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8/10/2019 Catch Up Rem http://slidepdf.com/reader/full/catch-up-rem 1/36 G.R. Nos. 99289-90 January 27, 1993 MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. CONRADO M. VASQUEZ, Ombudsman; GUALBERTO J. DE L A LLANA, Special Prosecutor; SANDIGANBAYAN and REGIONAL TRIAL COURT OF MANILA, respondents. Marciano P. Defensor for petitioner. Nestor P. Ifurong for Maria S. Tatoy. Danilo C. Cunanan for respondents. R E S O L U T I O N REGALADO, J .:  Filed directly with the Court, ostensibly as an incident in the present special civil action, is petitioner's so-called "Motion to Restrain the Sandiganbayan from Enforcing its Hold Departure Order with Prayer for the Issuance of a Temporary Restraining Order and/or Preliminary Injunction, with Motion to Set Pending Incident for Hearing." Despite the impropriety of the mode adopted in elevating the issue to us, as will hereinafter be discussed, we will disregard the procedural gaffe in the interest of an early resolution hereof. The chronology of events preceding the instant motion is best summarized to readily provide a clear understanding and perspective of our disposition of this matter, thus: 1. On May 13, 1991, an information dated May 9, 1991 and docketed as Criminal Case No. 16698 was filed against petitioner wit h the Sandiganbayan for alleged violation of Section 3(e), Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. 2. On May 14, 1991, an order of arrest was issued in said case against herein petitioner by Presiding Justice Francis E. Garc hitorena of the Sandiganbayan, with bail for the release of the accused fixed at P15,000.00. 1  3. On even date, petitioner filed an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond for and in Behalf of Dr. Miriam Defensor-Santiago," 2  which pertinently states in part: xxx xxx xxx 3. As a result of the vehicular collision, she suffered extensive physical injuries which required surgical intervention. As of this time, her injuries, specifically in the jaw or gum area of the mouth, prevents her to speak (sic) because of extreme pain. Further, she cannot for an extended period be on her feet because she is still in physical pain. . . . . 4. On the other hand, the accused Miriam Defensor Santiago seeks leave of this Honorable Court that she be considered as having placed herself under the jurisdiction of this Honorable Court, for purposes of the required trial and other proceedings and further seeks leave of this Honorable Court that the recommended bail bond of P15,000.00 that she is posting in cash be accepted. xxx xxx xxx WHEREFORE, it is respectfully prayed of this Honorable Court that the bail bond she is posting in the amount of P15,000.00 be duly accepted, and that by this motion, she be considered as having placed herself under the custody of this Honorable Court and dispensing of her personal appearance for now until such time she will (sic) have recovered sufficiently from her recent near f atal accident.

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G.R. Nos. 99289-90 January 27, 1993 

MIRIAM DEFENSOR-SANTIAGO, petitioner,vs.CONRADO M. VASQUEZ, Ombudsman; GUALBERTO J. DE LA LLANA, Special Prosecutor; SANDIGANBAYAN and REGIONAL

TRIAL COURT OF MANILA, respondents.

Marciano P. Defensor for petitioner.

Nestor P. Ifurong for Maria S. Tatoy.

Danilo C. Cunanan for respondents.

R E S O L U T I O N

REGALADO, J .:  

Filed directly with the Court, ostensibly as an incident in the present special civil action, is petitioner's so-called "Motion to Restrain theSandiganbayan from Enforcing its Hold Departure Order with Prayer for the Issuance of a Temporary Restraining Order and/or PreliminaryInjunction, with Motion to Set Pending Incident for Hearing." Despite the impropriety of the mode adopted in elevating the issue to us, as will

hereinafter be discussed, we will disregard the procedural gaffe in the interest of an early resolution hereof.

The chronology of events preceding the instant motion is best summarized to readily provide a clear understanding and perspective of our

disposition of this matter, thus:

1. On May 13, 1991, an information dated May 9, 1991 and docketed as Criminal Case No. 16698 was filed against petitioner wit h the

Sandiganbayan for alleged violation of Section 3(e), Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

2. On May 14, 1991, an order of arrest was issued in said case against herein petitioner by Presiding Justice Francis E. Garchitorena of the

Sandiganbayan, with bail for the release of the accused fixed at P15,000.00.1 

3. On even date, petitioner filed an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond for and inBehalf of Dr. Miriam Defensor-Santiago,"

2 which pertinently states in part:

xxx xxx xxx

3. As a result of the vehicular collision, she suffered extensive physical injuries whichrequired surgical intervention. As of this time, her injuries, specifically in the jaw or gumarea of the mouth, prevents her to speak (sic) because of extreme pain. Further, shecannot for an extended period be on her feet because she is still in physical pain. . . . .

4. On the other hand, the accused Miriam Defensor Santiago seeks leave of thisHonorable Court that she be considered as having placed herself under the jurisdiction ofthis Honorable Court, for purposes of the required trial and other proceedings and furtherseeks leave of this Honorable Court that the recommended bail bond of P15,000.00 thatshe is posting in cash be accepted.

xxx xxx xxx

WHEREFORE, it is respectfully prayed of this Honorable Court that the bail bond she isposting in the amount of P15,000.00 be duly accepted, and that by this motion, she beconsidered as having placed herself under the custody of this Honorable Court anddispensing of her personal appearance for now until such time she will (sic) haverecovered sufficiently from her recent near fatal accident.

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Further, on the above basis, it is also respectfully prayed that the warrant for her arrestbe immediately recalled.

xxx xxx xxx

4. Also on the same day, the Sandiganbayan issued a resolution 3 authorizing petitioner to post a cash

bond for her provisional liberty without need for her physical appearance until June 5, 1991 at the latest,unless by that time her condition does not yet permit her physical appearance before said court. On May15, 1991, petitioner filed a cash bond in the amount of P15,000.00, aside from the other legal fees.

 4 

5. On May 21, 1991, respondent Ombudsman Conrado M. Vasquez filed with the Sandiganbayan amanifestation "that accused Miriam Defensor-Santiago appeared in his office in the second floor of theOld NAWASA Building located in Arroceros Street, Ermita, Manila at around 3:30 o'clock in the afternoonof May 20, 1991. She was accompanied by a brother who represented himself to be Atty. Arthur Defensorand a lady who is said to be a physician. She came and left unaided, after staying for about fifteenminutes.

6. Acting on said manifestation, the Sandiganbayan issued a resolution also on May 21, 1991, setting thearraignment of the accused for May 27, 1991, and setting aside the court's resolution of May 14, 1991

which ordered her appearance before the deputy clerk of the First Division of said court on or before June5, 1991.

 6 

7. In a motion dated May 22, 1991, petitioner asked that her cash bond be cancelled and that she beallowed provisional liberty upon a recognizance. She contended that for her to continue remaining underbail bond may imply to other people that she has intentions of fleeing, an intention she would like to proveas baseless.

 7 

8. Likewise on May 24, 1991, petitioner filed with this Court a petition for certiorari  and prohibition withpreliminary injunction, and a subsequent addendum thereto, seeking to enjoin the Sandiganbayan andthe Regional Trial Court of Manila from proceeding with Criminal Cases Nos. 12298 (for violation ofSection 3[e] of Republic Act No. 3019), 91-94555 (violation of Presidential Decree No. 46), and 91-94897(for libel), respectively. Consequently, a temporary restraining order was issued by this Court on May 24,

1991, enjoining the Sandiganbayan and the Regional Trial Court of Manila, Branch 3, from proceedingwith the criminal cases pending before them. This Court, in issuing said order, took into consideration thefact that according to petitioner, her arraignment, originally set for June 5, 1991, was inexplicablyadvanced to May 27, 1991, hence the advisability of conserving and affording her the opportunity to availherself of any remedial right to meet said contingency.

9. On May 27, 1991, the Sandiganbayan issued an order deferring: (a) the arraignment of petitioner untilfurther advice from the Supreme Court; and (b) the consideration of herein petitioner's motion to cancelher cash bond until further initiative from her through counsel.

 8 

10. On January 18, 1992, this Court rendered a decision dismissing the petition for certiorari  and liftingand setting aside the temporary restraining order previously issued.

9 The motion for reconsideration filed

by petitioner was eventually denied with finality in this Court's resolution dated September 10, 1992.

11. Meanwhile, in a resolution adopted on July 6, 1992, the Sandiganbayan issued a hold departure orderagainst petitioner which reads as follows:

Considering the information in media to the effect that accused Santiago intends to leavethe country soon for an extended stay abroad for study purposes, considering the recentdecision of the Supreme Court dismissing her petition promulgated on January 13, 1992,although the same is still subject of a Motion for Reconsideration from the accused,considering that the accused has not yet been arraigned, nor that she has not (sic) even

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posted bail the same having been by reason of her earlier claim of being seriouslyindisposed, all of which were overtaken by a restraining order issued by the SupremeCourt in G.R. No. 99289 and No. 99290 dated May 24, 1991, the accused is ordered notto leave the country and the Commission on Immigration and Deportation is ordered notto allow the departure of the accused unless authorized from (sic) this Court.

 10 

The hold departure order was issued by reason of the announcement made by petitioner, which waswidely publicized in both print and broadcast media, that she would be leaving for the United States toaccept a fellowship supposedly offered by the John F. Kennedy School of Government at HarvardUniversity. Petitioner likewise disclosed that she would be addressing Filipino communities in the UnitedStates in line with her crusade against election fraud and other aspects of graft and corruption.

In the instant motion submitted for our resolution, petitioner argues that:

1. The Sandiganbayan acted without or in excess of jurisdiction and with grave abuse ofdiscretion in issuing the hold departure order considering that it had not acquired

 jurisdiction over the person of the petitioner.

2. The Sandiganbayan blatantly disregarded basic principles of judicial comity and due

deference owing to a superior tribunal when it issued the hold departure order despite thependency of petitioner's motion for reconsideration with this Honorable Court.

3. The right to due process of law, the right to travel and the right to freedom of speechare preferred, pre-eminent rights enshrined not only in the Constitution but also in theUniversal Declaration of Human Rights which can be validly impaired only under stringentcriteria which do not obtain in the instant case.

4. The hold departure order in the instant case was issued under disturbingcircumstances which suggest political harassment and persecution.

5. On the basis of petitioner's creditable career in the bench and bar and hercharacteristic transparency and candor, there is no reasonable ground to fear thatpetitioner will surreptitiously flee the country to evade judicial processes. 11 

I. Petitioner initially postulates that respondent court never acquired jurisdiction over her personconsidering that she has neither been arrested nor has she voluntarily surrendered, aside from the factthat she has not validly posted bail since she never personally appeared before said court. We reject herthesis for being factually and legally untenable.

