidavits dated March 14, 2014; 10) RhodoraBulatad Mendoza (Mendoza) – Counter-Affidavit dated March 6, 2014; 11) Maria Ninez P. Guañizo (Guañizo) – Counter-Affidavit dated January 28, 2014; 12) Dennis L. Cunanan (Cunanan) – Two (2) Counter-Affidavits dated February 20, 2014; 13) Marivic V. Jover (Jover) – Two (2) Counter-Affidavits dated December 9, 2013; 14) Francisco B. Figura (Figura) – Counter-Affidavit dated January 8, 2014; 15) Rosario Nuñez (Nuñez), LalainePaule (Paule) and Marilou Bare (Bare) –Joint Counter-Affidavit dated December 13, 2013; and 16) Mario L. Relampagos (Relampagos)– Counter-Affidavit dated December 13, 2013.
In the assailed Order dated March 27, 2014, the Office of the Ombudsman denied Sen. Estrada’s Request for the stated reason that his rights as a respondent in the preliminary investigations depend on the rights granted him by law, and that the Rules of Court and Administrative Order (AO) No. 7, or the Rules of Procedure of the Office of the Ombudsman, only require respondents to furnish their counter-affidavits to the complainant, and not to their co-respondents. Hence, the Ombudsman concluded that Sen. Estrada is not entitled, as a matter of right, to copies of the affidavits of his co-respondents.
a) Affidavit of Ruby Tuason; b) Affidavit of Dennis L. Cunanan; c) Counter-Affidavit of Gondelina G. Amata; d) Counter-Affidavit of Mario L. Relampagos; e) Consolidated Reply of the NBI, if one had been filed; and f) Affidavit/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional witnesses for the Complainants.
Sen. Estrada received both the March 27, 2014 Order and March 28, 2014 Joint Resolution on April 1, 2014.
1) Sevidal’s Counter-Affidavits dated January 15 and February 24, 2014; 2) Cunanan’s Counter-Affidavits both dated February 20, 2014; 3) Figura’s Counter-Affidavit dated January 8, 2014; 4) Tuason’s Affidavits both dated February 21, 2014; 5) Buenaventura’s Counter-Affidavit dated March 6, 2014; and 6) Philippine Daily Inquirer Online Edition news article entitled “BenhurLuy upstages Napoles in Senate Hearing” by Norman Bordadora and TJ Borgonio, published on May 6, 2014.
1) There is supposedly no law or rule which requires the Ombudsman to furnish a respondent with copies of the counter-affidavits of his co-respondents; 2) Sen. Estrada’s present recourse is allegedly premature; and 3) Sen. Estrada’s petition purportedly constitutes forum shopping that should be summarily dismissed.
Section 7. Motion for Reconsideration –xxx xxx xxxHence, Sen. Estrada may very well be subjected to the rigors of a criminal prosecution in court even if there is a pending question regarding the Ombudsman’s grave abuse of its discretion preceding the finding of a probable cause to indict him. His motion for reconsideration to the Joint Resolution is clearly not the “plain, speedy, and adequate remedy in the ordinary course of law” that can bar a Rule 65 recourse to question the propriety of the Ombudsman’s refusal to furnish him copies of the affidavits of his co-respondents. Otherwise stated, Sen. Estrada’s present recourse is not premature.
b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding information in Court on the basis of the finding of probable cause in the resolution subject of the motion.5
A preliminary investigation is held before an accused is placed on trial to secure the innocent against hasty, malicious, and oppressive prosecution; to protect him from an open and public accusation of a crime, as well as from the trouble, expenses, and anxiety of a public trial. It is also intended to protect the state from having to conduct useless and expensive trials. While the right is statutory rather than constitutional, it is a component of due process in administering criminal justice. The right to have a preliminary investigation conducted before being bound for trial and before being exposed to the risk of incarceration and penalty is not a mere formal or technical right; it is a substantive right. To deny the accused's claim to a preliminary investigation is to deprive him of the full measure of his right to due process.13Thus, this Court had characterized a preliminary investigation as a substantive right forming part of due process in criminal justice;14and, contrary to Justice Leonen’s position, it is not merely a technical requirement that can be done away or hastily conducted by state agencies. As eloquently put by Justice Brion, “to be sure, criminal justice rights cannot be substantive at the custodial investigation stage, only to be less than this at preliminary investigation, and then return to its substantive character when criminal trial starts.”
We stress that the right to preliminary investigation is substantive, not merely formal or technical. To deny it to petitioner would deprive him of the full measure of his right to due process. Hence, preliminary investigation with regard to him must be conducted.cralawredFurthermore, a preliminary investigation is not a one-sided affair; it takes on adversarial quality17 where the due process rights of both the state and the respondents must be considered. It is not merely intended to serve the purpose of the prosecution. Rather, its purpose is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of public trial.18 At the same time, it is designed to protect the state from having to conduct useless and expensive trials.19 In Larranaga v. Court of Appeals,20this Court elucidated, thus:ChanRoblesVirtualawlibraryxxx xxx xxx
In any event, even the Ombudsman agrees that petitioner was deprived of this right and believes that the basic rudiments of due process are complied with. For its part, the Sandiganbayan opted to remain silent when asked by this Court to comment on the Petition.16
Fairness dictates that the request of petitioner for a chance to be heard in a capital offense case should have been granted by the Cebu City prosecutor. In Webb vs. de Leon, we emphasized that “attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial.” As this Court emphasized in Rolito Go vs. Court of Appeals, “the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right.” xxx21As such, preliminary investigations must be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage.22 This Court said so in Gerken v. Quintos,23 thus:ChanRoblesVirtualawlibrary
It is hardly necessary to recall that those who find themselves in the meshes of the criminal justice system are entitled to preliminary investigation in order to secure those who are innocent against hasty, malicious, and oppressive prosecution and protect them from the inconvenience, expense, trouble, and stress of defending themselves in the course of a formal trial. The right to a preliminary investigation is a substantive right, a denial of which constitutes a deprivation of the accused’s right to due process. Such deprivation of the right to due process is aggravated where the accused is detained without bail for his provisional liberty. Accordingly, it is important that those charged with the duty of conducting preliminary investigations do so scrupulously in accordance with the procedure provided in the Revised Rules of Criminal Procedure.24In this case, a careful observance of the procedure outlined in Rule II of AO No. 7,otherwise known as the Rules of Procedure of the Office of the Ombudsman is, therefore, imperative. Section 4, Rule II of AO No. 7 provides that the respondent in a preliminary investigation shall have access to the evidence on record, viz:ChanRoblesVirtualawlibrary
Sec. 4. Procedure. – The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:In construing the foregoing provision, however, the Ombudsman is of the view that the respondent’s, the petitioner’s in this case, access is limited only to the documents submitted by the complainant, and not his co-respondents. Thus, in its March 27, 2014 Order denying Sen. Estrada’s request to be furnished with copies of the affidavits of his co-respondents, respondent Ombudsman held:ChanRoblesVirtualawlibrary
(a) If the complaint is not under oath or is based solely on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.
