CrimPro Cases Rule 111 113

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Republic of the PhilippinesSUPREME COURT

ManilaSECOND DIVISION

G.R. No. 115825 July 5, 1996HON. FRANKLIN DRILON, HON. RAMON ESGUERRA, STATE PROSECUTOR REYNALDO LUGTU, ALL OF THE DEPARTMENT OF JUSTICE, MANILA, petitioners, vs.THE COURT OF APPEALS and DR. RODOLFO V. AGUILA, JR., respondents. ROMERO, J.:pIn this petition, respondent Court of Appeals is alleged to have erred in finding petitioner State Prosecutor Reynaldo Lugtu as having committed grave abuse of discretion and after effectively discharging private respondent Dr. Rodolfo Aguila, Jr. from the information for Kidnapping with Frustrated Murder.On January 2, 1993, Godofredo Añonuevo was allegedly shot in the back by Manolo Ramos. Añonuevo was reportedly seized from Lipa City, mauled and then taken to a hospital for head injuries. He was then brought before Marcia Reyes who asked him why he revealed her secrets concerning her indebtedness. Later he was taken to a poultry farm in Concepcion, Batangas where he was shot and subsequently brought to the Batangas Regional Hospital in Batangas City. The following day Añonuevo was transferred to St. Patrick's Hospital in the same city allegedly because he was intentionally not being treated at the previous hospital.The victim gave three statements on different days in order to fully narrate the events relating to the crime. 1 In a letter dated February 13, 1993, counsel for private respondent Añonuevo requested herein petitioner, then Justice Secretary Franklin Drilon, to order the transfer of preliminary investigations in the case from Batangas to the Office of the State Prosecutor at the Department of Justice in Manila. The Secretary of Justice granted the request and issued Department Order No. 72 designating State Prosecutor Reynaldo Lugtu, also a petitioner in this case, as Acting Prosecutor of Batangas City in the investigation of the case.After the preliminary investigation was conducted, State Prosecutor Lugtu rendered a Resolution on October 20, 1993, finding that a prima facie case for kidnapping with frustrated murder exists against Manolo Ramos, Agapito Reyes, Marcia M. Reyes, Egay Perez, Ariel Hubilla, Dr. Rodolfo V. Aguila, Jr. and Adoracion Moraleja and recommending that an information be filed against them.On November 11, 1993, the State Prosecutor filed an Information with the Regional Trial Court of Batangas City, charging the aforenamed persons with Kidnapping with Frustrated Murder. The case was docketed as Criminal Case No. 6878.Subsequently, the petition for review and/or reinvestigation filed by the aforenamed accused, was denied by Undersecretary Ramon Esguerra on January 10, 1994. The latter, who is also a petitioner in instant case, likewise denied their motion for reconsideration on February 3, 1994.On February 8, 1994, the Supreme Court ordered the records in Criminal Case No. 6878 transmitted to the Executive Judge of the Regional Trial Court of Manila for re-raffle 2 After being re-raffled, the same was assigned to Branch 11 of the Regional Trial Court of Manila as Case No. CR 94-133438.On February 19, 1994, the accused in said case filed with respondent Court of Appeals a petition for certiorari and prohibition with prayer for temporary restraining order and writ of preliminary injunction. 3 seeking to have the resolution of State Prosecutor Lugtu set aside. A temporary restraining order prohibiting respondents, herein petitioners, from proceeding with any aspect of Criminal; Case 6878 ("People of the Philippines v. Dr. Rodolfo V. Aguila, Jr., et al.") was forthwith issued by respondent court on March 3, 1994. 4 Apparently unaware that the re-raffle has already been conducted, the accused filed with the Executive Judge of the Regional Trial Court of Manila a motion to hold in abeyance the issuance of the warrant of arrest and to defer the raffle.On March 11, 1994, Branch 11 of the Regional Trial Court of Manila, not knowing of accused's motion, issued the Order of Arrest against the latter.Respondent court formulated the issue thus: whether or not the criminal prosecution can be restrained upon the claim of the accused that the state prosecutor's resolution is a mistake and that factually, no prima facie case has been made out for the offense charged against them.The Court of Appeals found that there was a prima facie case of offense charged against all accused with the exception of private respondent Dr. Rodolfo V. Aguila, 5 as follows:The situation of petitioner Dr. Rodolfo Aguila, Jr. is different from that of his co-petitioners. The evidence concerning the shooting and the taking of the victim indicated the participation of the petitioners but not that of Dr. Rodolfo Aguila, Jr. We have scanned the statements of the witnesses in relation to the resolution of State Prosecutor Reynaldo Lugtu and there is nothing to indicate the participation of Dr. Aguila either in the purported kidnapping or in that of frustrated murder. He is a doctor of medicine and his presence in the case as more than amply shown in the statements of Añonuevo's injury. There was no mention at all in the first two (2) statements he made and the only time Añonuevo mentioned Dr. Aguila was in the third statement made more than a month after the purported incident on February 7, 1993 when in answer to

CRIMINAL PROCEDURESMariel Angela Piedad Soriano

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one (1) question, he had mentioned the name of Dr. Rodolfo Aguila, Jr. and by another answer to another question, had voiced out his suspicion concerning said petitioner 6 (Emphasis supplied.)Hence, the instant petition by then Secretary of Justice Franklin Drilon, Undersecretary Ramon Esguerra and State Prosecutor Reynaldo Lugtu, where they allege that the latter committed no grave abuse of discretion and that the Court of Appeals erred in permanently enjoining the Regional Trial Court of Manila from proceeding against private respondent Dr. Rodolfo V. Aguila in the criminal case for kidnapping with frustrated murder (Criminal Case No. 94-133438).The Court finds merit in and rules to grant the petition.The purpose of a preliminary investigation is to establish probablecause 7 and "to secure the innocent against hasty, malicious and oppressive. . ." 8 It is an inquiry to determine whether a crime has been committed 9 and whether there is probable cause to believe that the accused is guilty thereof. 10 The investigating judge or prosecuting officer acts upon probable cause and reasonable belief. 11

Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely not on evidence establishing absolute certainty of guilt. 12 It implies probability of guilt 13

and requires more than "bare suspicion" but "less than evidence which would justify conviction." 14

Probable cause should be determined in a summary but scrupulous manner to prevent material damage to a potential accused's constitutional right to liberty 15 and the guarantees of freedom and fair play. 16 The preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence. It is for the presentation of such evidence as may engender a well-grounded belief that an offense has been committed and that accused is probably guilty thereof. 17 It is a means of discovering the persons who may be reasonably charged with a crime. 18 The validity and merits of a party's defense or accusation, as well as admissibility of testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level. 19

Petitioner State Prosecutor did no gravely abuse his discretion when he found probable cause against private respondent Rodolfo V. Aguila, Jr. Part of the prosecutor's resolution reads:On January 2, 1993, at about 8:00 o'clock in the morning, however, after the said December 18, 1992 incident, while Godofredo Añonuevo, a former caretaker of Good Harvest Poultry Farm was at Tambo, Lipa City, he (Añonuevo) met Pete Reyes, Ariel Hubilla and Egay Perez, who were then on board a car. Because of fear, Añonuevo tried to run away but the group ran after him and caught him later. The group then forced him to board a Ford Fiesta where they beat him hitting his head and face causing him to a hospital in Lipa City where he was treated for head injuries. While they were in said hospital, Dr. Rodolfo Aguila and Manolo "momoy" Ramos, a cousin-bodyguard and hit man of spouses Agapito and Marcia Reyes arrived. After said treatment, Añonuevo was brought to the office of Atty. Gregorio "boy" Moraleja in Batangas City where Marcia Reyes confronted and asked him why he told on their secrets concerning her indebtedness. At about 3:30 o'clock in the afternoon of the same day, the group brought Añonuevo to the house of Adoracion Moraleja, mother of Marcia, at Bgy. Concepcion. Thereat, he was brought to the back yard an was told that he would have to rest. It was at this juncture that Momoy Ramos shot him at his back with a .38 cal. revolver, causing him to fall on the ground. Añonuevo was on this position when Jojo kicked him. Momoy Ramos who was then with Jojo, Ferdinand, Ex Moraleja, Polie Tikatik, Apeng Marcayda, Ronie, Rez, Sandra Moraleja, Nixon (brother-in-law of Marcia Reyes), Arbolante, Ariel Hubilla, Larry, Mio Alano, Dr. Rodolfo Aguila and Adoracion Moraleja, was about to shoot him again but was prevented by Dr . Aguila, Fernand and the father of Momoy (Teofilo Ramos). Over the objections of Momoy Ramos who was then very insistent to finish him off right then and there, Añonuevo was then loaded in the van and brought to Batangas Regional Hospital where he was transferred from one room to another without receiving any medical attention for about three (3) hours . He suspected that Dr. Aguila actually wanted him to die because he did not give him any medical attention and even warned him not to talk with the police nor give them information concerning the incident. He even added that he saw Dr. Aguila, Marcia Reyes, Pete Reyes, Fernand Moraleja, Ex Morales and several others talking with each other in an alley in the hospital.After the said more than three (3) hours, Dionisio Tan, Jr., arrived in the hospital and after being informed of Añonuevo's condition talked with Dr. Aguila and requested that Añonuevo be brought out of the hospital and transferred to another hospital. Dr. Aguila however refused and a heated argument ensued between them. It was at his instance that Añonuevo himself pleaded to Dionisio Tan, Jr., to transfer him to another hospital as Dr. Aguila would want him killed. Añonuevo was eventually transferred to St. Patrick Hospital by Jun Tan (Dionisio, Jr.). According to him, the group has decided to kill him because he was the former caretaker of spouses Agapito and Marcia Reyes and he now sided with Mrs. Tan in the dispute between the two. 20

The Prosecutor's report made clear that, based on the victim's third Sworn Statement dated February 7, 1993, respondent Dr. Aguila, Jr. was in the company of the other accused during the shooting incident; that he suspected respondent Dr. Aguila wanted him to die because the latter did not give him medical attention while at Batangas Regional Hospital; that the respondent even warned him not to talk with the police regarding the shooting incident and that he saw respondent talking with the other accused in the hospitalGodolfredo Añonuevo's second statement, given the morning after the shooting incident, reads:47. T: Sino and umawat kay Momoy?S: Si Dr. Rodolfo Aguila, si Fernan, at ang ama ni Momoy.xxx xxx xxx51. T: Kasama pa rin ba si Momoy noong pagkadala sa iyo doon sa Bats Regional Hospital?


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S: Hindi po, si Dr. Mocs Aguila. 21

The victim's third statement reads:6. Tanong: Nabanggit mo rin sa iyong unang salaysay (Tanong # 50) na ikaw ay dinala sa hospital, Batangas Regional Hospital ikaw ba naman ay nabigyan/inintindi sa nabanggit na hospital upang mabigyan ng lunas?Sagot: Hindi po ako nabigyan ng lunas at ako po ay hindi dinala man lamang sa Emergency Room sa halip ako po ay pinaikot-ikot sa iba't ibang kuwarto ng hospital na ang sapalagay ko ay ibig na akong mamatay ni Dr. Rodolfo Aguila.07. Tanong: Bakit mo naman nasabing gusto kang patayin ni Dr. Aguila?Sagot: Sa dahilang hindi nga po ako ginamot samantalang halos humigit kumulang sa tatlong oras na po ako sa loob ng hospital na nabanggit at ang sabi pa nga sa akin ni Dr. Aguila na kung may darating na pulis ay huwag akong magsasalita at magbigay ng report tungkol sa nangyari sa akin at ang pagkaalam ko nga po ay itong si Dr. Aguila ay bayaw nitong Si MARCIA REYES at napansin ko pa nga na sila ay nag-uusap pa habang ako naman ay halos mamatay na sa tinamo kong sugat dahilang sa pagkakabaril sa akin ni MOMOY.08. Tanong: Binanggit mong nag-uusap sila, sino itong tinutukoy mong tao?Sagot: Sila, Dr. Aguila, Marcia Reyes, Pete Reyes, Fernan Moraleja, Ex Moraleja at iba pang hindi ko kilala.09. Tanong: Paano mo naman nakita at saan sila nag-uusap?Sagot: Doon po sa loob ng hospital malapit sa aking kinalalagyan doon sa alley ng hospital (Batangas Regional Hospital).10. Tanong: Matapos na ikaw ay hindi nalapatan ng gamot sa nasabing hospital ano pa ang mga sumunod na pangyayari?Sagot: Dumating po ang aking amo na si DIONISIO I. TAN JR. at siya ay nakipag-usap kay Dr. Aguila kung bakit hindi ako ginagamot at noong ako po ay ilalabas ng hospital ay ayaw pumayag ng doktor na nabanggit na ako ay ilipat sa ibang hospital ang nangyari po ay nagkasigawan sila (Dr. Aguila at Dionisio Tan Jr.) ang ginawa ko ay tinawag ko ang aking amo at sinabi ko na ilipat ako ng ibang hospital sa dahilang gusto akong patayin ni Dr. Aguila. 22 (Emphasis supplied.)The foregoing narration shows that Dr. Aguila had some participation in the plot against Añonuevo. Taken altogether, all these constitute probable cause against private respondent Dr. Rodolfo Aguila, Jr.Moreover, the determination of the persons to be prosecuted rests primarily with the prosecutors who is vested with quasi-judicial discretion in the discharge of this function. 23 We have also ruled that the courts should give credence, in the absence of a clear showing of arbitrariness, to the finding and determination of probable cause by prosecutors in a preliminary investigation. 24 To reiterate, such a finding of probable cause does not ensure a conviction, or a conclusive finding of guilt beyond reasonable doubt. The allegations adduced by the prosecution will be put to test in a full-blown trial where evidence shall be analyzed, weighed, given credence or disproved.The Court hereby rules that petitioner State Prosecutor did not commit grave abuse of discretion in finding probable cause to hold private respondent Dr. Rodolfo Aguila, Jr. for trial.WHEREFORE, the instant petition is hereby GRANTED. The Decision of the Court of Appeals in CA G.R. SP No. 33372, "Manalo Ramos, et. al. v. Hon. Franklin Drilon, et. al.'' is hereby MODIFIED so as to include Dr. Rodolfo V. Aguila in the Information for Kidnapping with Frustrated Murder. The temporary restraining order dated March 3, 1994 and made permanent on June 8, 1994, enjoining petitioners from proceeding against private respondent Dr. Rodolfo V. Aguila, Jr. in Criminal Case No. CR-94-133438 is hereby LIFTED.SO ORDERED.


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G.R. No. 121234 August 23, 1995HUBERT J. P. WEBB, petitioner, vs.HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 274, respondents, LAURO VIZCONDE, intervenor.G.R. No. 121245 August 23, 1995MICHAEL A. GATCHALIAN, petitioner, vs.HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 274, respondents.____________________________________________________________________________________________________________________________________________G.R. No. 121297 August 23, 1995ANTONIO L. LEJANO, petitioner, vs.HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 274, respondents.___________________________________________________________________________________________________________________________________________ PUNO, J.:Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1

From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuño to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4 her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Parañaque, Metro Manila.During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11

Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following:(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.;(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991);(d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation;(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;


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(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;(g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies;(h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC;(i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties;(j) Statements made by other persons in connection with the crime charged.The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production.Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808.The other respondents — Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong — submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him.On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-respondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court of Parañaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us.In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused.We find the petitions bereft of merit.IPetitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI.We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus:


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Sec. 3. Procedure. — Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner:(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant.(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant.(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant.(e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned.(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ."The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State. 21

Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 22 Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man. 24 The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance.Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus: 26

xxx xxx xxxTo illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro:On whether Alfaro knew Carmela before the incident in questionFirst Affidavit: She had NOT met Carmela before June 29, 1991.Second Affidavit: "I met her in a party sometime in February, 1991."On whether Alfaro saw the dead bodiesFirst Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ."Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela."On the alleged rape of Carmela VizcondeFirst Affidavit: She did not see the act of rape.Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes."On how Webb, Lejano, and Ventura entered the Vizconde houseFirst Affidavit: "by jumping over the fence, which was only a little more than a meter high."Second Affidavit: They "entered the gate which was already open."On whether Alfaro entered the Vizconde house


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First Affidavit: She never entered the house.Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen."In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27

xxx xxx xxxAs regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084).Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699).Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. In Angelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness.On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses."In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo:There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper.In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima facie case that respondents conspired in the perpetration of the imputed offense.We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29

xxx xxx xxxAccording to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States.While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room.


9

On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family.On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date.Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Parañaque Municipal Hall.At about 2:30, in the early morning of January 30, 1991, the radio operator of the Parañaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako."Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Parañaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident.As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car.On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Parañaque. The next day, she saw Biong took from his locker at the Parañaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991.Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Parañaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case.


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The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled: 30

xxx xxx xxxThe voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases).Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]).Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi.xxx xxx xxxOn the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise.Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary.IIWe now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges.The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of Article III of the Constitution provides:Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized.The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is


11

required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:xxx xxx xxxSec. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized.Sec. 4. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.Sec. 5. Issuance and form of search warrant. — If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules.We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33

thus:xxx xxx xxxThe second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads:Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation.What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause.Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest.In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. 36

Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the


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evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions.IIIPetitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation.We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.:Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F."It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Parañaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel.Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them.Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.:Sec. 4. Non-Appealable Cases; Exceptions. — No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice.An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court.Sec. 2. When to appeal. — The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration


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within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied)Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice.Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides:xxx xxx xxxSec. 10. State Witness. — Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present:(a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws;(b) there is absolute necessity for his testimony;(c) there is no other direct evidence available for the proper prosecution of the offense committed;(d) his testimony can be substantially corroborated on its material points;(e) he does not appear to be most guilty; and(f) he has not at anytime been convicted of any crime involving moral turpitude.An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court.Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus:xxx xxx xxxSec. 12. Effect of Admission of a State Witness into the Program. — The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information.Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof.The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38 which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion — the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed.Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary


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investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. 43

This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ."In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 — "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished.But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI.Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI.Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation.In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow.In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts


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and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case — the NBI, the respondents, their lawyers and their sympathizers — have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held:xxx xxx xxx(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked bythe draftsmen. A trial courtroom is a public place where the people generally — and representatives of the media — have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.(c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity.It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done — and that is the only way for the judiciary to get an acquittal from the bar of public opinion.IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners.SO ORDERED.Regalado, J., concurs.


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Mendoza, J., concurs in the result.Narvasa, C.J., is on leave. Separate Opinion FRANCISCO, J., concurring:The thrust of petitioners' arguments involve the validity and exercise of the prosecutory powers of the State. Maintaining their innocence, petitioners assert that the filing of an information and the issuance of warrants of arrest against them were without probable cause. Petitioners, in my considered view, failed to make a case to warrant the Court's interference.Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of justice.Petitioners characterize the evidence against them to be inherently weak and uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's defense or accusation as well as the admissibility or inadmissibility of testimonies and evidence are better ventilated during the trial stage than in the preliminary investigation level. The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial.With respect to petitioners' contention that public respondent judge failed to personally examine and determine the existence of probable cause for the issuance of a warrant, suffice it to say that the judge does not have to personally examine the complainant and his witnesses in order to issue a warrant of arrest as he can rely on the certification of the prosecutor/s (Circular No. 12 — Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and sufficient basis on record that support the trial court's issuance of the warrant as petitioners themselves do not contend that the prosecutors' certification was unaccompanied by the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or exhaustive the judge's examination of the certification, report and findings of the preliminary investigation and its annexes should be as this depends not only upon the sound exercise of the judge's discretion in personally determining the existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or arbitrary.Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution and the Rules of Court enumerate an array of rights upon which an accused can seek protection and solace. To mention a few: he has the right to be presumed innocent until the contrary is proved, the right against self-incrimination, the right to remain silent, to confront and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to be heard by himself and counsel, to have competent and independent counsel preferably of his own choice. These rights are afforded to the accused and not to the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial.I vote to dismiss the petitions.Mendoza, J., concurs.


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G.R. No. 143591 May 5, 2010TEODORO C. BORLONGAN, JR., CORAZON M. BEJASA, ARTURO E. MANUEL, JR., ERIC L. LEE, P. SIERVO H. DIZON, BENJAMIN DE LEON, DELFIN C. GONZALES, JR., and BEN YU LIM, JR., Petitioners, vs.MAGDALENO M. PEÑA and HON. MANUEL Q. LIMSIACO, JR., as Judge Designate of the Municipal Trial Court in Cities, Bago City, Respondents.D E C I S I O NPEREZ, J.:The pivotal issue in this case is whether or not the Court of Appeals, in its Decision1 dated 20 June 2000 in CA-G.R. SP No. 49666, is correct when it dismissed the petition for certiorari filed by petitioners Teodoro C. Borlongan, Jr., Corazon M. Bejasa, Arturo E. Manuel, Jr., Benjamin de Leon, P. Siervo H. Dizon, Delfin C. Gonzales, Jr., Eric L. Lee and Ben Yu Lim, Jr., and ruled that the Municipal Trial Court in Cities (MTCC), Bago City, did not gravely abuse its discretion in denying the motion for reinvestigation and recall of the warrants of arrest in Criminal Case Nos. 6683, 6684, 6685, and 6686.The factual antecedents of the case are as follows:Respondent Atty. Magdaleno M. Peña (Atty. Peña) instituted a civil case for recovery of agent’s compensation and expenses, damages, and attorney’s fees2 against Urban Bank and herein petitioners, before the Regional Trial Court (RTC) of Negros Occidental, Bago City. The case was raffled to Branch 62 and was docketed as Civil Case No. 754. Atty. Peña anchored his claim for compensation on the Contract of Agency3 allegedly entered into with the petitioners, wherein the former undertook to perform such acts necessary to prevent any intruder and squatter from unlawfully occupying Urban Bank’s property located along Roxas Boulevard, Pasay City. Petitioners filed a Motion to Dismiss4 arguing that they never appointed the respondent as agent or counsel. Attached to the motion were the following documents: 1) a Letter5 dated 19 December 1994 signed by Herman Ponce and Julie Abad on behalf of Isabela Sugar Company, Inc. (ISCI), the original owner of the subject property; 2) an unsigned Letter6 dated 7 December 1994 addressed to Corazon Bejasa from Marilyn G. Ong; 3) a Letter7 dated 9 December 1994 addressed to Teodoro Borlongan, Jr. and signed by Marilyn G. Ong; and 4) a Memorandum8 dated 20 November 1994 from Enrique Montilla III. Said documents were presented in an attempt to show that the respondent was appointed as agent by ISCI and not by Urban Bank or by the petitioners.In view of the introduction of the above-mentioned documents, Atty. Peña filed his Complaint-Affidavit9 with the Office of the City Prosecutor, Bago City.10 He claimed that said documents were falsified because the alleged signatories did not actually affix their signatures, and the signatories were neither stockholders nor officers and employees of ISCI. 11 Worse, petitioners introduced said documents as evidence before the RTC knowing that they were falsified.In a Resolution12 dated 24 September 1998, the City Prosecutor found probable cause for the indictment of petitioners for four (4) counts of the crime of Introducing Falsified Documents, penalized by the second paragraph of Article 172 of the Revised Penal Code. The City Prosecutor concluded that the documents were falsified because the alleged signatories untruthfully stated that ISCI was the principal of the respondent; that petitioners knew that the documents were falsified considering that the signatories were mere dummies; and that the documents formed part of the record of Civil Case No. 754 where they were used by petitioners as evidence in support of their motion to dismiss, and then adopted in their answer and in their Pre-Trial Brief.13 Subsequently, the corresponding Informations14 were filed with the MTCC, Bago City. The cases were docketed as Criminal Case Nos. 6683, 6684, 6685, and 6686. Thereafter, Judge Primitivo Blanca issued the warrants15 for the arrest of the petitioners.On 1 October 1998, petitioners filed an Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation.16