It has been held that where after the filing of the complaint or information a warrant for the arrest of theaccused is issued by the trial court and the accused either voluntarily submitted himself to the court orwas duly arrested, the court thereby acquires jurisdiction over the person of the accused.

 12 The voluntary

appearance of the accused, whereby the court acquires jurisdiction over his person, is accomplishedeither by his pleading to the merits (such as by f iling a motion to quash or other pleadings requiring the

exercise of the court's jurisdiction thereover, appearing for arraignment, entering trial) or by filing bail. Onthe matter of bail, since the same is intended to obtain the provisional liberty of the accused, as a rule thesame cannot be posted before custody of the accused has been acquired by the judicial authorities eitherby his arrest or voluntary surrender.

 13 

In the case at bar, it becomes essential, therefore, to determine whether respondent court acquired jurisdiction over the person of herein petitioner and, correlatively, whether there was a valid posting of bailbond.

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We find and so hold that petitioner is deemed to have voluntarily submitted herself to the jurisdiction ofrespondent court upon the filing of her aforequoted "Urgent Ex-parte Motion for Acceptance of Cash BailBond for and in behalf of Dr. Miriam Defensor-Santiago" wherein she expressly sought leave "that she beconsidered as having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of therequired trial and other proceedings," and categorically prayed "that the bail bond she is posting in theamount of P15,000.00 be duly accepted" and that by said motion "she be considered as having placedherself under the custody" of said court. Petitioner cannot now be heard to claim otherwise for, by herown representations, she is effectively estopped from asserting the contrary after she had earlierrecognized the jurisdiction of the court and caused it to exercise that jurisdiction over the aforestatedpleadings she filed therein.

It cannot be denied that petitioner has posted a cash bail bond of P15,000.00 for her provisional releaseas evidenced by Official Receipt No. 4292925 dated May 15, 1991 and which is even attached as AnnexC-2 to her own motion now under consideration. This is further buttressed by the fact that petitionerthereafter also filed a motion for the cancellation of said cash bond and for the court to allow herprovisional liberty upon the security of a recognizance. With the filing of the foregoing motions, petitionershould accordingly and necessarily admit her acquiescence to and acknowledgment of the propriety ofthe cash bond she posted, instead of adopting a stance which ignores the injunction for candor andsincerity in dealing with the courts of justice.

Petitioner would also like to make capital of the fact that she did not personally appear before respondentcourt to file her cash bond, thereby rendering the same ineffectual. Suffice it to say that in this case, itwas petitioner herself, in her motion for the acceptance of the cash bond, who requested respondentcourt to dispense with her personal appearance until she shall have recovered sufficiently from hervehicular accident. It is distressing that petitioner should now turn around and fault respondent court fortaking a compassionate stand on the matter and accommodating her own request for acceptance of thecash bond posted in her absence.

II. Petitioner argues that the Sandiganbayan disregarded the rule of judicial comity when it issued the holddeparture order despite the pendency of her motion for reconsideration of the decision of this Court whichdismissed her petition. She claims that if the principle of judicial comity applies to prevent a court frominterfering with the proceedings undertaken by a coordinate court, with more reason should it operate to

prevent an inferior court, such as the Sandiganbayan, from interfering with the instant case where amotion for reconsideration was still pending before this Court. She contends further that the holddeparture order contravenes the temporary restraining order previously issued by this court enjoining theSandiganbayan from proceeding with the criminal case pending before it.

It will be remembered that the Court rendered a decision in the present case on January 18, 1992dismissing the petition for certiorari  filed in this case and lifting and setting aside the temporary restrainingorder it previously issued. It is petitioner's submission that the filing of her motion for reconsiderationstayed the lifting of the temporary restraining order, hence respondent court continued to be enjoinedfrom acting on and proceeding with the case during the pendency of the motion for reconsideration. Welikewise reject this contention which is bereft of merit.

Section 4, Rule 39 of the Rules of Court provides that, unless otherwise ordered by the court, a judgment

in an action for injunction shall not be stayed after its rendition and before an appeal is taken or during thependency of an appeal. And, the rule is that the execution of a judgment decreeing the dissolution of awrit of preliminary injunction shall not be stayed before an appeal is taken or during the pendency of anappeal,

 14 and we see no reason why the foregoing considerations should not apply to a temporary

restraining order. The rationale therefor is that even in cases where an appeal is taken from a judgmentdismissing an action on the merits, the appeal does not suspend the judgment, hence the general ruleapplies that a temporary injunction terminates automatically on the dismissal of the action.

 15 

It has similarly been held that an order of dissolution of an injunction may be immediately effective, eventhough it is not final.

 16 A dismissal, discontinuance, or non-suit of an action in which a restraining order or

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temporary injunction has been granted operates as a dissolution of the restraining order or temporaryinjunction

 17 and no formal order of dissolution is necessary to effect such dissolution.

 18 Consequently, a

special order of the court is necessary for the reinstatement of an injunction. 19

 There must be a newexercise of .judicial power.

 20 

The reason advanced in support of the general rule has long since been duly explained, to wit:

. . . The court of this State, relying upon the last of the two clauses quoted, held that anappeal from an order dissolving an injunction continued the injunction in force. The evilswhich would result from such a holding are forcibly pointed out by Judge Mitchell in adissenting opinion. He said: "Although a plaintiff's papers are so insufficient on their faceor so false in their allegations that if he should apply on notice for an injunction, any courtwould, on a hearing, promptly refuse to grant one, yet, if he can find anywhere in theState a judge or court commissioner who will improvidently grant one ex parte, which thecourt on the first and only hearing ever had dissolves, he can, by appealing and filing abond, make the ex parte injunction impervious to all judicial interference until the appealis determined in this court." . . . Such a result is so unjust and so utterly inconsistent withall known rules of equity practice that no court should adopt such a construction unlessabsolutely shut up to it by the clear and unequivocal language of the statute. . . . .

 21 

This ruling has remained undisturbed over the decades and was reiterated in a case squarely in point andof more recent vintage:

The SEC's orders dated June 27, 1989 and July 21, 1989 (directing the secretary ofUDMC to call a stockholders' meeting, etc.) are not premature, despite the petitionersthen pending motion for reconsideration of the decision of the Court of Appeals. Thelifting by the Court of Appeals of its writ of preliminary injunction in C.A.-G.R. SP No.17435 cleared the way for the implementation by the SEC's en banc resolution in SECEB Case No. 191. The SEC need not wait for the Court of Appeals to resolve thepetitioner's motion for reconsideration for a judgment decreeing the dissolution of apreliminary injunction is immediately executory. It shall not be stayed after its renditionand before an appeal is taken or during the pendency of an appeal. . . . .

 22 

On the bases of the foregoing pronouncements, there is no question that with the dismissal of the petitionfor certiorari  and the lifting of the restraining order, nothing stood to hinder the Sandiganbayan from actingon and proceeding with the criminal cases filed against herein petitioner. At any rate, as we have earliermentioned, the motion for reconsideration filed by petitioner was denied with finality in our resolutiondated September 10, 1992.

Petitioner further posits, however, that the filing of the instant special civil action for certiorari  divested theSandiganbayan of its jurisdiction over the case therein. Whether generated by misconception or design,we shall address this proposition which, in the first place, had no reason for being and should nothereafter be advanced under like or similar procedural scenarios.

The original and special civil action filed with this Court is, for all intents and purposes, an invocation for

the exercise of its supervisory powers over the lower courts. It does not have the effect of divesting theinferior courts of jurisdiction validly acquired over the case pending before them. It is elementary that themere pendency of a special civil action for certiorari , commenced in relation to a case pending before alower court, does not even interrupt the course of the latter when there is no writ of injunction restrainingit.

 23 The inevitable conclusion is that for as long as no writ of injunction or restraining order is issued in

the special civil action for certiorari , no impediment exists and there is nothing to prevent the lower courtfrom exercising its jurisdiction and proceeding with the case pending before it. And, even if such injunctivewrit or order is issued, the lower court nevertheless continues to retain its jurisdiction over the principalaction.

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III. It is further submitted by petitioner that the hold departure order violates her right to due process, rightto travel and freedom of speech.

First, it is averred that the hold departure order was issued without notice and hearing. Much is made bypetitioner of the fact that there was no showing that a motion to issue a hold departure order was filed bythe prosecution and, instead, the same was issued ex mero motu by the Sandiganbayan. Petitioner is in

error.

Courts possess certain inherent powers which may be said to be implied from a general grant of jurisdiction, in addition to those expressly conferred on them.

 24 These inherent powers are such powers

as are necessary for the ordinary and efficient exercise of jurisdiction; 25

 or essential to the existence,dignity and functions of the courts,

 26 as well as to the due administration of justice;

 27 or are directly

appropriate, convenient and suitable to the execution of their granted powers; 28

 and include the power tomaintain the court's jurisdiction and render it effective in behalf of the litigants.

 29 

Therefore, while a court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary andusual incidental powers essential to effectuate it, and, subject to existing laws and constitutionalprovisions, every regularly constituted court has the power to do all things that are reasonably necessary

for the administration of justice within the scope of its jurisdiction. Hence, demands, matters, or questionsancillary or incidental to, or growing out of, the main action, and coming within the above principles, maybe taken cognizance of by the court and determined, since such jurisdiction is in aid of its authority overthe principal matter, even though the court may thus be called on to consider and decide matters which,as original causes of action, would not be within its cognizance.

Furthermore, a court has the inherent power to make interlocutory orders necessary to protect its jurisdiction.

 30 Such being the case, with more reason may a party litigant be subjected to proper coercive

measures where he disobeys a proper order, or commits a fraud on the court or the opposing party, theresult of which is that the jurisdiction of the court would be ineffectual. What ought to be done dependsupon the particular circumstances.

31 

Turning now to the case at bar, petitioner does not deny and, as a matter of fact, even made a public

statement that she had every intention of leaving the country allegedly to pursue higher studies abroad.We uphold the course of action adopted by the Sandiganbayan in taking judicial notice of such fact ofpetitioner's plan to go abroad and in thereafter issuing sua sponte the hold departure order, in justifiedconsonance with our preceding disquisition. To reiterate, the hold departure order is but an exercise ofrespondent court's inherent power to preserve and to maintain the effectiveness of its jurisdiction over thecase and the person of the accused.

Second, petitioner asseverates that considering that she is leaving for abroad to pursue further studies,there is no sufficient justification for the impairment of her constitutional right to travel; and that underSection 6, Article III of the 1987 Constitution, the right to travel may be impaired only when so required inthe interest of national security, public safety or public health, as may be provided by law.

