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Santos-Concio vs. Department of Justice

*
G.R. No. 175057. January 29, 2008.

MA. ROSARIO SANTOS-CONCIO, MA. SOCORRO V.

VIDANES, MARILOU ALMADEN, CIPRIANO LUSPO, MORLY
STEWART NUEVA, HAROLD JAMES NUEVA, NORBERT
VIDANES, FRANCISCO RIVERA, MEL FELICIANO, and JEAN
OWEN ERCIA, petitioners, vs. DEPARTMENT OF JUSTICE,
HON. RAUL M. GONZALEZ, as Secretary of the Department of
Justice, NATIONAL CAPITAL REGION-NATIONAL BUREAU
OF INVESTIGATION, PANEL OF INVESTIGATING
PROSECUTORS created under Department of Justice Department
Order No. 165 dated 08 March 2006, LEO B. DACERA III, as
Chairman of the Panel of Investigating Prosecutors, and DEANA P.
PEREZ, MA. EMILIA L. VICTORIO, EDEN S. WAKAY-VALDES
and PETER L. ONG, as Members of the Panel of Investigating
Prosecutors, the EVALUATING PANEL created under Department
of Justice Department Order No. 90 dated 08 February 2006,
JOSELITA C. MENDOZA as Chairman of the Evaluating Panel,
and MERBA WAGA, RUEL LASALA and ARNOLD ROSALES,
as Members of the Evaluating Panel, respondents.

Criminal Procedure; Preliminary Investigation; The measures taken by

the Evaluating Panel do not partake of a criminal investigation, they having
been done in aid of evaluation in order to relate the

_______________

* SECOND DIVISION.

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incidents to their proper context.—The measures taken by the Evaluating
Panel do not partake of a criminal investigation, they having been done in
aid of evaluation in order to relate the incidents to their proper context.
Petitioners’ own video footage of the ocular inspection discloses this
purpose. Evaluation for purposes of determining whether there is sufficient
basis to proceed with the conduct of a preliminary investigation entails not
only reading the report or documents in isolation, but also deems to include
resorting to reasonably necessary means such as ocular inspection and
physical evidence examination. For, ultimately, any conclusion on such
sufficiency or insufficiency needs to rest on some basis or justification.

Same; Same; A complaint for purposes of conducting a preliminary

investigation differs from a complaint for purposes of instituting a criminal
prosecution; Being generally inquisitorial, the preliminary investigation
stage is often the only means of discovering the persons who may be
reasonably charged with a crime, to enable the preparation of a complaint
or information.—A complaint for purposes of conducting a preliminary
investigation differs from a complaint for purposes of instituting a criminal
prosecution. Confusion apparently springs because two complementary
procedures adopt the usage of the same word, for lack of a better or
alternative term, to refer essentially to a written charge. There should be no
confusion about the objectives, however, since, as intimated during the
hearing before the appellate court, preliminary investigation is conducted
precisely to elicit further facts or evidence. Being generally inquisitorial, the
preliminary investigation stage is often the only means of discovering the
persons who may be reasonably charged with a crime, to enable the
preparation of a complaint or information.

Same; Same; The complaint is not entirely the affidavit of the

complainant, for the affidavit is treated as a component of the com-plaint.—
As clearly worded, the complaint is not entirely the affidavit of the
complainant, for the affidavit is treated as a component of the complaint.
The phraseology of the above-quoted rule recognizes that all necessary
allegations need not be contained in a single document. It is unlike a
criminal “complaint or information” where the aver-ments must be
contained in one document charging only one offense, non-compliance with
which renders it vulnerable to a motion to quash.

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Same; Same; A preliminary investigation can thus validly proceed on

the basis of an affidavit of any competent person, without the referral
document, like the NBI-NCR Report, having been sworn to by the law
enforcer as the nominal complainant.—A preliminary investigation can thus
validly proceed on the basis of an affidavit of any competent person,
without the referral document, like the NBI-NCR Report, having been
sworn to by the law enforcer as the nominal complainant. To require
otherwise is a needless exercise. The cited case of Oporto, Jr. v. Judge
Monserate, 356 SCRA 443 (2001), does not appear to dent this proposition.
After all, what is required is to reduce the evidence into affidavits, for while
reports and even raw information may justify the initiation of an
investigation, the preliminary investigation stage can be held only after
sufficient evidence has been gathered and evaluated which may warrant the
eventual prosecution of the case in court.

PETITION for review on certiorari of the decision and resolution of

the Court of Appeals.

Puno and Puno for petitioners.

Felixberto Verano for Rey Cayabyab.

CARPIO-MORALES, J.:

On challenge via petition for review on certiorari are the Court of1
Appeals May 24, 2006 Decision and October 10, 2006 Resolution
in CA-G.R. SP No. 93763 dismissing herein petitioners’ petition for
certiorari and prohibition that sought to (i) annul respondent
2 3
Department of Justice (DOJ) Department Order Nos. 90 and 165
dated February 8, 2006 and March 8, 2006, respectively, and all
orders, proceedings and issuances emanating therefrom, and (ii)
prohibit the DOJ

_______________

1 [Former] Special Thirteenth Division composed of Justice Lu-cas P. Bersamin,

acting chairman; Justice Lucenito N. Tagle, acting senior member; and Justice Arturo
G. Tayag, junior member and ponente.
2 Rollo, p. 137.
3 Id., at p. 243.