(b) After such affidavit have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainants may file reply affidavits within (10) days after service of the counter-affidavits.
(c) If the respondent does not file a counter-affidavit. The investigating officer may consider the comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall have access to the evidence on record.25
This Office finds however finds (sic) that the foregoing provisions do not entitle respondent to be furnished all the filings of the respondents.cralawredUnfortunately, the majority has subscribed to the Ombudsman’s position maintaining that Sections 3 and 4 of Rule 112 of the Rules of Court26 only require that a respondent be furnished with the copies of the affidavits of the complainant and the complainant’s supporting witnesses, and not the affidavits of his co-respondents.xxx xxx xxx
It is to be noted that there is no provision under this Office’s Rules of Procedure which entitles respondent to be furnished all the filings by the other parties, eg. the respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L. Relampagos themselves are all respondents in these cases. Under the Rules of Court as well as the Rules of Procedure of the Office of the Ombudsman, the respondents are only required to furnish their counter-affidavits and controverting evidence to the complainant, and not to the other respondents.
Section 3. Rules of Court, application. – In all matters not provided in these rules, the Rules of Court shall apply in a suppletory character, or by analogy whenever practicable and convenient.27As Section 4(c) of AO No. 7, or the Office of the Ombudsman’s very own Rules of Procedure,clearly provides that a respondent shall have access to all the “evidence on record” without discriminating as to the origin thereof and regardless of whether such evidence came from the complainant or another respondent, the provisions of the Rules of Court supposedly limiting a respondent’s access to the affidavits of the complaint only is not applicable to investigations conducted by the Ombudsman. Put piquantly, this restrictive misconstruction of Sections 3 and 4 of the Rules of Court cannot be applied to Sen. Estrada to deprive him of his right to due process clearly spelled out in AO No. 7.
(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (Interstate Commerce Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them.xxx30Thus, in Office of Ombudsman v. Reyes,31 this Court set aside the decision of the Ombudsman that was based on the counter-affidavits of therein respondent Reyes’ co-respondents that were not furnished to him before the Ombudsman rendered his decision. The Court held:ChanRoblesVirtualawlibrary
In the main, the evidence submitted by the parties in OMB-MIN-ADM-01-170 consisted of their sworn statements, as well as that of their witnesses. In the affidavit of Acero, he categorically identified both Reyes and Peñalozaas the persons who had the prerogative to reconsider his failed examination, provided that he paid an additional amount on top of the legal fees. For his part, Peñaloza ostensibly admitted the charge of Acero in his counter-affidavit but he incriminated Reyes therein as the mastermind of the illicit activity complained of ….It is true that, in this case, the failure to furnish copies of the counter-affidavits happened in a preliminary investigation, and not in an administrative proceeding as what happened in Reyes. There is likewise no gainsaying that the quanta of proof and adjective rules between a preliminary investigation and an administrative proceeding differ. In fact, “[i]n administrative proceedings… the technical rules of pleading and procedure, and of evidence, are not strictly adhered to; they apply only suppletorily.”33chanRoblesvirtualLawlibrary
Reyes faults petitioner for placing too much reliance on the counter-affidavit of Peñaloza, as well as the affidavits of Amper and Valdehueza. Reyes claims that he was not furnished a copy of the said documents before petitioner rendered its Decision dated September 24, 2001. Reyes, thus, argues that his right to due process was violated. Petitioner, on the other hand, counters that Reyes was afforded due process since he was given all the opportunities to be heard, as well as the opportunity to file a motion for reconsideration of petitioner’s adverse decision.
On this point, the Court finds merit in Reyes’ contention.xxx xxx xxx
Moreover, Department of Health v. Camposano restates the guidelines laid down in AngTibay v. Court of Industrial Relations that due process in administrative proceedings requires compliance with the following cardinal principles: (1) the respondents’ right to a hearing, which includes the right to present one’s case and submit supporting evidence, must be observed; (2) the tribunal must consider the evidence presented; (3) the decision must have some basis to support itself; (4) there must be substantial evidence; (5) the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) in arriving at a decision, the tribunal must have acted on its own consideration of the law and the facts of the controversy and must not have simply accepted the views of a subordinate; and (7) the decision must be rendered in such manner that respondents would know the reasons for it and the various issues involved.
In the present case, the fifth requirement stated above was not complied with. Reyes was not properly apprised of the evidence offered against him, which were eventually made the bases of petitioner’s decision that found him guilty of grave misconduct.32
[A]s in a court proceeding (albeit with appropriate adjustments because it is essentially still an administrative proceeding in which the prosecutor or investigating officer is a quasi-judicial officer by the nature of his functions), a preliminary investigation is subject to the requirements of both substantive and procedural due process. This view may be less strict in its formulation than what we held in Cojuangco, Jr. vs. PCGG, et al. when we said:It must be emphasized that, despite the variance in the quanta of evidence required, a uniform observance of the singular concept of due process is indispensable in all proceedings. In Garcia v. Molina,37 this Court held, thus:ChanRoblesVirtualawlibraryxxx xxx xxx
In light of the due process requirement, the standards that at the very least assume great materiality and significance are those enunciated in the leading case of AngTibay v. Court of Industrial Relations. This case instructively tells us - in defining the basic due process safeguards in administrative proceedings - that the decision (by an administrative body) must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them; it should not, however, detract from the tribunal's duty to actively see that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy.
Mindful of these considerations, we hold that the petitioner's right to due process has been violated.36
The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted from their jurisdiction. The violation of a party's right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right to due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. This rule is equally true in quasi-judicial and administrative proceedings, for the constitutional guarantee that no man shall be deprived of life, liberty, or property without due process is unqualified by the type of proceedings (whether judicial or administrative) where he stands to lose the same.38To be sure, a preliminary investigation is not part of trial and the respondent is not given the right to confront and cross-examine his accusers. Nonetheless, a preliminary investigation is an essential component part of due process in criminal justice. A respondent cannot, therefore, be deprived of the most basic right to be informed and to be heard before an unfavorable resolution is made against him. The fact that, in a preliminary investigation, a respondent is not given the right to confront nor to cross-examine does not mean that the respondent is likewise divested of the rights to be informed of the allegations against him and to present countervailing evidence thereto. These two sets of rights are starkly different.
The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted from their jurisdiction. The violation of a party’s right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction.48Given the foregoing perspective, the issuance of the corrective writ of certiorari is warranted in the present controversy.