It will be recalled that petitioner has posted bail which we have declared legally valid and complete

despite the absence of petitioner at the time of filing thereof, by reason of the peculiar circumstances andgrounds hereinbefore enunciated and which warrant a relaxation of the aforecited doctrine in Feliciano.Perforce, since under the obligations assumed by petitioner in her bail bond she holds herself amenableat all times to the orders and processes of the court, she may legally be prohibited from leaving thecountry during the pendency of the case. This was the ruling we handed down in Manotoc, Jr. vs. Court of

 Appeals, et al ., 32

 to the effect that:

 A court has the power to prohibit a person admitted to bail from leaving the Philippines.This is a necessary consequence of the nature and function of a bail bond.

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Rule 114, Section 1 of the Rules of Court defines bail as the security required and givenfor the release of a person who is in custody of the law, that he will appear before anycourt in which his appearance may be required as stipulated in the bail bond orrecognizance.

Its object is to relieve the accused of imprisonment and the state of the burden of keeping

him, pending the trial, and at the same time, to put the accused as much under the powerof the court as if he were in custody of the proper officer, and to secure the appearanceof the accused so as to answer the call of the court and do what the law may require ofhim.

The condition imposed upon petitioner to make himself available at all times wheneverthe court requires his presence operates as a valid restriction on his right to travel. As wehave held in People vs. Uy Tuising, 61 Phil. 404 (1935):

. . . the result of the obligation assumed by appellee (surety) to hold theaccused amenable at all times to the orders and processes of the lowercourt, was to prohibit said accused from leaving the jurisdiction of thePhilippines, because, otherwise, said orders and processes will be

nugatory, and inasmuch as the jurisdiction of the courts from which theyissued does not extend beyond that of the Philippines they would haveno binding force outside of said jurisdiction.

Indeed, if the accused were allowed to leave the Philippines without sufficient reason, hemay be placed beyond the reach of the courts.

This was reiterated in a more recent case where we held:

Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right totravel only on the grounds of "national security, public safety, or public health."

The submission is not well taken.

 Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while theliberty of travel may be impaired even without Court Order, the appropriate executiveofficers or administrative authorities are not armed with arbitrary discretion to imposelimitations. They can impose limits only on the basis of "national security, public safety, orpublic health" and "as may be provided by law," a limitive phrase which did not appear inthe 1973 text (The Constitution, Bernas, Joaquin, G., S.J., Vol. I, First Edition, 197, p.263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban oninternational travel imposed under the previous regime when there was a TravelProcessing Center, which issued certificates of eligibility to travel upon application of aninterested party (See Salonga v. Hermoso & Travel Processing Center, No. 53622, 25

 April 1980, 97 SCRA 121).

 Article III, Section 6 of the 1987 Constitution should by no means be construed asdelimiting the inherent power of the Courts to use all means necessary to carry theirorders into effect in criminal cases pending before them. When by law jurisdiction isconferred on a Court or judicial officer, all auxiliary writs, processes and other meansnecessary to carry it into effect may be employed by such Court or officer (Rule 135,Section 6, Rules of Court).

xxx xxx xxx

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. . . Holding an accused in a criminal case within the reach of the Courts by preventing hisdeparture from the Philippines must be considered as a valid restriction on his right totravel so that he may be dealt with in accordance with law. The offended party in anycriminal proceeding is the People of the Philippines. It is to their best interest that criminalprosecutions should run their course and proceed to finality without undue delay, with anaccused holding himself amenable at all times to Court Orders and processes.

 33 

One final observation. We discern in the proceedings in this case a propensity on the part of petitioner,and, for that matter, the same may be said of a number of litigants who initiate recourses before us, todisregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despitethe fact that the same is available in the lower courts in the exercise of their original or concurrent

 jurisdiction, or is even mandated bylaw to be sought therein. This practice must be stopped, not onlybecause of the imposition upon the precious time of this Court but also because of the inevitable andresultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded orreferred to the lower court as the proper forum under the rules of procedure, or as better equipped toresolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that thisCourt will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriatecourts or where exceptional and compelling circumstances justify availment of a remedy within and callingfor the exercise of our primary jurisdiction.

For the guidance of the bench and the bar, we elucidate that such policy includes the matter of petitionsor motions involving hold departure orders of the trial or lower courts. Parties with pending cases thereinshould apply for permission to leave the country from the very same courts which, in the first instance, arein the best position to pass upon such applications and to impose the appropriate conditions thereforsince they are conversant with the facts of the cases and the ramifications or implications thereof. Where,as in the present case, a hold departure order has been issued ex parte or motu propio by said court, theparty concerned must first exhaust the appropriate remedies therein, through a motion for reconsiderationor other proper submissions, or by the filing of the requisite application for travel abroad. Only where allthe conditions and requirements for the issuance of the extraordinary writs of certiorari , prohibition ormandamus indubitably obtain against a disposition of the lower courts may our power of supervision oversaid tribunals be invoked through the appropriate petition assailing on jurisdictional or clearly validgrounds their actuations therein.

WHEREFORE, with respect to and acting on the motion now before us for resolution, the same is herebyDENIED for lack of merit.

SO ORDERED.

G.R. No. L-20687 April 30, 1966 

MAXIMINO VALDEPEÑAS, petitioner,vs.

PEOPLE OF THE PHILIPPINES, respondent.

 Jose F. Aquirre for petitioner.Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General A. A. Narra andSolicitor O. R. Ramirez for respondent. 

CONCEPCION, J.:  

Appeal by petitioner Maximino Valdepeñas from a decision of the Court of Appeals, affirming

that of the Court of First Instance of Cagayan, convicting him of the crime of abduction with

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consent, and sentencing him to an indeterminate penalty ranging from three (3) months andtwenty-five (25) days of arresto mayor to one (1) year, eight (8) months and twenty-one (21)

days of  prision correccional , with the accessory penalties prescribed by law, to indemnify EsterUlsano in the sum of P1,000, with subsidiary imprisonment in case of insolvency, and to pay the

costs.

The only question raised by petitioner is whether "the Court of Appeals erred in not reversing thedecision of the trial court, dated June 30, 1960, for lack of jurisdiction over the person of the

accused and the subject matter of the action for the offense of abduction with consent".

The pertinent facts are: On January 25, 1956, Ester Ulsano, assisted by her mother, ConsueloUlsano, filed with the Justice of the Peace Court of Piat, Cagayan, a criminal complaint,

1 duly

subscribed and sworn to by both, charging petitioner Maximino Valdepeñas with forcibleabduction with rape of Ester Ulsano. After due preliminary investigation, the second stage of

which was waived by Valdepeñas, the justice of the peace of Piat found that there was probablecause and forwarded the complaint to the court of first instance of Cagayan

2 in which the

corresponding information for forcible abduction with rape

3

 was filed.

4

 In due course, said courtof first instance rendered judgment5 finding petitioner guilty as charged and sentencing him

accordingly.6 

On appeal taken by petitioner, the Court of Appeals7 modified the decision of the court of first

instance, convicted him of abduction with consent and meted out to him the penalty set forth inthe opening paragraph of this decision.1äwphï1.ñët  

A motion for reconsideration and new trial having been filed by petitioner contesting the finding,

made by the Court of Appeals, to the effect that complainant was below 18 years of age at thetime of the occurrence, said Court

8granted the motion, set aside its aforementioned decision and

remanded the case to the court a quo for the reception of additional evidence on said issue. Aftera retrial, the court of first instance rendered another decision,9 reiterating said finding of the

Court of Appeals, as well as its judgment10

 of conviction for abduction with consent and the penalty imposed therein. Petitioner appealed again to the Court of Appeals 11 which 12 affirmed

that of the court of first instance13

with costs against the petitioner. Again petitioner filed14

 amotion for reconsideration based, for the first time, upon the ground that "the lower court had no

 jurisdiction over the person of appellant and over the subject matter of the action, with respect tothe offense of abduction with consent." Upon denial of the motion, 15 petitioner interposed the

 present appeal by certiorari.

Petitioner's theory is that no complaint for abduction with consent has been filed by either EsterUlsano or her mother, Consuelo Ulsano, and that, accordingly, the lower court acquired no

 jurisdiction over his person or over the crime of abduction with consent and had, therefore, noauthority to convict him of said crime. We find no merit in this pretense.

Jurisdiction over the person of an accused is acquired upon either his apprehension, with orwithout warrant, or his submission to the jurisdiction of the court.

16 In the case at bar, it is not

claimed that petitioner had not been apprehended or had not submitted himself to the jurisdictionof the court. Indeed, although brought before the bar of justice as early as January 25, 1956, first,

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 before the then justice of the peace court of Piat, then before the court of first instance ofCagayan, later before the Court of Appeals, thereafter back before said court of first instance,

and then, again, before the Court of Appeals, never, within the period of six (6) years that hadtranspired until the Court of Appeals, rendered its last decision,

17 had he questioned the judicial

authority of any of these three (3) courts over his person. He is deemed, therefore, to have

waived whatever objection he might have had to the jurisdiction over his person, and, hence, tohave submitted himself to the Court's jurisdiction. What is more, his behaviour and every singleone of the steps taken by him before said courts —  particularly the motions therein filed by him

 —  implied, not merely a submission to the jurisdiction thereof, but, also, that he urged the courtsto exercise the authority thereof over his person.

Upon the other hand, it is well settled that jurisdiction over the subject matter of an action —  in

this lease the crime of abduction with consent  —  is and may be conferred only by law;18

 that jurisdiction over a given crime, not vested by law upon a particular court, may not be conferred

thereto by the parties involve in the offense; and that, under an information for forcibleabduction, the accused may be convicted of abduction with consent.

19 It is true that, pursuant to

the third paragraph of Article 344 of the Revised Penal Code,

. . . the offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents,

grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be.

The provision does not determine, however, the jurisdiction of our courts over the offensestherein enumerated. It could not affect said jurisdiction, because the same is governed by the

Judiciary Act of 1948, not by the Revised Penal Code, which deals primarily with the definitionof crimes and the factors pertinent to the punishment of the culprits. The complaint required in

said Article 344 is merely a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. And such condition has been imposed "out of

consideration for the offended woman and her family who might prefer to suffer the outrage insilence rather than go through with the scandal of a public trial."

20 

In the case at bar, the offended woman and her mother have negated such preference by filing

the complaint adverted to above and going through the trials and tribulations concomitant withthe proceedings in this case, before several courts, for the last ten (10) years. Petitioner says that

the complaint was for forcible abduction, not abduction with consent; but, as already adverted to,the latter is included in the former. Referring particularly to the spirit of said provision of Article

344 of the Revised Penal Code, we believe that the assent of Ester Ulsano and her mother toundergo the scandal of a public trial for forcible abduction necessarily connotes, also, their

willingness to face the scandal attendant to a public trial for abduction with consent.