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Santos-Concio vs. Department of Justice

from further conducting a preliminary investigation in what has been

dubbed as the “Ultra Stampede” case.
In the days leading to February 4, 2006, people started to gather
in throngs at the Philsports Arena (formerly Ultra) in Pasig City, the
publicized site of the first anniversary episode of “Wowowee,” a
noontime game show aired by ABS-CBN Broadcasting Corporation
(ABS-CBN). With high hopes of winning the bonanza, hundreds
queued for days and nights near the venue to assure themselves of
securing tickets for the show. Little did they know that in taking a
shot at instant fortune, a number of them would pay the ultimate
wager and place their lives at stake, all in the name of bagging the
prizes in store.
Came the early morning of February 4, 2006 with thousands
more swarming to the venue. Hours before the show and minutes
after the people were allowed entry through two entry points at six
o’clock in the morning, the obstinate crowd along Capt. Javier Street
jostled even more just to get close to the lower rate pedestrian gate.
The mad rush of the unruly mob generated much force, triggering
the horde to surge forward with such momentum that led others to
stumble and get trampled upon by the approaching waves of people
right after the gate opened. This fatal stampede claimed 71 lives,
4
69
of whom were women, and left hundreds wounded which
necessitated emergency medical support and prompted the
cancellation of the show’s episode.
The Department of Interior and Local Government (DILG),
through then Secretary Angelo
5
Reyes, immediately created an inter-
agency fact-finding team to investigate the circum-

_______________

4 Id., at pp. 181-200.

5 Headed by DILG Undersecretary Marius Corpus, the team had the authority to
summon and interview any person who can shed light on the incident, require the
submission of any and all relevant documents, and to enlist the assistance of any other
government agencies. CA Rollo, p. 64.

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74 SUPREME COURT REPORTS ANNOTATED

Santos-Concio vs. Department of Justice
6
stances surrounding the stampede. The team submitted its report to
the DOJ on February 7, 2006.
By Department Order No. 90 of February 8, 2006, respondent
DOJ Secretary Raul 7
Gonzalez (Gonzalez) constituted a Panel
(Evaluating Panel) to evaluate the DILG Report and “determine
whether there is sufficient basis to proceed with the conduct of a
preliminary investigation on the basis of the documents submitted.”
The Evaluating
8
Panel later submitted to Gonzalez a February 20,
2006 Report concurring with the DILG Report but concluding that
there was no sufficient basis to proceed with the conduct of a
preliminary investigation in view of the following considerations:

“a) No formal complaint/s had been filed by any of the victims

and/or their relatives, or any law enforcement agency
 authorized to file a complaint, pursuant to Rule 110 of the
Revised Rules of Criminal Procedure;
b) While it was mentioned in the Fact-Finding Report that
there were 74 deaths and 687 injuries, no documents were
submitted to prove the same, e.g. death certificates, autopsy
reports, medical certificates, etc.;
c) The Fact-Finding Report did not indicate the names of the
persons involved and their specific participation in the
“Ultra Incident”;

_______________

6 Rollo, pp. 132-135.

7 Composed of respondents Senior State Prosecutor Joselita De Claro-Mendoza as
chairperson, and State Prosecutor Merba Waga, NBI-NCR Regional Director Atty.
Ruel Lasala and NBI Investigating Agent Atty. Arnold Rosales as members.
8 Rollo, pp. 136, 138-174. The Evaluating Panel concurred with the DILG’s
findings as regards the venue, security arrangements, crowd control management and
coordination, and contingency/emergency plans and medical response.

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Santos-Concio vs. Department of Justice

d) Most of the victims did not mention, in their sworn

statements, the names of the persons whom
9
they alleged to
be responsible for the “Ultra Incident.”

Respondent National Bureau of Investigation-National Capital

Region (NBI-NCR), acting on the Evaluating Panel’s referral of the
case to it for further investigation, in turn submitted to the DOJ an
investigation 10report, by a March 8, 2006 transmittal letter (NBI-
NCR Report ), with supporting documents recommending the
conduct of preliminary investigation for Reckless Imprudence11
resulting in Multiple Homicide and 12
Multiple Physical Injuries
against petitioners and seven others as respondents.

_______________

9 Rollo, p. 170.
10 Id., at pp. 175-242.
11 REVISED PENAL CODE, Art. 365 in relation to Arts. 249, 263, 265 & 266, as
amended.
12 [Ma. Rosario] “Charo” Santos-Concio (Executive Vice President of ABS-
CBN Broadcasting Corp. and Head of ABS-CBN’s Entertainment Group); Maria
Socorro V. Vidanes (Senior Vice President of the Television Production Department
of ABS-CBN’s Entertainment Group); Marilou Almaden (Business Unit Head and
Executive Producer of ABS-CBN in charge of supervision of entertainment shows);
Cipriano “Rene” Luspo (Assistant Vice President and Head of Security of ABS-
CBN); Morly Stewart [Nueva] (Executive Producer and Manager of the Wowowee
show); Harold James Nueva (Associate Producer for Sets & Technicals of the
Wowowee show); Norbert Vidanes (Director of the Wowowee show); Fran[c]isco
B. Rivera (Location Manager of ABS-CBN); Mel Feliciano (Assistant Director of
the Wowowee show); Jean Owen [Ercia] (Floor Director of the Wowowee show);
together with Wilfredo “Willy” B. Revillame (Host of the Wowowee show); Rey
Cayabyab (Assistant Location Manager and Security Coordinator); Jess Velardo
(Building Administrator of the Philsports Complex); Erlinda S. Reis (Booking and
Events Coordinator of the Philsports Complex); Rosenbar O. Viloria (Staff Director
for Operations of Goldlink Security and Allied Services, Inc.); Wilfron Onanad (Se-
curity-in-Charge of Goldlink Security and Allied Services, Inc.); and

