Professional Documents
Culture Documents
Rule 112
Rule 112
SPO2
Aniano Atienza, and SPO1 Ildefonso
1. Gozos v Tac-an
Castillo, members of the Philippine
G.R. No. 123191 December 17, 1998 National Police, San Jose, Batangas. The
amendment would reduce the charge
against private respondent SPO2 Jaime
OSCAR L. GOZOS, Presiding Blanco from murder to homicide and
Prosecutor of Batangas, EDNA DYOGI, drop the rest of the private respondents
et al., petitioners, from the information.
vs.
HON. PATERNO C. TAC-AN, Presiding 2.) Order November 22, 1995 — Acting
Judge, Regional Trial Court, Branch 84, on the motion for reconsideration filed on
Batangas City; SPO2 JAIME V. November 7, 1995 by the complainant
BLANCO, SPO3 PEDRO CASTILLO, Edna Dyogi, respondent judge directed
SPO3 CIRIANO S. SULIT, SPO4 the Office of the Provincial Prosecutor,
ANIANO ATIENZA, and SPO1 Batangas City to amend the information
ILDEFONZO CASTILLO, respondent. by including private respondent Pedro
Castillo as an accomplice in the crime.
However, respondent judge denied the
G.R. No. 123442 December 17, 1998 motion insofar as it sought to include the
other private respondents as accused in
the criminal case.
PEOPLE OF THE PHILIPPINES,
represented by the Provincial Prosecutor
of Batangas, petitioner, 3.) Order dated January 3, 1996 —
Respondent Judge Tac-an denied the
vs. second motion for reconsideration filed
HON. PATERNO C. TAC-AN, Presiding by complainant Edna Dyogi, questioning
Judge, Regional Trial Court Branch 84, the authority of respondent to require the
Batangas City, and SPO2 JAIME V. Provincial Prosecutor to amend the
BLANCO, respondent. information.
Petitioners raise the following issues: (d) Such other officers as may be
authorized by law.
SO ORDERED.
The absence of preliminary investigations
3. Estrada v Office of Ombudsman
does not affect the court’s jurisdiction
G.R. Nos. 212140-41 January
over the case. Nor do they impair the
21, 2015
validity of the information or otherwise
render it defective; but, if there were no
SENATOR JINGGOY EJERCITO
preliminary investigations and the
ESTRADA, Petitioner,
defendants, before entering their plea,
vs.
invite the attention of the court to their
OFFICE OF THE OMBUDSMAN,
absence, the court, instead of dismissing
FIELD INVESTIGATION OFFICE,
the information, should conduct it or
Office of the Ombudsman,
remand the case to the inferior court so
NATIONAL BUREAU OF
that the preliminary investigation may be
INVESTIGATION and ATTY.
conducted. (Citation omitted)
LEVITO D. BALIGOD,
Respondents.
DECISION
as defined underRA No. 7080 and for
CARPIO, J.: violation of Section 3(e) of RA No.
3019 (Anti-Graft and Corrupt
It is a fundamental principle that the Practices Act).
accused in a preliminary investigation
has no right to cross-examine the The Facts
witnesses which the complainant may
present. Section 3, Rule 112 of the On 25 November 2013, the
Rules of Court expressly provides Ombudsman served upon Sen.
that the respondent shall only have the Estrada a copy of the complaint in
right to submit a counter-affidavit, to OMB-C-C-13-0313, filed by the NBI
examine all other evidence submitted and Atty. Baligod, which prayed,
by the complainant and, where the among others, that criminal
fiscal sets a hearing to propound proceedings for Plunder as defined in
clarificatory questions to the parties RA No. 7080 be conducted against
or their witnesses, to be afforded an Sen. Estrada. Sen. Estrada filed his
opportunity to be present but without counter-affidavit inOMB-C-C-13-
the right to examine or crossexamine. 0313 on 9 January 2014.