The gist of petitioner's pretense is that there are some elements of the latter which are not

included in the former, and, not alleged, according to him, in the complaint filed herein,21

 namely: 1) that the offended party is a virgin; and 2) that she is over 12 and under 18 years of

age. The second element is clearly set forth in said complaint, which states that Ester Ulsano is"a minor ... 17 years of age ...", and, hence, over 12 and below 18 years of age.

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As regards the first element, it is settled that the virginity mentioned in Article 343 of theRevised Penal Code,

22 as an essential ingredient of the crime of abduction with consent, should

not be understood in its material sense and does not exclude the idea of abduction of a virtuouswoman of good reputation,

23 because the essence of the offense "is not the wrong done to the

woman, but the outrage to the family and the alarm produced in it by the disappearance of one of

its members."

24

 

The complaint in the case at bar 25 alleges, not only that Ester Ulsano is a minor 17 years of age,

 but also that petitioner "willfully, unlawfully and feloniously" took her "by force and violence ...against her will and taking advantage of the absence of her mother" from their dwelling and

carried "her to a secluded spot to gain carnal intercourse with the offended party against her will,using force, intimidation and violence, with lewd designs." This allegation implies that Ester is a

minor living under  patria protestas, and, hence, single, thus leading to the presumption that sheis a virgin,

26 apart from being virtuous and having a good reputation,

27 for, as Chief Justice

Moran has aptly put it, the presumption of innocence includes, also, that of morality anddecency, and, as a consequence, of chastity.

28 

Wherefore, the decision appealed from is hereby affirmed, with costs against the petitioner

Maximino Valdepeñas. It is so ordered.

G.R. No. 196842 October 9, 2013 

ALFREDO ROMULO A. BUSUEGO, Petitioner,

vs.OFFICE OF THE OMBUDSMAN MINDANAO and ROSA S. BUSUEGO, Respondents.

D E C I S I O N

PEREZ, J.:  

Before us is a petition for certiorari seeking to annul and set aside the Resolution of theOmbudsman dated 17 April 2009

1 and Order dated October 2010,

2 which directed the tiling of an

Information for Concubinage under Article 334 of the Revised Penal Code against petitionerAlfredo Romulo A. Busuego (Alfredo).

We chronicle the facts thus.

Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1) Concubinage under Article

334 of the Revised Penal Code; (2) violation of Republic Act No. 9262 (Anti-Violence AgainstWomen and Their Children); and (3) Grave Threats under Article 282 of the Revised PenalCode, before the Office of the Ombudsman against her husband, Alfredo, with designation Chief

of Hospital, Davao Regional Hospital, Apokon, Tagum City.

In her complaint, Rosa painted a picture of a marriage in disarray.

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She and Alfredo were married on 12 July 1975 at the Assumption Church, Davao City. Theirunion was blessed with two (2) sons, Alfred and Robert, born in 1976 and 1978, respectively.

Sometime in 1983, their marriage turned sour. At this time, Rosa unearthed photographs of, andlove letters addressed to Alfredo from, other women. Rosa confronted Alfredo who claimed

ignorance of the existence of these letters and innocence of any wrongdoing.

Purportedly, Alfredo very rarely stayed at home to spend time with his family. He would comehome late at night on weekdays and head early to work the next day; his weekends were spent

with his friends, instead of with his family. Rosa considered herself lucky if their family was ableto spend a solid hour with Alfredo.

Around this time, an opportunity to work as nurse in New York City, United States of America

(US) opened up for Rosa. Rosa informed Alfredo, who vehemently opposed Rosa’s plan to workabroad. Nonetheless, Rosa completed the necessary requirements to work in the US and was

scheduled to depart the Philippines in March 1985.

Before leaving, Rosa took up the matter again with Alfredo, who remained opposed to herworking abroad. Furious with Rosa’s pressing, Alfredo took his loaded gun and pointed it atRosa’s right temple, threatening and taunting Rosa to attempt to leave him and their family.

Alfredo was only staved off because Rosa’s mother arrived at the couple’s house. Alfredo leftthe house in a rage: Rosa and her mother heard gun shots fired outside.

Because of that incident, Rosa acted up to her plan and left for the US. While in the US, Rosa

 became homesick and was subsequently joined by her children who were brought to the US byAlfredo. Rosa singularly reared them: Alfred, from grade school to university, while Robert,

upon finishing high school, went back to Davao City to study medicine and lived with Alfredo.

During that time his entire family was in the US, Alfredo never sent financial support. In fact, itwas Rosa who would remit money to Alfredo from time to time, believing that Alfredo had

stopped womanizing. Rosa continued to spend her annual vacation in Davao City.

Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their conjugal home.

When Rosa asked Alfredo, the latter explained that Sia was a nurse working at the RegionalHospital in Tagum who was in a sorry plight as she was allegedly being raped by Rosa’s brother -

in-law. To get her out of the situation, Alfredo allowed Sia to live in their house and sleep in themaids’ quarters. At that time, Rosa gave Alfredo the benefit of the doubt. 

In October 2005, Rosa finally learned of Alfredo’s extra-marital relationships. Robert, who was

already living in Davao City, called Rosa to complain of Alfredo’s illicit affairs and shabbytreatment of him. Rosa then rang up Alfredo which, not surprisingly, resulted in an altercation.

Robert executed an affidavit, corroborating his mother’s story and confirming his father’s illicitaffairs:

1. In varying dates from July 1997 to January 1998, Robert found it strange that Sia sleptwith his father in the conjugal bedroom.

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2. He did not inform his mother of that odd arrangement as he did not want to bringtrouble to their family.

3. Eventually, Sia herself confirmed to Robert that she was Alfredo’s mistress. 

4. During this period of concubinage, Sia was hospitalized and upon her discharge, sheand Alfredo resumed their cohabitation.

5. The relationship between Alfredo and Sia ended only when the latter found another

 boyfriend. 6. His father next took up an affair with Julie de Leon (de Leon) whom Robertmet when de Leon fetched Alfredo on one occasion when their vehicle broke down in the

middle of the road.

7. Robert read various Short Message Service (SMS) exchanges between Julie andAlfredo on Alfredo’s mobile phone.  

8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosa’s and Alfredo’sconjugal dwelling and stayed in the conjugal room the entire nights thereof.

The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise executed a joint

affidavit in support of Rosa’s allegations: 

1. They had seen Sia sleep and stay overnight with Alfredo in the conjugal bedroom.

2. Sia herself, who called Alfredo "Papa," confirmed the two’s sexual relationship. 

3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the conjugal dwelling and

slept overnight with Alfredo in the conjugal room.

As a result, Rosa and their other son Alfred forthwith flew to Davao City without informingAlfredo of their impending return. Upon Rosa’s return, she gathered and consolidated

information on her husband’s sexual affairs. 

Pursuant to her charges of violation of Republic Act No. 9262 and Grave Threats, Rosa averredthat during the course of their marriage, apart from the marital infidelity, Alfredo physically and

verbally abused her and her family. On one occasion after Rosa confirmed the affairs, Alfredothreatened their family, including other members of their household that he will gun them down

should he chance upon them in Tagum City. Lastly, on 22 March 2006, Alfredo purportedly

dismissed house helper Liza Diambangan and threatened her.

As expected, Alfredo, in his counter-affidavit, denied all accusations against him and allegedthat:

1. Rosa, despite his pleas for them to remain and raise their family in the Philippines,

chose to live in the US, separate from him.

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2. Rosa’s allegations that he had kept photographs of, and love letters from, other women,were only made to create a cause of action for the suit for Legal Separation which Rosa

filed sometime in 1998.

3. It was highly improbable that he committed acts of concubinage with Sia and de Leon

since from the time he became Chief of Hospital of the Davao Regional Hospital inTagum City, he practically stayed all days of the work week in the hospital. The instanceshe went home were few and far between, only to check on the house and provide for

household expenses.

4. When Robert returned to Davao City and lived with him, it became more impossiblefor him to have shacked up with Sia and de Leon in the conjugal dwelling.

5. With respect to his alleged relationship with Sia, without admitting to anything, thatSia, for a time, may have lived in his and Rosa’s conjugal house, staying at the maids’

quarters. However, at no instance did he keep Sia as his mistress in the conjugal dwelling.

6. As regards the dates of December 23, 24, 30 and 31, 2004 when he supposedly stayedwith de Leon in the conjugal room, Alfredo pointed out that said dates were busiest days

of the year in the hospital where his presence as Chief of Hospital is most required.

7. By Rosa’s own admission, she first learned of Alfredo’s alleged concubinage in 1997,and yet she still continued with her yearly visits to Alfredo in Davao City. Those

instances ought to be construed as condonation of the concubinage.

8. Significantly, the alleged concubines, Sia and de Leon, were not impleaded along with

Alfredo as party-respondents in the complaint in violation of Article 344 of the Revised

Penal Code.

Alfredo made short shrift of Rosa’s charges of violation of Republic Act No. 9262 and Grave

Threats. He claimed that, at no time, did he threaten, the lives or, to harm his wife, their familyand members of their household. He only berated the help for perpetrating gossip about his

 behavior and conduct.

In their subsequent exchange of responsive pleadings, Rosa maintained Alfredo’s culpability,and naturally, Alfredo claimed innocence.

In the course thereof, the procedural issue of Rosa’s failure to implead Sia and de Leon as

respondents cropped up. Alfredo insisted that Rosa’s complaint ought to be dismissed for failureto implead his alleged concubines as respondents.

Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory hearing where both Rosa and Alfredo were represented by their respective counsels:

x x x Rosa was apprised of the need to implead the two alleged mistresses in the complaint for

Concubinage pursuant to Article 344 of the Revised Penal Code. Although Alfredo objected to

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the amendment of the complaint, at this point in time, due to the alleged procedural lapsecommitted by Rosa, this Office explained to the parties that the position of Alfredo would just

 prolong the conduct of the preliminary investigation since Rosa can just re-file her complaint.The doctrine of res judicata does not apply in the preliminary investigation stage. Hence, the

counsel for Rosa was directed to submit to this Office the addresses of the alleged mistresses so

that they could be served with the Order directing them to file their counter-affidavits.

Rosa submitted an Ex-Parte Manifestation on the last known addresses of Julie de Leon and Emy

Sia. x x x.3 

On 24 June 2008, the Ombudsman issued a Joint Order 4 impleading Sia and de Leon as party-

respondents in the complaint for Concubinage and directing them to submit their respective

counter-affidavits within a period of time. Copies of the Joint Order were mailed to Sia’s and deLeon’s last known addresses, as provided by Rosa to the Ombudsman. 