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76 SUPREME COURT REPORTS ANNOTATED

Santos-Concio vs. Department of Justice

Acting on the recommendation of the NBI-NCR, Gonzalez, by

Department Order 13
No. 165 of March 8, 2006, designated a panel of
state prosecutors (Investigating Panel) to conduct the preliminary
investigation of the case, docketed as I.S. No. 2006-291, “NCR-NBI
v. Santos-Concio, et al.,” and if warranted by the evidence, to file the
appropriate information and prosecute the same before the
appropriate court. The following day or14 on March 9, 2006, the
Investigating Panel issued subpoenas directing the therein
respondents to appear at the preliminary investigation set on March
20 and 27, 2006.
At the initial preliminary investigation, petitioners sought
clarification and orally moved for the inhibition, disqualification or
desistance of15 the Investigating Panel from conducting the
investigation. The Investigating Panel did not formally resolve the
motion, however, as petitioners manifested their reservation to file
an appropriate motion on the next hearing16 scheduled on March 27,
2006, without prejudice to other remedies.
On March 23, 2006, petitioners filed a petition for certiorari and
prohibition with the 17
Court of Appeals which issued on March 27,
2006 a18 Resolution granting the issuance of a temporary restraining
order, conducted on April 24, 2006 a hear-

_______________

Chito Payumo (Security-in-Charge of Goldlink Security and Allied Services,

Inc.), id., at p. 175.
13 Composed of respondents Senior State Prosecutor Leo B. Dacera III as
chairperson, and Senior State Prosecutor Deana P. Perez, State Prosecutors Ma.
Emilia L. Victorio, Eden S. Wakay-Valdes and Peter L. Ong as members.
14 Rollo, pp. 615-624.
15 Id., at pp. 257-260, 266 et seq.
16 Id., at pp. 278, 289-291.
17 Id., at pp. 367-370. Per Justice Arturo G. Tayag, with Justice Jose L. Sabio, Jr.
and Justice Noel G. Tijam (vice Justice Jose C. Mendoza) concurring.
18 Id., at pp. 371-372.

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Santos-Concio vs. Department of Justice

ing on the application for a writ of preliminary injunction, and

subsequently promulgated the assailed two issuances. 19
In the meantime, the Investigating Panel, by Resolution of
October 9, 2006, found probable cause to indict the respondents-
herein petitioners for Reckless Imprudence resulting in Multiple
Homicide and Physical Injuries, and recommended the conduct of 20a
separate preliminary investigation against21
certain public officials.
Petitioners’ Motion for Reconsideration of the said October 9, 2006
Resolution, filed on October 30, 2006 “with abundance of caution,”
is pending resolution, and in the present petition they additionally
pray for its an-nulment.
In asserting their right to due process, specifically to a fair and
impartial preliminary investigation, petitioners impute reversible
errors in the assailed issuances, arguing that:

“Respondents have already prejudged the case, as shown by the public

declarations of Respondent Secretary and the Chief Executive, and have,
therefore, lost their impartiality to conduct preliminary investigation.
Respondents have already prejudged the case as shown by the indecent
haste by which the proceedings were conducted.

_______________

19 Id., at pp. 753-822. With a lone dissent by Investigating Panel Member State
Prosecutor Peter Ong, the Resolution bears the recommending approval of Assistant
Chief State Prosecutor Richard Anthony Fadullon and approval of Assistant Chief
State Prosecutor Miguel Gudio, Jr. for the Chief State Prosecutor.
20 Pasig City Mayor Vicente Eusebio; Pasig City Police Chief P/S Supt. Raul Z.
Medina; Pasig City PCP 15 Station Commander P/S Insp. Henry N. Asuela; Pasig
City Traffic and Parking Management Office Chief P/Insp. Khaddafy Bitor;
Philsports Complex Chief Security Officer Arnulfo Awa; Philsports Complex
Security Coordinator Eugenio Cabigas; and Oranbo Barangay Chairman Richard Pua.
21 Rollo, pp. 823-905. Petitioners allege that they also filed an “Urgent Motion to
Reopen Case and/or Reinvestigation with Motion for Issuance of Subpoenae.”
 78

78 SUPREME COURT REPORTS ANNOTATED

Santos-Concio vs. Department of Justice

The alleged complaint-affidavits filed against Petitioners were not under

oath.
The supposed complaint-affidavits filed against Petitioners failed to state
the acts or omissions constituting the crime.
Although Respondents may have the power to conduct criminal
investigation or preliminary investigation,22
Respondents do not have the
power to conduct both in the same case.” (Emphasis and italics supplied)

The issues shall, for logical reasons, be resolved in reverse

sequence.