Petitioners insisted that they were denied due process because of the non-observance of the proper procedure on preliminary investigation prescribed in the Rules of Court. Specifically, they claimed that they were not afforded the right to submit their counter-affidavit. Then they argued that since no such counter-affidavit and supporting documents were submitted by the petitioners, the trial judge merely relied on the complaint-affidavit and attachments of the respondent in issuing the warrants of arrest, also in contravention with the Rules of Court. Petitioners further prayed that the information be quashed for lack of probable cause. Moreover, one of the accused, i.e., Ben Lim, Jr., is not even a director of Urban Bank, contrary to what complainant stated. Lastly, petitioners posited that the criminal cases should have been suspended on the ground that the issue being threshed out in the civil case is a prejudicial question.In an Order17 dated 13 November 1998, the MTCC denied the omnibus motion primarily on the ground that preliminary investigation was not available in the instant case – which fell within the jurisdiction of the first-level court. The court, likewise, upheld the validity of the warrant of arrest, saying that it was issued in accordance with the Rules of Court. Besides, the court added, petitioners could no longer question the validity of the warrant since they already posted bail. The court also believed that the issue involved in the civil case was not a prejudicial question, and, thus, denied the prayer for suspension of the criminal proceedings. Lastly, the court was convinced that the Informations contained all the facts necessary to constitute an offense.Petitioners immediately instituted a special civil action for Certiorari and Prohibition with Prayer for Writ of Preliminary Injunction and Temporary Restraining Order (TRO) before the Court of Appeals, ascribing grave abuse of discretion


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amounting to lack or excess of jurisdiction on the part of the MTCC in issuing and not recalling the warrants of arrest, reiterating the arguments in their omnibus motion.18 They, likewise, questioned the court’s conclusion that by posting bail, petitioners already waived their right to assail the validity of the warrants of arrest.On 20 June 2000, the Court of Appeals dismissed the petition.19 Thus, petitioners filed the instant petition for review on certiorari under Rule 45 of the Rules of Court, raising the following issues:A.Where the offense charged in a criminal complaint is not cognizable by the Regional Trial Court and not covered by the Rule on Summary Procedure, is the finding of probable cause required for the filing of an Information in court?If the allegations in the complaint-affidavit do not establish probable cause, should not the investigating prosecutor dismiss the complaint, or at the very least, require the respondent to submit his counter-affidavit?B.Can a complaint-affidavit containing matters which are not within the personal knowledge of the complainant be sufficient basis for the finding of probable cause?C.Where there is offense charged in a criminal complaint is not cognizable by the Regional Trial Court and not covered by the Rule on Summary Procedure, and the record of the preliminary investigation does not show the existence of probable cause, should not the judge refuse to issue a warrant of arrest and dismiss the criminal case, or at the very least, require the accused to submit his counter-affidavit in order to aid the judge in determining the existence of probable cause?D.Can a criminal prosecution be restrained?E.Can this Honorable Court itself determine the existence of probable cause?20

On the other hand, respondent contends that the issues raised by the petitioners had already become moot and academic when the latter posted bail and were already arraigned.On 2 August 2000, this Court issued a TRO21 enjoining the judge of the MTCC from proceeding in any manner with Criminal Case Nos. 6683 to 6686, effective during the entire period that the case is pending before, or until further orders of, this Court.We will first discuss the issue of mootness. The issues raised by the petitioners have not been mooted by the fact that they had posted bail and were already arraigned.It appears from the records that upon the issuance of the warrant of arrest, petitioners immediately posted bail as they wanted to avoid embarrassment, being then the officers of Urban Bank. On the scheduled date for the arraignment, despite the petitioners’ refusal to enter a plea, the court a quo entered a plea of "Not Guilty" for them. The erstwhile ruling of this Court was that posting of bail constitutes a waiver of any irregularity in the issuance of a warrant of arrest, that has already been superseded by Section 26, Rule 114 of the Revised Rule of Criminal Procedure. The principle that the accused is precluded from questioning the legality of the arrest after arraignment is true only if he voluntarily enters his plea and participates during trial, without previously invoking his objections thereto.22 As held in Okabe v. Hon. Gutierrez:23

It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon. The new rule has reverted to the ruling of this Court in People v. Red. The new rule is curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative statutes are applicable. Curative statutes are by their essence retroactive in application. Besides, procedural rules as a general rule operate retroactively, even without express provisions to that effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined at the time of their effectivity. Before the appellate court rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It behoved the appellate court to have applied the same in resolving the petitioner’s petition for certiorari and her motion for partial reconsideration.1avvphi1Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she waived her right to question the finding of probable cause and to assail the warrant of arrest issued against her by the respondent judge. There must be clear and convincing proof that the petitioner had an actual intention to relinquish her right to question the existence of probable cause. When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible. x x x.Herein petitioners filed the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation on the same day that they posted bail. Their bail bonds likewise expressly contained a stipulation that they were not waiving their right to question the validity of their arrest.24 On the date of their arraignment, petitioners refused to enter their plea due to the fact that the issue on the legality of their arrest is still pending with the Court. Thus, when the court a quo entered a plea of not guilty for them, there was no valid waiver of their right to preclude them from raising the same with the Court of Appeals or this Court. The posting of bail bond was a matter of imperative necessity to avert their incarceration; it









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should not be deemed as a waiver of their right to assail their arrest. The ruling to which we have returned in People v. Red25 stated:x x x The present defendants were arrested towards the end of January, 1929, on the Island and Province of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque. In view of these circumstances and the number of the accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity of not remaining in detention, and in no way implied their waiver of any right, such as the summary examination of the case before their detention. That they had no intention of waiving this right is clear from their motion of January 23, 1929, the same day on which they furnished a bond, and the fact that they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac, Marinduque.Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13, General Order No. 58, as amended by Act No. 3042.The rest of the issues raised by the petitioners may be grouped into two, which are: (1) the procedural aspect, i.e., whether the prosecution and the court a quo properly observed the required procedure in the instant case, and, (2) the substantive aspect, which is whether there was probable cause to pursue the criminal cases to trial.The procedural aspect:Petitioners contend that they were denied due process as they were unable to submit their counter-affidavits and were not accorded the right to a preliminary investigation. Considering that the complaint of Atty. Peña was filed in September 1998, the rule then applicable was the 1985 Rules of Criminal Procedure. The provisions of the 1985 Rules of Criminal Procedure relevant to the issue are Sections 1, 3(a) and 9(a) of Rule 112, to wit:Section 1. Definition. Preliminary investigation is an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial.Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner:(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered by the Rule on Summary Procedure. (a) Where filed with the fiscal.— If the complaint is filed directly with the fiscal or state prosecutor, the procedure outlined in Section 3(a) of this Rule shall be observed. The fiscal shall take appropriate action based on the affidavits and other supporting documents submitted by the complainant. (underscoring supplied)The crime to which petitioners were charged was defined and penalized under second paragraph of Article 172 in relation to Article 171 of the Revised Penal Code.Art. 172. Falsification by private individual and use of falsified documents. — The penalty of prision correccional in its medium and maximum periods and a fine of not more than P5,000 pesos shall be imposed upon: 1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; and 2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree. Prision correccional in its medium and maximum periods translates to imprisonment of 2 years, 4 months and 1 day.26

The next lower in degree to prision correccional is arresto mayor in its maximum period to prision correccional in its minimum period which translates to 4 months and 1 day to 2 years and 4 months 27 of imprisonment. Since the crime committed is not covered by the Rules of Summary Procedure,28 the case falls within the exclusive jurisdiction of the first level courts but applying the ordinary rules. In such instance, preliminary investigation as defined in Section 1, Rule 112 of the 1985 Rules of Criminal Procedure is not applicable since such section covers only crimes cognizable by the RTC. That which is stated in Section 9(a) is the applicable rule.Under this Rule, while probable cause should first be determined before an information may be filed in court, the prosecutor is not mandated to require the respondent to submit his counter-affidavits to oppose the complaint. In the determination of probable cause, the prosecutor may solely rely on the complaint, affidavits and other supporting documents submitted by the complainant. If he does not find probable cause, the prosecutor may dismiss outright the






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complaint or if he finds probable cause or sufficient reason to proceed with the case, he shall issue a resolution and file the corresponding information.The complaint of respondent, verbatim, is as follows:COMPLAINT – AFFIDAVITI, MAGDALENO M. PEÑA, Filipino, of legal age, with address at Brgy. Ubay, Pulupandan, Negros Occidental, after having been sworn in accordance with law hereby depose and state:1. I am the Plaintiff in Civil Case No. 754 pending with the Regional Trial Court of Bago City entitled "Atty. Magdaleno M. Peña v. Urban Bank, et al" Impleaded therein as defendants of the board of the bank, namely, Teodoro Borlongan, Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and Arturo Manuel.(underlining ours)2. I filed the said case to collect my fees as agent of Urban Bank, Inc.(hereinafter referred to as the "bank") in ridding a certain parcel of land in Pasay City of squatters and intruders. A certified true copy of the Complaint in the said case is hereto attached as Annex "A".3. In the Motion to Dismiss dated 12 March 1996 (a certified true copy of which is attached as Annex "B"), Answer dated 28 October 1996 (Annex "C"), and Pre-Trial Brief dated 28 January 1997 (Annex "D") filed by the bank and the respondent members of the board, the said respondents used as evidence the following documents:a. Letter dated 19 December 1994 supposedly signed by a certain Herman Ponce and Julie Abad for Isabela Sugar Company (ISC) (a copy of which is attached as Annex "E"), which states:December 19, 1994Urban BankUrban Avenue, MakatiMetro ManilaGentlemen:This has reference to your property located among Roxas Boulevard, Pasay City which you purchased from Isabela Sugar Company under a Deed of Absolute Sale executed on December 1, 1994.In line with our warranties as the Seller of the said property and our undertaking to deliver to you the full and actual possession and control of said property, free from tenants, occupants or squatters and from any obstruction or impediment to the free use and occupancy of the property and to prevent the former tenants or occupants from entering or returning to the premises. In view of the transfer of ownership of the property to Urban Bank, it may be necessary for Urban Bank to appoint Atty. Peña likewise as its authorized representative for purposes of holding/maintaining continued possession of the said property and to represent Urban Bank in any court action that may be instituted for the abovementioned purposes.It is understood that any attorney’s fees, cost of litigation and any other charges or expenses that may be incurred relative to the exercise by Atty. Peña of his abovementioned duties shall be for the account of Isabela Sugar Company and any loss or damage that may be incurred to third parties shall be answerable by Isabela Sugar Company.Very truly yours,Isabela Sugar CompanyBy:HERMAN PONCEJULIE ABADb. Memorandum dated 7 December 1994 supposedly executed by a certain Marilyn Ong on behalf of ISC, a copy of which is hereto attached as annex "F", which states:December 7, 1994To: ATTY. CORA BEJASAFrom: MARILYN G. ONGRE: ISABELA SUGAR CO., INC.Atty. Magdaleno M. Peña, who has been assigned by Isabela Sugar Company inc. to take charge of inspecting the tenants would like to request an authority similar to this from the Bank to new owners. Can you please issue something like this today as he (unreadable) this.b. Letter dated 9 December 1994 supposedly executed by the same Marilyn Ong, a copy of which is hereto attached as Annex "G", which states:December 9, 1994Atty. Ted BorlonganURBAN BANK OF THE PHILIPPINESMAKATI, METRO MANILAAttention: Mr. Ted BorlonganDear Mr. BorlonganI would like to request for an authority from Urban Bank per attached immediately – as the tenants are questioning authority of the people who are helping us to take possession of the property.Marilyn Ongc. Memorandum dated 20 November 1994, copy of which is attached as annex "H", which states:


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MEMORANDUMTo: Atty. Magadaleno M. PeñaDirectorFrom: Enrique C. Montilla IIIPresidentDate: 20 November 1994You are hereby directed to recover and take possession of the property of the corporation situated at Roxas Boulevard covered by TCT No. 5382 of the Registry of Deeds for Pasay City, immediately upon the expiration of the contract of lease over the said property on 29 November 1994. For this purpose, you are authorized to engage the services of security guards to protect the property against intruders. You may also engage the services of a lawyer in case there is a need to go to court to protect the said property of the corporation. In addition, you may take whatever steps or measures are necessary to ensure our continued possession of the property.ENRIQUE C. MONTILLA IIIPresident4. The respondent member of the board of the bank used and introduced the aforestated documents as evidence in the civil case knowing that the same are falsified. They used thae said documents to justify their refusal to pay my agent’s fees, to my damage and prejudice.5. The 19 December 1994 letter (Annex ‘E") is a falsified document, in that the person who supposedly executed the letter on behalf of ISC, a certain Herman Ponce and Julie Abad did not actually affix their signatures on the document. The execution of the letter was merely simulated by making it appear that Ponce and Abad executed the letter on behalf of ISC when they did not in fact do so.6. No persons by the name of Herman Ponce and Julie Abad were ever stockholders, officers, employees or representatives of ISC. In the letter, Herman Ponce was represented to be the President of ISC and Julie Abad, the Corporate Secretary. However, as of 19 December 1994, the real President of plaintiff was Enrique Montilla, III and Cristina Montilla was the Corporate Secretary. A copy of the Minutes of the Regular Meeting of ISC for the year 1994, during which Montilla, et al. Were elected is hereto attached as Annex "I". On the otherhand, a list of the stockholders of ISC on or about the time of the transaction is attached as Annex "J".7. The same holds true with respect to the Memorandum dated 7 December 1994 and athe letter dated 9 December 1994 allegedly written by a ceratin Marilyn Ong. Nobody by the said name was ever a stockholder of ISC.8. Lastly, with respect to the supposed Memorandum issued by Enrique Montilla, III his signature thereon was merely forged by respondents. Enrique Montilla III, did not affix his signature on any such document.9. I am executing this affidavit for the purpose of charging Teodoro C. Borlongan, Corazon M. Bejasa and Arturo E. Manuel, Delfin C. Gonzales Jr., Benjamin L. De Leon, P. Siervo H. Dizon and Eric Lee, with the crime of use of falsified documents under Artilce 172, paragraph 2, of the Revised Penal Code.(underlining ours)10. I am likewise executing this affidavit for whatever legal purpose it may serve.FURTHER AFFIANT SAYETH NAUGHT.Sgd. MAGDALENO M. PEÑAIt is evident that in the affidavit-complaint, specifically in paragraph 1, respondent merely introduced and identified "the board of the bank, namely, Teodoro Borlongan, Jr., Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric Lee, Ben Lim, Jr., Corazon Bejasa and Arturo Manuel, Sr." However, in the accusatory portion of the complaint which is paragraph number 9, Mr. Ben Lim, Jr. was not included among those charged with the crime of use of falsified documents under Article 172, paragraph 2, of the Revised Penal Code. The omission indicates that respondent did not intend to criminally implicate Mr. Ben Lim, Jr., even as he was acknowledged to be a member of the board. And there was no explanation in the Resolution and Information by the City Prosecutor why Mr. Ben Lim, Jr. was included. Moreover, as can be gleaned from the body of the complaint and the specific averments therein, Mr. Ben Lim, Jr. was never mentioned.The City Prosecutor should have cautiously reviewed the complaint to determine whether there were inconsistencies which ought to have been brought to the attention of the respondent or, on his own, considered for due evaluation. It is a big mistake to bring a man to trial for a crime he did not commit.Prosecutors are endowed with ample powers in order that they may properly fulfill their assigned role in the administration of justice. It should be realized, however, that when a man is hailed to court on a criminal charge, it brings in its wake problems not only for the accused but for his family as well. Therefore, it behooves a prosecutor to weigh the evidence carefully and to deliberate thereon to determine the existence of a prima facie case before filing the information in court. Anything less would be a dereliction of duty.29

Atty. Peña, in his Second Manifestation30 dated 16 June 1999, averred that petitioners, including Mr. Ben Lim, Jr., were already estopped from raising the fact that Mr. Ben Lim, Jr. was not a member of the board of directors of Urban Bank, as the latter participated and appeared through counsel in Civil Case No. 754 without raising any opposition. However, this does not detract from the fact that the City Prosecutor, as previously discussed, did not carefully scrutinize the complaint of Atty. Peña, which did not charge Mr. Ben Lim, Jr. of any crime.What tainted the procedure further was that the Judge issued a warrant for the arrest of the petitioners, including, Mr. Ben Lim, Jr. despite the filing of the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation raising among others the issue that Mr. Ben Lim, Jr., was not even a member of the board of directors. With the filing of




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the motion, the judge is put on alert that an innocent person may have been included in the complaint. In the Order31

dated 13 November 1998, in denying the motion to quash, Judge Primitivo Blanca ruled that: Courts in resolving a motion to quash cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information because said motion is hypothethical admission of the facts alleged in the information x x x. (citations omitted.)We cannot accept as mere oversight the mistake of respondent judge since it was at the expense of liberty. This cannot be condoned.In the issuance of a warrant of arrest, the mandate of the Constitution is for the judge to personally determine the existence of probable cause:Section 2, Article III of the Constitution provides:Section 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.Corollary thereto, Section 9(b) of the 1985 Rules of Criminal Procedure provides:Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered by the Rule on Summary Procedure.(a) x x x.(b) Where filed directly with the Municipal Trial Court. — If the complaint or information is filed directly with the Municipal Trial Court, the procedure provided for in Section 3(a) of this Rule shall likewise be observed. If the judge finds no sufficient ground to hold the respondent for trial, he shall dismiss the complaint or information. Otherwise, he shall issue a warrant of arrest after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers.Enshrined in our Constitution is the rule that "[n]o x x x warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing x x x the persons x x x to be seized."32 Interpreting the words "personal determination," we said in Soliven v. Makasiar33 that it does not thereby mean that judges are obliged to conduct the personal examination of the complainant and his witnesses themselves. To require thus would be to unduly laden them with preliminary examinations and investigations of criminal complaints instead of concentrating on hearing and deciding cases filed before them. Rather, what is emphasized merely is the exclusive and personal responsibility of the issuing judge to satisfy himself as to the existence of probable cause. To this end, he may: (a) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (b) if on the basis thereof he finds no probable cause, disregard the prosecutor's report and require the submission of supporting affidavits of witnesses to aid him in determining its existence. What he is never allowed to do is to follow blindly the prosecutor's bare certification as to the existence of probable cause. Much more is required by the constitutional provision. Judges have to go over the report, the affidavits, the transcript of stenographic notes if any, and other documents supporting the prosecutor's certification. Although the extent of the judge's personal examination depends on the circumstances of each case, to be sure, he cannot just rely on the bare certification alone but must go beyond it. This is because the warrant of arrest issues not on the strength of the certification standing alone but because of the records which sustain it.34 He should even call for the complainant and the witnesses to answer the court's probing questions when the circumstances warrant.35 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State.36

Measured against the constitutional mandate and established rulings, there was here a clear abdication of the judicial function and a clear indication that the judge blindly followed the certification of a city prosecutor as to the existence of probable cause for the issuance of a warrant of arrest with respect to all of the petitioners. The careless inclusion of Mr. Ben Lim, Jr., in the warrant of arrest gives flesh to the bone of contention of petitioners that the instant case is a matter of persecution rather than prosecution.37 On this ground, this Court may enjoin the criminal cases against petitioners. As a general rule, criminal prosecutions cannot be enjoined. However, there are recognized exceptions which, as summarized in Brocka v. Enrile,38 are:a. To afford adequate protection to the constitutional rights of the accused;39

b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;40

c. When there is a prejudicial question which is sub judice;41

d. When the acts of the officer are without or in excess of authority;42

e. Where the prosecution is under an invalid law, ordinance or regulation;43

f. When double jeopardy is clearly apparent;44

g. Where the court had no jurisdiction over the offense;45

h. Where it is a case of persecution rather than prosecution;46

i. Where the charges are manifestly false and motivated by the lust for vengeance;47 andj. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.48




















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The substantive aspect:Petitioners were charged with violation of par. 2, Article 172 of the Revised Penal Code or Introduction of Falsified Document in a judicial proceeding. The elements of the offense are as follows:1. That the offender knew that a document was falsified by another person.2. That the false document is embraced in Article 171 or in any subdivisions Nos. 1 or 2 of Article 172.3. That he introduced said document in evidence in any judicial proceeding.49 The falsity of the document and the defendants’ knowledge of its falsity are essential elements of the offense. The Office of the City Prosecutor filed the Informations against the petitioners on the basis of the Complaint-Affidavit of respondent Atty. Peña, attached to which were the documents contained in the Motion to Dismiss filed by the petitioners in Civil Case No. 754. Also included as attachments to the complaint were the Answers, Pre-Trial Brief, the alleged falsified documents, copy of the regular meetings of ISCI during the election of the Board of Directors and the list of ISCI Stockholders.50 Based on these documents and the complaint-affidavit of Atty. Peña, the City Prosecutor concluded that probable cause for the prosecution of the charges existed. On the strength of the same documents, the trial court issued the warrants of arrest.This Court, however, cannot find these documents sufficient to support the existence of probable cause.Probable cause is such set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested. In determining probable cause, the average man weighs the facts and circumstances without restoring to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than suspicion; it requires less than evidence that would justify conviction.51 As enunciated in Baltazar v. People,52 the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused.The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged with crimes from the tribulations, expenses and anxiety of a public trial.53 We do not see how it can be concluded that the documents mentioned by respondent in his complaint-affidavit were falsified. In his complaint, Atty. Peña stated that Herman Ponce, Julie Abad and Marilyn Ong, the alleged signatories of the questioned letters, did not actually affix their signatures therein; and that they were not actually officers or stockholders of ISCI.54 He further claimed that Enrique Montilla’s signature appearing in another memorandum addressed to respondent was forged.55 These averments are mere assertions which are insufficient to warrant the filing of the complaint or worse the issuance of warrants of arrest. These averments cannot be considered as proceeding from the personal knowledge of herein respondent who failed to, basically, allege that he was present at the time of the execution of the documents. Neither was there any mention in the complaint-affidavit that herein respondent was familiar with the signatures of the mentioned signatories to be able to conclude that they were forged. What Atty. Peña actually stated were but sweeping assertions that the signatories are mere dummies of ISCI and that they are not in fact officers, stockholders or representatives of the corporation. Again, there is no indication that the assertion was based on the personal knowledge of the affiant.The reason for the requirement that affidavits must be based on personal knowledge is to guard against hearsay evidence. A witness, therefore, may not testify as what he merely learned from others either because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned. 56

Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to written, as well as oral statements.57

The requirement of personal knowledge should have been strictly applied considering that herein petitioners were not given the opportunity to rebut the complainant’s allegation through counter-affidavits.Quite noticeable is the fact that in the letter dated 19 December 1994 of Herman Ponce and Julie Abad, neither of the two made the representation that they were the president or secretary of ISCI. It was only Atty. Peña who asserted that the two made such representation. He alleged that Marilyn Ong was never a stockholder of ISCI but he did not present the stock and transfer book of ISCI. And, there was neither allegation nor proof that Marilyn Ong was not connected to ISCI in any other way.lawphil Moreover, even if Marilyn Ong was not a stockholder of ISCI, such would not prove that the documents she signed were falsified. The Court may not be compelled to pass upon the correctness of the exercise of the public prosecutor’s function without any showing of grave abuse of discretion or manifest error in his findings.58 Considering, however, that the prosecution and the court a quo committed manifest errors in their findings of probable cause, this Court therefore annuls their findings.Our pronouncement in Jimenez v. Jimenez59 as reiterated in Baltazar v. People is apropos:It is x x x imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of













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reasons. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by visualizing and not denigrating constitutional rights. So it has been before. It should continue to be so.On the foregoing discussion, we find that the Court of Appeals erred in affirming the findings of the prosecutor as well as the court a quo as to the existence of probable cause. The criminal complaint against the petitioners should be dismissed.WHEREFORE, the petition is hereby GRANTED. The Decision of the Court of Appeals dated 20 June 2000, in CA-G.R. SP No. 49666, is REVERSED and SET ASIDE. The Temporary Restraining Order dated 2 August 2000 is hereby made permanent. Accordingly, the Municipal Trial Court in Cities, Negros Occidental, Bago City, is hereby DIRECTED to DISMISS Criminal Case Nos. 6683, 6684, 6685 and 6686.SO ORDERED.