We are not persuaded. The lack of jurisdiction contemplated in Section 3(b), Rule 117 of the Revised Rules of Court refers to the lack of any law conferring upon the court the power to inquire into the facts, to apply the law and to declare the punishment for an offense in a regular course of judicial proceeding. When the court has jurisdiction, as in this case, any irregularity in the exercise of that power is not a ground for a motion to quash. Reason is not wanting for this view. Lack of jurisdiction is not waivable but absence of preliminary investigation is waivable. In fact, it is frequently waived.51On the other hand, it is erroneous to simply disregard the violation of the due process of law during the preliminary investigation as irrelevant and without any significant effect. Such stance will only serve to “legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively dilute important rights of accused persons well-nigh to the vanishing point.”52 Thus, I submit that the proper recourse to be taken under the premises is the suspension of the proceedings in the Sandiganbayan and the immediate remand of the case to the Office of the Ombudsman53 so that Sen. Estrada, if he opts to, can file his counter-affidavit and controverting evidence to all the counter-affidavits containing incriminating allegations against him.
It is settled that the preliminary investigation proper, i.e., the determination of whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be subjected to the expense, rigors and embarrassment of trial, is the function of the prosecution.A similar disposition was made in Torralba v. Sandiganbayan57 where the Court held:ChanRoblesVirtualawlibrary
….Accordingly, finding that petitioner was not given the chance to fully present his evidence on the amended information which contained a substantial amendment, a new preliminary investigation is in order.cralawredxxx xxx xxx
Finally, as to petitioner’s prayer that the Amended Information be quashed and dismissed, the same cannot be ordered. The absence or incompleteness of a preliminary investigation does not warrant the quashal or dismissal of the information. Neither does it affect the court’s jurisdiction over the case or impair the validity of the information or otherwise render it defective. The court shall hold in abeyance the proceedings on such information and order the remand of the case for preliminary investigation or completion thereof.56
The incomplete preliminary investigation in this case, however, does not warrant the quashal of the information, nor should it obliterate the proceedings already had. Neither is the court's jurisdiction nor validity of an information adversely affected by deficiencies in the preliminary investigation. Instead, the Sandiganbayan is to hold in abeyance any further proceedings therein and to remand the case to the Office of the Ombudsman for the completion of the preliminary investigation, the outcome of which shall then be indorsed to Sandiganbayan for its appropriate action.This course of action was also taken by the Court in a catena of other cases including Go v. Court of Appeals,58 Yusop v. Sandiganbayan,59 Rodis, Sr. v. Sandiganbayan,60 and Agustin v. People.61chanRoblesvirtualLawlibrary
We do not begrudge the zeal that may characterize a public official's prosecution of criminal offenders. We, however, believe that this should not be a license to run roughshod over a citizen's basic constitutional rights, such as due process, or manipulate the law to suit dictatorial tendencies.cralawredIndeed, the prime goal of our criminal justice system remains to be the achievement of justice under a rule of law. This ideal can only be attained if the Ombudsman, and the prosecutorial arm of the government for that matter, ensures the conduct of a proper, thorough, and meticulous preliminary investigation. The frustration caused by a suspension of the proceedings in the Sandiganbayan to allow the Office of the Ombudsman to correct its error cannot equal the despair of the deprivation of the rights of a person under the Constitution.xxx xxx xxx
Constitutional rights must be upheld at all costs, for this gesture is the true sign of democracy. These may not be set aside to satisfy perceived illusory visions of national grandeur.: and
In the case of J. Salonga v. Cruz Paño, We point out:
"Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution . . ." (G.R. No. L-59524, February 18, 1985, 134 SCRA 438-at p. 448).64
Endnotes:
1 Specifically, Sen. Estrada was charged with violation of Section 3(e) of RA 3019 which penalizes the following:ChanRoblesVirtualawlibrary(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.2 Public respondents Office of the Ombudsman and its Field Office Investigation Office, and the National Bureau of Investigation filed their Comment dated May 30, 2014 on June 2, 2014. Meanwhile, respondent Atty. Levito D. Baligod filed his Comment dated June 5, 2014 on June 6, 2014.
3 For perspective, it is proper to lay stress on two critical issuances of the Office of the Ombudsman: (1) March 27, 2014 Order in OMB-C-C-13-0313 denying Sen. Estrada’s Request to be furnished with copies of his co-respondents’ counter-affidavits; and (2) Joint Resolution dated March 28, 2014 in OMB-C-C-13-0313 and OMB-C-C-13-0397 finding probable cause to indict him for plunder and graft and corrupt practices.
4Okada v. Security Pacific Assurance Corporation, G.R. No. 164344, December 23, 2008, 575 SCRA 124, 142 citing Conti v. Court of Appeals, G.R. No. 134441, May 19, 1999, 307 SCRA 486, 195; underscoring supplied.
5 Emphasis supplied.
6Municipality of Taguig v. Court of Appeals, G.R. NO.142619, September 13, 2005, 506 Phil. 567 (2005).
7Sps. Marasigan and Leal v. Chevron Phils., Inc., G.R. No. 184015, February 08, 2012, 665 SCRA 499, 511.
8 G.R. No. 165012, September 16, 2008, 565 SCRA 324.
9Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), G.R. No. 183591, October 14, 2008, 568 SCRA 402, 460.
10David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160 citing Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736; Lacson v. Perez, 410 Phil. 78 (2001); Albaña v. Comelec, 478 Phil. 941 (2004); Chief Supt. Acop v. Guingona Jr., 433 Phil. 62 (2002); SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482 (2004).
11 G.R. No. 199082,199085, and 199118, September 18, 2012, 681 SCRA 181.
12 G.R. Nos. 156399-400, June 27, 2008, 556 SCRA 73.
13Ibid at pp. 93-94. Emphasis supplied.
14Ibid citing Ladlad v. Velasco, G.R. Nos. 170270-72, June 1, 2007, 523 SCRA 318, 344. See also Duterte v. Sandiganbayan, G.R. No. 130191, April 27, 1998.
15 G.R. No. 138859-60, February 22, 2001.
16 Emphasis and underscoring supplied.
17Duterte v. Sandiganbayan, G.R. No. 130191, April 27, 1998.
18Ibid citingTandoc v. Resultan, 175 SCRA 37 (1989).
19 Id. citing Doromal v. Sandiganbayan, 177 SCRA 354 (1980); Go v. Court of Appeals, 206 SCRA 138 (1992).
20 G.R. No. 130644, October 27, 1997 citing Webb v. De Leon, 247 SCRA 652, 687 and Rolito Go v. Court of Appeals, G.R. No. 101837 February 11, 1992.
21 Citing Webb
22Sales v. Sandiganbayan, G.R. No. 143802, November 16, 2001, 369 SCRA 293, 302.
23 A.M. No.MTJ-02-1441, July 31, 2002, 386 SCRA 520.
24 Emphasis supplied.
25 Emphasis supplied.
26 Sec.3.Procedure. – The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavit of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavit shall be subscribed and sworn to before any prosecutor or government official authorized under oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.
Objects as evidence shall not be furnished a party but shall be made available for examination, copying or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of counter-affidavit.xxx xxx xxx
Sec. 4. Resolution of investigating prosecutor and its review. – If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complaint and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.
27 Emphasis supplied.
28 Section 1, Article III of the 1987 Constitution.
29 69 Phil. 635 (1940).