On the Investigatory Power of the DOJ

In the assailed Decision, the appellate court ruled that the

Department Orders were issued within the scope of authority of the
23
DOJ Secretary pursuant to the Administrative Code of 1987
bestowing general investigatory powers upon the DOJ.

_______________

22 Id., at pp. 55-56.

23 EXECUTIVE ORDER No. 292, Book IV, Title III, Chapter 1 reads:

SECTION 1. Declaration of Policy.—It is the declared policy of the State to provide the
government with a principal law agency which shall be both its legal counsel and prosecution
arm; administer the criminal justice system in accordance with the accepted processes thereof
consisting in the investigation of the crimes, prosecution of offenders and administration of the
correctional system; implement the laws on the admission and stay of aliens, citizenship, land
titling system, and settlement of land problems involving small landowners and members of
indigenous cultural minorities; and provide free legal services to indigent members of society.
SEC. 2. Mandate.—The Department shall carry out the policy declared in the preceding
section.
SEC. 3. Powers and Functions.—To accomplish its mandate, the Department shall have the
following powers and functions:
xxxx

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Petitioners concede that the DOJ has the power to conduct both
criminal
24
investigation and preliminary investigation
25
but not in their
case, they invoking Cojuangco, Jr. v. PCGG. They posit that in
Cojuangco, the reshuffling of personnel was not considered by this
Court which ruled that the entity which conducted the criminal
investigation is disqualified from conducting a preliminary
investigation in the same case. They add that the DOJ cannot
circumvent the prohibition by simply creating a panel to conduct the
first, and another to conduct the second.
In insisting on the arbitrariness of the two Department Orders
which, so they claim, paved the way for the DOJ’s dual role,
petitioners trace the basis for the formation of the five-prosecutor
Investigating Panel to the NBI-NCR 26Report which was spawned by
the supposed criminal investigation of the Evaluating Panel the
members of which included two, albeit different, prosecutors. While27
petitioners do not assail the constitution of the Evaluating Panel,
they claim that it did not just evaluate the DILG Report but went
further and conducted its own criminal investigation by interviewing
witnesses, conducting an ocular inspection, and perusing the
evidence.
Petitioners’ position does not lie. Cojuangco was borne out of a
different factual milieu.

_______________

(2) Investigate the commission of crimes, prosecute offenders and administer the probation
and correction system;
x x x x. (Emphasis and italics supplied)

24 Rollo, p. 84.
25 G.R. Nos. 92319-20, October 2, 1990, 190 SCRA 226.
26 Petitioners classify this as the “second” criminal investigation, followed by the
one conducted by the NBI-NCR and preceded by that of the DILG. The latter two,
petitioners do not question. Rollo, pp. 85-86, 411.
27 Petitioners stated that “if [the Evaluating Panel] had just done that, evaluated the
report, look[ed] at the four corners, there would have not been no [sic] problem.” Id.,
at p. 414.

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In Cojuangco, this Court prohibited the Presidential Commission on

Good Government (PCGG) from conducting a preliminary
investigation of the complaints for graft and corruption since it had
earlier found a prima facie case—basis of its issuance of
sequestration/freeze orders and the filing of an ill-gotten wealth case
involving the same transactions. The Court therein stated that it is
“difficult to imagine how in the conduct of such preliminary
investigation the PCGG could even make a turn about and take a
position contradictory to its earlier findings of a prima facie case,”
and so held that “the law enforcer who conducted the criminal
investigation, gathered the evidence and thereafter filed the
complaint for the purpose of preliminary investigation cannot be
allowed to 28 conduct the preliminary investigation of his own
complaint.” The present case deviates from Cojuangco.
The measures taken by the Evaluating Panel do not partake of a
criminal investigation, they having been done in aid of evaluation in
order to relate the incidents to their proper context. Petitioners’ own
video footage of the ocular inspection discloses this purpose.
Evaluation for purposes of determining whether there is sufficient
basis to proceed with the conduct of a preliminary investigation
entails not only reading the report or documents in isolation, but also
deems to include resorting to reasonably necessary means such as
ocular inspection and physical evidence examination. For,
ultimately, any conclusion on such sufficiency or insufficiency needs
to rest on some basis or justification.
Had the Evaluating Panel carried out measures partaking of a
criminal investigation, it would have gathered the documents that it
enumerated as lacking. Notatu dignum is the fact that the Evaluating
Panel was dissolved functus oficio
29
upon rendering its report. It was
the NBI, a constituent unit of the DOJ, which conducted the
criminal investigation. It is

_______________

28 Cojuangco, Jr. v. Presidential Commission on Good Government, supra at p.

254.
29 EXECUTIVE ORDER No. 292, Book IV, Title III, Chapter 1, Sec. 4.

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thus foolhardy to inhibit the entire DOJ from conducting a

preliminary investigation on the sheer ground that the DOJ’s
constituent unit conducted the criminal investigation.
Moreover, the improbability of the DOJ contradicting its prior
finding is hardly appreciable. It bears recalling that the Evaluating
Panel found no sufficient basis to proceed with the conduct of a
preliminary investigation. Since the Evaluating Panel’s report was
not adverse to petitioners, prejudgment may not be attributed
“vicariously,” so to speak, to the rest of the state prosecutors.
Partiality, if any obtains in this case, in fact weighs heavily in favor
of petitioners.