Sia and de Leon did not submit their respective counter-affidavits: a copy of the Joint Order sent

to Sia’s last known address was returned to the Ombudsman with the notation on the RegistryReturn Receipt No. 1624 "Return to Sender; removed," while a copy thereof to de Leon wasreceived on 3 September 2008 by Ananias de Leon.

Apparently still opposed to the Ombudsman’s ruling to simply amend the complaint and implead

therein Alfr edo’s alleged mistresses, Alfredo filed his Comment to the 24 June 2008 Order withMotion to Dismiss and/or Refer the charges to the Appropriate Provincial/City Prosecutor 

 praying for dismissal of the complaint for: (1) failure to implead the two mistresses in violationof Article 344 of the Revised Penal Code; and in the alternative, (2) referral of the complaint to

the Office of the City Prosecutor as provided in OMB-DOJ Circular No. 95-001.

Rosa filed a Reply to that latest pleading of Alfredo.

On 17 April 2009, the Ombudsman issued the herein assailed Resolution, disposing of the

 procedural issues:

Before dwelling into the merits of the case, this Office finds an urgent need to resolve theancillary issues raised by petitioner Dr. Busuego on: 1.) the alleged legal infirmity of Rosas’s

initiatory pleading by resorting to a procedural short cut which would result to the delay in thedisposition of this case; and 2.) the criminal charges imputed are not in relation to office, hence,

the Office of the Provincial/City Prosecutor shall investigate and prosecute this case pursuant toOMB-DOJ Joint Circular No. 95-001, Series of 1995.

On the first issue, this Office observed that Busuego had already pointed out in his counter-

Affidavit the alleged deficiency in the complaint. Rosa also explained in her Reply that thenames of the mistresses were categorically mentioned in the complaint. She averred that this

Office is empowered to investigate and prosecute any act or omission of a public official oremployee to the exclusion of non-government employees. She stated that the inclusion of thealleged concubines in the Information to be filed in court is a matter of procedure, within the

competence of the investigating prosecutor.

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In order to clarify some matters, including the said issue, with the parties, the clarificatoryhearing was conducted. It was explained in the said hearing the need to implead the alleged

concubines in this case pursuant to Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa was directed to submit the addresses of the alleged concubines. Busuego’s

 position that the said short cut procedure would delay the proceedings is misplaced. If the case

will be dismissed based on procedural infirmity, Rosa could still amend her complaint and re-filethis case since the doctrine of res judicata does not apply in the preliminary investigation stage ofthe proceedings.

On the second issue, the motion of Busuego to refer this case to the Office of the City Prosecutor

was belatedly filed. Record would show that the motion praying for the referral of this case to theOffice of the City Prosecutor was filed on 17 July 2008, after the parties have already filed all

their pleadings and the case is now ripe for resolution. Further, referral to the said office is notmandatory as cited in the said Joint Circular .

In the same Resolution, the Ombudsman, ultimately, found probable cause to indict only Alfredo

and Sia of Concubinage and directed the filing of an Information against them in the appropriatecourt:

WHEREFORE, in view of the foregoing, this Office finds a prima facie case for violation ofArticle 334 of the Revised Penal Code (concubinage) and that petitioner ALFREDO ROMULO

BUSUEGO y ABRIO, and EMY SIA, are probably guilty thereof.

Let the herewith Information be filed in the appropriate court.

The charges for: 1.) Concubinage against Alfredo Romulo Busuego y Abrio and Julie de Leon;2.) Grave Threats against Alfredo Romulo y Abrio; and 3.) violation of RA 9262 (Anti-Violence

Against Women and Children Act), are hereby DISMISSED for lack of merit.

8

 

Alfredo filed a Partial Motion for Reconsideration excepting to the Ombudsman’s ruling on the

automatic inclusion of Sia as respondent in the complaint and their indictment for the crime ofConcubinage. Alfredo is adamant that Rosa’s complaint should have, at the outset, impleaded his

alleged concubines. Failing such, the Ombudsman cannot resort to automatic inclusion of party-respondents, erroneously finding him and Sia prima facie culpable for Concubinage. For good

measure, Alfredo pointed out that from Rosa’s own allegations, she had condoned or pardonedAlfredo’s supposed concubinage. Alfredo likewise submitted Liza S. Diambangan’s affidavit,

recanting her previous affidavit corroborating Rosa’s charges. 

 Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial Motion forReconsideration was filed out of time, and gave scant attention to Liza S. Diambangan’s affidavit

of recantation:

WHEREFORE, all the foregoing considered, this instant Motion for Reconsideration is herebyDENIED. The findings in the questioned Resolution hereby remains undisturbed. Let theInformation for Concubinage be filed in the proper court against herein Busuego.

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Alfredo now comes to us on petition for certiorari alleging grave abuse of discretion in theOmbudsman’s finding of probable cause to indict him and Sia for Concubinage. Alfredo’s

 badges of grave abuse of discretion are the following:

1. The Ombudsman railroaded the inclusion of Sia and de Leon as party-respondents in

the complaint;

2. The Ombudsman did not refer the complaint to the Department of Justice, considering

that the offense of Concubinage is not committed in relation to his office as Chief ofHospital;

3. The Ombudsman glossed over Rosa’s condonation of Alfredo’s supposedConcubinage when she alleged in the complaint that she had known of Alfredo’s

womanizing and believed him to have changed his ways;

4. The Ombudsman did not take into consideration the affidavit of recantation of Liza

Diambangan; and

5. The Ombudsman found probable cause to indict Alfredo and Sia for Concubinage.

We sustain the Ombudsman.

The Ombudsman has full discretionary authority in the determination of probable cause during a preliminary investigation.

10 This is the reason why judicial review of the resolution of the

Ombudsman in the exercise of its power and duty to investigate and prosecute felonies and/oroffenses of public officers is limited to a determination of whether there has been a grave abuse

of discretion amounting to lack or excess of jurisdiction. Courts are not empowered to substitute

their judgment for that of the Ombudsman.

11

 

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment

tantamount to lack of jurisdiction.12

 The abuse of discretion must be so patent and gross as toamount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or

to act at all in contemplation of law, as where the power is exercised in an arbitrary and despoticmanner by reason of passion or hostility.

13 In this regard, petitioner failed to demonstrate the

Ombudsman's abuse, much less grave abuse, of discretion.

First. Alfredo insists that the Ombudsman’s automatic inclusion, over his vehement objections of

Sia and de Leon as party-respondents, violates Article 344 of the Revised Penal Code and

Section 5, Rule 110 of the Rules of Court, which respectively provide:

Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts

of lasciviousness. —  The crimes of adultery and concubinage shall not be prosecuted exceptupon a complaint filed by the offended spouse.

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The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the

offenders.

Section 5. Who must prosecute criminal action. –  xxx.

The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed bythe offended spouse. The offended party cannot institute criminal prosecution without including

the guilty parties, if both are alive, nor, in any case, if the offended party has consented to theoffense or pardoned the offenders.

We do not agree.

The submission of Alfredo is belied by the fact that the Ombudsman merely followed the provisions of its Rules of Procedure. Thus:

Rule IIPROCEDURE IN CRIMINAL CASES

x x x x

Section 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.

x x x x

Section 4. Procedure –  The preliminary investigation of cases falling under the jurisdiction of theSandiganbayan 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) x x x

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 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-affidavitsand 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 respondents 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 the clarificatory questioning in themanner provided in paragraph (f) of this section.

e) If the respondents cannot be served with the order mentioned in paragraph 6 hereof, orhaving been served, does not comply therewith, the complaint shall be deemed submitted

for resolution on the basis of the evidence on the 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, hemay 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, theclarificatory 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 underoath.

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 authoritiesfor 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 Sandiganbyan, or of the proper Deputy Ombudsman in all other cases. (Emphasis supplied).

 Notably, Rosa’s complaint contained not just the Concubinage charge, but other charges:violation of Republic Act No. 9262 and Grave Threats. Upon the Ombudsman’s perusal, the

complaint was supported by affidavits corroborating Rosa’s accusations. Thus, at that stage, theOmbudsman properly referred the complaint to Alfredo for comment. Nonetheless, while the

Ombudsman found no reason for outright dismissal, it deemed it fit to hold a clarificatory

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hearing to discuss the applicability of Article 344 of the Revised Penal Code, the issue having been insisted upon by Alfredo.

Surely the procedural sequence of referral of the complaint to respondent for comment and

thereafter the holding of a clarificatory hearing is provided for in paragraph b, Section 2 and

 paragraphs d and f, Section 4 of Rule II, which we have at the outset underscored. Thus did theOmbudsman rule:

In order to clarify some matters, including the said issue, with the parties, the clarificatoryhearing was conducted. It was explained in the said hearing the need to implead the alleged

concubines in this case pursuant to Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa was directed to submit the addresses of the alleged concubines. Busuego’s

 position that the said short cut procedure would delay the proceedings is misplaced. If the casewill be dismissed based on procedural infirmity, Rosa could still amend her complaint and re-file

this case since the doctrine of res judicata does not apply in the preliminary investigation stage ofthe proceedings.

14 

The Ombudsman merely facilitated the amendment of the complaint to cure the defect pointedout by Alfredo. We agree with the Ombudsman that it would be superfluous to dismiss the

complaint when amendment thereof is allowed by its Rules of Procedur e15

 and the Rules ofCourt.16 

Second. Alfredo claims that the Ombudsman should have referred Rosa’s complaint to the

Department of Justice (DOJ), since the crime of Concubinage is not committed in relation to his being a public officer. This is not a new argument.

The Ombudsman’s primary jurisdiction, albeit concurrent with the DOJ, to conduct preliminary

investigation of crimes involving public officers, without regard to its commission in relation tooffice, had long been settled in Sen. Honasan II v. The Panel of Investigating Prosecutors of

DOJ,17 and affirmed in subsequent cases:

The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the

Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction toinvestigate offenses committed by public officers or employees. The authority of the

Ombudsman to investigate offenses involving public officers or employees is concurrent withother government investigating agencies such as provincial, city and state prosecutors. However,

the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by theSandiganbayan, may take over, at any stage, from any investigating agency of the government,

the investigation of such cases.

In other words, respondent DOJ Panel is not precluded from conducting any investigation ofcases against public officers involving violations of penal laws but if the cases fall under the

exclusive jurisdiction of the Sandiganbayan, the respondent Ombudsman may, in the exercise ofits primary jurisdiction take over at any stage.

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Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction to conduct preliminary investigation, the respective heads of said offices came up

with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their respective prosecutors in the conduct of their investigations, to wit:

OMB-DOJ JOINT CIRCULAR NO. 95-001Series of 1995

ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS OF THE OFFICE OFTHE OMBUDSMAN

TO: ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS,PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS

ANDPROSECUTING ATTORNEYS OF THE DEPARTMENT OFJUSTICE.

SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLICOFFICERS AND

EMPLOYEES, THE CONDUCT OFPRELIMINARY INVESTIGATION, PREPARATIONOFRESOLUTIONS AND INFORMATIONS AND PROSECUTION OF CASES BYPROVINCIAL AND CITY PROSECUTORS AND THEIR ASSISTANTS.

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

In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OFJUSTICE, discussion centered around the latest pronouncement of the SUPREME COURT on

the extent to which the OMBUDSMAN may call upon the government prosecutors for assistancein the investigation and prosecution of criminal cases cognizable by his office and the conditions

under which he may do so. Also discussed was Republic Act No. 7975 otherwise known as "AN

ACT TO STRENGTHEN THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OFTHE SANDIGANBAYAN, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED" and its implications on the jurisdiction of the office of the

Ombudsman on criminal offenses committed by public officers and employees.

Concerns were expressed on unnecessary delays that could be caused by discussions on jurisdiction between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF

JUSTICE, and by procedural conflicts in the filing of complaints against public officers andemployees, the conduct of preliminary investigations, the preparation of resolutions and

informations, and the prosecution of cases by provincial and city prosecutors and their assistantsas DEPUTIZED PROSECUTORS OF THE OMBUDSMAN.

Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF

JUSTICE, in a series of consultations, have agreed on the following guidelines to be observed inthe investigation and prosecution of cases against public officers and employees:

1. Preliminary investigation and prosecution of offenses committed by public officers andemployees IN RELATION TO OFFICE whether cognizable by the SANDIGANBAYAN

or the REGULAR COURTS, and whether filed with the OFFICE OF THE

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OMBUDSMAN or with the OFFICE OF THE PROVINCIAL/CITY PROSECUTORshall be under the control and supervision of the office of the OMBUDSMAN.

2. Unless the Ombudsman under its Constitutional mandate finds reason to believe

otherwise, offenses NOT IN RELATION TO OFFICE and cognizable by the REGULAR

COURTS shall be investigated and prosecuted by the OFFICE OF THEPROVINCIAL/CITY PROSECUTOR, which shall rule thereon with finality.

3. Preparation of criminal information shall be the responsibility of the investigatingofficer who conducted the preliminary investigation. Resolutions recommending

 prosecution together with the duly accomplished criminal informations shall beforwarded to the appropriate approving authority.

4. Considering that the OFFICE OF THE OMBUDSMAN has jurisdiction over publicofficers and employees and for effective monitoring of all investigations and prosecutions

of cases involving public officers and employees, the OFFICE OF THE

PROVINCIAL/CITY PROSECUTOR shall submit to the OFFICE OF THEOMBUDSMAN a monthly list of complaints filed with their respective offices against public officers and employees.

x x x x

A close examination of the circular supports the view of the respondent Ombudsman that it is

 just an internal agreement between the Ombudsman and the DOJ.

Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary

Investigation, effective December 1, 2000, to wit:

SEC. 2. Officers authorized to conduct preliminary investigations –  

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions.

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. Heshall certify under oath in the information that he, or as shown by the record, an authorized

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officer, has personally examined the complainant and his witnesses; that there is reasonableground 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 againsthim; 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 provincialor 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 shallact 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 withoutthe 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 hisrecommendation is disapproved by the provincial or city prosecutor or chief state prosecutor orthe 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 another 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 ormove 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 theOmbudsman.

confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal

complaints filed with them for offenses cognizable by the proper court within their respectiveterritorial jurisdictions, including those offenses which come within the original jurisdiction of

the Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after their investigation, transmit the

records and their resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot dismiss the complaint without the prior written authority of the Ombudsman

or his deputy, nor can the prosecutor file an Information with the Sandiganbayan without beingdeputized by, and without prior written authority of the Ombudsman or his deputy.

x x x x

To reiterate for emphasis, the power to investigate or conduct preliminary investigation oncharges against any public officers or employees may be exercised by an investigator or by any

 provincial or city prosecutor or their assistants, either in their regular capacities or as deputizedOmbudsman prosecutors. The fact that all prosecutors are in effect deputized Ombudsman

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 prosecutors under the OMB-DOJ circular is a mere superfluity. The DOJ Panel need not beauthorized nor deputized by the Ombudsman to conduct the preliminary investigation for

complaints filed with it because the DOJ’s authority to act as the principal law agency of thegovernment and investigate the commission of crimes under the Revised Penal Code is derived

from the Revised Administrative Code which had been held in the Natividad case citation

omitted as not being contrary to the Constitution. Thus, there is not even a need to delegate theconduct of the preliminary investigation to an agency which has the jurisdiction to do so in thefirst place. However, the Ombudsman may assert its primary jurisdiction at any stage of the

investigation. (Emphasis supplied).

In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer who wascharged with coup d’etat for the occupation of Oakwood on 27 July 2003, the preliminary

investigation therefor was conducted by the DOJ. Honasan questioned the jurisdiction of theDOJ to do so, proferring that it was the Ombudsman which had jurisdiction since the imputed

acts were committed in relation to his public office. We clarified that the DOJ and theOmbudsman have concurrent jurisdiction to investigate offenses involving public officers or

employees. Nonetheless, we pointed out that the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any

investigating agency of the government, the investigation of such cases. Plainly, applying thatruling in this case, the Ombudsman has primary jurisdiction, albeit concurrent with the DOJ,

over Rosa’s complaint, and after choosing to exercise such jurisdiction, need not defer to thedictates of a respondent in a complaint, such as Alfredo. In other words, the Ombudsman may

exercise jurisdiction to the exclusion of the DOJ.

Third. Alfredo next argues that Rosa had pardoned his concubinage, having admitted to knowingof his womanizing and yet continuing with their relationship as demonstrated in Rosa’s annual

visits to him in Davao City.

We are not convinced.

Old jurisprudence has held that the cynosure in the question of whether the wife condoned the

concubinage lies in the wife’s "line of conduct under the assumption that she really believed [herhusband] guilty of concubinage:"

Condonation is the forgiveness of a marital offense constituting a ground for legal separation or,

as stated in I Bouver's Law Dictionary, p. 585, condonation is the ‘conditional forgiveness orremission, by a husband or wife of a matrimonial offense which the latter has committed.’ 

x x x x

A detailed examination of the testimony of the plaintiff-husband, especially those portionsquoted above, clearly shows that there was a condonation on the part of the husband for the

supposed ‘acts of rank infidelity amounting to adultery’ committed by defendant-wife. Admittingfor the sake of argument that the infidelities amounting to adultery were committed by the

defendant, a reconciliation was effected between her and the plaintiff. The act of the latter in persuading her to come along with him, and the fact that she went with him and consented to be

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 brought to the house of his cousin Pedro Bugayong and together they slept there as husband andwife for one day and one night, and the further fact that in the second night they again slept

together in their house likewise as husband and wife —  all these facts have no other meaning inthe opinion of this court than that a reconciliation between them was effected and that there was

a condonation of the wife by the husband. The reconciliation occurred almost ten months after he

came to know of the acts of infidelity amounting to adultery.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that ‘condonation is

implied from sexual intercourse after knowledge of the other infidelity. Such acts necessarilyimplied forgiveness. It is entirely consonant with reason and justice that if the wife freely

consents to sexual intercourse after she has full knowledge of the husband's guilt, her consentshould operate as a pardon of his wrong.’ 

In Tiffany’s Domestic and Family Relations, section 107 says: 

‘Condonation. Is the forgiveness of a marital offense constituting a ground f or divorce and bars

the right to a divorce. But it is on the condition, implied by the law when not express, that thewrongdoer shall not again commit the offense; and also that he shall thereafter treat the otherspouse with conjugal kindness. A breach of the condition will revive the original offense as a

ground for divorce. Condonation may be express or implied.’ 

It has been held in a long line of decisions of the various supreme courts of the different states ofthe U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery

of the offense is ordinarily sufficient to constitute condonation, especially as against thehusband'. (27 Corpus Juris Secundum, section 61 and cases cited therein).

In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above

quoted, and of the various decisions above-cited, the inevitable conclusion is that the presentaction is untenable.

Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct of the plaintiff-husband above narrated despite his belief that his wife was

unfaithful, deprives him, as alleged the offended spouse, of any action for legal separationagainst the offending wife, because his said conduct comes within the restriction of Article 100

of the Civil Code.

The only general rule in American jurisprudence is that any cohabitation with the guilty party,after the commission of the offense, and with the knowledge or belief on the part of the injured

 party of its commission, will amount to conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73).18 

Although the foregoing speaks of condonation of concubinage as a ground for legal separation,

the holding therein applies with equal force in a prosecution for concubinage as a felony. Indeed,Rosa’s admission was that she believed her husband had stopped womanizing, not that she hadknowledge of Alfredo’s specific acts of concubinage with Sia and de Leon, specifically keeping

them in the conjugal dwelling. This admission set against the specific acts of concubinage listed

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in Article 33419 of the Revised Penal Code does not amount to condonation. Their continuedcohabitation as husband and wife construed from Rosa’s annual visits to Davao City is not

acquiescence to Alfredo’s relations with his concubines. On that score, we have succinctly held: 

We can find nothing in the record which can be construed as pardon or condonation. It is true

that the offended party has to a considerable extent been patient with her husband'sshortcomings, but that seems to have been due to his promises of improvement; nowhere does itappear that she has consented to her husband's immorality or that she has acquiesced in his

relations with his concubine.20

 

Fourth. Alfredo next grasps at Liza S. Diambangan’s affidavit of recantation to eliminate his probable culpability for concubinage.

Again, we are not swayed by Alfredo’s asseverations. 

We have generally looked with disfavor upon retraction of testimonies previously given in court.

Affidavits of recantation are unreliable and deserve scant consideration. The asserted motives forthe repudiation are commonly held suspect, and the veracity of the statements made in theaffidavit of repudiation are frequently and deservedly subject to serious doubt.

21 

In Firaza v. People, we intoned:

Merely because a witness says that what he had declared is false and that what he now says istrue, is not sufficient ground for concluding that the previous testimony is false. No such

reasoning has ever crystallized into a rule of credibility. The rule is that a witness may beimpeached by a previous contradictory statement x x x not that a previous statement is presumed

to be false merely because a witness now says that the same is not true. The jurisprudence of this

Court has always been otherwise, i.e., that contradictory testimony given subsequently does notnecessarily discredit the previous testimony if the contradictions are satisfactorily explained.[Citations omitted].