Sen. Estrada’s request was made a) If the complaint is not under oath
"[p]ursuant to the right of a or is based only on official reports, the
respondent ‘to examine the evidence investigating officer shall require the
submitted by the complainant which complainant or supporting witnesses
he may not have been furnished’ to execute affidavits to substantiate
(Section 3[b], Rule 112 of the Rules the complaints.
of Court) and to ‘have access to the
evidence on record’ (Section 4[c], b) After such affidavits have been
Rule II of the Rules of Procedure of secured, the investigating officer shall
the Office of the Ombudsman)."7 issue an order, attaching thereto a
copy of the affidavits and other
On 27 March 2014, the Ombudsman supporting documents, directing the
issued the assailed Order in OMB-C- respondents to submit, within ten (10)
C-13-0313. The pertinent portions of days from receipt thereof, his counter-
the assailed Order read: affidavits and controverting evidence
with proof of service thereof on the
This Office finds however finds [sic] complainant. The complainant may
that the foregoing provisions file reply affidavits within ten (10)
[pertaining to Section 3[b], Rule 112 days after service of the counter-
of the Rules of Court and Section affidavits.
4[c], Rule II of the Rules of Procedure
of the Office of the Ombudsman] do It can be gleaned from these
not entitle respondent [Sen. aforecited provisions that this Office
Estrada]to be furnished all the filings is required to furnish [Sen. Estrada] a
of the respondents. copy of the Complaint and its
supporting affidavits and documents;
Rule 112 (3) (a) & (c) of the Rules of and this Office complied with this
Court provides [sic]: requirement when it furnished [Sen.
Estrada] with the foregoing
(a) The complaintshall state the documents attached to the Orders to
address of the respondent and shall be File Counter-Affidavit dated 19
accompanied by the affidavits of the November 2013 and 25 November
complainant and his witnesses, as 2013.
well as other supporting documents to
establish probable cause … It is to be noted that there is
noprovision under this Office’s Rules
xxx xxx xxx of Procedure which entitles
respondent to be furnished all the
(c) Within ten (10) days from receipt filings by the other parties, e.g. the
of the subpoena with the complaint respondents. Ruby Tuason, Dennis
and supporting affidavits and Cunanan, Gondelina G. Amata and
documents, the respondent shall Mario L. Relampagos themselves are
submit his counter affidavit and that all respondents in these cases. Under
of his witnesses and other supporting the Rules of Court as well as the Rules
of Procedure of the Office of the THE ARGUMENTS
Ombudsman, the respondents are
only required to furnish their counter- Sen. Estrada raised the following
affidavits and controverting evidence grounds in his Petition:
to the complainant, and not to the
other respondents. THE OFFICE OF THE
OMBUDSMAN, IN ISSUING THE
To reiterate, the rights of respondent CHALLENGED ORDER DATED
[Sen.] Estrada in the conduct of the 27 MARCH 2014, ACTED
preliminary investigation depend on WITHOUT OR IN EXCESS OF ITS
the rights granted to him by law and JURISDICTION OR WITH GRAVE
these cannot be based on whatever ABUSE OF DISCRETION
rights he believes [that] he is entitled AMOUNTING TO LACK OR
to or those that may be derived from EXCESS OF JURISDICTION AND
the phrase "due process of law." Thus, VIOLATED SEN. ESTRADA'S
this Office cannot grant his motion to CONSTITUTIONAL RIGHT TO
be furnished with copies of all the DUE PROCESS OF LAW.10 Sen.
filings by the other parties. Estrada also claimed that under the
Nevertheless, he should be furnished circumstances, he has "no appeal or
a copy of the Reply of complainant any other plain, speedy, and adequate
NBI as he is entitled thereto under the remedy in the ordinary course of law,
rules; however, as of this date, no except through this Petition."11 Sen.