On the Alleged Defects of the Complaint

On the two succeeding issues, petitioners fault the appel-late court’s

dismissal of their petition despite, so they claim, respondents’
commission of grave abuse of discretion in proceeding with the
preliminary investigation given the fatal defects in the supposed
complaint.
Petitioners point out that they cannot be compelled to submit
their counter-affidavits because the NBI-NCR Report, which they
advert to as the complaint-affidavit, was not under oath. While they
admit that there were affidavits attached to the NBI-NCR Report, the
same, they claim, were not executed by the NBI-NCR as the
purported complainant, leaving them as “orphaned” supporting
affidavits without a sworn com-plaint-affidavit to support.
These affidavits, petitioners
30
further point out, nonetheless do not
qualify as a complaint within the scope of Rule 110 of the Rules of
Court as the allegations therein are insufficient to initiate a
preliminary investigation, there being no statement of specific and
individual acts or omissions constituting reckless imprudence. They
bewail the assumptions or conclusions of law in the NBI-NCR
Report as well as the bare narra-

_______________

30 Vide Rollo, pp. 546-547.

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Santos-Concio vs. Department of Justice

tions in the affidavits that lack any imputation relating to them as the
persons allegedly responsible.
IN FINE, petitioners contend that absent any act or omission
ascribed to them, it is unreasonable to expect them to confirm, deny
or explain their side.
A complaint for purposes of conducting a preliminary
investigation differs from a complaint for purposes of instituting a
criminal prosecution. Confusion apparently springs because two
complementary procedures adopt the usage of the same word, for
lack of a better or alternative term, to refer essentially to a written
charge. There should be no confusion about the objectives, however,
since, as intimated during the hear-ing before the appellate court,
preliminary investigation
31
is conducted precisely to elicit further facts
or evidence. Being generally inquisitorial, the preliminary
investigation stage is often the only means of discovering the
persons who may be reasonably charged with32
a crime, to enable the
preparation of a complaint or information.
Consider the following pertinent provision of Rule 112 of the
Revised Rules on Criminal Procedure:

“SEC. 3. Procedure.—The preliminary investigation shall be conducted in

the following manner:
(a) The complaint shall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as
well as other supporting documents to establish probable cause. They shall
be in such number of copies as there are respondents, plus two (2) copies for
the official file. The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or, in their
absence or unavailability, before a notary public, each of whom must certify
that he personally examined the affiants and that he is satis-

_______________

31 Rollo, p. 541.
32 Paderanga v. Drilon, G.R. No. 96080, April 19, 1991, 196 SCRA 86, 90.

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33
fied that they voluntarily executed and understood their affidavits.”
(Emphasis and italics supplied)

As clearly worded, the complaint is not entirely the affidavit of the

complainant, for the affidavit is treated as a component of the
complaint. The phraseology of the above-quoted rule recognizes that
all necessary allegations need not be contained in a single document.
It is unlike a criminal “complaint or information” where the
averments must be contained in one document charging only one
offense, non-compliance
34
with which renders it vulnerable to a
motion to quash.
The Court is not unaware of the practice of incorporating all
allegations in one document denominated as “complaint-affidavit.”
It does not pronounce strict adherence to only one approach,
however, for there are cases where the extent of one’s personal
knowledge may not cover the entire gamut of details material to the
alleged offense. The private offended party or 35relative of the
deceased may not even have witnessed the fatality, in which case
the peace officer or law enforcer has to rely chiefly on affidavits of
witnesses. The Rules do not in fact preclude the attachment of a
referral or transmittal36letter similar to that of the NBI-NCR. Thus, in
Soriano v. Casanova, the Court held

“A close scrutiny of the letters transmitted by the BSP and PDIC to the DOJ
shows that these were not intended to be the complaint envisioned under the
Rules. It may be clearly inferred from the tenor of the letters that the officers
merely intended to transmit the affidavits of the bank employees to the DOJ.
Nowhere in the transmittal letters is there any averment on the part of the
BSP and

_______________

33 RULES OF COURT, Rule 112, Sec. 3, par. (a).

34 RULES OF COURT, Rule 117, Sec. 3 (f) in relation to Rule 110, Sec. 13.
35 As the appellate court pointed out, for obvious reasons the victims who died
could no longer sign the complaint; Rollo, pp. 549-550.
36 G.R. No. 163400, March 31, 2006, 486 SCRA 431.

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84 SUPREME COURT REPORTS ANNOTATED

Santos-Concio vs. Department of Justice

PDIC officers of personal knowledge of the events and transactions

constitutive of the criminal violations alleged to have been made by the
accused. In fact, the letters clearly stated that what the OSI of the BSP and
the LIS of the PDIC did was to respectfully transmit to the DOJ for
preliminary investigation the affidavits and personal knowledge of the acts
of the petitioner. These affidavits were subscribed under oath by the
witnesses who executed them before a notary public. Since the affidavits,
not the letters transmitting them, were intended to initiate the preliminary
investigation, we hold that Section 3(a), Rule 112 of the Rules of Court was
substantially complied with.
Citing the ruling of this Court in Ebarle v. Sucaldito, the Court of
Appeals correctly held that a complaint for purposes of preliminary
investigation by the fiscal need not be filed by the offended party. The rule
has been that, unless the offense subject thereof is one that cannot be
prosecuted de oficio, the same may be filed, for preliminary investigation
purposes, by any competent person. The crime of estafa is a public crime
which can be initiated by “any competent person.” The witnesses who
executed the affidavits based on their personal knowledge of the acts
committed by the petitioner fall within the purview of “any competent37
person” who may institute the complaint for a public crime. x x x”
(Emphasis and italics supplied)