30 Emphasis supplied.
31 G.R. No. 170512, October 5, 2011, 658 SCRA 626.
32 Ibid at pp. 639-641; emphasis and italicization supplied.
33 Dissenting Opinion, p. 13.
34 Secretary of Lantion, infra.
35 G.R. Nos. 156399-400, June 27, 2008.
36 Emphasis supplied.
37 G.R. Nos. 157383 and 174137, August 10, 2010, 627 SCRA 540.
38Ibid at p. 554. Emphasis and underscoring supplied.
39Republic v. Caguioa, G.R. No. 174385, February 20, 2013, 691 SCRA 306, 319.
40 Joint Resolution, pp. 57-58, 69, 79-80.
41 Joint Resolution, pp. 58, 82-83, 85-86.
42 Joint Resolution, p. 85.
43 Joint Resolution, pp. 86-87.
44 Joint Resolution, p. 87.
45Fernandez v. COMELEC, 535 Phil. 122, 126 (2006); Republic v. Caguioa, G.R. No. 174385, February 20, 2013, 691 SCRA 306.
46Gumabon v. Director of the Bureau of Prisons, G.R. No.L-30026, January 30, 1971, 37 SCRA 420, 427; Aducayen v. Flores, G.R. No.L-30370, May 25, 1973, 51 SCRA 78, 79.
47 G.R. No. 180146, December 18, 2008, 574 SCRA 831.
48 Ibid at p. 843 citing State Prosecutors v. Muro, Adm. Matter No. RTJ-92-876, 19 September 1994, 236 SCRA 505, 522-523; see also Paulin v. Gimenez, G.R. No. 103323, 21 January 1993, 217 SCRA 386, 39. Emphasis supplied.
49 See Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993, 221 SCRA 349 and Tagayuma v. Lastrilla, G.R. No. L-17801, August 30, 1962, 5 SCRA 937.
50Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993, 221 SCRA 349.
51 Ibid at pp. 355-35.
52Go v. Court of Appeals, G.R. No. 101837, February 11, 1992, 206 SCRA 138, 162. See also Yusop v. Sandiganbayan, G.R. Nos. 138859-60, February 22, 2001.
53 See Arroyo v. Department of Justice, G.R. No. 199082, 199085, and 199118, September 18, 2012, 681 SCRA 181 citing Raro v. Sandiganbayan, G.R. No. 108431, July 14, 2000, 335 SCRA 581; Socrates v. Sandiganbayan, G.R. Nos. 116259-60, February 20, 1996, 253 SCRA 773, 792; Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993, 221 SCRA 349, 355.
54 G.R. No. L-53373, June 30, 1987.
55 G.R. No. 165751, April 12, 2005.
56Emphasis supplied.
57G.R. No. 101421 February 10, 1994.
58 G.R. No. 101837, February 11, 1992, 206 SCRA 138, 162.
59 G.R. Nos. 138859-60, February 22, 2001.
60 G.R. Nos. 71404-09 October 26, 1988.
61 G.R. No. 158211, August 31, 2004.
62 Ibid citing Uy v. Adriano, G.R. No. 159098, October 27, 2006, 505 SCRA 625, 647.
63 G.R. No. 69863-65, December 10, 1990, 192 SCRA 183.
64Ibid at pp. 189-190.
BRION, J.:
Meanwhile, Estrada received information that his co-respondents’ affidavits and submissions made reference to his purported participation in the so-called “PDAF Scam.” Thus, he filed a motion – his March 20, 2014 Request – to fully allow him to refute the allegations against him, if needed. Estrada particularly asked for the following documents (requested documents):ChanRoblesVirtualawlibrary
- Marivic V. Jover – Two (2) Counter-Affidavits dated December 9, 2013;
- Victor Roman Cojamco Cacal – Counter-Affidavit dated December 11, 2013 (to the FIO Complaint) and Counter-Affidavit dated January 22, 2014 (to the NBI Complaint);
- Rosario Nuñez, Lalaine Paule and Marilou Bare – Joint Counter-Affidavit dated December 13, 2013;
- Mario L. Relampagos – Counter-Affidavit dated December 13, 2013;
- Gondelina G. Amata – Counter-Affidavit dated December 26, 2013 (to the FIO Complaint) and Counter-Affidavit dated January 20, 2014 (to the NBI Complaint);
- Francisco B. Figura – Counter-Affidavit dated January 8, 2014;
- Alexis Sevidal – Counter-Affidavit dated January 15, 2014 (to the NBI Complaint) and Counter-Affidavit dated February 24, 2014 (to the FIO Complaint);
- Maria Niñez P. Guañizo – Counter-Affidavit dated January 28, 2014;
- Sofia D. Cruz – Counter-Affidavit dated January 31, 2014;
- Allan Javellana – Two (2) Counter-Affidavits dated February 6, 2014;
- Evelyn Sucgang – Counter-Affidavit dated February 11, 2014;
- Dennis L. Cunanan – Two (2) Counter-Affidavits dated February 20, 2014;
- Ruby Tuason – Two (2) Counter-Affidavits both dated February 21, 2014;
- Gregoria Buenaventura – Counter-Affidavit dated March 6, 2014;
- Rhodora Bulatad Mendoza – Counter-Affidavit dated March 6, 2014; and
- Ma. Julie A. Villaralvo-Johnson – Two (2) Counter-Affidavits dated March 14, 2014.
The Ombudsman’s March 27, 2014 Order (“Denial of Request Order”)
- Counter-affidavit of Ruby Tuason;
- Counter-affidavit of Dennis L. Cunanan;
- Counter-Affidavit of Gondelina G. Amata;
- Counter-Affidavit of Mario L. Relampagos;
- Consolidated Reply of the NBI, if one had been filed; and
- Affidavit/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional witnesses for the Complainants.
Ø Estrada filed with the Ombudsman his Request for copies of his co-respondents’ affidavits and submissions on March 20, 2014;A critical point in this sequence of events is the Request that Estrada filed on March 20, 2014. Estrada filed this Request after learning from media reports that some of his co-respondents made reference in their respective counter-affidavits to his purported participation in the “PDAF scam.”
Ø the Ombudsman denied his Request thru the March 27, 2014 Denial of Request Order;
Ø on March 28, 2014, the Ombudsman issued its Probable Cause Resolution;
Ø Estrada received a copy of the March 27, 2014 Denial of Request Order only on April 1, 2014;
Ø also on April 1, 2014, Estrada received his copy of the March 28, 2014 Probable Cause Resolution;
Ø on April 7, 2014, Estrada moved for the reconsideration of the Ombudsman’s March 28, 2014 Probable Cause Resolution;
Ø on May 7, 2014, Estrada filed the present petition to question the Denial of Request Order of March 27, 2014;
Ø also on May 7, 2014, the Ombudsman furnished Estrada, albeit partially, with copy of the requested documents; and
Ø on June 6, 2014, Information Nos. SB-14-CRM-0239 and SB-14-CRM-0256 to SB-14-CRM-0266 against Estrada, among others, were filed with the Sandiganbayan.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.On the other hand, Section 4(a) and (b), Rule II of the Rules of Procedure of the Office of the Ombudsman (Ombudsman Rules) provide:ChanRoblesVirtualawlibrary
The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
Sec. 4. PROCEDURE. — Preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:3. Estrada’s Request viewed in the context of a preliminary investigation proceeding
a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.