Reply has been filed by complainant Estrada applied for the issuance of a
NBI. temporary restraining order and/or
writ of preliminary injunction to
WHEREFORE, respondent [Sen.] restrain public respondents from
Estrada’s Request to be Furnished conducting further proceedings in
with Copies of Counter-Affidavits of OMB-C-C-13-0313 and OMB-C-C-
the Other Respondents, Affidavits of 13-0397. Finally, Sen. Estrada asked
New Witnesses and Other Filingsis for a judgment declaring that (a) he
DENIED. He is nevertheless entitled has been denied due process of law,
to be furnished a copy of the Reply if and as a consequence thereof, (b) the
complainant opts to file such Order dated 27 March 2014, as well
pleading.8 (Emphases in the original) as the proceedings in OMB-C-C-13-
0313 and OMB-C-C-13-0397
On 28 March 2014, the Ombudsman subsequent to and affected bythe
issued in OMB-C-C-13-0313 and issuance of the 27 March 2014 Order,
OMB-C-C-13-0397 a Joint are void.12
Resolution9 which found probable
cause to indict Sen. Estrada and his On the same date, 7 May 2014, the
co-respondents with one count of Ombudsman issued in OMBC-C-13-
plunder and 11 counts of violation of 0313 and OMB-C-C-13-0397 a Joint
Section 3(e) of RA No. 3019. Sen. Order furnishing Sen. Estrada with
Estrada filed a Motion for the counter-affidavits of Tuason,
Reconsideration (of the Joint Cunanan, Amata, Relampagos,
Resolution dated 28 March 2014) Francisco Figura, Gregoria
dated 7 April 2014. Sen. Estrada Buenaventura, and Alexis Sevidal,
prayed for the issuance of a new and directing him to comment thereon
resolution dismissing the charges within a non-extendible period of five
against him. Without filing a Motion days fromreceipt of the order.
for Reconsideration of the
Ombudsman’s 27 March 2014 Order On 12 May 2014, Sen. Estrada filed
denying his Request, Sen. Estrada before the Ombudsman a motion to
filed the present Petition for suspend proceedings in OMB-C-C-
Certiorari under Rule 65 and sought 13-0313 and OMB-C-C-13-0397
to annul and set aside the 27 March because the denial of his Request to
2014 Order. be furnished copies of counter-
affidavits of his co-respondents
deprived him of his right to the Solicitor General, filed their
procedural due process, and he has Comment to the present Petition. The
filed the present Petition before public respondents argued that:
thisCourt. The Ombudsman denied
Sen. Estrada’s motion to suspend in I. PETITIONER [SEN. ESTRADA]
an Order dated 15 May 2014. Sen. WAS NOTDENIED DUE PROCESS
Estrada filed a motion for OF LAW.
reconsideration of the Order dated 15
May 2014 but his motion was denied II. THE PETITION FOR
in an Order dated 3 June 2014. CERTIORARI IS
PROCEDURALLY INFIRM.
As of 2 June 2014,the date of filing of
the Ombudsman’s Comment to the A. LITIS PENDENTIA EXISTS IN
present Petition, Sen. Estrada had not THIS CASE.
filed a comment on the counter-
affidavits furnished to him. On 4 June B. PETITIONER HAS A PLAIN,
2014, the Ombudsman issued a Joint SPEEDY AND ADEQUATE
Order in OMB-C-C-13-0313 and REMEDY IN THE ORDINARY
OMB-C-C-13-0397 denying, among COURSE OF LAW.
other motions filed by the other
respondents, Sen. Estrada’s motion III. PETITIONER IS
for reconsideration dated 7 April NOTENTITLED TO A WRIT OF
2014. The pertinent portion of the 4 PRELIMINARY INJUNCTION
June 2014 Joint Order stated: AND/OR TEMPORARY
RESTRAINING ORDER.14
While it is true that Senator Estrada’s
request for copies of Tuason, On 6 June 2014, Atty. Baligod filed
Cunanan, Amata, Relampagos, his Comment to the present Petition.
Figura, Buenaventura and Sevidal’s Atty. Baligod stated that Sen.
affidavits was denied by Order dated Estrada’s resort to a Petition for
27 March 2014 and before the Certiorari under Rule 65 is improper.
promulgation of the assailed Joint Sen. Estrada should have either filed
Resolution, this Office thereafter a motion for reconsideration of the 27
reevaluated the request and granted it March 2014 Order or incorporated the
byOrder dated 7 May 2014 granting alleged irregularity in his motion for
his request. Copies of the requested reconsideration of the 28 March 2014
counter-affidavits were appended to Joint Resolution. There was also no
the copy of the Order dated 7 May violation of Sen. Estrada’s right to
2014 transmitted to Senator Estrada due process because there is no rule
through counsel. which mandates that a respondent
such as Sen. Estrada be furnished
This Office, in fact, held in abeyance with copies of the submissions of his
the disposition of the motions for corespondents.