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ManilaTHIRD DIVISION

G.R. No. 170723 March 3, 2008GLORIA PILAR S. AGUIRRE, petitioner, vs.SECRETARY OF THE DEPARTMENT OF JUSTICE, MICHELINA S. AGUIRRE-OLONDRIZ, PEDRO B. AGUIRRE, DR. JUVIDO AGATEP and DR. MARISSA B. PASCUAL, respondents.D E C I S I O NCHICO-NAZARIO, J.:In this petition for review on certiorari1 under Rule 45 of the Rules of Court, as amended, petitioner Gloria Pilar S. Aguirre (Gloria Aguirre) seeks the reversal of the 21 July 2005 Decision2 and 5 December 2005 Resolution,3 both of the Court of Appeals in CA-G.R. SP No. 88370, entitled "Gloria Pilar S. Aguirre v. Secretary of the Department of Justice, Michelina S. Aguirre-Olondriz, Dr. Juvido Agatep, Dra. Marissa B. Pascual, Pedro B. Aguirre and John and Jane Does."The Court of Appeals found no grave abuse of discretion on the part of the Secretary of the Department of Justice (DOJ) when the latter issued the twin resolutions dated 11 February 20044 and 12 November 2004,5 respectively, which in turn affirmed the 8 January 2003 Resolution6 of the Office of the City Prosecutor (OCP) of Quezon City.The Assistant City Prosecutor for the OCP of Quezon City recommended the dismissal of the criminal complaint, docketed as I.S. No. 02-12466, for violation of Articles 172 (Falsification by Private Individuals and Use of Falsified Documents) and 262 (Mutilation), both of the Revised Penal Code, in relation to Republic Act No. 7610, otherwise known as "Child Abuse, Exploitation and Discrimination Act," for insufficiency of evidence.The case stemmed from a complaint filed by petitioner Gloria Aguirre against respondents Pedro B. Aguirre (Pedro Aguirre), Michelina S. Aguirre-Olondriz (Olondriz), Dr. Juvido Agatep (Dr. Agatep), Dr. Marissa B. Pascual (Dr. Pascual) and several John/Jane Does for falsification, mutilation and child abuse.The antecedents of the present petition are:Laureano "Larry" Aguirre7 used to be a charge of the Heart of Mary Villa, a child caring agency run by the Good Shepherd Sisters and licensed by the Department of Social Work and Development (DSWD). Sometime in 1978, respondent Pedro Aguirre; the latter's spouse, Lourdes S. Aguirre (Lourdes Aguirre); and their four daughters, who included petitioner Gloria Aguirre and respondent Olondriz, came to know Larry, who was then just over a year old. The Aguirres would have Larry spend a few days at their home and then return him to the orphanage thereafter. In June 1980, Larry, then two years and nine months of age, formally became the ward of respondent Pedro Aguirre and his spouse Lourdes Aguirre by virtue of an Affidavit of Consent to Legal Guardianship executed in their favor by Sister Mary Concepta Bellosillo, Superior of the Heart of Mary Villa. On 19 June 1986, the Aguirre spouses' guardianship of Larry was legalized when the Regional Trial Court (RTC), Branch 3 of Balanga, Bataan, duly appointed them as joint co-guardians over the person and property of Larry.As Larry was growing up, the Aguirre spouses and their children noticed that his developmental milestones were remarkably delayed. His cognitive and physical growth did not appear normal in that "at age 3 to 4 years, Larry could only crawl on his tummy like a frog x x x;"8 he did not utter his first word until he was three years of age; did not speak in sentences until his sixth year; and only learned to stand up and walk after he turned five years old. At age six, the Aguirre spouses first enrolled Larry at the Colegio de San Agustin, Dasmariñas Village, but the child experienced significant learning difficulties there. In 1989, at age eleven, Larry was taken to specialists for neurological and psychological evaluations. The psychological evaluation9 done on Larry revealed the latter to be suffering from a mild mental deficiency.10 Consequent thereto, the Aguirre spouses transferred Larry to St. John Ma. Vianney, an educational institution for special children.In November of 2001, respondent Dr. Agatep, a urologist/surgeon, was approached concerning the intention to have Larry, then 24 years of age, vasectomized. Prior to performing the procedure on the intended patient, respondent Dr. Agatep required that Larry be evaluated by a psychiatrist in order to confirm and validate whether or not the former could validly give his consent to the medical procedure on account of his mental deficiency.In view of the required psychiatric clearance, Larry was brought to respondent Dr. Pascual, a psychiatrist, for evaluation. In a psychiatric report dated 21 January 2002, respondent Dr. Pascual made the following recommendation:[T]he responsibility of decision making may be given to his parent or guardian.11

the full text of which reads –PSYCHIATRY REPORT21 January 2002GENERAL DATALAUREANO AGUIRRE, 24 years old, male, high school graduate of St. John [Marie Vianney], was referred for psychiatric evaluation to determine competency to give consent for vasectomy.CLINICAL SUMMARYLarry was adopted at age 3 from an orphanage and prenatal history is not known to the adoptive family except that abortion was attempted. Developmental milestones were noted to be delayed. He started to walk and speak in single


http://www.lawphil.net/judjuris/juri2008/mar2008/gr_170723_2008.html#fnt11











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word at around age 5. He was enrolled in Colegio de San Agustin at age 6 where he showed significant learning difficulties that he had to repeat 1st and 4th grades. A consult was done in 1989 when he was 11 years old. Neurological findings and EEG results were not normal and he was given Tecretol and Encephabol by his neurologist. Psychological evaluation revealed mild to moderate mental retardation, special education training was advised and thus, he was transferred to St. John Marie Vianney. He finished his elementary and secondary education in the said school. He was later enrolled in a vocational course at Don Bosco which he was unable to continue. There has been no reported behavioral problems in school and he gets along relatively well with his teachers and some of his classmates.Larry grew up with a very supportive adoptive family. He is the youngest in the family of four sisters. Currently, his adoptive parents are already old and have medical problem and thus, they could no longer monitor and take care of him like before. His adoptive mother has Bipolar Mood Disorder and used to physically maltreat him. A year ago, he had an episode of dizziness, vomiting and headaches after he was hit by his adoptive mother. Consult was done in Makati Medical Center and several tests were done, results of which were consistent with his developmental problem. There was no evidence of acute insults. The family subsequently decided that he should stay with one of his sisters to avoid similar incident and the possibility that he would retaliate although he has never hurt anybody. There has been no episode of violent outburst or aggressive behavior. He would often keep to himself when sad, angry or frustrated.He is currently employed in the company of his sister and given assignment to do some photocopying, usually in the mornings. He enjoys playing billiards and basketball with his nephews and, he spends most of his leisure time watching TV and listening to music. He could perform activities of daily living without assistance except that he still needs supervision in taking a bath. He cannot prepare his own meal and never allowed to go out and run errands alone. He does not have friends and it is only his adoptive family whom he has significant relationships. He claims that he once had a girlfriend when he was in high school who was more like a best friend to him. He never had sexual relations. He has learned to smoke and drink alcohol few years ago through his cousins and the drivers. There is no history of abuse of alcohol or any prohibited substances.MEDICAL STATUS EXAMINATIONThe applicant was appropriately dressed. He was cooperative and he had intermittent eye contact. Speech was spontaneous, soft, and relevant. He responded to questions in single words or simple sentences. He was anxious specially at the start of the interview, with full affect appropriate to mood and thought content. There was no apparent thought or perceptual disturbance. No suicidal/homicidal thoughts elicited. He was oriented to time, place and person. He has intact remote and recent memory. He could do simple calculation. He could write his name and read simple words. His human figure was comparable to a 7-8 year old. He demonstrated fair judgment and poor insight. He had fair impulse control.PSYCHOLOGICAL TESTSPsychological tests done on March 6, 1990 (Dr. Lourdes Ledesma) and on August 4, 2000 (Dr. Ma. Teresa Gustilo-Villaosor) consistently revealed mild to moderate mental deficiency.SIGNIFICANT LABORATORY EXAMS RESULTSCT scan done 09 January 2001 showed nonspecific right deep parietal subcortical malacia. No localized mass lesion in the brain.MRI done on 10 January 2001 showed bilateral parietal x x x volume loss, encephalomalacia, gliosis and ulegyria consistent with sequela of postnatal or neonatal infarcts. Ex-vacuo dilatation of the atria of lateral ventricles associated thinned posterior half of the corpus callosum.ASSESSMENT AND RECOMMENDATIONAxis I NoneAxis II Mental Retardation, mild to moderate typeAxis III NoneAxis IV None at presentAxis V Current GAF = 50-60Larry's mental deficiency could be associated with possible perinatal insults, which is consistent with the neuroimaging findings. Mental retardation associated with neurological problems usually has poorer prognosis. Larry is very much dependent on his family for his needs, adaptive functioning, direction and in making major life decisions. At his capacity, he may never understand the nature, the foreseeable risks and benefits, and consequences of the procedure (vasectomy) that his family wants for his protection. Thus, the responsibility of decision making may be given to his parent or guardian.

Marissa B. Pascual, M.D.Psychiatrist12

Considering the above recommendation, respondent Pedro Aguirre's written consent was deemed sufficient in order to proceed with the conduct of the vasectomy. Hence, on 31 January 2002, respondent Dr. Agatep performed a bilateral vasectomy on Larry.On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro Aguirre's eldest child, instituted a criminal complaint for the violation of the Revised Penal Code, particularly Articles 172 and 262, both in relation to Republic Act No. 7610 against respondents Pedro Aguirre, Olondriz, Dr. Agatep, Dr. Pascual and several John/Jane Does before the Office of the City Prosecutor of Quezon City.



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The Complaint Affidavit,13 docketed as I.S. No. 02-12466, contained the following allegations:2. x x x Dr. Agatep and Dra. Pascual were (sic) medical practitioners specializing in urology and psychiatry respectively; while respondent Pedro B. Aguirre is my father; Michelina S. Aguirre-Olondriz is my sister, and the victim Laureano "Larry" Aguirre xxx is my common law brother. JOHN and JANE DOES were the persons who, acting upon the apparent instructions of respondents Michelina Aguirre-Olondriz and/or Pedro B. Aguirre, actually scouted, prospected, facilitated, solicited and/or procured the medical services of respondents Dra. Pascual and Dr. Agatep vis-à-vis the intended mutilation via bilateral vasectomy of my common law brother Larry Aguirre subject hereof.x x x x4. Sometime in March 2002, however, the Heart of Mary Villa of the Good Shepherd Sisters was furnished a copy of respondent Dra. Pascual's Psychiatry Report dated 21 January 2004 by the "DSWD," in which my common law brother "Larry" was falsely and maliciously declared incompetent and incapable of purportedly giving his own consent to the MUTILATION VIA BILATERAL VASECTOMY intended to be performed on him by all the respondents.x x x x6. Based on the foregoing charade and false pretenses invariably committed by all of the respondents in conspiracy with each other, on 31 January 2002, my common law brother Larry Aguirre, although of legal age but conspiratorially caused to be declared by respondents to be "mentally deficient" and incompetent to give consent to his BILATERAL VASECTOMY, was then intentionally, unlawfully, maliciously, feloniously and/or criminally placed thereafter under surgery for MUTILATION VIA "BILATERAL VASECTOMY" x x x, EVEN WITHOUT ANY AUTHORIZATION ORDER from the GUARDIANSHIP COURT, nor personal consent of Larry Aguirre himself.In addition to the above, the complaint included therein an allegation that –v. x x x without a PRIOR medical examination, professional interview of nor verification and consultation with my mother, Lourdes Sabino-Aguirre, respondent Dra. Pascual baselessly, fraudulently and with obvious intent to defame and malign her reputation and honor, and worse, that of our Sabido family, falsely concluded and diagnosed, via her falsified Psychiatry Report, that my mother Lourdes Sabido-Aguirre purportedly suffers from "BIPOLAR MOOD DISORDER" x x x.To answer petitioner Gloria Aguirre's accusations against them, respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual submitted their respective Counter-Affidavits.In her defense,14 respondent Olondriz denied that she "prospected, scouted, facilitated, solicited and/or procured any false statement, mutilated or abused" her common-law brother, Larry Aguirre. Further, she countered that:3. x x x While I am aware and admit that Larry went through a vasectomy procedure, there is nothing in the Complaint which explains how the vasectomy amounts to a mutilation.x x x x5. In any case, as I did not perform the vasectomy, I can state with complete confidence that I did not participate in any way in the alleged mutilation.6. Neither did I procure or solicit the services of the physician who performed the vasectomy, Dr. Juvido Agatep x x x. It was my father, Pedro Aguirre, Larry's guardian, who obtained his services. I merely acted upon his instructions and accompanied my brother to the physician, respondents Dra. Marissa B. Pascual x x x.x x x x10. Neither does the Complaint explain in what manner the Complainant is authorized or has any standing to declare that Larry's consent was not obtained. Complainant is not the guardian or relative of Larry. While she argues that Larry's consent should have been obtained the Complaint does not dispute the psychiatrist's findings about Larry's inability to give consent.x x x x13. x x x the Complaint does not even state what alleged participation was falsified or the portion of the psychiatric report that allegedly states that someone participated when in fact that person did not so participate.x x x x15. Again, I had no participation in the preparation of the report of Dr. Pascual x x x.x x x x17. x x x the Complaint does not dispute that he (Larry) is mentally deficient or incompetent to give consent.x x x x19. x x x I verified that the effect of a vasectomy operation was explained to him (Larry) by both respondent doctors.20. x x x I accompanied Larry and obeyed my father on the belief that my father continues to be the legal guardian of Larry. I know of no one else who asserts to be his legal guardian x x x.15

Alleging the same statement of facts and defenses, respondent Pedro Aguirre argues against his complicity in the crime of mutilation as charged and asserts that:5. In any case, as I did not perform the vasectomy, I can state with complete confidence that I did not participate in any way in the alleged mutilation.16

Nevertheless, he maintains that the vasectomy performed on Larry does not in any way amount to mutilation, as the latter's reproductive organ is still completely intact.17 In any case, respondent Pedro Aguirre explains that the procedure performed is reversible through another procedure called Vasovasostomy, to wit:







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8. I understand that vasectomy is reversible through a procedure called Vasovasostomy. I can also state with confidence that the procedure enables men who have undergone a vasectomy to sire a child. Hence, no permanent damage was caused by the procedure.Respondent Pedro Aguirre challenges the charge of falsification in the complaint, to wit:14. x x x I did not make it appear that any person participated in any act or proceeding when that person did not in fact participate x x x.x x x x16. x x x I had no participation in the preparation of the report of Dra. Pascual. She arrived at her report independently, using her own professional judgment x x x.x x x x31. What I cannot understand about Petita's Complaint is how Larry is argued to be legally a child under the definition of one law but nonetheless and simultaneously argued to be capacitated to give his consent as fully as an adult.18

Respondent Pedro Aguirre further clarifies that co-guardianship over Larry had been granted to himself and his wife, Lourdes Aguirre, way back on 19 June 1986 by the Regional Trial Court, Branch 3 of Balanga, Bataan. Respondent Pedro Aguirre contends that being one of the legal guardians, consequently, parental authority over Larry is vested in him. But assuming for the sake of argument that Larry does have the capacity to make the decision concerning his vasectomy, respondent Pedro Aguirre argues that petitioner Gloria Aguirre has no legal personality to institute the subject criminal complaint, for only Larry would have the right to do so.Just as the two preceding respondents did, respondent Dr. Agatep also disputed the allegations of facts stated in the Complaint. Adopting the allegations of his co-respondents insofar as they were material to the charges against him, he vehemently denied failing to inform Larry of the intended procedure. In his counter-statement of facts he averred that:(b) x x x I scheduled Larry for consultative interview x x x wherein I painstakingly explained what vasectomy is and the consequences thereof; but finding signs of mental deficiency, x x x I advised his relatives and his nurse who accompanied him to have Larry examined by a psychiatrist who could properly determine whether or not Larry x x x can really give his consent, thus I required them to secure first a psychiatric evaluation and clearance prior to the contemplated procedure.(c) On January 21, 2002, I was furnished a copy of a psychiatric report prepared by Dr. Marissa Pascual x x x. In her said report, Dr. Pascual found Larry to suffer from "mental retardation, mild to moderate type" and further stated that "at his capacity, he may never understand the nature, the foreseeable risks and benefits and consequences of the procedure (vasectomy) x x x, thus the responsibility of decision making may be given to his parent or guardian x x x."(d) x x x I was likewise furnished a copy of an affidavit executed by Pedro Aguirre stating that he was the legal guardian of Larry x x x Pedro Aguirre gave his consent to vasectomize Larry x x x.(e) Only then, specifically January 31, 2002, vasectomy was performed with utmost care and diligence.19

In defense against the charge of falsification and mutilation, respondent Dr. Agatep argued that subject complaint should be dismissed for the following reasons:1. The complainant has no legal personality to file this case. As mentioned above, she is only a common law sister of Larry who has a legal guardian in the person of Pedro Aguirre, one of the herein respondents x x x.2. x x x [t]he allegations in the complaint clearly centers on the condition of complainant's mother, Lourdes Aguirre, her reputation, and miserably fails to implicate the degree of participation of herein respondent. x x xx x x x(b) Falsification. x x x I strongly aver that this felony does not apply to me since it clearly gives reference to co-respondent, Dr. Marissa Pascual's Psychiatry Report, dated January 21, 2002, in relation with her field of profession, an expert opinion. I do not have any participation in the preparation of said report, x x x neither did I utilized (sic) the same in any proceedings to the damage to another. x x x I also deny using a falsified document x x x.(c) Mutilation. x x x Vasectomy does not in anyway equate to castration and what is touched in vasectomy is not considered an organ in the context of law and medicine, it is quite remote from the penis x x x.(d) Child Abuse. x x x the complaint-affidavit is very vague in specifying the applicability of said law. It merely avers that Laureano "Larry" Aguirre is a child, and alleges his father, Pedro Aguirre, has parental authority over him x x x.20

Similarly, respondent Dr. Pascual denied the criminal charges of falsification and mutilation imputed to her. She stands by the contents of the assailed Psychiatric Report, justifying it thus:x x x My opinion of Larry Aguirre's mental status was based on my own personal observations, his responses during my interview of him, the results of the two (2) psychological tests conducted by clinical psychologists, the results of laboratory tests, including a CT Scan and MRI, and his personal and family history which I obtained from his sister, Michelina Aguirre-Olondriz x x x.5. x x x the reference in my report concerning Mrs. Lourdes Aguirre is not a statement of my opinion of Mrs. Aguirre's mental status, x x x. Rather, it is part of the patient's personal and family history as conveyed to me by Mrs. Aguirre-Olondriz.6. x x x An expression of my opinion, especially of an expert opinion, cannot give rise to a charge for falsification. A contrary opinion by another expert only means that the experts differ, and does not necessarily reflect on the truth or falsity of either opinion x x x.7. x x x I never stated that I examined Mrs. Aguirre, because I never did x x x.





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8. I had no participation in the surgery performed on Larry Aguirre except to render an opinion on his capacity to give informed consent to the vasectomy x x x.9. Without admitting the merits of the complaint, I submit that complainants are not the proper persons to subscribe to the same as they are not the offended party, peace officer or other public officer charged with the enforcement of the law violated x x x.21

The Assistant City Prosecutor held that the circumstances attendant to the case did not amount to the crime of falsification. He held that –[T]he claim of the complainant that the Psychiatric Report was falsified, because consent was not given by Larry Aguirre to the vasectomy and/or he was not consulted on said operation does not constitute falsification. It would have been different if it was stated in the report that consent was obtained from Larry Aguirre or that it was written therein that he was consulted on the vasectomy, because that would mean that it was made to appear in the report that Larry Aguirre participated in the act or proceeding by giving his consent or was consulted on the matter when in truth and in fact, he did not participate. Or if not, the entry would have been an untruthful statement. But that is not the case. Precisely (sic) the report was made to determine whether Larry Aguirre could give his consent to his intended vasectomy. Be that as it may, the matter of Larry's consent having obtained or not may nor be an issue after all, because complainant's (sic) herself alleged that Larry's mental condition is that of a child, who can not give consent. Based on the foregoing consideration, no falsification can be established under the circumstances.22

Even the statement in the Psychiatric Report of respondent Dr. Pascual that Lourdes Aguirre had Bipolar Mood Disorder cannot be considered falsification since –The report did not state that Lourdes Aguirre was in fact personally interviewed by respondent Dr. Pascual and that the latter concluded that Lourdes Aguirre has Bipolar Mood Disorder. The report merely quoted other sources of information with respect to the condition of Lourdes Aguirre, in the same manner that the fact that Lourdes Aguirre was physically abusing Larry Aguirre was also not of Dra. Pascual personal knowledge. But the fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her report does not mean that she committed falsification in the process. Her sources may be wrong and may affect the veracity of her report, but for as long as she has not alleged therein that she personally diagnosed Lourdes Aguirre, which allegation would not then be true, she cannot be charged of falsification. Therefore, it goes without saying that if the author of the report is not guilty, then with more reason the other respondents are not liable.23

Respecting the charge of mutilation, the Assistant City Prosecutor also held that the facts alleged did not amount to the crime of mutilation as defined and penalized under Article 262 of the Revised Penal Code, i.e., "[t]he vasectomy operation did not in any way deprived (sic) Larry of his reproductive organ, which is still very much part of his physical self." He ratiocinated that:While the operation renders him the inability (sic) to procreate, the operation is reversible and therefore, cannot be the permanent damage contemplated under Article 262 of the Revised Penal Code.24

The Assistant City Prosecutor,25 in a Resolution26 dated 8 January 2003, found no probable cause to hold respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual liable for the complaint of falsification and mutilation, more specifically, the violation of Articles 172 and 262 of the Revised Penal Code, in relation to Republic Act No. 7610. Accordingly, the Assistant City Prosecutor recommended the dismissal of petitioner Gloria Aguirre's complaint for insufficiency of evidence. The dispositive portion of the resolution reads:WHEREFORE, it is recommended that the above-entitled case be dismissed for insufficiency of evidence.27

On 18 February 2003, petitioner Gloria Aguirre appealed the foregoing resolution to the Secretary of the DOJ by means of a Petition for Review.28

In a Resolution dated 11 February 2004, Chief State Prosecutor Jovencito R. Zuño, for the Secretary of the DOJ, dismissed the petition. In resolving said appeal, the Chief State Prosecutor held that:Under Section 12, in relation to Section 7, of Department Circular No. 70 dated July 3, 2000, the Secretary of Justice may, motu proprio, dismiss outright the petition if there is no showing of any reversible error in the questioned resolution or finds the same to be patently without merit.We carefully examined the petition and its attachments and found no error that would justify a reversal of the assailed resolution which is in accord with the law and evidenced (sic) on the matter.29

Petitioner Gloria Aguirre's Motion for Reconsideration was likewise denied with finality by the DOJ in another Resolution dated 12 November 2004.Resolute in her belief, petitioner Gloria Aguirre went to the Court of Appeals by means of a Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the Rules of Court, as amended.On 21 July 2005, the Court of Appeals promulgated its Decision dismissing petitioner Gloria Aguirre's recourse for lack of merit.The fallo of the assailed decision reads:WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE and accordingly DISMISSED for lack of merit. Consequently, the assailed Resolutions dated February 11, 2004 and November 12, 2004 of the Secretary of Justice in I.S. No. 02-12466 are hereby AFFIRMED.30

Petitioner Gloria Aguirre's motion for reconsideration proved futile as it was denied by the appellate court in a Resolution dated 5 December 2005.