It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence, in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. It cannot be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case.Mindful of these considerations, an order for the dismissal of an Information already filed in court – as in Estrada’s case – would be legally wrong as such move misappreciates the nature, purpose and scope of a preliminary investigation proceeding vis-a-vis the nature, purpose and scope of the proceedings in court after the filing of the Information.
It is through the conduct of a preliminary investigation, that the fiscal determines the existence of a prima facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the fiscal's should normally prevail. On the other hand, neither an injunction, preliminary or in final nor a writ of prohibition may be issued by the Courts to restrain a criminal prosecution except in the extreme case where it is necessary for the courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an oppressive and vindictive manner.
However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it may be elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the case be filed in Court or otherwise, that an information be filed in Court.
The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused.
The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused, or the right of the People to due process of law. [Emphasis supplied]
Section 3. Grounds. – The accused may move to quash the complaint or information on any of the following grounds:As the Court pointedly noted in Villaflor,48 nowhere in Section 3 is the “lack of preliminary investigation” mentioned as a ground for a motion to quash.
(a) That the facts charged do not constitute an offense; (b) That the court trying the case has no jurisdiction over the offense charged; (c) That the court trying the case has no jurisdiction over the person of the accused; (d) That the officer who filed the information had no authority to do so; (e) That it does not conform substantially to the prescribed form; (f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) That the criminal action or liability has been extinguished; (h) That it contains averments which, if true, would constitute a legal excuse or justification; and (i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.
First, x x x the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.To sum up these distinctions:
Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor’s report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor’s bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of a probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.
Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor’s recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer. (Emphasis supplied)
Endnotes:
1 Dated September 16, 2013; attached as Annex“”B” to the Petition. The complaint also recommended for prosecution the following individuals: Janet Lim Napoles, Pauline Labayen, Ruby Tuazon, Alan A. Javellana, Gondelina G. Amata, Antonio Y. Ortiz, Mylene T. Encarnacion, John Raymund S. De Asis, Dennis L. Cunanan, Victor Roman Cacal, Romulo M. Relevo, Maria Ninez P. Guañizo, Ma. Julie A. Villaralvo-Johnson, Rhodora B. Mendoza, Gregoria G. Buenaventura, Alexis G. Sevidal, Sofia D. Cruz, Chita C. Jalandoni, Francisco B. Figura and Marivic V. Jover.
2 Dated November 18, 2013; attached as Annex “C” to the petition. Specifically, the FIO complaint charged Estrada for violation of Section 3(e) of R.A. No. 3019 which penalizes the act of:
(e) causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant or licenses or permits or other concessions.
3 Attached as Annexes “D” and “E” to the petition.
4 The date when the Informations were filed before the Sandiganbayan was obtained from media reports: http://www.manilatimes.net/plunder-filed-against-enrile-jinggoy-bong/102255/; http://www.rappler.com/nation/59826-enrile-jpe-jinggoy-charged-plunder-pdaf-scam; http://www.interaksyon.com/article/88515/pork-plunder-case-filed--employees-of-ombudsmans-office-go-to-sandiganbayan-carrying-reams-of-paper
5Uy v. Office of the Ombudsman, 578 Phil. 635, 654-655 (2008).
6 See Medado v. Heirs of the Late Antonio Consing, G.R. No. 186720, February 8, 2012, 665 SCRA 534, 547-548.
The other exceptions, as provided by jurisprudence, are:
(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the petition is perishable;
(d) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;
(e) where the proceedings in the lower court are a nullity for lack of due process;
(f) where the proceeding was ex parte or in which the petitioner had no opportunity to object; and,
(g) where the issue raised is one purely of law or public interest is involved.
7 See Chavez v. Court of Appeals, G.R. No. 174356, January 20, 2010, 610 SCRA 399, 403, citing Cruz v. Caraos, G.R. No. 138208, April 23, 2007, 521 SCRA 510, 522; and Spouses Melo v. Court of Appeals, 376 Phil. 204, 211 (1999).
8 See Philippine Savings Bank v. Senate Impeachment Court, G.R. No. 200238, November 20, 2012, 686 SCRA 35, 38, where the Court dismissed the petition on mootness grounds. The Court ruled that the “main issue of whether the Impeachment Court acted arbitrarily when it issued the assailed subpoena to obtain information concerning the subject foreign currency deposits notwithstanding the confidentiality of such deposits under RA 6426 has been overtaken by x x x [t]he supervening conviction of Chief Justice Corona x x x as well as his execution of a waiver against the confidentiality of all his bank accounts.”
See also Mendoza v. Villas, G.R. No. 187256, February 23, 2011, 644 SCRA 347, 357, where the Court, denying the petition likewise on the ground of mootness, reasoned that “with the conduct of the 2010 barangay elections, a supervening event has transpired that has rendered this case moot and academic and subject to dismissal x x x Mendoza’s term of office has expired with the conduct of last year’s elections.”
The present petition, contrasted with these cited cases, does not involve a situation – a supervening event – that could have rendered the issue and Estrada’s prayers moot and academic. Note that the Ombudsman’s compliance was only partial; hence, the relief sought for in this petition has not at all been achieved.
9 Section 1, Rule 112, Rules of Court.
10Sales v. Sandiganbayan, 421 Phil. 176, 186-187 (2001); Uy v. Office of the Ombudsman, supra note 5, at 655. See also Yusop v. Sandiganbayan, 405 Phil. 233, 239 (2001).
11Riano, Criminal Procedure (The Bar Lecture Series), 2011, p. 149.
12 Id.
13 See People v. Salonga, 411 Phil. 845 (2001); People v. Ayson, 256 Phil. 671 (1989); People v. Canton, 442 Phil. 743 (2002).
14 Section 4, Rule II of the Ombudsman Rules in relation to Section 18 of R.A. No. 6770 (or the Ombudsman Law), and Section 3, Rule 112 of the Rules of Court.
15 See Go v. Court of Appeals, G.R. No. 101837, February 11, 1992, 206 SCRA 138, 153. Under Section 1, Article III of the Constitution, “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.”
16 See Doromal v. Sandiganbayan, 258 Phil. 146, 152-153 (1989); Torralba v. Lim, G.R. No. 101421, February 10, 1994, 230 SCRA 33, 41; Uy v. Office of the Ombudsman, supra note 5, at 655; Ladlad v. Senior State Prosecutor Velasco, 551 Phil. 313, 336 (2007).