reconsideration in this proceeding in
light of its grant to Senator Estrada a On 16 June 2014, Sen. Estrada filed
period of five days from receipt of the his Reply to the public respondents’
7 May 2014 Order to formally Comment. Sen. Estrada insisted that
respond to the above-named co- he was denied due process. Although
respondents’ claims. Sen. Estrada received copies of the
counter-affidavits of Cunanan,
In view of the foregoing, this Office Amata, Relampagos, Buenaventura,
fails to see how Senator Estrada was Figura, Sevidal, as well as one of
deprived of his right to procedural due Tuason’s counter-affidavits,
process.13 (Emphasis supplied) heclaimed that he was not given the
following documents:
On 2 June 2014, the Ombudsman, the
FIO, and the NBI (collectively, public
respondents), through the Officeof
a) One other Counter-Affidavit of
Ruby Tuason dated 21 February This Court’s Ruling
2014;
Considering the facts narrated above,
b) Counter-Affidavit of Sofia D. Cruz the Ombudsman’s denial in its 27
dated 31 January 2014; March 2014 Order of Sen. Estrada’s
Request did not constitute grave
c) Counter-Affidavit of Evelyn abuse of discretion. Indeed, the denial
Sugcang dated 11 February 2014; did not violate Sen. Estrada’s
constitutional right to due process.
d) Two (2) Counter-Affidavits of
Alan A. Javellana dated 06 February First. There is no law or rule which
2014; requires the Ombudsman to furnish a
respondent with copies of the
e) Counter-Affidavit of VictorRoman counter-affidavits of his co-
Cojamco Cacal dated 11 December respondents.
2013 (to the FIO Complaint);
We reproduce below Sections 3 and
f) Counter-Affidavit of VictorRoman 4, Rule 112 of the Revised Rules of
Cojamco Cacal dated 22 January Criminal Procedure, as well as Rule II
2014 (to the NBI Complaint); of Administrative Order No. 7, Rules
of Procedure of the Office of the
g) Two (2) counter-affidavits of Ma. Ombudsman, for ready reference.
Julie A. VillaralvoJohnson both dated
14 March 2014; From the Revised Rules of Criminal
Procedure, Rule 112: Preliminary
h) Counter-affidavit of Rhodora Investigation
Bulatad Mendoza dated 06 March
2014; Section 3. Procedure. — The
preliminary investigation shall be
i) Counter-affidavit of Maria Ninez P. conducted in the following manner:
Guañizo dated 28 January 2014;
(a) The complaint shall state the
j) Two (2) counter-affidavits of address of the respondent and shall be
Marivic V. Jover both dated 09 accompanied by the affidavits of the
December 2013; and complainant and his witnesses, as
well as other supporting documents to
k) Counter-affidavit of Francisco B. establish probable cause. They shall
Figura dated 08 January 2014. Sen. be in such number of copies as there
Estrada argues that the Petition isnot are respondents, plus two (2) copies
rendered moot by the subsequent for the official file. The affidavits
issuance of the 7 May 2014 Joint shall be subscribed and sworn to
Order because there is a recurring before any prosecutor or government
violation of his right to due process. official authorized to administer oath,
Sen. Estrada also insists that there is or, in their absence or unavailability,
no forum shopping as the present before a notary public, each of who
Petition arose from an incident in the must certify thathe personally
main proceeding, and that he has no examined the affiants and that he is
other plain, speedy, and adequate satisfied that they voluntarily
remedy in the ordinary course of law. executed and understood their
Finally, Sen. Estrada reiterates his affidavits.
application for the issuance of a
temporary restraining order and/or (b) Within ten (10) days after the
writ of preliminary injunction to filing of the complaint, the
restrain public respondents from investigating officer shall either
conducting further proceedings in dismiss it if he finds no ground to
OMB-C-C-13-0313 and OMB-C-C- continue with the investigation, or
13-0397. issue a subpoena to the respondent
attaching to it a copy of the complaint documents or from the expiration of
and its supporting affidavits and the period for their submission. It
documents. The respondent shall shall be terminated within five (5)
have the right to examine the days.