A preliminary investigation can thus validly proceed on the basis of

an affidavit of any competent person, without the referral document,
like the NBI-NCR Report, having been sworn to by the law enforcer
as the nominal complainant. To require otherwise is a38 needless
exercise. The cited case of Oporto, Jr. v. Judge Monserate does not
appear to dent this

_______________

37 Id., at pp. 438-439; Tayaban v. People, G.R. No. 150194, March 6, 2007, 517
SCRA 488, 502-503; RULES OF COURT, Rule 110, Sec. 3, where it is unlike a
“complaint” which is “x x x subscribed by the offended party, any peace officer, or
other public officer charged with the enforcement of the law violated.”
38 408 Phil. 561; 356 SCRA 443 (2001). Both Oporto and the prior en banc case
of People v. Historillo (389 Phil. 141; 333 SCRA 615 [2000]) rely on U.S. v. Bibal (4
Phil. 369 [1905]) in holding that the lack of oath (even) in a criminal complaint does
not invalidate

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proposition. After all, what is required is to reduce the evidence

into affidavits, for while reports and even raw information may
justify the initiation of an investigation, the preliminary
investigation stage can be held only after sufficient evidence has
been gathered and evaluated 39which may warrant the eventual
prosecution of the case in court.
In the present case, there is no doubt about the existence of
affidavits. The appellate court found that “certain 40complaint-
affidavits were already filed by some of the victims,” a factual
finding to which this Court, by rule, generally defers.
A complaint for purposes of conducting preliminary investigation
is not required to exhibit the attending structure of a “complaint or
information” laid down in Rule 110 (Prosecution of Offenses) which 41
already speaks of the “People of the Philip-pines”
42
as a party, an
“accused” rather than 43
a respondent, and a “court” that shall
pronounce judgment. If a “complaint or information” filed in court
does not comply with44a set of constitutive averments, it is vulnerable
to a motion to quash. The filing of a motion to dismiss in lieu of a
counter-affidavit

_______________

the judgment of conviction since the want of an oath is a mere defect in form
which does not affect the substantial rights of the defendant on the merits. Oporto,
however, involved an administrative case concerning the proper issuance of a warrant
of arrest in a criminal case not requiring a preliminary investigation, in which case the
judge needs to personally examine in writing and under oath the complainant and
witnesses, which could not have been done absent any sworn statement.
 39 Vide Olivas v. Office of the Ombudsman, G.R. No. 102420, December 20, 1994,
239 SCRA 283, 294-295.
40 Rollo, p. 121, citing TSN taken during the proceedings at the Court of Appeals
on April 24, 2006, at pp. 95-98, 108-119 (Rollo, pp. 467-470, 480-491).
41 Vide RULES OF COURT, Rule 110, Sec. 2.
42 Id., at Secs. 6-7.
43 Id., at Sec. 9.
44 Vide RULES OF COURT, Rule 117, Sec. 3 (a) in relation to Rule 110, Secs. 6-
11.

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86 SUPREME COURT REPORTS ANNOTATED

Santos-Concio vs. Department of Justice
45
is proscribed by the rule on preliminary investigation, how-ever.
The investigating officer is allowed to dismiss outright the complaint
only if it is not sufficient in form
46
and substance or “no ground to
continue with the investigation” is appreciated.

“The investigating fiscal, to be sure, has discretion to determine the

specificity and adequacy of averments of the offense charged. He may
dismiss the complaint forthwith if he finds it to be insufficient in form or
substance or if he otherwise finds no ground to continue with the inquiry, or
proceed with the investigation if the complaint is, in his view, in due and
proper form. It certainly is not his duty to require a more particular
statement of the allegations of the complaint merely upon the respondents’
motion, and specially where after an analysis of the complaint and its
supporting statements he finds it sufficiently definite to apprise the
respondents of the offenses which they are charged. Moreover, the
procedural device of a bill of particulars, as the Solicitor General points out,
appears to have reference to informations or criminal complaints filed in a
competent court upon which the accused are arraigned and required to
plead, and strictly speaking has no application to complaints initiating a
preliminary investigation which
47
cannot result in any finding of guilt, but
only of probable cause.” (Italics and ellipses in the original omitted;
underscoring supplied)

Petitioners’ claims of vague allegations or insufficient imputations

are thus matters that can be properly raised in their counter-affidavits
to negate or belie the existence of probable cause.

On the Claim of Bias and Prejudgment

On the remaining issues, petitioners charge respondents to have lost

the impartiality to conduct the preliminary investi-

_______________
 45 Id., Rule 112, Sec. 3, par. (c).
46 Id., at par. (b).
47 Cinco v. Sandiganbayan, G.R. Nos. 92362-67, October 15, 1991, 202 SCRA
726, 734; vide Martinez v. Court of Appeals, G.R. No. 168827, April 13, 2007, 521
SCRA 176.