17Yusop v. Sandiganbayan, supra note 10, at 242; Uy v. Office of the Ombudsman, supra note 5, at 655.
18 Signed on June 19 (or 15), 1215 at Runnymede between the barons of Medieval England and King John. It was the first formal document that guaranteed the rights of the individuals against the wishes of the King.
http://www.bbc.co.uk/schools/primaryhistory/british_history/magna_carta/
http://britishlibrary.typepad.co.uk/digitisedmanuscripts/2013/06/15-june-1215-a-significant-date-in-history.html
19Supra note 16, at 41.
20Supra note 15, at 153.
21Supra note 5, at 94.
22 Id. at 95.
23 Approved November 17, 1989. See Section 18 of R.A. No. 6770. It states in part:
Section 18. Rules of Procedure. — (1) The Office of the Ombudsman shall promulgate its rules of procedure for the effective exercise or performance of its powers, functions, and duties.
(2) The rules of procedure shall include a provision whereby the Rules of Court are made suppletory.cralawredx x x x
24 Section 3, Rule 112 of the Rules of Court reads in full:
Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.
25Atty. Macalintal v. Comelec, 453 Phil. 586, 631 (2003); In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon, 535 Phil. 687, 709-710 (2006); Manila Prince Hotel v. Government Service Insurance System, G.R. No. 122156, February 3, 1997, 267 SCRA 408, 430-431.
26 G.R. No. 188056, January 8, 2013.
27 G.R. No. 96080, April 19, 1991, 196 SCRA 86.
28 69 Phil. 635 (1960).
29 Id. at 642.
30Supra note 5, at 95.
31 Id.
32 Id.
33 Id.
34Supra note 24.
35 See Section 4(a) and (b), Rule II of the Ombudsman Rules.
36 See Crespo v. Judge Mogul, 235 Phil. 465 (1987).
37 Id.
38 111 Phil. 73 (1961).
39 See Crespo v. Judge Mogul, supra note 36.
40 G.R. No. L-29086, September 30, 1982, 117 SCRA 72, 77-78.
41Supra note 16.
42 G.R. No. L-29715, March 31, 1971, 38 SCRA 324.
43 380 Phil. 673 (2000).
44 402 Phil. 222 (2001).
45 See also Atty. Serapio v. Sandiganbayan, 444 Phil. 499, 531 (2003); and Budiongan, Jr. v. De la Cruz, Jr., 534 Phil. 47, 55 (2006) where the Court reiterated the ruling that the absence of a preliminary investigation will not affect the jurisdiction of the court. While in these cases, the Court dismissed the accused’s certiorari petition assailing: (1) the Ombudsman’s memorandum finding probable cause and denying the motion for reconsideration in Budiongan for failure of the accused to timely invoke the right to preliminary investigation tantamount to its waiver; and (2) the Sandiganbayan’s resolution denying the accused’s motion for reinvestigation in Serapio for failure to show arbitrariness in the Ombudsman’s conduct of the preliminary investigation, the principle nevertheless still holds true.
46Supra note 16, at 41.
47Doromal v. Sandiganbayan, supra note 16, at 153-154. See also Budiongan, Jr. v. De la Cruz, Jr., supra note 45; and Atty. Serapio v. Sandiganbayan, supra note 45, at 531.
48Supra note 44. The Court in this case reversed the order of the Regional Trial Court that dismissed the criminal cases against respondent Dindo Vivar on the ground that the public prosecutor had failed to conduct a preliminary investigation. The Court observed that contrary to the RTC’s ruling, the prosecutor had in fact previously conducted a preliminary investigation and that a new preliminary investigation was not warranted under the circumstances as the change made by the prosecutor to the Information was merely formal, not substantial as to require a reinvestigation. The difference in the factual situation between Villaflor and the present petition, however, cannot invalidate nor weaken the force of the Casiano ruling – that absence of a preliminary investigation does not impair the validity of the information or affect the court’s jurisdiction.
49Herrera, Remedial Law IV, 2001 edition, p. 271.
50 Section 2, Article III of the Constitution reads:
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. [Emphasis supplied]
51 360 Phil. 559, 578-579 (1998).
52 345 Phil. 597 (1997).
53 See People v. Tan, G.R. No. 182310, December 9, 2009, 608 SCRA 85, 95.
54 352 Phil. 557 (1998).
55 G.R. No. L-72335-39, March 21, 1988, 159 SCRA 70.
56 219 Phil. 402 (1985).
57 200 Phil. 650 (1982).
58 89 Phil. 752 (1951).
59 243 Phil. 988 (1988).
60Supra note 10.
LEONEN, J.:
The law is vigilant in protecting the rights of an accused. Yet, notwithstanding the primacy put on the rights of an accused in a criminal case, even they cannot claim unbridled rights in [p]reliminary [i]nvestigations. In Lozada v. Hernandez, we explained the nature of a [p]reliminary [i]nvestigation in relation to the rights of an accused, to wit:The right to due process of accused respondent in a preliminary investigation is merely a statutory grant. It is not a constitutional guarantee. Thus, the validity of its procedures must be related to the purpose for which it was created.
It has been said time and again that a preliminary investigation is not properly a trial or any part thereof but is merely preparatory thereto, its only purpose being to determine whether a crime has been committed and whether there is probable cause to believe the accused guilty thereof. The right to such investigation is not a fundamental right guaranteed by the constitution. At most, it is statutory. And rights conferred upon accused persons to participate in preliminary investigations concerning themselves depend upon the provisions of law by which such rights are specifically secured, rather than upon the phrase “due process of law.”3 (Emphasis supplied)
The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials.5Thus, the right of a respondent to present counter-affidavits and to confront the witnesses against him or her in a preliminary investigation is merely to assist the prosecution to decide in a summary manner whether there is basis for supporting a charge and preventing a harassment suit that prejudices respondent and wastes the resources of the state. The process is essentially one-sided, that is, it only serves to assist the prosecution in determining whether it has prima facie evidence to sustain the filing of an information. In Salonga:ChanRoblesVirtualawlibrary
The term “prima facie evidence” denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports or to establish the facts, or to counter-balance the presumption of innocence to warrant a conviction.6Due to the preliminary nature of the proceedings, it would be erroneous to insist that the due process safeguards in Ang Tibay v. Court of Industrial Relations7 apply in a preliminary investigation.
Petitioner submits that a prosecutor conducting a preliminary investigation performs a quasi-judicial function, citing Cojuangco v. PCGG, Koh v. Court of Appeals, Andaya v. Provincial Fiscal of Surigao del Norte and Crespo v. Mogul. In these cases this Court held that the power to conduct preliminary investigation is quasi-judicial in nature. But this statement holds true only in the sense that, like quasi-judicial bodies, the prosecutor is an office in the executive department exercising powers akin to those of a court. Here is where the similarity ends.Preliminary investigation, in cases of public officers, is outlined in Republic Act No. 677011 or The Ombudsman Act of 1989, and Administrative Order No. 712 or The Rules of Procedure of the Office of the Ombudsman. Section 18 of Republic Act No. 6770 mandates the Office of the Ombudsman to formulate its rules of procedure. The procedure for preliminary investigations is outlined in Rule II, Section 4 of Administrative Order No. 7:ChanRoblesVirtualawlibrary
A closer scrutiny will show that preliminary investigation is very different from other quasi-judicial proceedings. A quasi-judicial body has been defined as "an organ of government other than a court and other than a legislature which affects the rights of private parties through either adjudication or rule-making."