evidence submitted by the
complainant which he may not have (f) Within ten (10) days after the
been furnished and to copy them at investigation, the investigating
his expense. If the evidence is officer shall determine whether or not
voluminous, the complainant may be there is sufficient ground to hold the
required to specify those which he respondent for trial. Section 4.
intends to present against the Resolution of investigating
respondent, and these shall be made prosecutor and its review.— If the
available for examination or copying investigating prosecutor finds cause
by the respondent at his expense. to hold the respondent for trial, he
shall prepare the resolution and
Objects as evidence need not be information. He shall certify under
furnished a party but shall be made oath in the information that he, or as
available for examination, copying, or shown by the record, an authorized
photographing at the expense of the officer, has personally examined the
requesting party. complainant and his witnesses; that
there is reasonable ground to believe
(c) Within ten (10) days from receipt that a crime has been committed and
of the subpoena with the complaint that the accused is probably guilty
and supporting affidavits and thereof; that the accused was
documents, the respondent shall informed of the complaint and of the
submit his counter-affidavit and that evidence submitted against him; and
of his witnesses and other supporting that he was given an opportunity to
documents relied upon for his submit controverting evidence.
defense. The counter-affidavits shall Otherwise, he shall recommend the
be subscribed and sworn to and dismissal of the complaint.
certified as provided in paragraph (a)
of this section, with copies thereof Within five (5) days from his
furnished by him to the complainant. resolution, he shall forward the record
The respondent shall not be allowed of the case to the provincial or city
to file a motion to dismiss in lieu of a prosecutor or chief state prosecutor,
counter-affidavit. or to the Ombudsman orhis deputy in
cases of offenses cognizable by the
(d) If the respondent cannot be Sandiganbayan in the exercise of its
subpoenaed, or if subpoenaed, does original jurisdiction. They shall act on
not submit counter-affidavits within the resolution within ten (10) days
the ten (10) day period, the from their receipt thereof and shall
investigating officer shall resolve the immediately inform the parties of
complaint based on the evidence such action.
presented by the complainant.
No complaint or information may be
(e) The investigating officer may set a filed or dismissed by an investigating
hearing if there are facts and issues to prosecutor without the prior written
be clarified from a party ora witness. authority or approval of the provincial
The parties can be present at the or city prosecutor or chief state
hearing but without the right to prosecutor or the Ombudsman or his
examine or cross-examine. They may, deputy.
however, submit to the investigating
officer questions which may be asked Where the investigating prosecutor
to the party or witness concerned. recommends the dismissal of the
complaint but his recommendation is
The hearing shall be held within ten disapproved by the provincial or city
(10) days from submission of the prosecutor or chief state prosecutor or
counter-affidavits and other the Ombudsman or his deputy on the
ground that a probable cause exists,
the latter may, by himself, file the e) referred for administrative
information against the respondent, or adjudication; or
direct any other assistant prosecutor
or state prosecutor to do so without f) subjected to a preliminary
conducting another preliminary investigation.
investigation.
Sec. 3. Preliminary investigation;
If upon petition by a proper party who may conduct.— Preliminary
under such rules as the Department of investigation may be conducted by
Justice may prescribe or motu any of the following:
proprio, the Secretary of Justice
reverses or modifies the resolution of 1) Ombudsman Investigators;
the provincial or city prosecutor or
chief state prosecutor, he shall direct 2) Special Prosecuting Officers;
the prosecutor concerned either to file
the corresponding information 3) Deputized Prosecutors;
without conducting another
preliminary investigation, or to 4) Investigating Officials authorized
dismiss or move for dismissal of the by law to conduct preliminary
complaint or information with notice investigations; or
to the parties. The same rule shall
apply in preliminary investigations 5) Lawyers in the government
conducted by the officers of the service, so designated by the
Office of the Ombudsman. From the Ombudsman.