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Hence, the present petition filed under Rule 45 of the Rules of Court, as amended, premised on the following arguments:I.THE COURT OF APPEALS COMMITTED SERIOUS, GRAVE AND REVERSIBLE ERRORS OF LAW WHEN IT CONCLUDED, BASED PURPORTEDLY ON THE INTERNET WHICH RUNS AMUCK WITH OUR SYSTEM OF THE RULE OF LAW AND THE EVIDENCE ON RECORD, THAT BILATERAL VASECTOMY IS PURPORTEDLY 100% REVERSIBLE BY A FUTURE MEDICAL PROCEDURE HENCE NOT AMOUNTING TO MUTILATION, X X X; ANDx x x xII.WORSE, THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS AND REVERSIBLE ERRORS OF LAW WHEN IT REFUSED TO DIRECT THE INDICTMENT OF THE PRIVATE RESPONDENTS FOR MUTILATION AND FALSIFICATION DESPITE THE EXISTENCE OF SUFFICIENT PROBABLE CAUSE THEREFOR X X X.31

The foregoing issues notwithstanding, the more proper issue for this Court's consideration is, given the facts of the case, whether or not the Court of Appeals erred in ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when the latter affirmed the public prosecutor's finding of lack of probable cause for respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual to stand trial for the criminal complaints of falsification and mutilation in relation to Republic Act No. 7610.In ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of jurisdiction, the Court of Appeals explained that:Evidently, the controversy lies in the permanency of sterilization as a result of a vasectomy operation, and the chances of restoring fertility with a reversal surgery x x x.We sustain the DOJ in ruling that the bilateral vasectomy performed on Larry does not constitute mutilation even if intentionally and purposely done to prevent him from siring a child.x x x xSterilization is to be distinguished from castration: in the latter act the reproductive capacity is permanently removed or damaged.32

It then concluded that:The matter of legal liability, other than criminal, which private respondents may have incurred for the alleged absence of a valid consent to the vasectomy performed on Larry, is certainly beyond the province of this certiorari petition. Out task is confined to the issue of whether or not the Secretary of Justice and the Office of the City Prosecutor of Quezon City committed grave abuse of discretion in their determining the existence or absence of probable cause for filing criminal cases for falsification and mutilation under Articles 172 (2) and 262 of the Revised Penal Code.33

Petitioner Gloria Aguirre, however, contends that the Court of Appeals and the DOJ failed to appreciate several important facts: 1) that bilateral vasectomy conducted on petitioner's brother, Larry Aguirre, was admitted34; 2) that the procedure caused the perpetual destruction of Larry's reproductive organs of generation or conception;35 3) that the bilateral vasectomy was intentional and deliberate to deprive Larry forever of his reproductive organ and his capacity to procreate; and 4) that respondents, "in conspiracy with one another, made not only one but two (2) untruthful statements, and not mere inaccuracies when they made it appear in the psychiatry report"36 that a) Larry's consent was obtained or at the very least that the latter was informed of the intended vasectomy; and b) that Lourdes Aguirre was likewise interviewed and evaluated. Paradoxically, however, petitioner Gloria Aguirre does not in any way state that she, instead of respondent Pedro Aguirre, has guardianship over the person of Larry. She only insists that respondents should have obtained Larry's consent prior to the conduct of the bilateral vasectomy.In contrast, the Office of the Solicitor General (OSG), for public respondent DOJ, argues that "the conduct of preliminary investigation to determine the existence of probable cause for the purpose of filing (an) information is the function of the public prosecutor."37 More importantly, "the element[s] of castration or mutilation of an organ necessary for generation is completely absent as he was not deprived of any organ necessary for reproduction, much less the destruction of such organ."38

Likewise, in support of the decision of the Court of Appeals, respondents Pedro Aguirre and Olondriz assert that, fundamentally, petitioner Gloria Aguirre has no standing to file the complaint, as she has not shown any injury to her person or asserted any relationship with Larry other than being his "common law sister"; further, that she cannot prosecute the present case, as she has not been authorized by law to file said complaint, not being the offended party, a peace officer or a public officer charged with the enforcement of the law. Accordingly, respondents Pedro Aguirre and Olondriz posit that they, together with the other respondents Dr. Agatep and Dr. Pascual, may not be charged with, prosecuted for and ultimately convicted of: 1) "mutilation x x x since the bilateral vasectomy conducted on Larry does not involve castration or amputation of an organ necessary for reproduction as the twin elements of the crime of mutilation x x x are absent"39; and 2) "falsification x x x since the acts allegedly constituting falsification involve matters of medical opinion and not matters of fact,"40 and that petitioner Gloria Aguirre failed to prove damage to herself or to any other person.Respondent Dr. Agatep, in the same vein, stresses that vasectomy is not mutilation. He elucidates that vasectomy is merely the "excision of the vas deferens, the duct in testis which transport semen"41; that it is the penis and the testis that make up the male reproductive organ and not the vas deferens; and additionally argues that for the crime of mutilation to be accomplished, Article 262 of the Revised Penal Code necessitates that there be intentional total or partial deprivation













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of some essential organ for reproduction. Tubes, seminal ducts, vas deferens or prostatic urethra not being organs, respondent Dr. Agatep concludes, therefore, that vasectomy does not correspond to mutilation.Anent the charge of falsification of a private document, respondent Dr. Agatep asseverates that he never took part in disclosing any information, data or facts as contained in the contentious Psychiatric Report.For her part, respondent Dr. Pascual insists that the assailed Psychiatry Report was the result of her independent exercise of professional judgment. "Rightly or wrongly, (she) diagnosed Larry Aguirre to be incapable of giving consent, based on interviews made by the psychiatrist on Larry Aguirre and persons who interacted with him."42 And supposing that said report is flawed, it is, at most, an erroneous medical diagnosis.The petition has no merit.Probable cause has been defined as the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.43 The term does not mean "actual and positive cause" nor does it import absolute certainty.44 It is merely based on opinion and reasonable belief;45 that is, the belief that the act or omission complained of constitutes the offense charged. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.46

The executive department of the government is accountable for the prosecution of crimes, its principal obligation being the faithful execution of the laws of the land. A necessary component of the power to execute the laws is the right to prosecute their violators,47 the responsibility of which is thrust upon the DOJ. Hence, the determination of whether or not probable cause exists to warrant the prosecution in court of an accused is consigned and entrusted to the DOJ. And by the nature of his office, a public prosecutor is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion.Put simply, public prosecutors under the DOJ have a wide range of discretion, the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by (public) prosecutors.48 And this Court has consistently adhered to the policy of non-interference in the conduct of preliminary investigations, and to leave to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes sufficient evidence as will establish probable cause for the filing of an information against the supposed offender.49

But this is not to discount the possibility of the commission of abuses on the part of the prosecutor. It is entirely possible that the investigating prosecutor may erroneously exercise the discretion lodged in him by law. This, however, does not render his act amenable to correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction.50

Prescinding from the above, the court's duty in an appropriate case, therefore, is confined to a determination of whether the assailed executive determination of probable cause was done without or in excess of jurisdiction resulting from a grave abuse of discretion. For courts of law to grant the extraordinary writ of certiorari, so as to justify the reversal of the finding of whether or not there exists probable cause to file an information, the one seeking the writ must be able to establish that the investigating prosecutor exercised his power in an arbitrary and despotic manner by reason of passion or personal hostility, and it must be patent and gross as would amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of discretion is not enough.51 Excess of jurisdiction signifies that he had jurisdiction over the case but has transcended the same or acted without authority.52

Applying the foregoing disquisition to the present petition, the reasons of the Assistant City Prosecutor in dismissing the criminal complaints for falsification and mutilation, as affirmed by the DOJ, is determinative of whether or not he committed grave abuse of discretion amounting to lack or excess of jurisdiction.In ruling the way he did – that no probable cause for falsification and mutilation exists - the Assistant City Prosecutor deliberated on the factual and legal milieu of the case. He found that there was no sufficient evidence to establish a prima facie case for the crimes complained of as defined and punished under Articles 172, paragraph 2, and 262 of the Revised Penal Code in relation to Republic Act No. 7610, respectively. Concerning the crime of falsification of a private document, the Assistant City Prosecutor reasoned that the circumstances attendant to the case did not amount to the crime complained of, that is, the lack of consent by Larry Aguirre before he was vasectomized; or the fact that the latter was not consulted. The lack of the two preceding attendant facts do not in any way amount to falsification, absent the contention that it was made to appear in the assailed report that said consent was obtained. That would have been an untruthful statement. Neither does the fact that the Psychiatric Report state that Lourdes Aguirre has Bipolar Mood Disorder by the same token amount to falsification because said report does not put forward that such finding arose after an examination of the concerned patient. Apropos the charge of mutilation, he reasoned that though the vasectomy rendered Larry unable to procreate, it was not the permanent damage contemplated under the pertinent provision of the penal code.We agree. Grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the DOJ and the Assistant City Prosecutor was not shown in the present case.In the present petition, respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual are charged with violating Articles 172 and 262 of the Revised Penal Code, in relation to Republic Act No. 7610. Article 172, paragraph 2 of the Revised Penal Code, defines the crime of falsification of a private document, viz –













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Art. 172. Falsification by private individuals and use of falsified documents. – The penalty of prision correccional in its medium and maximum periods and a fine of not more than 5,000 pesos shall be imposed upon:x x x x2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.Petitioner Gloria Aguirre charges respondents with falsification of a private document for conspiring with one another in keeping Larry "in the dark about the foregoing (vasectomy) as the same was concealed from him by the respondents x x x,"53 as well as for falsely concluding and diagnosing Lourdes Aguirre to be suffering from Bipolar Mood Disorder.A scrutiny, however, of Article 171 of the Revised Penal Code which defines the acts constitutive of falsification, that is –Art. 171. x x x shall falsify a document by committing any of the following acts:1. Counterfeiting or imitating any handwriting, signature, or rubric;2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate;3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them;4. Making untruthful statements in a narration of facts;5. Altering true dates;6. Making any alteration or intercalation in a genuine document which changes its meaning;7. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; or8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.vis-à-vis the much criticized Psychiatric Report, shows that the acts complained of do not in any manner, by whatever stretch of the imagination, fall under any of the eight (8) enumerated acts constituting the offense of falsification.In order to properly address the issue presented by petitioner Gloria Aguirre, it is necessary that we discuss the elements of the crime of falsification of private document under the Revised Penal Code, a crime which all the respondents have been accused of perpetrating. The elements of said crime under paragraph 2 of Article 172 of our penal code are as follows: 1) that the offender committed any acts of falsification, except those in par. 7, enumerated in Article 171; 2) that the falsification was committed in any private document; and 3) that the falsification caused damage to a third party or at least the falsification was committed with intent to cause such damage. Under Article 171, paragraph 2, a person may commit falsification of a private document by causing it to appear in a document that a person or persons participated in an act or proceeding, when such person or persons did not in fact so participate in the act or proceeding. On the other hand, falsification under par. 3 of the same article is perpetrated by a person or persons who, participating in an act or proceeding, made statements in that act or proceeding and the offender, in making a document, attributed to such person or persons statements other than those in fact made by such person or persons. And the crime defined under paragraph 4 thereof is committed when 1) the offender makes in a document statements in a narration of facts; 2) he has a legal obligation to disclose the truth of the facts narrated by him; 3) the facts narrated by the offender are absolutely false; and 4) the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person.Applying the above-stated elements of the crime to the case at bar, in order that respondent Dr. Pascual, and the rest acting in conspiracy with her, to have committed the crime of falsification under par. 3 and 4 of Article 171 of the Revised Penal Code, it is essential that that there be prima facie evidence to show that she had caused it to appear that Larry gave his consent to be vasectomized or at the very least, that the proposed medical procedure was explained to Larry. But in the assailed report, no such thing was done. Lest it be forgotten, the reason for having Larry psychiatrically evaluated was precisely to ascertain whether or not he can validly consent with impunity to the proposed vasectomy, and not to obtain his consent to it or to oblige respondent Dr. Pascual to explain to him what the import of the medical procedure was. Further, that Larry's consent to be vasectomized was not obtained by the psychiatrist was of no moment, because nowhere is it stated in said report that such assent was obtained. At any rate, petitioner Gloria Aguirre contradicts her very own allegations when she persists in the contention that Larry has the mental age of a child; hence, he was legally incapable of validly consenting to the procedure.In the matter of the supposed incorrect diagnosis of Lourdes Aguirre, with regard to paragraph 2 of Article 171 of the Revised Penal Code, we quote with approval the succinct statements of the Assistant City Prosecutor:[T]he fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her report does not mean that she committed falsification in the process. Her sources may be wrong and may affect the veracity of her report, but for as long as she has not alleged therein that she personally diagnosed Lourdes Aguirre, which allegation would not then be true, she cannot be charged of falsification. Therefore, it goes without saying that if the author of the report is not guilty, then with more reason the other respondents are not liable.54

As to the charge of mutilation, Art. 262 of the Revised Penal Code defines the crime as –Art. 262. Mutilation. – The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, of some essential organ for reproduction.Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods.A straightforward scrutiny of the above provision shows that the elements55 of mutilation under the first paragraph of Art. 262 of the Revised Penal Code to be 1) that there be a castration, that is, mutilation of organs necessary for generation; and 2) that the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction. According to the public prosecutor, the facts alleged did not amount to the crime of mutilation as





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defined and penalized above, i.e., "[t]he vasectomy operation did not in any way deprived (sic) Larry of his reproductive organ, which is still very much part of his physical self." Petitioner Gloria Aguirre, however, would want this Court to make a ruling that bilateral vasectomy constitutes the crime of mutilation.This we cannot do, for such an interpretation would be contrary to the intentions of the framers of our penal code.A fitting riposte to the issue at hand lies in United States v. Esparcia,56 in which this Court had the occasion to shed light on the implication of the term mutilation. Therein we said that:The sole point which it is desirable to discuss is whether or not the crime committed is that defined and penalized by article 414 of the Penal Code. The English translation of this article reads: "Any person who shall intentionally castrate another shall suffer a penalty ranging from reclusion temporal to reclusion perpetua." The Spanish text, which should govern, uses the word "castrare," inadequately translated into English as "castrate." The word "capar," which is synonymous of "castrar," is defined in the Royal Academic Dictionary as the destruction of the organs of generation or conception. Clearly it is the intention of the law to punish any person who shall intentionally deprived another of any organ necessary for reproduction. An applicable construction is that of Viada in the following language:"At the head of these crimes, according to their order of gravity, is the mutilation known by the name of 'castration' which consists of the amputation of whatever organ is necessary for generation. The law could not fail to punish with the utmost severity such a crime, which, although not destroying life, deprives a person of the means to transmit it. But bear in mind that according to this article in order for 'castration' to exist, it is indispensable that the 'castration' be made purposely. The law does not look only to the result but also to the intention of the act. Consequently, if by reason of an injury or attack, a person is deprived of the organs of generation, the act, although voluntary, not being intentional to that end, it would not come under the provisions of this article, but under No. 2 of article 431." (Viada, Codigo Penal, vol. 3, p. 70. See to same effect, 4 Groizard, Codigo Penal, p. 525.)Thus, the question is, does vasectomy deprive a man, totally or partially, of some essential organ of reproduction? We answer in the negative.In the male sterilization procedure of vasectomy, the tubular passage, called the vas deferens, through which the sperm (cells) are transported from the testicle to the urethra where they combine with the seminal fluid to form the ejaculant, is divided and the cut ends merely tied.57 That part, which is cut, that is, the vas deferens, is merely a passageway that is part of the duct system of the male reproductive organs. The vas deferens is not an organ, i.e., a highly organized unit of structure, having a defined function in a multicellular organism and consisting of a range of tissues. 58 Be that as it may, even assuming arguendo that the tubular passage can be considered an organ, the cutting of the vas deferens does not divest or deny a man of any essential organ of reproduction for the simple reason that it does not entail the taking away of a part or portion of the male reproductive system. The cut ends, after they have been tied, are then dropped back into the incision.59

Though undeniably, vasectomy denies a man his power of reproduction, such procedure does not deprive him, "either totally or partially, of some essential organ for reproduction." Notably, the ordinary usage of the term "mutilation" is the deprivation of a limb or essential part (of the body),60 with the operative expression being "deprivation." In the same manner, the word "castration" is defined as the removal of the testies or ovaries.61 Such being the case in this present petition, the bilateral vasectomy done on Larry could not have amounted to the crime of mutilation as defined and punished under Article 262, paragraph 1, of the Revised Penal Code. And no criminal culpability could be foisted on to respondent Dr. Agatep, the urologist who performed the procedure, much less the other respondents. Thus, we find sufficient evidence to explain why the Assistant City Prosecutor and the DOJ ruled the way they did. Verily, We agree with the Court of Appeals that the writ of certiorari is unavailing; hence, should not be issued.It is once more apropos to pointedly apply the Court's general policy of non-interference in the conduct of preliminary investigations. As it has been oft said, the Supreme Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case.62 The courts try and absolve or convict the accused but, as a rule, have no part in the initial decision to prosecute him.63 The possible exception to this rule is where there is an unmistakable showing of a grave abuse of discretion amounting to lack or excess of jurisdiction that will justify judicial intrusion into the precincts of the executive. But that is not the case herein.WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed 21 July 2005 Decision and 5 December 2005 Resolution, both of the Court of Appeals in CA-G.R. SP No. 88370 are hereby AFFIRMED. Costs against petitioner Gloria Aguirre.SO ORDERED.










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35


ManilaFIRST DIVISION

G.R. No. 113630 May 5, 1994DIOSDADO JOSE ALLADO and ROBERTO L. MENDOZA, petitioners, vs.HON. ROBERTO C. DIOKNO, Presiding Judge, Br. 62, Regional Trial Court, Makati, Metro Manila, and PRESIDENTIAL ANTI-CRIME COMMISSION, respondents.BELLOSILLO, J.:On balance at the fulcrum once again are the intrinsic right of the State to prosecute perceived transgressors of the law, which can be regulated, and the innate value of human liberty, which can hardly be weighed.Some twelve years ago we were confronted with a similar problem when former Senator Jovito R. Salonga invoked before this Court his "right to life and liberty guaranteed by the due process clause, alleging that no prima facie case has been established to warrant the filing of an information for subversion against him." 1 We resolved the issue then and sustained him. He is now back before us, this time as counsel pleading the cause of petitioners herein who, he claims, are in a situation far worse than his predicament twelve (12) years ago. He postulates that no probable cause likewise exists in this case, and what is worse is that no bail is recommended.This petition gives us an opportunity to revisit the concept and implication of probable cause, the existence of which is necessary for the prosecutor to have an accused held for trial and for a trial judge to issue a warrant for his arrest. It is mandatory therefore that there be probable cause before an information is filed and a warrant of arrest issued. Unfortunately, however, at times a criminal case is filed, a warrant of arrest issued and a person consequently incarcerated on unsubstantiated allegations that only feign probable cause.Petitioners Diosdado Jose Allado and Roberto L. Mendoza, alumni of the College of Law, University of the Philippines, are partners of the Law Firm of Salonga, Hernandez and Allado. In the practice of their profession, and on the basis of an alleged extrajudicial confession of a security guard, they have been accused of the heinous crime of kidnapping with murder by the Presidential Anti-Crime Commission (PACC) and ordered arrested without bail by respondent judge.The focal source of the information against petitioners is the sworn statement dated 16 September 1993 of Security Guard Escolastico Umbal, a discharge of the Philippine Constabulary, implicating them as the brains behind the alleged kidnapping and slaying of one Eugen Alexander Van Twest, a German national. 2 In that extrajudicial confession, Umbal claimed that he and his companions were met by petitioners at Silahis Hotel and in exchange for P2.5M the former undertook to apprehend Van Twest who allegedly had an international warrant of arrest against him. Thus, on 16 June 1992, after placing him under surveillance for nearly a month, Umbal, Ex-policeman Rolando Gamatero, AFPCIG Agent Roberto Santiago and SPO2 Sergio Antonino abducted Van Twest. They blocked his blue Nissan Pathfinder under the Alabang overpass and forced him into their car. They brought him to a "safe house" just behind the New Bilibid Prisons. Umbal was tasked to watch over their quarry. After four (4) days, Gamatero, Santiago and Antonino returned to the "safe house" together with petitioners and SPO2 Roger Bato, known to Umbal also as "Batok." SPO2 Bato faked the interrogation of Van Twest, pretending it was official, and then made him sign certain documents. The following day, Gamatero shot Van Twest in the chest with a baby armalite, after which Antonino stabbed him repeatedly, cut off his private part, and later burned his cadaver into fine ashes using gasoline and rubber tires. Umbal could not recall the exact date when the incident happened, but he was certain it was about a year ago.A day after Umbal executed his extrajudicial confession, the operatives of the PACC, armed with a search warrant issued by Judge Roberto A. Barrios of the Regional Trial Court of Manila, Br. 11, 3 separately raided the two (2) dwellings of Santiago, one located at No. 7 Sangley Street, and the other, along Amalingan Street, both in Green Heights Subdivision, Parañaque. The raiders recovered a blue Nissan Pathfinder and assorted firearms and ammunition and placed Santiago and his trusted aide, Efren Madolid, under arrest. Also arrested later that day were Antonio and Bato who were found to have in their possession several firearms and ammunition and Van Twest's Cartier sunglasses.After evaluating the pieces of evidence gathered by PACC operatives, Sr., Supt. Panfilo Lacson, Chief of PACC Task Force Habagat, referred the case to the Department of Justice for the institution of criminal proceedings against AFPCIG Agent Roberto Santiago, SPO1 Sergio Antonino, SPO2 Roger Bato, Ex-policeman Rolando Gamatero, Efren Madolid, and petitioners herein, Atty. Diosdado Jose Allado and Atty. Roberto L. Mendoza, for illegal possession of firearms and ammunition, carnapping, kidnapping for ransom with murder, and usurpation of authority. 4 In his letter to the State Prosecutor dated 17 September 1993, Sr. Supt. Lacson charged that —Atty. Roberto L. Mendoza and Atty. Allado of Salonga, Hernandez and Allado Law Offices . . . planned and conspired with other suspects to abduct and kill the German national Alexander Van Twest in order to eliminate him after forcing the victim to sign several documents transferring ownership of several properties amounting to several million pesos and caused the withdrawal of P5M deposit from the victim's bank account.Thereafter, Senior State Prosecutor Ferdinand prosecutor Ferdinand R. Abesamis issued a subpoena to petitioners informing them that a complaintwas filed against them by PACC TF-Habagat, directing them to appear on


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30 September 1993 at the Multi-Purpose Hall of the Department of Justice and to submit their counter-affidavits. Attached to the subpoena were copies of the affidavits executed by Umbal and members of the team who raided the two (2) dwellings of Santiago. 5

Not satisfied merely with the affidavits attached to the subpoena, petitioner Mendoza moved for the production of other documents for examination and copying to enable him to fully prepare for his defense and to submit an intelligible counter-affidavit. 6 Specifically, petitioner Mendoza was interested in (a) the "several documents transferring ownership of several properties amounting to several million pesos and the withdrawal of P5M deposits from the victim's bank account," as stated in the complaint; (b) the complete records of the PACC's investigation, including investigations on other suspects and their disposition, PACC's Order of Battle for 1992 and early 1993; and, (c) such other written statements issued in the above-entitled case, and all other documents intended to be used in this case. 7 Petitioners likewise sought the inhibition of the members of the panel of prosecutors, which was created to conduct the preliminary investigation, on the ground that they were members of the legal staff assigned to PACC and thus could not act with impartiality.In its Order of 11 October 1993, 8 the new panel of prosecutors composed of Senior State Prosecutor Bernelito R. Fernandez as Chairman, with Rogelio F. Vista and Purita M. Deynata as Members, confirmed that the motion for inhibition of the members of the old panel as well as the appeal to the Secretary of Justice was resolved on 8 October 1993 resulting in the creation of a new panel. Thereafter, the new panel granted the prayer of petitioner Mendoza for the production of additional documents used or intended to be used against him. Meanwhile, Task Force Habagat, in compliance with the order, submitted only copies of the request for verification of the firearms seized from the accused, the result of the request for verification, and a Philippine Times Journal article on the case with a marginal note of President Fidel V. Ramos addressed to the Chief of the Philippine National Police directing the submission of a report and summary of actions taken thereon.Not having been provided with the requested documents, petitioners nevertheless submitted their respective counter-affidavits denying the accusations against them. 9

After a preliminary hearing where clarificatory questions were additionally propounded, the case was deemed submitted for resolution. But before the new panel could resolve the case, SPO2 Bato filed a manifestation stating that he was reconsidering the earlier waiver of his right to file counter- affidavit, 10 and "in the greater interest of truth, justice and fair play" moved for the admissions of his counter-affidavit 11 confessing participation in the abduction and slaying of Van Twest and implicating petitioners Allado and Mendoza. Sometime in January 1994, however, before petitioners could refute Bato's counter-affidavit, he moved to suppress it on the ground that it was extracted through intimidation and duress.On 3 February 1994, with the new penal failing to act on the twin motions of SPO2 Bato, petitioners heard over the radio that the panel had issued a resolution finding a prima facie case against them and that an information had already been filed in court. Upon verification with the Department of Justice, however, petitioners were informed that the resolution was not yet ready for release, but later that afternoon they were able to secure a copy of the information for kidnapping with murder against them 12 and the 15-page undated resolution under the letterhead of PACC, signed by the panel of prosecutors, with the Head of the PACC Task Force recommending approval thereof. 13 That same day, the information was filed before the Regional Trial Court of Makati and raffled off to Branch 62 presided by respondent Judge Roberto C. Diokno.On 4 February 1994, respondent judge, in response to petitioners' request, gave them until 8 February 1994 to submit their opposition to the issuance of a warrant of arrest against all the accused. 14 On 7 February 1994, petitioners complied with the order of respondent judge. 15 The following day,8 February 1994, petitioner Allado filed an appeal with the Secretary of Justice seeking review and reversal of the undated resolution of the panelof prosecutors, 16 which appeal was adopted by petitioner Mendoza. 17 On11 February 1994, petitioner Allado moved to defer the proceedings before the trial court pending resolution of his appeal before the Secretary of Justice. 18 However, on even date, respondent judge issued the assailed warrant of arrest against petitioners. 19 Hence, on 15 February 1994, petitioners filed with us the instant petition for certiorari and prohibition with prayer for a temporary restraining order.On 16 February 1994, we required respondents to comment on the petition and set the case for hearing on 28 February 1994. After the hearing, we issued a temporary restraining order enjoining PACC from enforcing the warrant of arrest and respondent judge from conducting further proceedings on the case and, instead, to elevate the records to us. Meanwhile, on 27 February 1994, petitioners voluntarily surrendered at the Headquarters of the Capital Command (CAPCOM), Philippine National Police (PNP), Camp Bagong Diwa, Bicutan, Metro Manila, and on 29 February 1994, they were released on the basis of our temporary restraining order.Petitioners, in their 335-page petition, inclusive of annexes, principally contend that respondent judge acted with grave abuse of discretion and in excess of jurisdiction in "whimsically holding that there is probable cause against petitioners without determining the admissibility of the evidence against petitioners and without even stating the basis of his findings," 20 and in "relying on the Resolution of the Panel and their certification that probable cause exists when the certification is flawed." 21 Petitioners maintain that the records of the preliminary investigation which respondent judge