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gation since they had prejudged the case, in support of which they
cite the “indecent” haste in the conduct of the proceedings. Thus,
they mention48the conduct of the criminal investigation within 24
working days and the issuance of subpoenas immediately following
the creation of the Investigating Panel.
Petitioners likewise cite the following public declarations made
by Gonzalez as expressing his conclusions that a crime had been
committed, that the show was the proximate cause, and that the
show’s organizers are guilty thereof:

February 6, 2006: “[ ] should have anticipated it because one week na iyan

e. The crowds started gathering since one week before. This is simply
negligence x x x on the part of the organizers.”
February 14, 2006: “I think ABS-CBN is trying to minimize its own
responsibility and it’s discernible from the way by which talk shows
nila being conducted on people who talk about liabilities of others.
“The reason for this incident was the program. If there was no
program, there would have been no stampede. There would have been no
people. There would have been no attempt by people to queue there for
days and rush for the nearest entry point.”
March 20, 2006: “I’ll bet everything
49
I have that they are responsible at
least on the civil aspect.” (Emphasis in the original)

Continuing, petitioners point out that long before the conclusion of

any investigation, Gonzalez already ruled out the possibility that
some other cause or causes led to the tragedy or that someone else or
perhaps none should be made criminally liable; and that Gonzalez
had left the preliminary inves-

_______________

48 Inclusive of February 4, 2006 (Saturday) when the DILG’s fact-finding team

was created up to the submission of the NBI-NCR Report on March 8, 2006.
49 Vide Rollo, p. 36.

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88 SUPREME COURT REPORTS ANNOTATED
Santos-Concio vs. Department of Justice

tigation to a mere determination of who within ABS-CBN are the

program’s organizers who should be criminally prosecuted.
Petitioners even cite President Arroyo’s declaration in a radio
interview on February 14, 2006 that “[y]ang stampede na iyan, Jo,
ay isang trahedya na pinapakita yung kakulangan at pagkapabaya .
. . nagpabaya ng organisasyon na nag-organize50nito.”
To petitioners, the declarations admittedly made by Gonzalez
tainted the entire DOJ, including the Evaluating and Investigating
Panels, since the Department is subject to the direct control and
supervision of Gonzalez in his capacity as DOJ Secretary who, in
turn, is an alter ego of the President.
Petitioners thus fault the appellate court in not finding grave
abuse of discretion on the part of the Investigating Panel members
who “refused to inhibit themselves from conducting the preliminary
investigation despite the undeniable
51
bias and partiality publicly
displayed by their superiors.”
Pursuing, petitioners posit
52
that the bias of the DOJ Secretary is
the bias of the entire DOJ. They thus conclude that the DOJ, as an
institution, publicly adjudged their guilt based on a pre-determined
notion of supposed facts, and urge that the Investigating Panel and
the entire DOJ for that matter should inhibit from presiding and
deciding over such preliminary investigation because they, as quasi-
judicial53officers, do not possess the “cold neutrality of an impartial
judge.”
Responding to the claim of prejudgment, respondents maintain
that the above-cited statements of Gonzalez and the President
merely indicate that the incident is of such nature and magnitude as
to warrant a natural inference that it

_______________

50 Vide id., at pp. 495-496, but declining to interpret the context under which the
statements were made.
51 Rollo, p. 69.
52 Id., at p. 38.
53 Id., at p. 57 citing Cruz v. People, G.R. No. 108738, June 27, 1994, 233 SCRA
439, 449-450.

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Santos-Concio vs. Department of Justice
would not have happened in the ordinary course of things and that
any reasonable mind would conclude that there is a causal
connection between the show’s preparations and the resultant deaths
and injuries.
Petitioners’ fears are speculatory.
Speed in the conduct of proceedings by a judicial or quasi-
judicial officer cannot per se54 be instantly attributed to an injudicious
performance of functions. For one’s prompt dispatch may be
another’s undue haste. The orderly administration 55of justice remains
as the paramount and constant consid-eration, with particular
regard of the circumstances peculiar56to each case.
The presumption of regularity includes 57
the public officer’s
official actuations in all phases of work. Consistent with such
presumption, it was incumbent upon petitioners to present
contradictory evidence58 other than a mere tallying of days or
numerical calculation. This, petitioners failed to discharge. The
swift completion of the Investigating Panel’s initial task cannot be
relegated as shoddy or shady without discounting the presumably
regular performance of not just one but five state prosecutors.
As for petitioners’ claim of undue haste indicating bias, proof
thereof is wanting. The pace of the proceedings is any-

_______________

54 Vide Gala v. Ellice Agro-Industrial Corporation, 463 Phil. 846, |858-859; 418
SCRA 431, 444 (2003) citing People v. Mercado, 400 Phil. 37; 346 SCRA 256
(2000).
55 Vide id.
56 RULES OF COURT, Rule 131, Sec. 3 (m).
57 De Chavez v. Office of the Ombudsman, G.R. Nos. 168830-31, February 6,
2007, 514 SCRA 638, 652. Cf. Ribaya v. Binamira-Parcia, A.M. No. MTJ-04-1547,
April 15, 2005, 456 SCRA 107, 119 where the judge issued a warrant of arrest on the
same day the complaint was filed.
58 Cf. Ribaya v. Binamira-Parcia, A.M. No. MTJ-04-1547, April 15, 2005, 456
SCRA 107, 119 where the judge issued a warrant of arrest on the same day the
complaint was filed.