Indeed, it is a dangerous rule to set aside a testimony which has been solemnly taken before a

court of justice in an open and free trial and under conditions precisely sought to discourage andforestall falsehood simply because one of the witnesses who had given the testimony later on

changed his mind. Such a rule will make solemn trials a mockery and place the investigation ofthe truth at the mercy of unscrupulous witnesses. Unless there be special circumstances which,

coupled with the retraction of the witness, really raise doubt as to the truth of the testimony given by him at the trial and accepted by the trial judge, and only if such testimony is essential to the

 judgment of conviction, or its elimination would lead the trial judge to a different conclusion, anacquittal of the accused based on such a retraction would not be justified.22 

In this case, Liza S. Diambangan’s testimony merely corroborates the still standing story of

Robert and Melissa Diambangan, the other helper in the Busuego household. Clearly, the two’sconsistent story may still be the basis of the Ombudsman’s finding of a prima facie case ofconcubinage against Alfredo and Sia.

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Finally. Despite his vigorous arguments, Alfredo claims that there is simply no basis forindicting him and Sia for concubinage.

Article 334 of the Revised Penal Code lists three (3) specific acts of concubinage by a husband:

(1) keeping a mistress in the conjugal dwelling; (2) sexual intercourse, under scandalouscircumstances, with a woman who is not his wife; and (3) cohabiting with a woman who is nothis wife in any other place.

The Ombudsman found a prima facie case against Alfredo and Sia based on the testimony ofRobert, Melissa S. Diambangan and Liza S. Diambangan that Alfredo had kept Sia in the

conjugal dwelling where Sia even stayed at the conjugal room. We completely agree with theOmbudsman’s disquisition: 

x x x. It is ingrained in human behavior that a child has love, respect and loyalty to his family

and would strive to keep the family harmonious and united. This is the very reason why Robert

did not inform his mother about his father’s infidelities during the time when his father waskeeping his mistress at the conjugal dwelling. A son would never turn against his father byfabricating such a serious story which will cause his home to crumble, if such is not true. His

natural instinct is to protect his home, which he did when he kept silent for a long time. What broke the camel’s back was the abusive treatment he allegedly suffered and the thought that

things would change for the better if his mom would intervene.

The story of Robert in his Affidavit was reinforced by the two house helpers Melissa S.Diambangan and Liza S. Diambangan, who were employed by the family. Melissa was with the

Busuego family in their conjugal home in 1997. She left the family in 2005 but returned in2006.1âwphi1 Liza started working with the family in 2002. Melissa revealed that it was Emy

Sia who recruited her to work with the Busuego family. They both attested to the fact thatAlfredo and Emy Sia slept together in the bedroom of Alfredo but Emy Sia would sleep in the

maid’s quarter when Rosa and Alfred came home for a visit in 1997. They recalled that Emy Siacalls Alfredo "papa". They narrated that Emy Sia would even confide to them some private

matters relating to her sexual proclivities with Alfredo.23

 

We further note that the presence of Sia at the Busuego household and her interim residence

thereat was not disputed nor explained. Alfredo just cavalierly declares that Sia may have stayedin the conjugal dwelling, but never as his mistress, and Sia supposedly slept in the maids’

quarters.

While such a claim is not necessarily preposterous we hold that such is a matter of defense whichAlfredo should raise in court given that Rosa s complaint and its accompanying affidavits have

created a prima facie case for Concubinage against Alfredo and Sia.

WHEREFORE the petition is DISMISSED The Resolutions of the Ombudsman dated 17 April2009 and 11 October 2010 are AFFIRMED.

SO ORDERED.

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 [G.R. No. 146731. January 13, 2004]

AGUSTINA M. ENEMECIO, petitioner , vs. OFFICE OF THE OMBUDSMAN (VISAYAS)and SERVANDO BERNANTE, respondents.

D E C I S I O N

CARPIO, J .:

The Case

Before us is a petition for review on certiorari1[1] assailing the Resolution2[2] dated 31 May 2000of the Court of Appeals in CA-G.R. SP No. 58875. The Court of Appeals dismissed for being an

inappropriate remedy the petition for certiorari filed by petitioner Agustina M. Enemecio againstrespondents Office of the Ombudsman and Servando Bernante. The present petition also assails

the Court of Appeals’ Resolution dated 7 December 2000 denying petitioner’s motion for

reconsideration.

The Antecedents

Petitioner Agustina M. Enemecio (“Enemecio”) is a utility worker at the Cebu State College ofScience and Technology, College of Fisheries Technology (“CSCST-CFT”), Carmen, Cebu.

Private respondent Servando Bernante (“Bernante”) is an Assistant Professor IV of CSCST-CFT.

On 30 March 1998, Enemecio filed an administrative complaint for gross misconduct,falsification of public documents, malversation, dishonesty and defamation against Bernante

 before the Office of the Executive Dean of CSCST-CFT.3[3] Dr. Severino R. Romano, CSCST-

CFT Executive Dean, indorsed the complaint to the Office of the Ombudsman for the Visayas(“Ombudsman”). 

Enemecio also filed with the Ombudsman a criminal complaint against Bernante for falsification

of public document.4[4] The Ombudsman ordered Enemecio to submit her affidavit and theaffidavits of her witnesses. After Enemecio submitted the required affidavits, the Ombudsman

ordered Bernante to submit his counter-affidavit. The administrative complaint was docketed as

OMB-VIS-ADM-98-0201, while the criminal complaint was docketed as OMB-VIS-CRIM-98-

0286. The Ombudsman jointly tried the two cases.

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Enemecio alleged that Bernante had caused the spray-painting of obscene and unprintable wordsagainst her on the walls of the CSCST Carmen Campus. Enemecio claimed that Bernante also

shouted defamatory words against her while she was inside the school premises. Enemeciofurther asserted that Bernante made it appear in his leave application that he was on forced leave

from 15 May 1996 to 21 May 1996 and on vacation leave from 22 May 1996 to 31 May 1996.

In truth, Bernante was serving a 20-day prison term, from 14 May 1996 to 2 June 1996, becauseof his conviction of the crime of slight physical injuries in Criminal Case No. NR-1678-CR.Bernante was able to receive his salary during his incarceration since then CSCST-CFT

Superintendent Andres T. Melencion approved Bernante’s application for leave. Enemeciocontended that Bernante was not entitled to receive salary for that period because of his “falsified

leave applications.”5[5] 

For his part, Bernante did not deny that he was in prison from 15 May 1996 to 31 May 1996. Hemaintained that he received his salary for that period because of his duly approved leave

applications. Bernante also alleged that Enemecio filed the criminal and administrativecomplaints against him in retaliation for the case he filed against Enemecio’s friends, Dean

Severino Romano and Bernadette Mante. Bernante denied he was behind the spray-painting ofobscenities against Enemecio on the walls of the school campus.6[6] 

On 13 January 2000, the Ombudsman rendered a decision dismissing the administrative 

complaint against Bernante in OMB-VIS-ADM-98-0201. The Ombudsman explained:

On the issue of the alleged falsification of respondent’s application for leave by making it appear

that he was on vacation when in truth and in fact he was serving a sentence for a criminalconviction, we have determined that there is no regulation restricting the purpose or use of an

employee’s earned leave credits. Considering that the application for leave filed by therespondent was duly approved by the appropriate official concerned, it matters not how he

utilizes his leave for it is not a requirement that the specifics or reasons for going on leave bespelled out in such application.

On the issue of the spray painting of obscenities on the walls of the school, the evidence is

insufficient to prove that respondent was the person responsible for such as there were no eyewitnesses to such activity. The testimony of Bernadette Mante merely identifies the respondent

as allegedly having a drinking session with security guard Estanislao Lavaria at around 11:00 onthe night of March 29, 1998. Furthermore, witness Mante states that there are about ten (10) to

twelve (12) families living inside the dormitory facing the school walls where the grafittiappeared. Despite this number, not one single person appeared to have witnessed respondent

spray painting the questioned grafitti on the walls of the campus (TSN, April 19, 1999). While itmay be probable that the only person or persons who could have had the opportunity to spray

 paint the said grafitti on the night of March 29, 1998 or in the early morning hours of March 30,

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1998 were the respondent and security guard Lavaria, this is not sufficient justification todirectly blame them for such event.

Regarding the complainant’s allegation that on March 10 and 25, 1998, the respondent defamed

the former by uttering slanderous words, it appears that only the incident occurring on March 10,

1998 was corroborated by the testimony of witness Delfin Buot (TSN, April 7, 1998). WitnessBuot testified that he was about (3) meters from the respondent when the latter shouted the words‘buricat’ (whore) ‘putang ina’ and ‘maot’ (snob) to the complainant. However, the

circumstances of the utterance, particularly the time and the relation of the protagonists involved,leads us to conclude that the same is removed from the official functions of the respondent as a

 professor of the school. Stated otherwise, the act of the respondent was not in relation to hisofficial functions. In the case of Palma vs. Fortich, et al ., 147 SCRA 397, the Supreme Court

ruled that:

In administrative actions against municipal officers, the Supreme Court in Festijo v. Crisologo, etal. (17 SCRA 868, 869 [1966]), classified the grounds for suspension under two categories,

namely: (1) those related to the discharge of the functions of the officer concerned (neglect ofduty, oppression, corruption or other forms of maladministration of office and (2) those not so

connected with said functions. Under the second category, when the crime involving moralturpitude is not linked with the performance of official duties, convict ion by final judgment is

required as a condition precedent to administrative action.

Therefore, inasmuch as the oral defamation charge is now pending before the Municipal Circuit

Trial Court in Catmon, Cebu under Criminal Case No. 30006-CR, the matter of respondent’sadministrative culpability is still premature to be determined herein.7[7] 

On the same date, the Ombudsman dismissed the criminal complaint against Bernante in OMB-

VIS-CRIM-98-02868[8]

 finding no probable cause to indict Bernante for falsification of publicdocument. The Ombudsman explained thus:

It is well established by documentary evidence that the applications for leave filed by the

respondent for the period from May 15 to 31, 1996 were duly approved by the head of office,which in this case is Mr. Andres T. Melencion, Vocational School Superintendent. All these

leaves were with pay indicating that the respondent availed of his leave credits which areundeniably due to him by law. It matters not how the respondent utilizes the days where he is on

leave, be they enjoyed as a vacation or, in this case, incarceration for a crime. There appears to be no regulation or law against the utilization of leave credits for purposes other than recreation.