37

solely relied upon failed to establish probable cause against them to justify the issuance of the warrant of arrest. Petitioners likewise assail the prosecutors' "clear sign of bias and impartiality (sic)." 22

On the other hand, the Office of the Solicitor General argues that the determination of probable cause is a function of the judge who is merely required to personally appreciate certain facts to convince him that the accused probably committed the crime charged.Section 2, Art. III, of the 1987 Constitution, lays down the requirements for the issuance of a warrant of arrest, i.e., a warrant of arrest shall issue only upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.As early as 1915, in Buchanan v. Viuda de Esteban, 23 this Court speaking through Associate Justice Sherman Moreland defined probable cause as "the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted." This definition is still relevant today as we continue to cite it in recent cases. 24 Hence, probable cause for an arrest or for the issuance of a warrant of arrest has been defined as such facts and circumstances which would lead a reasonable discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 25 And as a protection against false prosecution and arrest, it is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he was lawful grounds for arresting the accused. 26

Pilapil v. Sandiganbayan 27 sets a standard for determining the existence of probable cause. While it appears in that case that we have granted the prosecutor and the trial judge seemingly unlimited latitude in determining the existence of absence of probable cause by affirming the long-standing procedure that they can base their findings merely on their personal opinion and reasonable belief, yet, this permissiveness should not be interpreted as giving them arbitrary powers and letting them loose in the determination of the existence of probable cause, a delicate legal question which can result in the harassment and deprivation of liberty of the person sought to be charged or arrested. There we said —Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is it believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.Whether an act was done causing undue injury to the government and whether the same was done with manifest partiality or evident bad faith can only be made out by proper and sufficient testimony. Necessarily, a conclusion can be arrived at when the case has already proceeded on sufficient proof. 28

Accordingly, before issuing a warrant of arrest, the judge must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof. In the Order of respondent judge dated 11 February 1994, it is expressly stated that "[t]his court after careful evaluation of the evidence on record, believes and rules that probable cause exists; and therefore, a warrant of arrest should be issued." However, we are unable to see how respondent judge arrived at such ruling. We have painstakingly examined the records and we cannot find any support for his conclusion. On the contrary, we discern a number of reasons why we consider the evidence submitted to be insufficient for a finding of probable cause against petitioners.The Presidential Anti-Crime Commission relies heavily on the sworn statement of Security Guard Umbal who supposedly confessed his participation in the alleged kidnapping and murder of Van Twest. For one, there is serious doubt on Van Twest's reported death since the corpus delicti has not been established, nor have his remains been recovered. Umbal claims that Van Twest was completely burned into ashes with the use of gasoline and rubber tires from around ten o'clock in the evening to six o'clock the next morning. 29 This is highly improbable, if not ridiculous. A human body cannot be pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an open field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense heat. 30 Thereafter, the remains undergo a process where the bones are completely ground to dust.In the case of Van Twest, there is not even any insinuation that earnest efforts were exerted to recover traces of his remains from the scene of the alleged cremation. 31 Could it be that the government investigators did to the place of cremation but could not find any? Or could it be that they did not go at all because they knew that there would not be any as no burning ever took place? To allege then that the body of Van Twest was completely burned to ashes in an open field with the use merely of tires and gasoline is a tale too tall to gulp.Strangely, if not awkwardly, after Van Twest's reported abduction on16 June 1992 which culminated in his decimation by cremation, his counsel continued to represent him before judicial and quasi-judicial proceedings. Thus on 31 July 1992, his counsel filed in his behalf a petition for review before this Court, docketed as G.R. Nos. 106253, and on 18 March 1993, a memorandum before the Securities and Exchange Commission in SEC Case No. 3896. On26 November 1993, during the preliminary investigation conducted by the panel of prosecutors, counsel again manifested that "even then and even as of this time, I stated in my counter-affidavit that until the matter of death is to be established in the proper proceedings, I shall continue to pursue my duties and responsibilities as counsel for Mr. Van Twest." 32

Hence, even Asst. Solicitor General Estoesta believes that counsel of Van Twest doubted the latter's


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death. 33 Obviously, counsel himself does not believe that his client is in fact already dead otherwise his obligation to his client would have ceased except to comply with his duty "to inform the court promptly of such death . . . and to give the name and residence of his executor, administrator, guardian or other legal representative," 34 which he did not.Under the circumstances, we cannot discount petitioners' theory that the supposed death of Van Twest who is reportedly an international fugitive from justice, a fact substantiated by petitioners and never refuted by PACC, is a likely story to stop the international manhunt for his arrest. In this regard, we are reminded of the leading case of U.S. v. Samarin 35

decided ninety-two years ago where this Court ruled that when the supposed victim is wholly unknown, his body not found, and there is but one witness who testifies to the killing, the corpus delicti is not sufficiently proved.Then, the extrajudicial statement of Umbal suffers from material inconsistencies. In his sworn statement, he said that he together with his cohorts was met by petitioners in Silahis Hotel where they hatched the plan to abduct Van Twest. 36

However, during the preliminary investigation, he stated that he was not part of the actual meeting as he only waited outside in the car for his companions who supposedly discussed the plan inside Silahis Hotel. 37

Umbal also said that petitioners arrived with Bato and conducted a mock interrogation of Van Twest who thereafter signed various documents upon being compelled to do so. 38 During the clarificatory questioning, however, Umbal changed his story and said that he was asked to go outside of the "safe house" at the time Van Twest was interrogated and thus did not see if Van Twest indeed signed certain documents. Why Umbal had to be sent out of the "safe house,"no explanation was offered. Did these documents really exist? Or could thenon-existence of these documents be the reason why PACC was not able to comply with the order of the prosecutors to produce them during the preliminary investigation? And then, what happened to the P2.5M that was supposedly offered by petitioners in exchange for the abduction of Van Twest? These and more remain unanswered.Most perplexing however is that while the whole investigation was supposedly triggered off by Umbal's confession of 16 September 1993, the application of the PACC operatives for a search warrant to be served in thetwo (2) dwellings of Santiago was filed and granted by the Regional Trial Court of Manila on 15 September 1993, a day before Umbal executed his sworn statement. In support of the application, the PACC agents claimed that Umbal had been in their custody since 10 September 1993. Significantly, although he was said to be already under their custody, Umbal claims he was never interrogated until 16 September 1993 and only at the security barracks of Valle Verde V, Pasig, where he was a security guard. 39

The alleged counter-affidavit of SPO2 Bato, which the panel of prosecutors also considered in filing the charges against petitioners, can hardly be credited as its probative value has tremendously waned. The records show that the alleged counter-affidavit, which is self-incriminating, was filed after the panel had considered the case submitted for resolution. And before petitioners could refute this counter-affidavit, Bato moved to suppress the same on the ground that it was extracted through duress and intimidation.For sure, the credibility of Umbal is badly battered. Certainly, his bare allegations, even if the State invokes its inherent right to prosecute, are insufficient to justify sending two lawyers to jail, or anybody for that matter. More importantly, the PACC operatives who applied for a warrant to search the dwellings of Santiago never implicated petitioners. In fact they claimed that according to Umbal, it was Santiago, and not petitioners, who masterminded the whole affair. 40 While there may be bits of evidence against petitioners'co-accused, i.e., referring to those seized from the dwellings of Santiago, these do not in the least prove petitioners' complicity in the crime charged. Based on the evidence thus far submitted there is nothing indeed, much less is there probable cause, to incriminate petitioners. For them to stand trial and be deprived in the meantime of their liberty, however brief, the law appropriately exacts much more to sustain a warrant for their arrest — facts and circumstances strong enough in themselves to support the belief that they are guilty of a crime that in fact happened. Quite obviously, this has not been met.Verily, respondent judge committed grave abuse of discretion in issuing the warrant for the arrest of petitioners it appearing that he did not personally examine the evidence nor did he call for the complainant and his witnesses in the face of their incredible accounts. Instead, he merely relied on the certification of the prosecutors that probable cause existed. For, otherwise, he would have found out that the evidence thus far presented was utterly insufficient to warrant the arrest of petitioners. In this regard, we restate the procedure we outlined in various cases we have already decided.In Soliven v. Makasiar, 41 we said that the judge (a) shall personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or, (b) if on the basis thereof he finds no probable cause, may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of probable cause.In People v. Inting, 42 we emphasized the important features of the constitutional mandate: (a) The determination of probable cause is a function of the judge; it is not for the provincial fiscal or prosecutor to ascertain. Only the judge and the judge alone makes this determination; (b) The preliminary inquiry made by a prosecutor does not bind the judge. It merely assists him in making the determination of probable cause. The judge does not have to follow what the prosecutor presents to him. By itself, the prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcript of stenographic notes (if any), and all other supporting documents behind the prosecutor's certification which are material in assisting the judge in his determination of probable cause; and, (c) Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the


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two inquiries be conducted in the course of one and the same proceeding, there should be no confusion about their objectives. The determination of probable cause for the warrant is made by the judge. The preliminary investigationproper — whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial — is a function of the prosecutor.In Lim v. Felix, 43 where we reiterated Soliven v. Makasiar and People v. Inting, we said —[T]he Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All these should be before the Judge.The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require.Clearly, probable cause may not be established simply by showing that a trial judge subjectively believes that he has good grounds for his action. Good faith is not enough. If subjective good faith alone were the test, the constitutional protection would be demeaned and the people would be "secure in their persons, houses, papers and effects" only in the fallible discretion of the judge. 44 On the contrary, the probable cause test is an objective one, for in order that there be probable cause the facts and circumstances must be such as would warrant a belief by a reasonably discreet and prudent man that the accused is guilty of the crime which has just been committed. 45 This, as we said, is the standard. Hence, if upon the filing of the information in court the trial judge, after reviewing the information and the documents attached thereto, finds that no probable cause exists must either call for the complainant and the witnesses themselves or simply dismiss the case. There is no reason to hold the accused for trial and further expose him to an open and public accusation of the crime when no probable cause exists.But then, it appears in the instant case that the prosecutors have similarly misappropriated, if not abused, their discretion. If they really believed that petitioners were probably guilty, they should have armed themselves with facts and circumstances in support of that belief; for mere belief is not enough. They should have presented sufficient and credible evidence to demonstrate the existence of probable cause. For the prosecuting officer "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one" 46

In the case at bench, the undue haste in the filing of the information and the inordinate interest of the government cannot be ignored. From the gathering of evidence until the termination of the preliminary investigation, it appears that the state prosecutors were overly eager to file the case and secure a warrant for the arrest of the accused without bail and their consequent detention. Umbal's sworn statement is laden with inconsistencies and improbabilities. Bato's counter-affidavit was considered without giving petitioners the opportunity to refute the same. The PACC which gathered the evidence appears to have had a hand in the determination of probable cause in the preliminary inquiry as the undated resolution of the panel not only bears the letterhead of PACC but was also recommended for approval by the head of the PACC Task Force. Then petitioners were given the runaround in securing a copy of the resolution and the information against them.Indeed, the task of ridding society of criminals and misfits and sending them to jail in the hope that they will in the future reform and be productive members of the community rests both on the judiciousness of judges and the prudence of prosecutors. And, whether it is a preliminary investigation by the prosecutor, which ascertains if the respondent should be held for trial, or a preliminary inquiry by the trial judge which determines if an arrest warrant should issue, the bottomline is that there is a standard in the determination of the existence of probable cause, i.e., there should be facts and circumstances sufficiently strong in themselves to warrant a prudent and cautious man to believe that the accused is guilty of the crime with which he is charged. Judges and prosecutors are not off on a frolic of their own, but rather engaged in a delicate legal duty defined by law and jurisprudence.In this instance, Salonga v. Paño 47 finds application —The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trial (Trocio v. Manta, 118 SCRA 241, citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process (People v. Oandasa, 25 SCRA 277). However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that the transgressor shall not escape with impunity. A preliminary investigation serves not only for the purposes of the State. More importantly, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in the country. It is therefore imperative upon the


40

fiscal or the judge as the case may be, to relieve the accused from the pain of going thru a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused (emphasis supplied).The facts of this case are fatefully distressing as they showcase the seeming immensity of government power which when unchecked becomes tyrannical and oppressive. Hence the Constitution, particularly the Bill of Rights, defines the limits beyond which lie unsanctioned state actions. But on occasion, for one reason or another, the State transcends this parameter. In consequence, individual liberty unnecessarily suffers. The case before us, if uncurbed, can be illustrative of a dismal trend. Needless injury of the sort inflicted by government agents is not reflective of responsible government. Judges and law enforcers are not, by reason of their high and prestigious office, relieved of the common obligation to avoid deliberately inflicting unnecessary injury.The sovereign power has the inherent right to protect itself and its people from vicious acts which endanger the proper administration of justice; hence, the State has every right to prosecute and punish violators of the law. This is essential for its self- preservation, nay, its very existence. But this does not confer a license for pointless assaults on its citizens. The right of the State to prosecute is not a carte blanche for government agents to defy and disregard the rights of its citizens under the Constitution. Confinement, regardless of duration, is too high a price to pay for reckless and impulsive prosecution. Hence, even if we apply in this case the "multifactor balancing test" which requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed and the circumstances attending the incident, still we cannot see probable cause to order the detention of petitioners. 48

The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory use of political power. This bundle of rights guarantees the preservation of our natural rights which include personal liberty and security against invasion by the government or any of its branches or instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former. Thus, relief may be availed of to stop the purported enforcement of criminal law where it is necessary to provide for an orderly administration of justice, to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights. 49

Perhaps, this case would not have reached this Court if petitioners were ordinary people submissive to the dictates of government. They would have been illegally arrested and detained without bail. Then we would not have the opportunity to rectify the injustice. Fortunately, the victims of injustice are lawyers who are vigilant of their rights, who fight for their liberty and freedom not otherwise available to those who cower in fear and subjection.Let this then be a constant reminder to judges, prosecutors and other government agents tasked with the enforcement of the law that in the performance of their duties they must act with circumspection, lest their thoughtless ways, methods and practices cause a disservice to their office and maim their countrymen they are sworn to serve and protect. We thus caution government agents, particularly the law enforcers, to be more prudent in the prosecution of cases and not to be oblivious of human rights protected by the fundamental law. While we greatly applaud their determined efforts to weed society of felons, let not their impetuous eagerness violate constitutional precepts which circumscribe the structure of a civilized community.WHEREFORE, the petition for certiorari and prohibition is GRANTED. The temporary restraining order we issued on 28 February 1994 in favor of petitioners, Atty. Diosdado Jose Allado and Atty. Roberto L. Mendoza, is made permanent. The warrant of arrest issued against them is SET ASIDE and respondent Judge Roberto C. Diokno is ENJOINED from proceeding any further against herein petitioners in Crim. Case No. 94-1757 of the Regional Trial Court of Makati.SO ORDERED


41


ManilaTHIRD DIVISION

G.R. No. 126005 January 21, 1999PEOPLE OF THE PHILIPPINES and ALYNN PLEZETTE DY, petitioners, vs.COURT OF APPEALS, BILLY CERBO and JONATHAN CERBO, respondents. PANGANIBAN, J.:In our criminal justice system, the public prosecutor has the quasi-judicial discretion to determine whether or not case should be filed in court. Courts must. respect the exercise of such discretion when the information filed against the accused valid on its face, and no manifest error, grave abuse of discretion or prejudice can be imputed to the public prosecutor.The CaseBefore us is a Petition for Review under Rule 45, seeking to reverse the June 28, 1996 Decision and the August 27, 1996 Resolution of the Court of Appeals 1 in CA-GR SP No. 36018. 2 The assailed Decision dismissed the Petition for Certiorari filed by the petitioners, which sought to annul and set aside two Orders of the Regional Trial Court of Nabunturan, Davao: the June 28, 1994 Order dismissing the Information for murder filed against Private Respondent Billy Cerbo and the August 18, 1994 Order denying petitioners' motion for reconsideration.The assailed August 27, 1996 Court of Appeals (CA) Resolution likewise denied petitioners' motion for reconsideration.The FactsThe case below arose from the fatal shooting of Petitioner Dy's mother, Rosalinda Dy, in which the primary suspect was Private Respondent Jonathan Cerbo, son of Private Respondent Billy Cerbo.The procedural and factual antecedents of the case were summarized in the challenged Decision of the Court of Appeals as follows:On August 30, 1993, Rosalinda Dy, according to the petition, was shot at pointblank range by private respondent Jonathan Cerbo in the presence and at the office of his father, private respondent Billy Cerbo at Purok 9, Poblacion, Nabunturan, Davao.On September 2, 1993, eyewitness Elsa B. Gumban executed an affidavit positively identifying private respondent Jonathan Cerbo as the assailant. (Annex C, Rollo, p. 34).On September 20, 1993, private respondent Jonathan Cerbo executed a counter-affidavit interposing the defense that the shooting was accidental (Annex D: Rollo, pp. 35-36).On October 6, 1993, the 3rd Municipal Circuit Trial Court of Nabunturan-Mawab, Davao, after a preliminary investigation, found "sufficient ground to engender a well-founded belief" that the crime of murder has been committed by private respondent Jonathan Cerbo and resolved to forward the entire records of the case to the provincial prosecutor at Tagum, Davao (Annex E, Rollo, pp. 37-38).After [an] information for murder was filed against Jonathan Cerbo, petitioner Alynn Plezette Dy, daughter of the victim Rosalinda Dy, executed an affidavit-complaint charging private respondent Billy Cerbo of conspiracy in the killing (Annex F, Rollo, p. 39), supported by a supplemental affidavit of Elsa B. Gumban, alleging "in addition" to her previous statement that:3. In addition to my said sworn statement, I voluntarily and freely aver as follows:a) I vividly recall that while my mistress Rosalinda Go and I were in the office of Billy Cerbo at about 11:45 a.m. on August 30, 1993, Mr. Cerbo personally instructed me to fetch the food from the kitchen [and to bring it] to the office instead of the dining room.b) While bringing the food, Mr. Cerbo again instructed me to place the food [o]n a corner table and commanded me to sit behind the entrance door and at the same time Mr. Cerbo positioned Rosalinda [on] a chair facing the entrance door for an easy target.c) Immediately after Rosalinda was shot, Mr. Billy Cerbo called his son Jonathan who was running, but did not and ha[s] never bothered to bring Rosalinda to a hospital or even apply first aid.d) To my surprise, Mr. Billy Cerbo, instead of bringing Rosalinda to the hospital, brought her to the funeral parlor and immediately ordered her to be embalmed without even informing her children or any of her immediate relatives xxx.' Annex G. Rollo, p. 40.)Private respondent Billy Cerbo submitted a counter-affidavit denying the allegations of both petitioner Alynn Plezette Dy and Elsa B. Gumban (Annex H, Rollo, pp. 41-42).On or about April 8, 1994, Prosecutor Protacio Lumangtad filed a "Motion for leave of court to reinvestigate the case" (Annex I, Rollo, pp. 43-44) which was granted by the respondent judge in an order dated April 28, 1994 (Annex J, Rollo, p. 45).


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In his resolution dated May 5, 1994, Prosecutor Lumangtad recommended the filing of an amended information including Billy Cerbo". . . as one of the accused in the murder case . . ." (Annex K: Rollo, pp. 46-49).Accordingly, the prosecution filed an amended information including Billy Cerbo in the murder case. A warrant for his arrest was later issued on May 27, 1994 (Rollo, p. 27).Private respondent Billy Cerbo then filed a motion to quash warrant of arrest arguing that the same was issued without probable cause (Rollo, p. 27).On June 28, 1994, respondent Judge issued the first assailed order dismissing the case against Billy Cerbo and recalling the warrant for his arrest[;] the dispositive portion of [the order] reads:IN THE LIGHT OF ALL THE FOREGOING, [an] order is hereby issued DISMISSING the case as against Billy Cerbo only.Let, therefore, the warrant of arrest, dated May 27, 1994, be RECALLED.The prosecution is hereby ordered to withdraw its Amended Information and file a new one charging Jonathan Cerbo only.SO ORDERED. (Rollo, pp. 29-30).Private Prosecutor Romeo Tagra filed a motion for reconsideration which was denied by the respondent judge in his second assailed order dated August 18, 1994 (Annex B, Rollo, pp. 31-33). 3

The Ruling of the Court of AppealsIn its 10-page Decision, the Court of Appeals debunked petitioners' assertion that the trial judge committed a grave abuse of discretion in recalling the warrant of arrest and subsequently dismissing the case against Billy Cerbo. Citing jurisprudence, 4 the appellate court held as follows:The ruling is explicit. If upon the filing of the information in court, the trial judge, after reviewing the information and the documents attached thereto, finds that no probable cause exists, must either call for the complainant and the witnesses or simply dismiss the case.Petitioners question the applicability of the doctrine laid down in the above[-]mentioned case, alleging that the facts therein are different from the instant case. We rule that the disparity of facts does not prevent the application of the principle.We have gone over the supplemental affidavit of Elsa B. Gumban and taking into account the additional facts and circumstances alleged therein, we cannot say that respondent judge gravely abused his discretion in dismissing the case as against private respondent Billy Cerbo for lack of probable cause.xxx xxx xxxThe prosecution, if it really believed that Billy Cerbo is probably guilty by conspiracy, should have presented additional evidence sufficiently and credibly demonstrating the existence of probable cause.xxx xxx xxx 5 In sum, the Court of Appeals held that Judge Eugenio Valles did not commit grave abuse of discretion in recalling the warrant of arrest issued against Private Respondent Billy Cerbo and subsequently dismissing the Information for murder filed against the private respondent, because the evidence presented thus far did not substantiate such charge.Hence, this petition. 6

The Assigned ErrorsPetitioner Dy avers:1) The Court of Appeals gravely erred in holding that the Regional Trial Court Judge had the authority to reverse [the public prosecutor's] finding of probable cause to prosecute accused . . . and thus dismiss the case filed by the latter on the basis of a motion to quash warrant of arrest.2) The Court of Appeals gravely erred in fully and unqualifiedly applying the case of Allado, et. al. vs. PACC, et. al. G.R. No. 113630, [to] the case at bench despite [the] clear difference in their respective factual backdrop[s] and the contrary earlier jurisprudence on the matter. 7 On the other hand, the solicitor general posits this sole issue:Whether the Court of Appeals erred in finding that no probable cause exists to merit the filing of charges against private respondent Billy Cerbo. 8

Essentially, the petitioners are questioning the propriety of the trial court's dismissal, for want of evidence, of the Information for murder against Private Respondent Billy Cerbo.In resolving this petition, the discussion of the Court will revolve around the points: first, the determination of probable cause as an executive and judicial function and, second, the applicability of Allado and Salonga to the case at bar.The Court's RulingThe petition is meritorious. The trial court erred in dismissing the information filed against the private respondent. Consequently the Court of Appeals was likewise in error when it upheld such ruling.Executive Determinationof Probable CauseThe determination of probable cause during a preliminary investigation is a function that belongs to the public prosecutor. It is an executive function, 9 the correctness of the exercise of which is matter that the trial court itself does not and may not be compelled to pass upon. The Separate (Concurring) Opinion of former Chief Justice Andres R. Narvasa in Roberts v. Court of Appeals 10 succinctly elucidates such point in this wise:


43

xxx xxx xxxIn this special civil action, this Court is being asked to assume the function of a public prosecutor. It is being asked to determine whether probable cause exists as regards petitioners. More concretely, the Court is being asked to examine and assess such evidence as has thus far been submitted by the parties and, on the basis thereof, make a conclusion as to whether or not it suffices "to engender a well founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial."It is a function that this Court should not be called upon to perform. It is a function that properly pertains to the public prosecutor, one that, as far as crimes cognizable by a Regional Trial Court are concerned, and notwithstanding that it involves an adjudicative process of a sort, exclusively pertains, by law, to said executive officer, the public prosecutor. It is moreover a function that in the established scheme of things, is supposed to be performed at the very genesis of, indeed, prefatorily to, the formal commencement of a criminal action. The proceedings before a public prosecutor, it may well be stressed, are essentially preliminary, prefatory and cannot lead to a final, definite and authoritative adjudgment of the guilt or innocence of the persons charged with a felony or crime.Whether or not that function has been correctly discharged by the public prosecutor — i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon. It is not for instance permitted for an accused, upon the filing of the information against him by the public prosecutor, to preempt trial by filing a motion with the Trial Court praying for the quash or dismissal of the indictment on the ground that the evidence upon which the same is based is inadequate. Nor is it permitted, on the antipodal theory that the evidence is in truth inadequate, for the complaining party to present a petition before the Court praying that the public prosecutor be compelled to file the corresponding information against the accused.xxx xxx xxxIndeed, the public prosecutor has broad discretion to determine whether probable cause exists and to charge those whom be or she believes to have committed the crime as defined by law. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case list be filed in court. 11 Thus, in Crespo v. Mogul, 12 we ruled:It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence, in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecutions by private persons. . . . Prosecuting officers under the power vested in them by the law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the duty not to prosecute when the evidence adduced is not sufficient to establish a prima facie case.This broad prosecutoral power is however nor unfettered, because just as public prosecutors are obliged to bring forth before the law those who have transgressed it, they are also constrained to be circumspect in filing criminal charges against the innocent. Thus, for crimes cognizable by regional trial courts, preliminary investigations are usually conducted. In Ledesma v. Court of Appeals, 13 we discussed the purposes and nature of a preliminary investigation in this manner:The primary objective of a preliminary investigation is to free respondent from the inconvenience, expense, ignominy and stress of defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt in a more or less summary proceeding by a competent office designated by law for that purpose. Secondarily, such summary proceeding also protects the state from the burden of the unnecessary expense an effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless charges.Such investigation is not part of the trial. A full and exhaustive presentation of the parties' evidence is not required, but only such as may engender a well-grounded belief than an offense has been committed and that the accused is probably guilty thereof. By reason of the abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches.Judicial Determination ofProbable CauseThe determination of probable cause to hold a person for trial must be distinguished from the determination of probable cause to issue a warrant of arrest, which is a judicial function. The judicial determination of probable cause in the issuance of arrest warrants has been emphasized in numerous cases. In Ho v. People, 14 the Court summarized the pertinent rulings on the subject, as follows:The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v. Diokno, where we explained again what probable cause means. Probable cause for the issuance of a warrant of arrest is the existence of such facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested. Hence, the judge, before issuing a warrant of arrest, "must satisfy himself that based on the evidence submitted, there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof." At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that he personally evaluates such evidence in determining probable cause. In Webb v. De Leon we stressed that the judge merely determines the probability, not the certainty, of guilt of the


44

accused and, in doing so, he need not conduct a de novo hearing. He simply personally reviews the prosecutor's initial determination finding probable cause to see if it is supported by substantial evidence.xxx xxx xxxIn light of the aforecited decisions of this Court, such justification cannot be upheld. Lest we be too repetitive, we only emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence or non-existence of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence of non-existence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.Lastly, It is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of the accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcript of stenographic notes, if any) upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as the Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounded duty if he relies merely on the certification or the report of the investigating officer.xxx xxx xxxVerily, a judge cannot be compelled to issue a warrant of arrest if he or she deems that there is no probable cause for doing so. Corollary to this principle, the judge should not override the public prosecutor's determination of probable cause to hold an accused for trial on the ground that the evidence presented to substantiate the issuance of an arrest warrant was insufficient, as in the present case.Indeed, it could be unfair to expect the prosecution to present all the evidence needed to secure the conviction of the accused upon the filing of the information against the latter. The reason is found in the nature and the objective of a preliminary investigation. Here, the public prosecutors do not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged; they merely determine "whether there is sufficient ground to engender a well-founded belief that a crime . . . has been committed and that the respondent is probably guilty thereof, and should be held for trial." 15 Evidentiary matters must be presented and heard during the trial. 16 Therefore, if the information is valid on its face, and there is no showing of manifest error, grave abuse of discretion and prejudice on the part of the public prosecutor , the trial court should respect such determination.Inapplicabilty of Alladoand SalongaThe Court of Appeals anchored its ruling on the pronouncement made in Allado v. Diokno:" . . . [I]f, upon the filing of the information in court, the trial judge, after reviewing the information and the documents attached thereto, must either call for the complainant and the witnesses themselves or simply dismiss the case. There is no reason to hold the accused for trial and further expose him to an open and public accusation of the crime when no probable cause exists." 17

In Allado, Petitioners Diosdado Jose Allado and Roberto I. Mendoza, practicing lawyers, were accused by the Presidential Anti-Crime Commission (PACC) of kidnapping with murder and ordered by Judge Roberto C. Diokno to be arrested without bail. The petitioners questioned the issuance of the warrants for their arrest contending that the respondent judge acted with grave abuse of discretion and in excess of his jurisdiction in holding that there was probable cause against them. They contended that the trial court relied merely on the resolution of the investigating panel and its certification that probable cause existed, without personally determining the admissibility and sufficiency of the evidence for such finding and without stating the basis thereof. They maintained that the records of the preliminary investigation, which was the sole basis of the judge's ruling, failed to establish probable cause against them that would justify the issuance of warrants for their arrest.The Court declared that Judge Diokno has indeed committed grave abuse of discretion in issuing the arrest warrants. Contrary to the constitutional mandate and established jurisprudence, he merely relied on the certification of the


45

prosecutors as to the existence of the probable cause, instead of personally examining the evidence, the complainant and his witness." For otherwise," the Court said "he would have found out that the evidence thus far presented was utterly insufficient to warrant the arrest of the petitioners" 18

In categorically stating that the evidence so far presented did not meet the standard of probable cause and subsequently granting the petition, the Court noted the following circumstances: first, the corpus delicti was not established, and there was serious doubt as to the alleged victim's death: second, the extra judicial statement of the principal witness, who had priorly confessed his participation in the crime, was full of material inconsistencies; and third, the PACC operatives who investigated the case never implicated the petitioners.Citing Salonga v. Cruz-Paño, the Court of Appeals pointed out that when there was no prima facie case against a person sought to be charged with a crime, "the judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn out during trial, for this would be flagrant violation of a basic right which the courts are created to uphold." 19

In the aforecited case, Petitioner Jovito R. Salonga sought to bar the filing of an Information for violation of the revised Anti-Subversion Act, which Judge Ernani Cruz-Pano had ordered to be filed against him. In sustaining the petitioner, the Court held that the evidence upon which the Information was based was not sufficient to charge him for a violation of the Revised Subversion Act.In all, the Court decreed in both cases that there was no basis in law and in fact for the judicial and executive determination at probable cause. The Court also held that the government, while vested with the right and the duty to protect itself and its people against transgressors of the law, must perform the same in a manner that would not infringe the perceived violators' rights as guaranteed by the Constitution.However, the present case is not on all fours with Allado and Salonga. First, Elsa Gumban, the principal eyewitness to the killing of Rosalinda Dy, was not a participation or conspirator in the commission of the said crime. In Allado and Salonga, however, the main witnesses were the confessed perpetrators of the crimes, whose testimonies the court deemed 'tainted'. 20 Second, in the case at bar, the private respondent was accorded due process, and no precipitate haste or bias during the investigation of the case can be imputed to the public prosecutor. On the other hand, the Court noted in Allado the "undue haste in the filing of the Information and in the inordinate interest of the government" in pursuing the case; 21

and in Salonga, " . . . the failure of the prosecution to show that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioner's constitutioner rights [and] the massive and damaging publicity against him." 22 In other words, while the respective sets of evidence before the prosecutors in the Allado and Salonga were "utterly insufficient" to support a finding of probable cause, the same cannot be said of the present case.We stress that Allado and Salonga constitute exceptions to the general rule and may be invoked only if similar circumstances are clearly shown to exist. But as the foregoing comparisons show, such similarities are absent in the instant case. Hence, the rulings in the two aforementioned cases cannot apply to it.Motion Without Requisite NoticeOne more thing, Petitioners aver that Private Respondent Cerbo did not give them a copy of the Motion to Quash the Warrant of Arrest, which had been issued against him, or a notice of the scheduled hearing. Thus, they contend, Judge Valles should not have entertained such motion.It is settled that every written motion in a trial court must be set for hearing by the applicant and served with the notice of hearing thereof, in such a manner as to ensure its receipt by the other party. The provisions on this matter in Section 4 and 5, Rule 15 of the Rules of the Court, 23 are categorical and mandatory character. 24 Under Section 6 of the said rule, no motion shall be acted upon by the court without proof of service thereof. The rationale for this rule is simple: unless the movants set the time and the place of hearing, the court will be unable to determine whether the adverse parties agree or object to the motions, since the rules themselves do not fix any period within which they may file their replies or oppositions. 25

The motion to quash the warrant of arrest in the present case being pro forma, inasmuch as the requisite copy and notice were not duly served upon the adverse party, the trial court had no authority to act on it.EpilogueIn granting this petition, we are not prejudging the criminal case or the guilt or innocence of Private Respondent Billy Cerbo. We simply saying that, as a general rule, if the information is valid on its face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts should not dismiss it for 'want of evidence,' because evidentiary matters should be presented and heard during the trial. The functions and duties of both the trial court and the public prosecutor in "the proper scheme of things" in our criminal justice system should be clearly understood.The rights of the people from what could sometimes be an ''oppressive" exercise of government prosecutorial powers do need to be protected when circumstances so require. But just as we recognize this need, we also acknowledge that the State must likewise be accorded due process. Thus, when there is no showing of nefarious irregularity or manifest error in the performance of a public prosecutor's duties, courts ought to refrain from interfering with such lawfully and judicially mandated duties.In any case, if there was palpable error or grave abuse of discretion in the public prosecutor's finding of probable cause, the accused can appeal such finding to the justice secretary 26 and move for the deferment or suspension of the proceeding until such appeal is resolved.


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WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The case is REMANDED to the Regional Trial Court of Nabunturan, Davao, which is ordered to reinstate the amended information against Private Respondent Billy Cerbo and to proceed with judicious speed in hearing the case. No. costs.1âwphi1.nêtSO ORDERED.


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ManilaEN BANC

G.R. No. 148468 January 28, 2003ATTY. EDWARD SERAPIO, petitioner, vs.SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL LEANDRO MENDOZA, respondents.x---------------------------------------------------------xG.R. No. 148769 January 28, 2003EDWARD SERAPIO, petitioner, vs.HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.x---------------------------------------------------------xG.R. No. 149116 January 28, 2003EDWARD SERAPIO, petitioner, vs.HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE PHILIPPINES, respondents.CALLEJO, SR., J.:Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the resolutions of the Third Division of the Sandiganbayan denying his petition for bail, motion for a reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein petitioner is one of the accused together with former President Joseph E. Estrada, Jose "Jinggoy" P. Estrada and several others. The records show that petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim Youth Foundation, a non-stock, non-profit foundation established in February 2000 ostensibly for the purpose of providing educational opportunities for the poor and underprivileged but deserving Muslim youth and students, and support to research and advance studies of young Muslim educators and scientists.Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in the amount of Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor Luis "Chavit" Singson through the latter's assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and turned over the said amount to the Foundation's treasurer who later deposited it in the Foundation's account with the Equitable PCI Bank.In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts of engaging in several illegal activities, including its operation on the illegal numbers game known as jueteng. This triggered the filing with the Office of the Ombudsman of several criminal complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with other persons. Among such complaints were: Volunteers Against Crime and Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1754; Graft Free Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1755; and Leonardo De Vera, Romeo T. Capulong and Dennis B. Funa, versus Joseph Estrada, Yolanda Ricaforte, Edward Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma, docketed as OMB Crim. Case No. 0-00-1757.Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other respondents likewise filed their respective counter-affidavits. The Office of the Ombudsman conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution recommending, inter alia, that Joseph Estrada, petitioner and several others be charged with the criminal offense of plunder.On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former President Estrada, who earlier had resigned from his post as President of the Republic of the Philippines. One of these Informations, docketed as Criminal Case No. 26558, charged Joseph Estrada with plunder. On April 18, 2001, the Ombudsman filed an amended Information in said case charging Estrada and several co-accused, including petitioner, with said crime. No bail was recommended for the provisional release of all the accused, including petitioner. The case was raffled to a special division which was subsequently created by the Supreme Court. The amended Information reads:"That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:


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(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;(c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OR MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [189,700,000.00] MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE VELARDE";(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK.CONTRARY TO LAW."1

On April 5, 2001, petitioner obtained a copy of the Ombudsman's Joint Resolution finding probable cause against him for plunder. The next day, April 6, 2001, he filed with the Office of the Ombudsman a Motion for Reconsideration and/or Reinvestigation.2 Petitioner likewise filed on said date, this time with the Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the Issuance of Warrant of Arrest and Further Proceedings; (b) To Conduct a Determination of Probable Cause; (c) For Leave to File Accused's Motion for Reconsideration and/or Reinvestigation; and (d) To Direct the Ombudsman to Conduct a Reinvestigation of the Charges against accused Edward Serapio.3

On April 10, 2001, the Ombudsman issued an order denying petitioner's motion for reconsideration and/or reinvestigation on the ground of lack of jurisdiction since the amended Information charging petitioner with plunder had already been filed with the Sandiganbayan.4

In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal Case No. 26558 finding probable cause to justify the issuance of warrants of arrest for the accused, including petitioner. Accordingly, the Sandiganbayan issued an Order on the same date for the arrest of petitioner.5 When apprised of said order, petitioner voluntarily surrendered at 9:45 p.m. on the same day to Philippine National Police Chief Gen. Leandro Mendoza. Petitioner has since been detained at Camp Crame for said charge.The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case No. 26558 on June 27, 2001. In the meantime, on April 27, 2001, petitioner filed with the Sandiganbayan an Urgent Petition for Bail which was set for hearing on May 4, 2001.6 For his part, petitioner's co-accused Jose "Jinggoy" Estrada filed on April 20, 2001 a Very Urgent Omnibus Motion alleging that he was entitled to bail as a matter of right.During the hearing on May 4, 2001 on petitioner's Urgent Petition for Bail, the prosecution moved for the resetting of the arraignment of the accused earlier than the June 27, 2001 schedule. However, the Sandiganbayan denied the motion of the prosecution and issued an order declaring that the petition for bail can and should be heard before petitioner's arraignment on June 27, 2001 and even before the other accused in Criminal Case No. 26558 filed their respective petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception of evidence on petitioner's petition for bail on May 21 to 25, 2001.On May 17, 2001, four days before the hearing on petitioner's petition for bail, the Ombudsman filed an urgent motion for early arraignment of Joseph Estrada, Jinggoy Estrada and petitioner and a motion for joint bail hearings of Joseph Estrada, Jinggoy Estrada and petitioner. The following day, petitioner filed a manifestation questioning the propriety of including Joseph Estrada and Jinggoy Estrada in the hearing on his (petitioner's) petition for bail. The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioner's petition for bail to June 18 to 28, 2001 to enable the court to resolve the prosecution's pending motions as well as petitioner's motion that his petition for bail be heard as early as possible, which motion the prosecution opposed.


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On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioner's April 6, 2001 Urgent Omnibus Motion. The court ruled that the issues posed by petitioner had already been resolved in its April 25, 2001 Resolution finding probable cause to hold petitioner and his co-accused for trial.7 Petitioner filed a motion for reconsideration of the said May 31, 2001 Resolution.On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner as well as all the other accused in Criminal Case No. 26558 during the hearings on the petitions for bail under pain of waiver of cross-examination. The Sandiganbayan, citing its inherent powers to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case, directed the other accused to participate in the said bail hearing considering that under Section 8, Rule 114 of the Revised Rules of Court, whatever evidence is adduced during the bail hearing shall be considered automatically reproduced at the trial.8

However, instead of proceeding with the bail hearing set by it on June 18, 2001, the Sandiganbayan issued an Order on June 15, 2001 canceling the said bail hearing due to pending incidents yet to be resolved and reset anew the hearing to June 26, 2001.9

On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioner's motion for reconsideration of its May 31, 2001 Resolution. The bail hearing on June 26, 2001 did not again proceed because on said date petitioner filed with the Sandiganbayan a motion to quash the amended Information on the grounds that as against him, the amended Information does not allege a combination or series of overt or criminal acts constitutive of plunder; as against him, the amended Information does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy; the money alleged in paragraph (a) of the amended Information to have been illegally received or collected does not constitute "ill-gotten wealth" as defined in Section 1(d) of Republic Act No. 7080; and the amended Information charges him of bribery and illegal gambling.10 By way of riposte, the prosecution objected to the holding of bail hearing until petitioner agreed to withdraw his motion to quash. The prosecution contended that petitioner's motion to quash the amended Information was antithetical to his petition for bail.The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of petitioner in Criminal Case No. 26558 for July 10, 2001 to enable it to resolve the pending incidents and the motion to quash of petitioner. However, even before the Sandiganbayan could resolve the pending motions of petitioner and the prosecution, petitioner filed with this Court on June 29, 2001 a Petition for Habeas Corpus and Certiorari, docketed as G.R. No. 148468, praying that the Court declare void the questioned orders, resolutions and actions of the Sandiganbayan on his claim that he was thereby effectively denied of his right to due process. Petitioner likewise prayed for the issuance of a writ of habeas corpus; that the People be declared to have waived their right to present evidence in opposition to his petition for bail; and, premised on the failure of the People to adduce strong evidence of petitioner's guilt of plunder, that he be granted provisional liberty on bail after due proceedings.11

Meanwhile, on June 28, 2001, Jose "Jinggoy" Estrada filed with the Sandiganbayan a motion praying that said court resolve his motion to fix his bail.On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioner's motion to quash the amended Information. Petitioner, through counsel, received on said date a copy of said resolution.12 The motion to fix bail filed by Jose "Jinggoy" Estrada was also resolved by the Sandiganbayan.On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested to the Sandiganbayan that he was going to file a motion for reconsideration of the July 9, 2001 Resolution denying his motion to quash and for the deferment of his arraignment. The Sandiganbayan, however, declared that there was no provision in the Rules of Court or in the Sandiganbayan's rules granting the right to petitioner to file a motion for the reconsideration of an interlocutory order issued by it and ordered petitioner to orally argue his motion for reconsideration. When petitioner refused, the Sandiganbayan proceeded with his arraignment. Petitioner refused to plead, impelling the court to enter a plea of not guilty for him.On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No. 148769, alleging that the Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash, notwithstanding the fact that material inculpatory allegations of the amended Information against him do not constitute the crime of plunder; and that he is charged, under the said amended Information, for more than one offense. Jose "Jinggoy" Estrada likewise filed petition for certiorari with the Court docketed as G.R. No. 148965 for the nullification of a resolution of the Sandiganbayan denying his motion to fix bail.On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as G.R. No. 149116, assailing the Sandiganbayan's Resolution dated 31 May 2001 which denied his April 6, 2001 Urgent Omnibus Motion and its June 25, 2001 Resolution denying his motion for reconsideration of its May 31, 2001 Resolution.Re: G.R. No. 148769Petitioner avers that:THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN DENYING PETITIONER SERAPIO'S MOTION TO QUASH NOTWITHSTANDING THAT —I


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THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER.A The Amended Information, as against petitioner Serapio, does not allege a combination or series of overt or criminal acts constitutive of plunder.B The Amended Information, as against petitioner Serapio, does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy.C The money described in paragraph (a) of the Amended Information and alleged to have been illegally received or collected does not constitute 'ill-gotten wealth' as defined in Section 1(d), Republic Act No. 7080, as amended.IITHE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE."13

Petitioner asserts that, on the face of the amended Information, he is charged with plunder only in paragraph (a) which reads:"(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;"14

Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a "combination or series of overt or criminal acts" constituting plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does the amended Information allege "a pattern of criminal acts." He avers that his single act of toleration or protection of illegal gambling impelled by a single criminal resolution does not constitute the requisite "combination or series of acts" for plunder. He further claims that the consideration consisting of gifts, percentages or kickbacks in furtherance of said resolution turned over to and received by former President Joseph E. Estrada "on several occasions" does not cure the defect in the amended information. Petitioner insists that on the face of the amended Information he is charged only with bribery or illegal gambling and not of plunder.Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by former President Joseph E. Estrada in confabulation with his co-accused is not ill-gotten wealth as defined in Section 1(d) of R.A. 7080.We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that:"Sec. 6 Sufficiency of complaint or information. — A complaint or information is sufficient if it states the name of the accused, the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.When the offense was committed by more than one person, all of them shall be included in the complaint or information."15

The acts or omissions complained or must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to know the proper judgment. The Information must allege clearly and accurately the elements of the crime charged. What facts and circumstances are necessary to be included therein must be determined by reference to the definition and elements of the specific crimes. The purpose of the requirement of alleging all the elements of the crime in the Information is to inform an accused of the nature of the accusation against him so as to enable him to suitably prepare for his defense.16 Another purpose is to enable accused, if found guilty, to plead his conviction in a subsequent prosecution for the same offense.17 The use of derivatives or synonyms or allegations of basic facts constituting the offense charged is sufficient.18

In this case, the amended Information specifically alleges that all the accused, including petitioner, connived and conspired with former President Joseph E. Estrada to commit plunder "through any or a combination or a series of overt or criminal acts or similar schemes or means." And in paragraph (a) of the amended Information, petitioner and his co-accused are charged with receiving or collecting, directly or indirectly, on several instances money in the aggregate amount of P545,000,000.00. In Jose "Jinggoy" Estrada vs. Sandiganbayan (Third Division), et al.,19 we held that the word "series" is synonymous with the clause "on several instances"; it refers to a repetition of the same predicate act in any of the items in Section 1(d) of the law. We further held that the word "combination" contemplates the commission of at least any two different predicate acts in any of the said items. We ruled that "plainly, subparagraph (a) of the amended information charges accused therein, including petitioner, with plunder committed by a series of the same predicate act under Section 1(d)(2) of the law" and that:"x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1(d) of R.A. No. 7080. x x x."20

It is not necessary to allege in the amended Information a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy because as Section 3 of R.A. 7080 specifically provides, the same is evidentiary and the general rule is that matters of evidence need not be alleged in the Information.21

The Court also ruled in Jose "Jinggoy" Estrada vs. Sandiganbayan22 that the aggregate amount of P4,097,804,173.17 inclusive of the P545 million alleged in paragraph (a) of the amended information is ill-gotten wealth as contemplated in


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Section 1, paragraph 1(d) of Republic Act 7080, as amended, and that all the accused in paragraph (a) to (d) of the amended information conspired and confederated with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17.Under the amended Information, all the accused, including petitioner, are charged of having conspired and confabulated together in committing plunder. When two or more persons conspire to commit a crime, each is responsible for all the acts of others. In contemplation of law, the act of the conspirator is the act of each of them. 23 Conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declarations of each, while in the pursuit of the common design, are the acts, words and declarations of all.24

Petitioner asserts that he is charged under the amended information of bribery and illegal gambling and others. The Sandiganbayan, for its part, held that petitioner is not charged with the predicate acts of bribery and illegal gambling but is charged only with one crime that of plunder:"THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE THAN ONE OFFENSEAccording to the accused Estradas and Edward Serapio the information charges more than one offense, namely, bribery (Article 210 of the Revised Penal Code), malversation of public funds or property (Article 217, Revised Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019) and Section 7(d) of RA 6713.This contention is patently unmeritorious. The acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of plunder.It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from 'malversation' of public funds, the law also uses the generic terms 'misappropriation', 'conversion' or 'misuse' of said fund. The fact that the acts involved may likewise be penalized under other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees."25

This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that petitioner and his co-accused are charged only with one crime of plunder and not with the predicate acts or crimes of plunder. It bears stressing that the predicate acts merely constitute acts of plunder and are not crimes separate and independent of the crime of plunder. Resultantly then, the petition is dismissed.Re: G.R. No. 149116Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4, 2001 Urgent Omnibus Motion contending that:"GROUNDS FOR THE PETITIONTHE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUMMARILY DENYING PETITIONER SERAPIO'S URGENT OMNIBUS MOTION AND MOTION FOR RECONSIDERATION (RE: RESOLUTION DATED 31 MAY 2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO, AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER AS AGAINST PETITIONER SERAPIO."26

Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest as well as the proceedings in Criminal Case No. 26558; to conduct a determination of probable cause; and to direct the Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates that the Ombudsman had totally disregarded exculpatory evidence and committed grave abuse of discretion in charging him with plunder. He further argues that there exists no probable cause to support an indictment for plunder as against him.27

Petitioner points out that the joint resolution of the Ombudsman does not even mention him in relation to the collection and receipt of jueteng money which started in 199828 and that the Ombudsman inexplicably arrived at the conclusion that the Erap Muslim Youth Foundation was a money laundering front organization put up by Joseph Estrada, assisted by petitioner, even though the latter presented evidence that said Foundation is a bona fide and legitimate private foundation.29 More importantly, he claims, said joint resolution does not indicate that he knew that the P200 million he received for the Foundation came from jueteng.30

Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received does not constitute "ill-gotten wealth" as defined in Section 1(d) of R.A. No. 7080;31 (2) there is no evidence linking him to the collection and receipt of jueteng money;32 (3) there was no showing that petitioner participated in a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, or that his act of receiving the P200 million constitutes an overt criminal act of plunder.33

Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of evidence to support a finding of probable cause for plunder as against him,34 and hence he should be spared from the inconvenience, burden and expense of a public trial.35


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Petitioner also avers that the discretion of government prosecutors is not beyond judicial scrutiny. He asserts that while this Court does not ordinarily look into the existence of probable cause to charge a person for an offense in a given case, it may do so in exceptional circumstances, which are present in this case: (1) to afford adequate protection to the constitutional rights of the accused; (2) for the orderly administration of justice or to avoid oppression; (3) when the acts of the officer are without or in excess of authority; and (4) where the charges are manifestly false and motivated by the lust for vengeance.36 Petitioner claims that he raised proper grounds for a reinvestigation by asserting that in issuing the questioned joint resolution, the Ombudsman disregarded evidence exculpating petitioner from the charge of plunder and committed errors of law or irregularities which have been prejudicial to his interest.37 He also states that during the joint preliminary investigations for the various charges against Joseph Estrada and his associates, of which the plunder charge was only one of the eight charges against Estrada et al., he was not furnished with copies of the other complaints nor given the opportunity to refute the evidence presented in relation to the other seven cases, even though the evidence presented therein were also used against him, although he was only charged in the plunder case.38

The People maintain that the Sandiganbayan committed no grave abuse of discretion in denying petitioner's omnibus motion. They assert that since the Ombudsman found probable cause to charge petitioner with the crime of plunder, the Sandiganbayan is bound to assume jurisdiction over the case and to proceed to try the same. They further argue that "a finding of probable cause is merely preliminary and prefatory of the eventual determination of guilt or innocence of the accused," and that petitioner still has the chance to interpose his defenses in a full blown trial where his guilt or innocence may finally be determined.39

The People also point out that the Sandiganbayan did not commit grave abuse of discretion in denying petitioner's omnibus motion asking for, among others, a reinvestigation by the Ombudsman, because his motion for reconsideration of the Ombudsman's joint resolution did not raise the grounds of either newly discovered evidence, or errors of law or irregularities, which under Republic Act No. 6770 are the only grounds upon which a motion for reconsideration may be filed.40

The People likewise insist that there exists probable cause to charge petitioner with plunder as a co-conspirator of Joseph Estrada.41

This Court does not agree with petitioner.Case law has it that the Court does not interfere with the Ombudsman's discretion in the conduct of preliminary investigations. Thus, in Raro vs. Sandiganbayan42 , the Court ruled:"x x x. In the performance of his task to determine probable cause, the Ombudsman's discretion is paramount. Thus, in Camanag vs. Guerrero, this Court said:'x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish 'probable cause' for filing of information against the supposed offender."In Cruz, Jr. vs. People,43 the Court ruled thus:"Furthermore, the Ombudsman's findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here. His arguments are anchored on the propriety or error in the Ombudsman's appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither question of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. Insofar as the third issue is concerned, we find that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari."Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for that matter committed grave abuse of discretion in issuing their resolution and joint resolution, respectively. Petitioner failed to discharge his burden. Indeed, the Court finds no grave abuse of discretion on the part of the Sandiganbayan and the Ombudsman in finding probable cause against petitioner for plunder. Neither did the Sandiganbayan abuse its discretion in denying petitioner's motion for reinvestigation of the charges against him in the amended Information. In its Resolution of April 25, 2001, the Sandiganbayan affirmed the finding of the Ombudsman that probable cause exists against petitioner and his co-accused for the crime of plunder, thus:"In the light of the foregoing and considering the allegations of the Amended Information dated 18 April 2001 charging the accused with the offense of PLUNDER and examining carefully the evidence submitted in support thereof consisting of the affidavits and sworn statements and testimonies of prosecution witnesses and several other pieces of documentary evidence, as well as the respective counter-affidavits of accused former President Joseph Estrada dated March 20, 2001, Jose "Jinggoy" Pimentel Estrada dated February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward S. Serapio dated February 21, 2001, the Court finds and so holds that probable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused former President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas."44

Likewise, in its Resolution dated May 31, 2001 of petitioner's omnibus motion, the Sandiganbayan noted that a preliminary investigation was fully conducted in accordance with Rule II, Administrative Order No. 7 of the Office of the


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Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No. 6770 (The Ombudsman Act of 1989); and that all the basic complaints and evidence in support thereof were served upon all the accused.45 It was in light of such findings that the Sandiganbayan held that there was no basis for the allegation that accused therein (including petitioner) were deprived of the right to seek a reconsideration of the Ombudsman's Resolution dated April 4, 2001 finding probable cause to charge them with plunder after the conduct of preliminary investigation in connection therewith. In addition, the Sandiganbayan pointed out that petitioner filed a motion for reconsideration of the Ombudsman's resolution, but failed to show in his motion that there were newly discovered evidence, or that the preliminary investigation was tainted by errors of law or irregularities, which are the only grounds for which a reconsideration of the Ombudsman's resolution may be granted.46

It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute.47 The absence of a preliminary investigation does not impair the validity of the Information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the Information.48 If the lack of a preliminary investigation does not render the Information invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the charges against him during the preliminary investigation.The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial.49 As the Court held in Webb vs. De Leon, "[a] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.''50

Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officer's finding and determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor.51 The Court agrees with the Sandiganbayan that petitioner failed to establish that the preliminary investigation conducted by the Ombudsman was tainted with irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported by the facts, and that a reinvestigation was necessary.Certiorari will not lie to invalidate the Sandiganbayan's resolution denying petitioner's motion for reinvestigation since there is nothing to substantiate petitioner's claim that it gravely abused its discretion in ruling that there was no need to conduct a reinvestigation of the case.52

The ruling in Rolito Go vs. Court of Appeals53 that an accused shall not be deemed to have waived his right to ask for a preliminary investigation after he had been arraigned over his objection and despite his insistence on the conduct of said investigation prior to trial on the merits does not apply in the instant case because petitioner merely prayed for a reinvestigation on the ground of a newly-discovered evidence. Irrefragably, a preliminary investigation had been conducted by the Ombudsman prior to the filing of the amended Information, and that petitioner had participated therein by filing his counter-affidavit. Furthermore, the Sandiganbayan had already denied his motion for reinvestigation as well as his motion for reconsideration thereon prior to his arraignment.54 In sum then, the petition is dismissed.Re: G.R. No. 148468As synthesized by the Court from the petition and the pleadings of the parties, the issues for resolution are: (1) Whether or not petitioner should first be arraigned before hearings of his petition for bail may be conducted; (2) Whether petitioner may file a motion to quash the amended Information during the pendency of his petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and those of the other accused in Criminal Case No. 26558 is mandatory; (4) Whether the People waived their right to adduce evidence in opposition to the petition for bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the crime charged; and (5) Whether petitioner was deprived of his right to due process in Criminal Case No. 26558 and should thus be released from detention via a writ of habeas corpus.On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its discretion amounting to excess or lack of jurisdiction when it deferred the hearing of his petition for bail to July 10, 2001, arraigned him on said date and entered a plea of not guilty for him when he refused to be arraigned. He insists that the Rules on Criminal Procedure, as amended, does not require that he be arraigned first prior to the conduct of bail hearings since the latter can stand alone and must, of necessity, be heard immediately.55 Petitioner maintains that his arraignment before the bail hearings are set is not necessary since he would not plead guilty to the offense charged, as is evident in his earlier statements insisting on his innocence during the Senate investigation of the jueteng scandal and the preliminary investigation before the Ombudsman.56 Neither would the prosecution be prejudiced even if it would present all its evidence before his arraignment because, under the Revised Penal Code, a voluntary confession of guilt is mitigating only if made prior to the presentation of evidence for the prosecution,57 and petitioner admitted that he cannot repudiate the evidence or proceedings taken during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court expressly provides that evidence present during bail hearings are automatically reproduced during the trial.58 Petitioner likewise assures the prosecution that he is willing to be arraigned prior to the posting of a bail bond should he be granted bail.59


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The People insist that arraignment is necessary before bail hearings may be commenced, because it is only upon arraignment that the issues are joined. The People stress that it is only when an accused pleads not guilty may he file a petition for bail and if he pleads guilty to the charge, there would be no more need for him to file said petition. Moreover, since it is during arraignment that the accused is first informed of the precise charge against him, he must be arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail hearings on the ground that he was not properly informed of the charge against him, especially considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence presented during such proceedings are considered automatically reproduced at the trial.60 Likewise, the arraignment of accused prior to bail hearings diminishes the possibility of an accused's flight from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an accused escapes after he has been arraigned.61 The People also contend that the conduct of bail hearings prior to arraignment would extend to an accused the undeserved privilege of being appraised of the prosecution's evidence before he pleads guilty for purposes of penalty reduction.62

Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had been entered by the Sandiganbayan on his behalf, thereby rendering the issue as to whether an arraignment is necessary before the conduct of bail hearings in petitioner's case moot, the Court takes this opportunity to discuss the controlling precepts thereon pursuant to its symbolic function of educating the bench and bar.63

The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender.64 An accused need not wait for his arraignment before filing a petition for bail.In Lavides vs. Court of Appeals,65 this Court ruled on the issue of whether an accused must first be arraigned before he may be granted bail. Lavides involved an accused charged with violation of Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse, Exploitation and Discrimination Act), an offense punishable by reclusion temporal in its medium period to reclusion perpetua. The accused therein assailed, inter alia, the trial court's imposition of the condition that he should first be arraigned before he is allowed to post bail. We held therein that "in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash."66

However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information is filed against him.67 The Court's pronouncement in Lavides should be understood in light of the fact that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him. Hence, we explained therein that to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his constitutional right not to be put on trial except upon a valid complaint or Information sufficient to charge him with a crime and his right to bail.68

It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment. The ruling in Lavides also implies that an application for bail in a case involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned. Further, if the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be "authorized" under the circumstances. In fine, the Sandiganbayan committed a grave abuse of its discretion amounting to excess of jurisdiction in ordering the arraignment of petitioner before proceeding with the hearing of his petition for bail.With respect to the second issue of whether petitioner may file a motion to quash during the pendency of his petition for bail, petitioner maintains that a motion to quash and a petition for bail are not inconsistent, and may proceed independently of each other. While he agrees with the prosecution that a motion to quash may in some instances result in the termination of the criminal proceedings and in the release of the accused therein, thus rendering the petition for bail moot and academic, he opines that such is not always the case; hence, an accused in detention cannot be forced to speculate on the outcome of a motion to quash and decide whether or not to file a petition for bail or to withdraw one that has been filed.69 He also insists that the grant of a motion to quash does not automatically result in the discharge of an accused from detention nor render moot an application for bail under Rule 117, Section 5 of the Revised Rules of Court.70

The Court finds that no such inconsistency exists between an application of an accused for bail and his filing of a motion to quash. Bail is the security given for the release of a person in the custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions set forth under the Rules of Court.71 Its purpose is to obtain the provisional liberty of a person charged with an offense until his conviction while at the same time securing his appearance at the trial.72 As stated earlier, a person may apply for bail from the moment that he is deprived of his liberty by virtue of his arrest or voluntary surrender.73

On the other hand, a motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information.74 An accused may file a motion to quash the Information, as a general rule, before arraignment.75


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These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an accused right to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the Information charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or Information on the ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may become moot and academic.We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for bail of petitioner and accused Jose "Jinggoy" Estrada in Criminal Case No. 26558 and the trial of the said case as against former President Joseph E. Estrada be heard jointly.Petitioner argues that the conduct of joint bail hearings would negate his right to have his petition for bail resolved in a summary proceeding since said hearings might be converted into a full blown trial on the merits by the prosecution.76

For their part, the People claim that joint bail hearings will save the court from having to hear the same witnesses and the parties from presenting the same evidence where it would allow separate bail hearings for the accused who are charged as co-conspirators in the crime of plunder.77

In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate in the bail hearings, the Sandiganbayan explained that the directive was made was in the interest of the speedy disposition of the case. It stated:" x x x The obvious fact is, if the rest of the accused other than the accused Serapio were to be excused from participating in the hearing on the motion for bail of accused Serapio, under the pretext that the same does not concern them and that they will participate in any hearing where evidence is presented by the prosecution only if and when they will already have filed their petitions for bail, or should they decide not to file any, that they will participate only during the trial proper itself, then everybody will be faced with the daunting prospects of having to go through the process of introducing the same witness and pieces of evidence two times, three times or four times, as many times as there are petitions for bail filed. Obviously, such procedure is not conducive to the speedy termination of a case. Neither can such procedure be characterized as an orderly proceeding."78

There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of the Sandiganbayan governing the hearings of two or more petitions for bail filed by different accused or that a petition for bail of an accused be heard simultaneously with the trial of the case against the other accused. The matter of whether or not to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court. Unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere with the exercise by the Sandiganbayan of its discretion.It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into account not only the convenience of the State, including the prosecution, but also that of the accused and the witnesses of both the prosecution and the accused and the right of accused to a speedy trial. The Sandiganbayan must also consider the complexities of the cases and of the factual and legal issues involving petitioner and the other accused. After all, if this Court may echo the observation of the United States Supreme Court, the State has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal prosecutions. About them, this Court dares not become careless or complacent when that fashion has become rampant over the earth.79

It must be borne in mind that in Ocampo vs. Bernabe,80 this Court held that in a petition for bail hearing, the court is to conduct only a summary hearing, meaning such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of evidence for purposes of bail. The court does not try the merits or enter into any inquiry as to the weight that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be offered therein. It may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses, and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing.A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of time and effort of both the prosecution and the courts and minimizes the prejudice to the accused, especially so if both movants for bail are charged of having conspired in the commission of the same crime and the prosecution adduces essentially the same evident against them. However, in the cases at bar, the joinder of the hearings of the petition for bail of petitioner with the trial of the case against former President Joseph E. Estrada is an entirely different matter. For, with the participation of the former president in the hearing of petitioner's petition for bail, the proceeding assumes a completely different dimension. The proceedings will no longer be summary. As against former President Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing. Moreover, following our ruling in Jose Estrada vs. Sandiganbayan, supra where we stated that Jose "Jinggoy" Estrada can only be charged with conspiracy to commit the acts alleged in sub-paragraph (a) of the amended Information since it is not clear from the latter if the accused in sub-paragraphs (a) to (d) thereof conspired with each other to assist Joseph Estrada to amass ill-gotten wealth, we hold that petitioner can only be charged with having conspired with the other co-accused named in sub-paragraph (a) by "receiving or collecting, directly or indirectly, on several instances, money x x x from illegal gambling, x x x in consideration of toleration or protection of illegal gambling.81 Thus, with respect to petitioner, all that the prosecution needs to adduce to


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prove that the evidence against him for the charge of plunder is strong are those related to the alleged receipt or collection of money from illegal gambling as described in sub-paragraph (a) of the amended Information. With the joinder of the hearing of petitioner's petition for bail and the trial of the former President, the latter will have the right to cross-examine intensively and extensively the witnesses for the prosecution in opposition to the petition for bail of petitioner. If petitioner will adduce evidence in support of his petition after the prosecution shall have concluded its evidence, the former President may insist on cross-examining petitioner and his witnesses. The joinder of the hearing of petitioner's bail petition with the trial of former President Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty and seek relief from this Court if his petition is denied by the respondent court. The indispensability of the speedy resolution of an application for bail was succinctly explained by Cooley in his treatise Constitutional Limitations, thus:"For, if there were any mode short of confinement which would with reasonable certainty insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him in a greater or lesser degree, to the punishment of a guilty person, while as yet it is not determined that he has not committed any crime."82

While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered "to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case,"83 the Court finds that it gravely abused its discretion in ordering that the petition for bail of petitioner and the trial of former President Joseph E. Estrada be held jointly. It bears stressing that the Sandiganbayan itself acknowledged in its May 4, 2001 Order the "pre-eminent position and superiority of the rights of [petitioner] to have the matter of his provisional liberty resolved . . . without unnecessary delay,"84 only to make a volte face and declare that after all the hearing of petition for bail of petitioner and Jose "Jinggoy" Estrada and the trial as against former President Joseph E. Estrada should be held simultaneously. In ordering that petitioner's petition for bail to be heard jointly with the trial of the case against his co-accused former President Joseph E. Estrada, the Sandiganbayan in effect allowed further and unnecessary delay in the resolution thereof to the prejudice of petitioner. In fine then, the Sandiganbayan committed a grave abuse of its discretion in ordering a simultaneous hearing of petitioner's petition for bail with the trial of the case against former President Joseph E. Estrada on its merits.With respect to petitioner's allegations that the prosecution tried to delay the bail hearings by filing dilatory motions, the People aver that it is petitioner and his co-accused who caused the delay in the trial of Criminal Case No. 26558 by their filing of numerous manifestations and pleadings with the Sandiganbayan.85 They assert that they filed the motion for joint bail hearing and motion for earlier arraignment around the original schedule for the bail hearings which was on May 21–25, 2001.86

They argue further that bail is not a matter of right in capital offenses.87 In support thereof, they cite Article III, Sec 13 of the Constitution, which states that —"All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required."88

The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide:"Sec. 7 Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable . — No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.Sec. 4 Bail, a matter of right, exception. — All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule x x x (b) and before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment."89

Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional liberty on bail pending the judgment of his case. However, as to such person, bail is not a matter of right but is discretionary upon the court.90 Had the rule been otherwise, the Rules would not have provided for an application for bail by a person charged with a capital offense under Rule 114, Section 8 which states:"Sec. 8 Burden of proof in bail application. — At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that the evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify."91

Under the foregoing provision, there must be a showing that the evidence of guilt against a person charged with a capital offense is not strong for the court to grant him bail. Thus, upon an application for bail by the person charged with a capital offense, a hearing thereon must be conducted, where the prosecution must be accorded an opportunity to discharge its burden of proving that the evidence of guilt against an accused is strong.92 The prosecution shall be accorded the opportunity to present all the evidence it may deem necessary for this purpose.93 When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the court's duty to deny the application for bail. However, when the evidence of guilt is not strong, bail becomes a matter of right.94


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In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings. Petitioner's claim that the prosecution had refused to present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon is not borne by the records. The prosecution did not waive, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner. It must be noted that the Sandiganbayan had already scheduled the hearing dates for petitioner's application for bail but the same were reset due to pending incidents raised in several motions filed by the parties, which incidents had to be resolved by the court prior to the bail hearings. The bail hearing was eventually scheduled by the Sandiganbayan on July 10, 2001 but the hearing did not push through due to the filing of this petition on June 29, 2001.The delay in the conduct of hearings on petitioner's application for bail is therefore not imputable solely to the Sandiganbayan or to the prosecution. Petitioner is also partly to blame therefor, as is evident from the following list of motions filed by him and by the prosecution:Motions filed by petitioner:• Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for reconsideration/reinvestigation and to direct ombudsman to conduct reinvestigation; (2) conduct a determination of probable cause as would suggest the issuance of house arrest; (3) hold in abeyance the issuance of warrant of arrest and other proceedings pending determination of probable cause;• Motion for Early Resolution, dated May 24, 2001;• Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest for Immediate Grant of bail or For Release on Recognizance, dated April 25, 2001;• Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May 11, 2001;• Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of May 18, 2001 be set aside and bail hearings be set at the earliest possible time;• Urgent Motion for Immediate Release on Bail or Recognizance, dated May 27, 2001;• Motion for Reconsideration of denial of Urgent Omnibus Motion , dated June 13, 2001, praying that he be allowed to file a Motion for Reinvestigation; and• Motion to Quash, dated June 26, 2001.95

Motions filed by the prosecution:• Motion for Earlier Arraignment, dated May 8, 2001;96

• Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose "Jinggoy" Estrada and Edward Serapio , dated May 8, 2001;97

• Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to Adjust Earlier Arraignment , dated May 25, 2001;98 and• Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated June 19, 2001.99

The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their filing of the following motions:• Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada, assailing the constitutionality of R.A. No. 7080 and praying that the Amended Information be quashed;• Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada, praying that he be (1)excluded from the Amended Information for lack of probable cause; (2) released from custody; or in the alternative, (3) be allowed to post bail;• Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest during the pendency of the case;• Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada;• Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada;• Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by reinvestigation of the case by the Ombudsman or the outright dismissal of the case;• Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy Estrada, requesting for five (5) days within which to respond to the Opposition to Motion to Quash in view of the holidays and election-related distractions;• Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by Joseph Estrada;• Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest;• Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and Jinggoy Estrada;• Summation regarding house arrest, dated May 23, 2001, filed by Joseph and Jinggoy Estrada;• Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada;• Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying that they be allowed to be confined in Tanay;• Motion to charge as Accused Luis "Chavit" Singson, filed by Joseph Estrada;• Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada, seeking reconsideration of denial of requests for house arrest, for detention in Tanay or Camp Crame; motion for inhibition of Justice Badoy;• Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro Manila , dated June 28, 2001, filed by Jinggoy Estrada;


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• Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy Estrada, praying that the resolution compelling them to be present at petitioner Serapio's hearing for bail be reconsidered;• Motion to Quash, dated June 7, 2001, filed by Joseph Estrada;• Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy Estrada stating that Bishop Teodoro Bacani favors their house arrest;• Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving their right to be present at the June 18 and 21, 2001 bail hearings and reserving their right to trial with assessors;• Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and Copying of Documents; and Possible Trial with Assessors, dated June 19, 2001, filed by Joseph and Jinggoy Estrada;• Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed by Jinggoy Estrada;• Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates for parties, claiming that denial of bail is cruel and inhuman, reiterating request for gag order of prosecution witnesses, availing of production, inspection and copying of documents, requesting for status of alias case; and• Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for permission to attend some municipal affairs in San Juan, Metro Manila.100

Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to adduce evidence in opposition to an application for bail by an accused charged with a capital offense, the trial court is still under duty to conduct a hearing on said application.101 The rationale for such requirement was explained in Narciso vs. Sta. Romana-Cruz (supra), citing Basco vs. Rapatalo:102

"When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court , the petitioner having the right of cross-examination and to introduce his own evidence in rebuttal."103

Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing of his application for bail and resolve the same in his favor. Even then, there must first be a finding that the evidence against petitioner is not strong before he may be granted bail.Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he contends that he is entitled to the issuance of said writ because the State, through the prosecution's refusal to present evidence and by the Sandiganbayan's refusal to grant a bail hearing, has failed to discharge its burden of proving that as against him, evidence of guilt for the capital offense of plunder is strong. Petitioner contends that the prosecution launched "a seemingly endless barrage of obstructive and dilatory moves" to prevent the conduct of bail hearings. Specifically, the prosecution moved for petitioner's arraignment before the commencement of bail hearings and insisted on joint bail hearings for petitioner, Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who asked for a bail hearing; manifested that it would present its evidence as if it is the presentation of the evidence in chief, meaning that the bail hearings would be concluded only after the prosecution presented its entire case upon the accused; and argued that petitioner's motion to quash and his petition for bail are inconsistent, and therefore, petitioner should choose to pursue only one of these two remedies.104 He further claims that the Sandiganbayan, through its questioned orders and resolutions postponing the bail hearings effectively denied him of his right to bail and to due process of law.105

Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the bail hearings which it had earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus, since said orders have resulted in a continuing deprivation of petitioner's right to bail.106 He argues further that the fact that he was arrested and is detained pursuant to valid process does not by itself negate the efficacy of the remedy of habeas corpus. In support of his contention, petitioner cites Moncupa vs. Enrile,107 where the Court held that habeas corpus extends to instances where the detention, while valid from its inception, has later become arbitrary.108

However, the People insist that habeas corpus is not proper because petitioner was arrested pursuant to the amended information which was earlier filed in court,109 the warrant of arrest issuant pursuant thereto was valid, and petitioner voluntarily surrendered to the authorities.110

As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty in custody of an officer under a process issued by the court which jurisdiction to do so.111 In exceptional circumstances, habeas corpus may be granted by the courts even when the person concerned is detained pursuant to a valid arrest or his voluntary surrender, for this writ of liberty is recognized as "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" due to "its ability to cut through barriers of form and procedural mazes."112 Thus, in previous cases, we issued the writ where the deprivation of liberty, while initially valid under the law, had later become invalid,113 and even though the persons praying for its issuance were not completely deprived of their liberty.114

The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The general rule that habeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the same115 applies, because petitioner is under detention pursuant to the


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order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information for plunder against petitioner and his co-accused. Petitioner had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued.The ruling in Moncupa vs. Enrile116 that habeas corpus will lie where the deprivation of liberty which was initially valid has become arbitrary in view of subsequent developments finds no application in the present case because the hearing on petitioner's application for bail has yet to commence. As stated earlier, they delay in the hearing of petitioner's petition for bail cannot be pinned solely on the Sandiganbayan or on the prosecution for that matter. Petitioner himself is partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate remedy for asserting one's right to bail.117 It cannot be availed of where accused is entitled to bail not as a matter of right but on the discretion of the court and the latter has not abused such discretion in refusing to grant bail,118 or has not even exercised said discretion. The proper recourse is to file an application for bail with the court where the criminal case is pending and to allow hearings thereon to proceed.The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayan's resolution of the pending application for bail of petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his application for bail.IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows:1 In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of respondent Sandiganbayan subject of said petitions are AFFIRMED; and2 In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent Sandiganbayan, Annex "L" of the petition, ordering a joint hearing of petitioner's petition for bail and the trial of Criminal Case No. 26558 as against former President Joseph E. Estrada is SET ASIDE; the arraignment of petitioner on July 10, 2001 is also SET ASIDE.No costs.SO ORDERED.Davide, Jr., C .J ., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Austria-Martinez, Corona, Carpio-Morales and Azcuna, JJ ., concur.Vitug, J ., see separate opinion.Ynares-Santiago, J ., joins the dissent of Justice Sandoval-Gutierrez.Sandoval-Gutierrez, J ., see dissenting opinion.Carpio, J ., no part, prior inhibition in plunder cases.