. . . .
[T]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal.10 (Emphasis supplied)
Sec. 4. PROCEDURE. — Preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:Furthermore, the Rules of Court, Rule 112, Section 1 of the Rules of Criminal Procedure describes the process as:ChanRoblesVirtualawlibrary
a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.
c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall have access to the evidence on record.
d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of particulars be entertained. If respondent desires any matter in the complainant’s affidavit to be clarified, the particularization thereof may be done at the time of clarificatory questioning in the manner provided in paragraph (f) of this section.
e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or having been served, does not comply therewith, the complaint shall be deemed submitted for resolution on the basis of the evidence on record.
f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath.
g) Upon the termination of the preliminary investigation, the investigating officer shall forward the records of the case together with his resolution to the designated authorities for their appropriate action thereon.
No information may be filed and no complaint may be dismissed without the written authority or approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all other cases.
Section 1. Preliminary investigation defined; when required. — Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.The opportunity to be heard and to defend one’s self is satisfied by the filing of respondent’s counter-affidavits. There is no right granted to a respondent in a preliminary investigation to be furnished with the counter-affidavits of his or her co-respondents, save for the provision where he or she “shall have access to the evidence on record,”13 regardless of whether or not he or she files a counter-affidavit. It contemplates a situation wherein the evidence on record only consists of complainant’s evidence, to which respondent shall have access “[i]n any event.”14 Given the purpose of a preliminary investigation, this should already be the extent of due process granted to him or her by law.
It must be emphasized that the preliminary investigation is not the venue for the full exercise of the rights of the parties. This is why preliminary investigation is not considered as a part of trial but merely preparatory thereto and that the records therein shall not form part of the records of the case in court. Parties may submit affidavits but have no right to examine witnesses though they can propound questions through the investigating officer. In fact, a preliminary investigation may even be conducted ex-parte in certain cases. Moreover, in Section 1 of Rule 112, the purpose of a preliminary investigation is only to determine a well grounded belief if a crime was “probably” committed by an accused. In any case, the invalidity or absence of a preliminary investigation does not affect the jurisdiction of the court which may have taken cognizance of the information nor impair the validity of the information or otherwise render it defective.18 (Emphasis supplied)Similarly, in Drilon v. Court of Appeals,19 this court clarified the role and function of preliminary investigation.
Probable cause should be determined in a summary but scrupulous manner to prevent material damage to a potential accused's constitutional right of liberty and the guarantees of freedom and fair play. The preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence. It is for the presentation of such evidence as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. It is a means of discovering the persons who may be reasonably charged with a crime. The validity and merits of a party's defense and accusation, as well as admissibility of testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level.20 (Emphasis supplied)Any irregularities that may have been committed during a preliminary investigation should not deprive the parties — both the prosecution and the accused — of their rights to due process and to trial. A criminal trial is a separate proceeding from that of the preliminary investigation. The courts will judge and act at their own instance, independently of the conclusions of the prosecutor since:ChanRoblesVirtualawlibrary
a finding of probable cause does not ensure a conviction, or a conclusive finding of guilt beyond reasonable doubt. The allegations adduced by the prosecution will be put to test in a full-blown trial where evidence shall be analyzed, weighed, given credence or disproved.21Thus, after determination of probable cause by the Sandiganbayan, the best venue to fully ventilate the positions of the parties in relation to the evidence in this case is during the trial. The alleged violation of due process during the preliminary investigation stage, if any, does not affect the validity of the acquisition of jurisdiction over the accused.
The rights of the people from what could sometimes be an “oppressive” exercise of government prosecutorial powers do need to be protected when circumstance so require. But just as we recognize this need, we also acknowledge that the State must likewise be accorded due process. Thus, when there is no showing of nefarious irregularity or manifest error in the performance of a public prosecutor’s duties, courts ought to refrain from interfering with such lawfully and judicially mandated duties.28 (Emphasis supplied)A defect in the procedure in the statutory grant of a preliminary investigation would not immediately be considered as a deprivation of the accused’s constitutional right to due process. Irregularities committed in the executive determination of probable cause do not affect the conduct of a judicial determination of probable cause.
It is a constitutional requirement that before a warrant can be issued, the judge must first determine the existence of probable cause. The phrase “to be determined personally” means that the judge determines the existence of probable cause himself or herself. This determination can even be ex parte since the Constitution only mentions “after examination under oath or affirmation of the complainant and the witnesses he [or she] may produce.”ARTICLE III
BILL OF RIGHTS
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied)
Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper — whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial — is the function of the Prosecutor.30 (Emphasis supplied)The difference between the executive determination of probable cause and the judicial determination of probable cause is doctrinal and has been extensively explained by this court. In Ho v. People:31
Lest we be too repetitive, we only wish to emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e. whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.The issuance of the warrant of arrest is based on an independent assessment by the Sandiganbayan of the evidence on hand, which may or may not be the same evidence that the prosecutor relies on to support his or her own conclusions. Hence, irregularities in the conduct of the preliminary investigation — for purposes of the criminal procedure — are negated upon the issuance of the warrant of arrest. The Sandiganbayan has, independent of the preparatory actions by the prosecutor, determined for themselves the existence of probable cause as to merit the arrest of the accused, acquire jurisdiction over his or her person, and proceed to trial.
Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.
Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer.32 (Emphasis supplied)
[t]he filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused.Thus, after the Sandiganbayan has determined for itself the existence of probable cause, it is also within its authority to issue the warrant of arrest. The Sandiganbayan should proceed with due and deliberate dispatch to proceed to trial in order to provide the accused with the fullest opportunity to defend himself or herself.
The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court, the only qualification is that the action of the Court must not impair the substantial rights of the accused or the right of the People to due process of law.
Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control.
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court, any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.34 (Emphasis supplied)
Endnotes:
1 I acknowledge Justice Velasco and Justice Brion’s doubts regarding my use of these adjectives. I maintain my views and reading of doctrines in this separate opinion.
2 G.R. No. 190569, April 25, 2012, 671 SCRA 357 [Per J. Sereno, Second Division].
3 Id. at 369, citing Lozada v. Hernandez, 92 Phil. 1051 (1953) [Per J. Reyes, En Banc]; U.S. v. Yu Tuico, 34 Phil. 209 (1916) [Per J. Moreland, En Banc]; People v. Badilla, 48 Phil. 718 (1926) [Per J. Ostrand, En Banc]; II MORAN, RULES OF COURT 673 (1952); U.S. v. Grant and Kennedy, 18 Phil. 122 (1910) [ Per J. Trent, En Banc].