As such, there could be no falsification where nothing is being misrepresented in the officialleave forms which the respondent prepared and submitted.9[9] 

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The Ombudsman denied Enemecio’s motion to reconsider the dismissal of the criminal complaint in its Order of 28 February 2000. In denying the motion, the Ombudsman stated:

We find the complainant’s arguments untenable. There is no dispute that the leave forms are

 public documents. What is in dispute is whether or not the failure of the respondent to indicate

therein the reasons for his leave amounts to a crime of falsification. It is submitted that it doesnot, for the simple reason that the form itself does not require stating the reasons for going onleave. An employee simply indicates through check marks the nature of the leave he is availing

of, which in the case at bar, respondent chose to avail of his forced and vacation leave credits. Nevertheless, the omission does not affect the validity of its approval. What is indicated in the

leave forms is only the need to specify the whereabouts of the employee who goes on leave.However, it is not a requirement that specifics must be provided. In any case the omission to

state the location of a vacationing employee is not a condition sine-qua-non for its approval.

To sum it up, there is no falsification of leave forms where there is no requirement for theindication of reasons for going on leave. Regardless of such a requirement, the need to indicate

the whereabouts of a vacationing employee is not a necessity for its approval.10[10] 

Enemecio filed a special civil action for certiorari before the Court of Appeals, assailing the

resolutions which dismissed the criminal complaint and denied the motion for reconsideration inOMB-VIS-CRIM-98-0286. Applying the ruling in Fabian v. Desierto ,11[11] the appellate court

dismissed Enemecio’s petition for having been filed out of time. The appellate court also statedthat the proper remedy available to Enemecio was a petition for review under Rule 43 and not a

 petition for certiorari under Rule 65.

In her motion for reconsideration, Enemecio argued that the appellate court should not haverelied on Fabian . Enemecio contended that Fabian  declared void only Section 27 of Republic

Act No. 6770 (“RA 6770”) and Section 7, Rule III of Administrative Order No. 07 (“AO No.07”) insofar as they provide for appeals in administrative disciplinary cases from the

Ombudsman to the Supreme Court. Enemecio asserted that the other provisions of Section 27 ofRA 6770 and Section 7 of AO No. 07, including the “final and unappealable character” of

orders, resolutions or decisions exonerating a respondent from any criminal liability, still stand.Enemecio stated that she filed the petition for certiorari under Rule 65 with the Court of Appeals

 because she considered Bernante’s absolution from the administrative complaint in OMB-VIS-ADM-98-0201 as already final and unappealable. As there was no adequate remedy of appeal,

Enemecio claimed that her only recourse was a petition for certiorari before the appellate courtunder Rule 65.12[12] 

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The Court of Appeals denied Enemecio’s motion for reconsideration in its Order of 7 December2000.

Hence, this petition for review.

The Ruling of the Court of Appeals

In dismissing the petition, the Court of Appeals stated that in Fabian  , the Supreme Court heldthat appeals in administrative disciplinary cases from the Ombudsman to the Court of Appeals

must be brought by petition for review under Rule 43. The appellate court stated that a petitionfor review must be filed within 15 days from notice of the assailed final order or resolution.

Since Enemecio received on 22 March 2000 a copy of the Ombudsman’s Order denying hermotion for reconsideration, the appellate court ruled that Enemecio had only until 6 April 2000

to file a petition for review. Enemecio filed her petition only on 8 May 2000. The appellatecourt further stated that Enemecio’s allegation in the petition that there is no appeal or other

 plain, speedy or adequate remedy in the ordinary course of law is false. The proper remedy

available to Enemecio is a petition for review.13[13] 

In denying Enemecio’s motion for reconsideration, the Court of Appeals clarified that Fabian  

does not apply to Enemecio’s petition assailing the dismissal of the criminal complaint againstBernante. The appellate court stated that what Fabian  declared void was Section 27 of RA

6770, which authorized appeals to the Supreme Court from decisions of the Ombudsman inadministrative disciplinary cases. Under the Fabian  ruling, the appellant should take such

appeal in administrative disciplinary cases to the Court of Appeals under Rule 43. The Court ofAppeals added that it follows that the power to review decisions of the Ombudsman in criminal

cases is retained by the Supreme Court under Section 14 of RA 6770. Thus, the appellate courtdismissed the petition for lack of jurisdiction.14[14] 

The Issues

Enemecio contends that:

1. The Court of Appeals gravely abused its discretion in refusing to assume jurisdiction over the petition.

2. The Court of Appeals gravely erred in failing to appreciate that a petition for

certiorari under Rule 65 was the appropriate course of action considering thecircumstances obtaining.

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3. The Court of Appeals gravely erred in dismissing the petition for certiorari underRule 65 filed by petitioner by misinterpreting the ruling of the Supreme Court in

 Fabian vs. Desierto.15[15] 

The issues boil down to whether a petition for certiorari under Rule 65 filed before the Court of

Appeals is the proper remedy to question the dismissal of a criminal complaint filed with theOmbudsman.

The Court’s Ruling 

We resolve to dismiss this petition.

Enemecio filed before the Court of Appeals a petition for certiorari under Rule 6516[16] 

questioning the Ombudsman’s Resolution dated 13 January 2000 and Order dated 28 February2000 dismissing the criminal case against Bernante.17[17]  Thus, the Prefatory statement of

Enemecio’s Petition in the Court of Appeals states: 

This is a Petition for Certiorari under Rule 65 of the Rules of Court seeking to nullify theResolution dated 13 January 2000 and the Order dated 28 February 2000 both issued by the

Public Respondent in the Ombudsman Case docketed as OMB-VIS-CRIM-98-0201 andentitled, “Agustina Enemecio vs. Servando Bernante, Asst. Professor IV, CSCST- College of

Fisheries Technology, Carmen, Cebu”, for being a manifest and grave abuse of discretionamounting to excess of jurisdiction. The Resolution dated 13 January 2000 dismissed the

criminal complaint for malversation and falsification of public documents filed against hereinPrivate Respondent while the Order dated 28 February 2000 denied herein Petitioner’s Motion

for Reconsideration. Certified machine copies of the aforesaid Resolution and Order are hereto

appended as Annexes “A” and “B” respectively. (Emphasis supplied)

The appellate court dismissed Enemecio’s petition and denied her motion for reconsideration.

Enemecio now comes to this Court via this petition for review, claiming that “what wasinvolved in the petition before the appellate court was the administrative, not the criminalcase.”18[18]  Enemecio thus stresses that “there is no reason for the Court of Appeals to say thatthe petition concerned the criminal case.”19[19] 

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We cannot countenance the sudden and complete turnabout of Enemecio and her counsel, Atty.Terence L. Fernandez. Atty. Fernandez’s conduct has fallen far too short of the honesty required

of every member of the Bar.

It is clear from the records that Atty. Fernandez filed with the Court of Appeals a certiorari 

 petition assailing the Ombudsman’s Resolution and Order dismissing the criminal case, not theadministrative case against Bernante. For this reason, the appellate court in its 7 December 2000Resolution rectified itself and stated that Fabian  does not apply to Enemecio’s petition as the

Fabian  ruling applies only to administrative disciplinary actions. Atty. Fernandez’s attempt tomislead this Court in a last ditch effort to secure a decision favorable to his client’s cause does

not escape our attention. As an officer of the court, Atty. Fernandez is duty bound to uphold thedignity and authority of the court to which he owes fidelity according to the oath he has taken as

attorney, and not to promote distrust in the administration of justice. He must always bear inmind that good faith and honorable dealings with judicial tribunals are primary obligations of an

attorney. He must always remember to deal with courts with truthfulness and not to trifle withcourt proceedings.20[20] For this, Atty. Fernandez should be admonished not to commit similar

acts again.

Even if we consider Enemecio’s petition before the Court of Appeals as questioning thedismissal of the administrative case against Bernante, the action must also fail. Appeals from

decisions of the Ombudsman in administrative disciplinary actions should be brought to theCourt of Appeals under Rule 43.21[21] The only provision affected by the Fabian  ruling is the

designation of the Court of Appeals as the proper forum and of Rule 43 as the proper mode ofappeal. All other matters in Section 27 of RA 6770, including the finality or non-finality of

decisions of the Ombudsman, remain valid.22[22] 

In any event, jurisprudence now holds that where the findings of the Ombudsman on the

existence of probable cause in criminal cases is tainted with grave abuse of discretion amountingto lack or excess of jurisdiction, the aggrieved party may file a petition for certiorari with the

Supreme Court under Rule 65.23[23]  Since Enemecio filed a certiorari petition before the Courtof Appeals, instead of the Supreme Court, she availed of a wrong remedy in the wrong forum.

Hence, the instant petition should be dismissed outright.

Even if we consider the substance of the case, we find no grave abuse of discretion in theOmbudsman’s determination of whether there exists a prima facie case against Bernante.

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Enemecio assails the dismissal of the criminal charges against Bernante for two reasons: (1) thatshe was able to prove before the Ombudsman the charge for malversation against Bernante; and

(2) that Bernante himself admitted that he signed and filed the subject leave applications.

Enemecio asserts that she was able to present before the Ombudsman the payroll of the CSCST-

CFT employees covering the period from 16 May 1996 to 31 May 1996 signed by Bernante.Enemecio asserts that this document proved that Bernante “actually received and was paid theamount of P3,185.08 as a result of his falsified letter-requests and leave applications.”

According to Enemecio, these constituted acts of malversation.

Enemecio’s contentions do not deserve serious consideration. 

Under Article 171, paragraph 4 of the Revised Penal Code, the elements of falsification of public

documents through an untruthful narration of facts are: (a) the offender makes in a documentuntruthful statements in a narration of facts; (b) the offender has a legal obligation to disclose the

truth of the facts narrated; (c) the facts narrated by the offender are absolutely false; and (d) the

 perversion of truth in the narration of facts was made with the wrongful intent to injure a third person.24[24] 

As the Ombudsman correctly pointed out, Enemecio failed to point to any law imposing uponBernante the legal obligation to disclose where he was going to spend his leave of absence.

“Legal obligation” means that there is a law requiring the disclosure of the truth of the factsnarrated.25[25]  Bernante may not be convicted of the crime of falsification of public document by

making false statements in a narration of facts absent any legal obligation to disclose where hewould spend his vacation leave and forced leave.

In PCGG v. Desierto ,26[26] the Court ruled that the Ombudsman has the discretion to determine

whether a criminal case, given the facts and circumstances, should be filed or not. TheOmbudsman may dismiss the complaint forthwith if he finds it insufficient in form or substance.

On the other hand, he may continue with the inquiry if he finds otherwise. If, in theOmbudsman’s view, the complaint is sufficient in form and substance, he may proceed with the

investigation. In fact, the Ombudsman has the power to dismiss a complaint outright withoutgoing through a preliminary investigation.27[27] 

Our evaluation of the records leads us to the conclusion that the Ombudsman has carefullystudied the merits of the criminal complaint. Where the Ombudsman has thoroughly examined

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the merits of the complaint, it would not be right to subject the private respondent to anunnecessary and prolonged anguish.28[28] 

WHEREFORE, the petition is DENIED for lack of merit. No costs.

SO ORDERED.