Separate OpinionsVITUG, J.:I fully subscribe to the ponencia in G.R. No. 148468 that —a) The arraignment of an accused is not a prerequisite to the conduct of hearings on a petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender.b) There is no inconsistency between an application of an accused for bail and his filing of a motion to quash, these two reliefs not being necessarily antithetical to each other.c) The joinder of hearing of herein petitioner's bail petition with the trial of former President Joseph Estrada indeed could unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty.d) The claim of petitioner that the prosecution has refused to present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon hardly finds substantiation. Neither has the prosecution waived, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner.e) There is no basis for the issuance of a writ of habeas corpus in favor of petitioner. Habeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court having jurisdiction thereover.In G.R. No. 148769 and G.R. No. 149116, the issues for resolution are analogous to those posed in G.R. No. 148965, entitled "Jose 'Jinggoy' Estrada vs. Sandiganbayan [Third Division], People of the Philippines and Office of the Ombudsman," decided by the Court on 26 February 2002. Petitioner Atty. Edward Serapio stands indicted with the former President, Mr. Joseph E. Estrada, for plunder. Petitioner is charged with exactly the same degree of culpability as that of Mr. Jose "Jinggoy" Estrada, thusly:"AMENDED INFORMATION"The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE', TOGETHER WITH Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. 7080, as amended by Sec. 12 of R.A. 7659, committed as follows:"That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE


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PHILIPPINES, by himself, AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE , did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR a series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:"(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00) MORE OR LESS, FROM ILLEGAL GAMBLING, IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;"Atty. Serapio, in G.R. No. 148769, questions the denial by the Sandiganbayan of his motion to quash the Amended Information on the ground that, among other things, it alleges, at least as to him, neither a combination or series of overt acts constitutive of plunder nor a pattern of criminal acts indicative of an overall unlawful scheme in conspiracy with others. In G.R. No. 149116, petitioner claims that the Sandiganbayan has committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest, as well as the proceedings in Criminal Case No. 26558), to conduct a determination of probable cause, and to direct the Ombudsman to conduct a reinvestigation of the charges against him.In my separate opinion in G.R. No. 148965, which I now reiterate, I have said:"Plunder may be committed by any public officer either by himself or "in connivance" with other persons; it may also be committed by a person who participates with a public officer in the commission of an offense contributing to the crime of plunder. A person may thus be held accountable under the law by conniving with the principal co-accused or by participating in the commission of "an offense" contributing to the crime of plunder. The term "in connivance" would suggest an agreement or consent to commit an unlawful act or deed with or by another, to connive being to cooperate secretly or privily with another.1 Upon the other hand, to participate is to have a part or a share in conjunction with another of the proceeds of the unlawful act or deed."The amended Information alleged "connivance" and would assume that petitioner and his co-accused had a common design in perpetrating the violations complained of constitutive of "plunder."The Supreme Court in Estrada vs. Sandiganbayan2 has declared the anti-plunder law constitutional for being neither vague nor ambiguous on the thesis that the terms "series" and "combination" are not unsusceptible to firm understanding. "Series" refers to two or more acts falling under the same category of the enumerated acts provided in Section 1(d)3 of the statute; "combination" pertains to two or more acts falling under at least two separate categories mentioned in the same law.4

"xxx xxx xxx"The government argues that the illegal act ascribed to petitioner is a part of the chain that links the various acts of plunder by the principal accused. It seems to suggest that a mere allegation of conspiracy is quite enough to hold petitioner equally liable with the principal accused for the latter's other acts, even if unknown to him, in paragraph (a) of the indictment. This contention is a glaring bent. It is, to my mind, utterly unacceptable, neither right nor just, to cast criminal liability on one for the acts or deeds of plunder that may have been committed by another or others over which he has not consented or acceded to, participated in, or even in fact been aware of. Such vicarious criminal liability is never to be taken lightly but must always be made explicit not merely at the trial but likewise, and no less important, in the complaint or information itself in order to meet the fundamental right of an accused to be fully informed of the charge against him. It is a requirement that cannot be dispensed with if he were to be meaningfully assured that he truly has a right to defend himself. Indeed, an unwarranted generalization on the scope of the anti-plunder law would be a fatal blow to maintaining its constitutionality given the ratio decidendi in the pronouncement heretofore made by the Court upholding the validity of the statute."Given the foregoing exegesis, the petitioner, although ineffectively charged in the Amended Information for plunder, could still be prosecuted and tried for a lesser offense, for it is a recognized rule that an accused shall not be discharged even when a mistake has been made in charging the proper offense if he may still be held accountable for any other offense necessarily included in the crime being charged. It is, however, the Sandiganbayan, not this Court, which must make this determination on the basis of its own findings."WHEREFORE, I accept the ponencia in G.R. No. 148468 but, as regards G.R. No. 148769 and G.R. No. 149116, I vote for the remand of the case to the Sandiganbayan for further proceedings on the bail application of petitioner and urge that the incident be resolved with dispatch.

Dissenting OpinionSANDOVAL-GUTIERREZ, J.,:


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Once again, the Amended Information dated April 18, 2001 in Criminal Case No. 265581 is subjected to judicial scrutiny, this time, via a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure (G.R. No. 148769) filed by petitioner Edward S. Serapio. For easy reference, let me quote the Amended Information, thus:"The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former President of the Republic of the Philippines, Joseph Ejercito Estrada a.k.a. 'Asiong Salonga' and a.k.a. 'Jose Velarde,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John Does & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:'That during the period from June 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being then the President of the Republic of the Philippines, by himself and/or in connivance/conspiracy with his co-accused, who are members of his family, relatives by affinity or consanguinity, business associates, subordinates and/or other persons, by taking undue advantage of his official position, authority, relationship, connection, or influence, did then and there willfully, unlawfully and criminally amass, accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate amount or total value of four billion ninety seven million eight hundred four thousand one hundred seventy three pesos and seventeen centavos [P4,097,804,173.17], more or less, thereby unjustly enriching himself or themselves at the expense and to the damage of the Filipino people and the Republic of the Philippines through any or a combination or a series of overt OR criminal acts, or similar schemes or means, described as follows:a) by receiving or collecting, directly or indirectly, an aggregate amount of Five Hundred Forty-Five Million Pesos (P545,000,000.00), more or less, from illegal gambling in the form of gift, share, percentage kickback or any form of pecuniary benefit, by himself and/or in connivance with co-accused Charlie "Atong" Ang, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;b) by diverting, receiving, misappropriating, converting or misusing directly or indirectly, for his or their personal gain and benefit, public funds in the amount of one hundred thirty million pesos (P130,000,000.00) more or less, representing a portion of the Two Hundred Million Pesos (P200,000,000.00) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, John Doe a.k.a. Eleuterio Tan Or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas, and other John Does and Jane Does;c) by directing, ordering and compelling, for his personal gain and benefit, the Government Service Insurance System (GSIS) to purchase, 351,878,000 shares of stock, more or less and the Social Security System (SSS), 329,855,000 shares of stock, more or less, of the Belle Corporation in the amount of more or less One Billion One Hundred Two Million Nine Hundred Sixty Five Thousand Six Hundred Seven Pesos and Fifty Centavos [P1,102,965,607.50] and more or less Seven Hundred Forty Four Million Six Hundred Twelve Thousand Four Hundred Fifty Pesos (P744,612,450.00], respectively, or a total of a more or less One Billion Eight Hundred Forty Seven Million Five Hundred Seventy Eight Thousand Fifty Seven Pesos and fifty centavos [P1,847,578,057.50]; and by collecting or receiving, directly or indirectly, by himself and/or in connivance with John Does and Jane Does, Commissions or percentages by reason of said purchases of shares of stock in the amount of One Hundred Eighty-Nine Million Seven Hundred Thousand Pesos [P189,700,000], more or less, from the Belle Corporation, which became part of the deposit in the Equitable-PCI Bank under the account of "Jose Velarde";d) by unjustly enriching himself FROM COMMISSIONS, gifts, shares, percentages, kickbacks, or any form of pecuniary benefits, in connivance with John Does and Jane Does, in the amount of more or less Three Billion Two Hundred Thirty-Three Million One Hundred Four Thousand One Hundred Seventy Three Pesos and Seventeen Centavos [P3,233,104,173.17] and depositing the same under his account name "Jose Velarde" at the Equitable-PCI Bank.CONTRARY TO LAW.'"2

In G.R. No. 148965,3 I stood apart from the majority of my brethren in denying the Petition for Certiorari and Mandamus filed by Jose "Jinggoy," E. Estrada against the Sandiganbayan, People of the Philippines and Office of the Ombudsman. I articulated in my Dissent the various reasons why I could not join the majority in sustaining the afore-quoted Amended Information. Now, I am taking this second occasion to reiterate them, hoping that the majority will have a change of mind and resolve to re-examine its Decision.Consistent with my previous Dissent, it is my view that petitioner Edward S. Serapio, like Jose "Jinggoy" Estrada, may not be validly prosecuted for the crime of plunder under the Amended Information.To be forthright, the obvious error in the foregoing Information lies in the fact that it joined together four distinct conspiracies in a single continuing conspiracy of plunder and indiscriminately accused all the persons who participated therein of the said resulting crime. Simply put, the Amended Information is a mere fusion of separate conspiracies. It is akin to that of "separate spokes meeting at a common center, without the rim of the wheel to enclose the spokes ." This is legally impermissible. Such kind of information places the accused's primary right to be informed of the nature and cause of the accusation against him in jeopardy.I must reiterate what I have pointed out in G.R. No. 148965.There exists a distinction between separate conspiracies, where certain parties are common to all the conspiracies, but with no overall goal or common purpose; and one overall continuing conspiracy with various parties joining and terminating their relationship at different times.4 Distinct and separate conspiracies do not, in contemplation of law,


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become a single conspiracy merely because one man is a participant and key figure in all the separate conspiracies.5 The present case is a perfect example. The fact that former President Estrada is a common key figure in the criminal acts recited under paragraphs (a), (b), (c) and (d) of the Amended Information does not automatically give rise to a single continuing conspiracy of plunder, particularly, with respect to petitioner Serapio whose participation is limited to paragraph (a). To say otherwise is to impute to petitioner or to any of the accused the acts and statements of the others without reference to whether or not their acts are related to one scheme or overall plan. It could not have been the intention of the Legislature, in drafting R.A. No. 7080, to authorize the prosecution to chain together four separate and distinct crimes when the only nexus among them lies in the fact that one man participated in all. There lies a great danger for the transference of guilt from one to another across the line separating conspiracies.The principle laid down above is no longer novel in other jurisdictions. Various American decisions had expounded on the matter. In Battle vs. State,6 a judgment of conviction was reversed on the ground that the allegation of conspiracy in the indictment was insufficient, thus:"Among the requirements for the allegations in an indictment to be sufficient are (1) the specificity test, i.e., does the indictment contain all the elements of the offense pleaded in terms sufficient enough to apprise the accused of what he must be prepared to meet, and (2) is the indictment pleaded in such a manner as to enable the defendant to plead prior jeopardy as a defense if additional charges are brought for the same offense. x x x Further, our Supreme Court has recently considered the criteria for sufficiency in conspiracy cases in Goldberg vs. State, 351 So. 2d 332 (Fla. 1977),7 as this court has likewise done in State vs. Giardino, 363 So. 2d 201 (Fla. 3d DCA 1978).8 Applying the principles developed in the above cases to the instant cause, we are of the opinion that Count I of the indictment was insufficient. It is impossible to ascertain whether the indictment charges that appellant conspired with Acuna and Hernandez jointly or severally, or whether appellant conspired entirely with persons unknown. Also, it is impossible to tell whether appellant met with Acuna and Hernandez jointly or severally, or whether appellant conspired entirely with persons unknown. Also, it is impossible to tell whether appellant met with Acuna and Hernandez jointly or severally, or whether appellant met with persons unknown to plan the murder of Torres. Because appellant was left to guess who these other conspirators might be and because the vagueness of the allegations did nothing to protect him from further prosecution, we are of the opinion that they were too vague and indefinite to meet the requirements set forth above. Accordingly, in our opinion the trial court erred in failing to dismiss Count I of the indictment for conspiracy against appellant." (Footnote supplied)In State vs. Harkness,9 a demurrer to the information was sustained on the ground that an information charging two separate conspiracies is bad for misjoinder of parties where the only connection between the two conspiracies was the fact that one defendant participated in both. The Supreme Court of Washington ruled:"[W]e see no ground upon which the counts against both the Harknesses can be included in the same information. While they are charged with crimes of the same class, the crimes are alleged to have been committed independently and at different times. The crimes are related to each other only by the fact that the prescriptions used were issued by the same physician. x x x We find ourselves unable to agree with the appellant that the misjoinder is cured by the conspiracy charge . It is doubtful if the count is sufficient in form to charge a conspiracy. x x x Reference is made in the count, to counts one to six, inclusive, for a specification of the acts constituting the conspiracy. When these counts are examined, it will be seen that they charge separate substantive offenses without alleging any concert of action between the Harknesses."Thus, when certain persons unite to perform certain acts, and some of them unite with others who are engaged in totally different acts, it is error to join them in an information.10 Otherwise stated, defendants charged with two separate conspiracies having one common participant are not, without more, properly joined, and similarity of acts alone is insufficient to indicate that series of acts exist.11 Joinder may be permitted when the connection between the alleged offenses and the parties is the accused's awareness of the identity and activity of the other alleged participants. 12 There must be a showing of one overall common goal to which the participants bind themselves.Apparently, the factual recitals of the Amended Information fail to sufficiently allege that petitioner Serapio deliberately agreed or banded with the rest of the accused for the purpose of committing Plunder. There is no averment that he conspired with them in committing the crimes specified in paragraphs (b), (c) and (d) of the Amended Information, such as misappropriation of the tobacco excise tax share of Ilocos Sur; receipt of commissions by reason of the purchase of shares of stock from the Belle Corporation; and acquisition of unexplained wealth.To my mind, the Amended Information only makes out a case of bribery "in toleration or protection of illegal gambling." While he is being charged for the "crime of Plunder, defined and penalized under R.A. No. 7080," his alleged participation therein is limited to what is specified under paragraph (a) of the Amended Information.The essence of the law on plunder lies in the phrase "combination or series of overt or criminal acts." The determining factor of R.A. No. 7080, as can be gleaned from the Record of the Senate, is the plurality of the overt acts or criminal acts under a grand scheme or conspiracy to amass ill-gotten wealth. Thus, even if the amassed wealth equals or exceeds fifty million pesos, a person cannot be prosecuted for the crime of plunder if he performs only a single criminal act.13

It is the majority's position that since there is an allegation of conspiracy at the inception of the Amended Information, the criminal acts recited in paragraphs (b), (c) and (d) pertain to petitioner as well, the act of one being the act of all. This is an obvious non sequitur. Even the Amended Information, on its face, cannot admit such a construction.First, it bears noting that the Amended Information named the co-conspirators of former President Estrada individually and separately in each of the four predicate offenses. Paragraph (a) named petitioner Jose "Jinggoy" Estrada, "Atong" Ang, Yolanda T. Ricaforte, Edward Serapio, John Does and Jane Does as co-conspirators in the crime of bribery. Paragraph (b)


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named Alma Alfaro, "Atong" Ang, Eleuterio Ramos Tan, Delia Rajas and other John Does and Jane Does as co-conspirators in the crime of malversation of public funds representing a portion of the tobacco excise tax share allocated to the Province of Ilocos Sur. Paragraph (c) and (d) named John Does and Jane Does as co-conspirators in the purchase of the Belle's shares and in the acquisition of ill-gotten wealth in the amount of P3,233,104,173.17 under the account name " Jose Velarde."Is it logical to infer from the Amended Information the existence of a single continuing conspiracy of plunder when the factual recital thereof individually and separately named the co-conspirators in each of the predicate offenses? I must reecho my answer in G.R. No. 148965, i.e., an outright no. A single agreement to commit several crimes constitutes one conspiracy. By the same reasoning, multiple agreements to commit separate crimes constitute multiple conspiracies. To individually and separately name the co-conspirators in each of the predicate offenses is to reveal the absence of a common design. The explicit clustering of co-conspirators for each predicate offense thwarts the majority's theory of a single continuing conspiracy of plunder. It reveals a clear line segregating each predicate offense from the other . Thus, the act of one cannot be considered as the act of all.Second, the allegation of conspiracy at the inception of the Amended Information basically pertains to former President Estrada as the common key figure in the four predicate offenses. Allow me to quote the pertinent portion, thus:"That during the period from June 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being then the President of the Republic of the Philippines, by himself and/or in connivance/conspiracy with his co-accused, who are members of his family, relatives by affinity or consanguinity, business associates, subordinates and/or other persons, by taking undue advantage of his official position, authority, relationship, connection, or influence, did then and there willfully, unlawfully and criminally amass, accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate amount or total value of four billion ninety seven million eight hundred four thousand one hundred seventy three pesos and seventeen centavos [P4,097,804,173.17], more or less, thereby unjustly enriching himself or themselves at the expense and to the damage of the Filipino people and the Republic of the Philippines through any or a combination or a series of overt OR criminal acts, or similar schemes or means, described as follows: x x x."From the foregoing allegation, it can be reasonably construed that former President Estrada conspired with all the accused in committing the four predicate offenses. However, whether his co-accused conspired with him jointly or individually for the commission of all, or some or one of the predicate offenses is a question that may be answered only after a reading of the entire Amended Information. I note with particularity the phrase in the Amended Information stating, "by himself and/or14 in connivance/conspiracy with his co-accused." The phrase indicates that former President Estrada did not, in all instances, act in connivance with the other accused. At times, he acted alone. Consequently, as alleged in the succeeding paragraphs (a), (b), (c) and (d), his co-accused conspired with him individually and not jointly. Petitioner Serapio cannot therefore be associated with the former President in all the latter's alleged criminal activities.Of course, I cannot ignore the use of the phrase "on several instances" and "aggregate amount of P545,000,000.00" in paragraph (a) of the Amended Information. At first glance, this may be construed as attributing to petitioner Serapio a "combination or series of overt act." However, a reading of the Amended Information, in its entirety, readily reveals that the said phrases pertain to former President Estrada, the principal accused in the case . Allegedly, the former President, on several instances, received or collected an aggregate amount of P545,000,000.00, more or less from illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit "by himself and/or in connivance with co-accused Charlie "Atong" Ang, Jose "Jinggoy" Estrada, Yolanda T. Ricaforte, petitioner Serapio and John Does and Jane Does. We have already explained the implication of the phrase "by himself and/or in connivance." Consequently, the acts committed by former President Estrada on the several instances referred to cannot automatically be attributed to petitioner.Third, petitioner's criminal intent to advance the unlawful object of the conspiracy (plunder) is not sufficiently alleged in the factual recitals of the Amended Information. Corollarily, the intent required is the intent to advance or further the unlawful object of the conspiracy.15 This means that so far as the relevant circumstances are concerned, both parties to the agreement must have mens rea.16 There is no conspiracy to commit a particular crime unless the parties to the agreement intend that the consequences, which are ingredients of that crime, shall be caused.17 In the present case, while there is an allegation that former President Estrada "willfully, unlawfully and criminally"18 amassed ill-gotten wealth in the aggregate amount of P4,097,804,173.17, none is mentioned with regard to petitioner. There is nothing in the Amended Information that suggests whether or not petitioner has the mens rea to engage in the commission of the serious crime of plunder. Indeed, there are no allegations that he "willfully, unlawfully or criminally" joined with the rest of the accused to amass ill-gotten wealth. This renders the Amended Information fatally defective with respect to petitioner. Every crime is made up of certain acts and intent: these must be set forth in the complaint with reasonable particularity. 19 Imperatively, an information charging that a defendant conspired to commit an offense must allege that the defendant agreed with one or more persons to commit the offense.20

And fourth, the statement in the accusatory portion of the Amended Information cumulatively charging all the accused of the crime of Plunder cannot be given much weight in determining the nature of the offense charged. It is a jurisprudentially-embedded rule that what determines the "nature and cause of accusation" against an accused is the crime described by the facts stated in the information or complaint and not that designated by the fiscal in the preamble thereof.21

In the recent En Banc ruling in Lacson vs. Executive Secretary,22 citing the 1954 case of People vs. Cosare23 and People vs. Mendoza,24 this Court held:


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"The factor that characterizes the charge is the actual recital of the facts. The real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information."25

Thus, in the event that the appellation of the crime charged, as determined by the public prosecutor, does not exactly correspond to the actual crime constituted by the criminal acts described in the information to have been committed by the accused, what controls is the description of the said criminal acts and not the technical name of the crime supplied by the public prosecutor.26

There is a caveat that an information under the broad language of a general conspiracy statute must be scrutinized carefully as to each of the charged defendants because of the possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as the culpable.27

Let it be stressed that guilt should remain individual and personal, even as respect conspiracies. It is not a matter of mass application. There are times when of necessity, because of the nature and scope of a particular federation, large numbers of persons taking part must be tried by their conduct. The proceeding calls for the use of every safeguard to individualize each accused in relation to the mass. Criminal they may be, but it is not the criminality of mass conspiracy. They do not invite mass trial by their conduct. True, this may be inconvenient for the prosecution. But the government is not one of mere convenience or efficiency. It too has a stake with every citizen, in his being afforded the individual protections, including those surrounding criminal trials.28 The shot-gun approach of a conspiracy charge could amount to a prosecution for general criminality resulting in a finding of guilt by association. The courts should, at all times, guard against this possibility so that the constitutional rights of an individual are not curbed or clouded by the web of circumstances involved in a conspiracy charge.29

Corollarily, petitioner prays in G.R. No. 148468 for this Court to issue a writ of habeas corpus. The Amended Information being fatally defective, it is imperative that petitioner be dropped from the Amended Information and proceeded against under a new one charging the proper offense. In the absence of a standing case against him, the issuance of a writ of habeas corpus is in order."30

WHEREFORE, I vote to GRANT the petitions in G.R. No. 148769 and G.R. No. 148468.