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Santos-Concio vs. Department of Justice

thing but a matter of acceleration. Without any objection from the

parties, respondents even accorded petitioners a preliminary
investigation even when it was not required since the case involves
an alleged offense where the penalty 59prescribed by law is below
Four Years, Two Months and One Day.
 Neither is there proof showing that Gonzalez exerted undue
pressure on his subordinates to tailor their decision with his public
declarations and adhere to a pre-determined result. The Evaluating
Panel in fact even found no sufficient basis, it bears emphatic
reiteration, to proceed with the conduct of a preliminary
investigation, and one member of the Investigating Panel even
dissented to its October 9, 2006 Resolution.
To follow petitioner’s theory of institutional bias would logically
mean that even the NBI had prejudged the case in conducting a
criminal investigation since it is a constituent agency of the DOJ.
And if the theory is extended to the President’s declaration, there
would be no more arm of the government credible enough to
conduct a criminal investigation and a preliminary 60investigation.
On petitioners citation of Ladlad v. Velasco where a public
declaration by Gonzalez was found to evince a “determination61to file
the Information even in the absence of probable cause,” their
attention is drawn to62the following ruling of this Court in Roberts, Jr.
v. Court of Appeals:

“Ordinarily, the determination of probable cause is not lodged with this

Court. Its duty in an appropriate case is confined to the issue of whether the
executive or judicial determination, as the case

_______________

59 Rollo, p. 937; RULES OF COURT, Rule 112, Sec. 1 in relation to REVISED

PENAL CODE, Art. 365. Vide People v. De Los Santos, G.R. No. 131588, March 27,
2004, 355 SCRA 415.
60 G.R. Nos. 172070-72, June 1, 2007, 523 SCRA 318.
61 Id. In that case, Gonzalez categorically stated, “We [the DOJ] will just declare
probable cause, then it’s up to the [C]ourt to decide . . .”
62 324 Phil. 568; 254 SCRA 307 (1996).

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may be, of probable cause was done without or in excess of jurisdiction or

with grave abuse of discretion amounting to want of jurisdiction. This is
consistent with the general rule that criminal prosecution may not be
restrained or stayed by injunction, preliminary or final. There are, however,
exceptions to this rule x x x enumerated in Brocka vs. Enrile (192 SCRA
183, 188-189 [1990]) x x x. In these exceptional cases, this Court may
ultimately resolve the existence or non-existence of probable 63
cause by
examining the records of the preliminary investigation x x x.” (Emphasis
and italics supplied)
Even assuming arguendo that petitioners’ case falls under the
exceptions enumerated in Brocka, any resolution on the existence or
lack of probable cause or, specifically, any conclusion on the issue
of prejudgment as elucidated in Ladlad,is made to depend on the
records of the preliminary investigation. There have been, as the
appellate court points out, no finding to speak of when the petition
was filed, much
64
less one that is subject to judicial review due to
grave abuse. At that incipient stage, records were wanting if not nil
since the Investigating Panel had not yet resolved any matter
brought before it, save for the issuance of subpoenas. The Court thus
finds no reversible error on the part of the appellate court in
dismissing petitioners’ petition for certiorari and prohibition and in
refraining from reviewing the merits of the case until a ripe and
appropriate case is presented. Otherwise, court intervention would
have been only pre-emptive and piecemeal.
Oddly enough, petitioners eventually concede that 65
they are “not
asking for a reversal of a ruling on probable cause.”
A word on the utilization by petitioners of the video foot-ages
provided by ABS-CBN. While petitioners 66
deny wishing
67
or causing
respondents to be biased and impartial, they admit that the media,
ABS-CBN included, interviewed Gon-

_______________

63 Id., at pp. 615-616; p. 345.

64 Id., at p. 30.
65 Rollo, p. 965.
66 Id., at p. 97.
67 Id., at pp. 63-64.

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92 SUPREME COURT REPORTS ANNOTATED

Santos-Concio vs. Department of Justice

zalez in order to elicit his opinion on a matter that ABS-CBN knew

was pending investigation and involving a number of its own staff.
Gonzalez’s actuations may leave much to be desired; petitioners’ are
not, however, totally spotless as circumstances tend to show that
they were asking for or fishing from him something that could later
be used against him to favor their cause.
A FINAL WORD. The Court 68
takes this occasion to echo its
disposition in Cruz v. Salva where it censured a fiscal for
inexcusably allowing undue publicity in the conduct of preliminary
investigation and appreciated the press for wisely declining an
unusual probing privilege. Agents of the law ought to recognize the
buoys and bounds of prudence in discharging what they may deem
 as an earnest effort to herald the government’s endeavor in solving a
case.
WHEREFORE, the petition is DENIED.
Costs against petitioners.
SO ORDERED.

Quisumbing (Chairperson), Carpio, Tinga and Velasco, Jr.,

JJ., concur.

Petition denied.

Note.—A preliminary investigation by definition also requires a

finding by the authorized officer of the commission of a crime.
(Solid Triangle Sales Corporation vs. Sheriff of RTC, Quezon City,
Br. 93, 370 SCRA 491 [2001])

——o0o——

_______________

68 105 Phil. 1151 (1959).

93

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