4 219 Phil. 402 (1985) [Per J. Gutierrez, Jr., En Banc].
5 Id. at 428, citing Trocio v. Manta, 203 Phil. 618 (1982) [Per J. Relova, First Division] and Hashim v. Boncan, 71 Phil. 216 (1941) [Per J. Laurel, En Banc].
6Salonga v. Cruz-Paño, 219 Phil. 402, 415–416 (1985) [Per J. Gutierrez, En Banc].
7 69 Phil. 635 (1940) [Per J. Laurel, En Banc].
8 Id. at 641–642.
9 413 Phil. 159 (2001) [Per J. Bellosillo, Second Division].
10 Id. at 167–169, citing Cojuangco v. Presidential Commission on Good Government, 268 Phil. 235 (1990) [Per J. Gancayco, En Banc]; Koh v. Court of Appeals, 160-A Phil. 1034 (1975) [Per J. Esguerra, First Division]; Andaya v. Provincial Fiscal of Surigao del Norte, 165 Phil. 134 (1976) [Per J. Fernando, Second Division]; Crespo v. Mogul, 235 Phil. 465 (1987) [Per J. Gancayco, En Banc]; Presidential Anti-Dollar Salting Task Force v. Court of Appeals, 253 Phil. 344 (1989) [Per J. Sarmiento, En Banc]; Tandok v. Judge Resultan, 256 Phil. 485 (1989) [Per J. Padilla, Second Division].
11 Rep. Act No. 6770 (1989), otherwise known as An Act for Providing for the Functional and Structural Organization of the Office of the Ombudsman and for Other Purposes.
12 Adm. Order No. 07 (1990), otherwise known as Rules of Procedure of the Office of the Ombudsman.
13 Adm. Order No. 7 (1990), Rule II, sec. 4(c).
14 Adm. Order No. 7 (1990), Rule II, sec. 4(c).
15See RULES OF CRIMINAL PROCEDURE (2000), Rule 112, sec. 7.
16People v. Narca, 341 Phil. 696, 705 (1997) [Per J. Francisco, Third Division], citing Romualdez v. Sandiganbayan, 313 Phil. 871 (1995) [Per C.J. Narvasa, En Banc]; People v. Gomez, 202 Phil. 395 (1982) [Per J. Relova, First Division].
17 341 Phil. 696 (1997) [Per J. Francisco, Third Division].
18 Id. at 705, citing Lozada v. Hernandez, 92 Phil. 1051 (1953) [Per J. Reyes, En Banc]; RULES OF CRIMINAL PROCEDURE (2000), Rule 112, sec.8; RULES OF CRIMINAL PROCEDURE (2000), Rule 112, sec. 3(e); RULES OF CRIMINAL PROCEDURE (2000), Rule 112, sec. 3(d); Mercado v. Court of Appeals, 315 Phil. 657 (1995) [Per J. Quiason, First Division]; Rodriguez v. Sandiganbayan, 205 Phil. 567 (1983) [Per J. Escolin, En Banc]; Webb v. De Leon, 317 Phil. 758 (1995) [Per J. Puno, Second Division]; Romualdez, v. Sandiganbayan, 313 Phil. 871 (1995) [Per C.J. Narvasa, En Banc]; People v. Gomez, 202 Phil. 395 (1982) [Per J. Relova, First Division].
19 327 Phil. 916 (1996) [Per J. Romero, Second Division].
20 Id., citing Salonga v. Cruz-Paño, 219 Phil. 402 (1985) [Per J. Gutierrez, En Banc]; Hashim v. Boncan, 71 Phil. 216 (1941) [Per J. Laurel, En Banc]; Paderanga v. Drilon, G.R. No. 96080, April 19, 1991, 196 SCRA 86, 92 [Per J. Regalado, En Banc]; concurring opinion of J. Francisco in Webb v. De Leon, 317 Phil. 758, 809–811 (1995) [Per J. Puno, Second Division].
21Drilon v. Court of Appeals, 327 Phil. 916 (1996) [Per J. Romero, Second Division].
22 578 Phil. 635 (2008) [Per J. Brion, En Banc].
23 405 Phil. 233 (2001) [Per J. Panganiban, Third Division].
24 351 Phil. 75 (1998) [Per J. Puno, Second Division].
25 Const., art. III, sec. 12, which provides:
Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against them. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.
26 Const., art. III, sec. 14, which provides:
Sec. 14. (1) No person shall be held to answer for a criminal offense without due process of law.
(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 and unjustifiable.
27 361 Phil. 401 (1999) [Per J. Panganiban, Third Division].
28 Id. at 420–421.
29 G.R. No. 88919, July 25, 1990, 187 SCRA 788 [Per J. Gutierrez, En Banc].
30 Id. at 792–793.
31 345 Phil. 597 (1997) [Per J. Panganiban, En Banc].
32 Id. at 611–612, citing RULES OF CIVIL PROCEDURE, Rule 112, sec. 6(b) and the dissenting opinion of J. Puno in Roberts, Jr. v. Court of Appeals, 324 Phil. 568, 623–642 (1996) [Per J. Davide, Jr., En Banc].
33 235 Phil. 465 (1987) [Per J. Gancayco, En Banc].
34 Id. at 474–476, citing Herrera v. Barretto, 25 Phil. 245 (1913) [Per J. Moreland, En Banc]; U.S. v. Limsiongco, 41 Phil. 94 (1920) [Per J. Malcolm, En Banc]; De la Cruz v. Moir, 36 Phil. 213 (1917) [Per J. Moreland, En Banc]; RULES OF COURT, Rule 110, sec. 1; RULES OF CRIMINAL PROCEDURE (1985), sec. 1; 21 C.J.S. 123; Carrington; U.S. v. Barreto, 32 Phil. 444 (1917) [Per Curiam, En Banc]; Asst. Provincial Fiscal of Bataan v. Dollete, 103 Phil. 914 (1958) [Per J. Montemayor, En Banc]; People v. Zabala, 58 O. G. 5028; Galman v. Sandiganbayan, 228 Phil. 42 (1986) [Per C.J. Teehankee, En Banc]; People v. Beriales, 162 Phil. 478 (1976) [Per J. Concepcion, Jr., Second Division]; U.S. v. Despabiladeras, 32 Phil. 442 (1915) [Per J. Carson, En Banc]; U.S. v. Gallegos, 37 Phil. 289 (1917) [Per J. Johnson, En Banc]; People v. Hernandez, 69 Phil. 672 (1964) [Per J. Labrador, En Banc]; U.S. v. Labial, 27 Phil. 82 (1914) [Per J. Carson, En Banc]; U.S. v. Fernandez, 17 Phil. 539 (1910) [Per J. Torres, En Banc]; People v. Velez, 77 Phil. 1026 (1947) [Per J. Feria, En Banc].