Rules of Procedure of the Office of
the Ombudsman, Administrative Sec. 4. Procedure. — The preliminary
Order No. 7, Rule II: Procedure in investigation of cases falling under
Criminal Cases the jurisdiction of the Sandiganbayan
and Regional Trial Courts shall be
Section 1. Grounds. — A criminal conducted in the manner prescribed in
complaint may be brought for an Section 3, Rule 112 of the Rules of
offense in violation of R.A. 3019,as Court, subject to the following
amended, R.A. 1379, as amended, provisions:
R.A. 6713, Title VII, Chapter II,
Section 2 of the Revised Penal Code, a) If the complaint is not under oath
and for such other offenses or is based only on official reports, the
committed by public officers and investigating officer shall require the
employees in relation to office. complainant or supporting witnesses
to execute affidavits to substantiate
Sec. 2. Evaluation. — Upon the complaints.
evaluating the complaint, the
investigating officer shall recommend b) After such affidavits have been
whether it may be: secured, the investigating officer shall
issue an order, attaching thereto a
a) dismissed outright for want of copy of the affidavits and other
palpable merit; supporting documents, directing the
respondent to submit, within ten (10)
b) referred to respondent for days from receipt thereof, his counter-
comment; affidavits and controverting evidence
with proof of service thereof on
c) indorsed to the proper government thecomplainant. The complainant
office or agency which has may file reply affidavits within ten
jurisdiction over the case; (10) days after service of the counter-
affidavits.
d) forwarded to the appropriate office
or official for fact-finding c) If the respondent does not file a
investigation; counter-affidavit, the investigating
officer may consider the comment the written authority or approval of
filed by him, if any, as his answer to the Ombudsman in cases falling
the complaint. In any event, the within the jurisdiction of the
respondent shall have access to the Sandiganbayan, or of the proper
evidence on record. Deputy Ombudsman in all other
cases.
d) No motion to dismiss shall be
allowed except for lack of xxxx
jurisdiction. Neither may a motion for
a bill of particulars be entertained. If Sec. 6. Notice to parties.— The
respondent desires any matter in the parties shall be served with a copy of
complainant’s affidavit to be the resolution as finally approved by
clarified, the particularization thereof the Ombudsman or by the proper
may be done at the time of Deputy Ombudsman.
clarificatory questioning in the
manner provided in paragraph (f) of Sec. 7. Motion for reconsideration.—
this section. a) Only one (1) motion for
reconsideration or reinvestigation of
e) If the respondent cannot be served anapproved order or resolution shall
with the order mentioned in be allowed, the same to be filed
paragraph 6 hereof, or having been within fifteen (15) days from notice
served, does not comply therewith, thereof with the Office of the
the complaint shall be deemed Ombudsman, or the proper deputy
submitted for resolution on the basis ombudsman as the case may be.
of the evidence on record.
xxxx
f) If, after the filing of the requisite
affidavits and their supporting b) The filing of a motion for
evidences, there are facts material to reconsideration/reinvestigation shall
the case which the investigating not bar the filing of the corresponding
officer may need to be clarified on, he Information in court on the basis of
may conduct a clarificatory hearing the finding of probable cause in the
during which the parties shall be resolution subject of the motion.
afforded the opportunity to be present (Emphasis supplied)
but without the right to examine or
cross-examine the witness being Sen. Estrada claims that the denial of
questioned. Where the appearance of his Request for the counter affidavits
the parties or witnesses is of his co-respondents violates his
impracticable, the clarificatory constitutional right to due process.
questioning may be conducted in Sen. Estrada, however, fails to specify
writing, whereby the questions a law or rule which states that it is a
desired to be asked by the compulsory requirement of due
investigating officer or a party shall process in a preliminary investigation
be reduced into writing and served on that the Ombudsman furnish a
the witness concerned who shall be respondent with the counter-
required to answer the same in writing affidavits of his co-respondents.
and under oath. Neither Section 3(b), Rule 112 of the
Revised Rules of Criminal Procedure
g) Upon the termination of the nor Section 4(c), Rule II of the Rules
preliminary investigation, the of Procedure of the Office of the
investigating officer shall forward the Ombudsman supports Sen. Estrada’s
records of the case together with his claim. What the Rules of Procedure of
resolution to the designated the Office of the Ombudsman require
authorities for their appropriate action is for the Ombudsman to furnish the
thereon. respondent with a copy of the
complaint and the supporting
No information may be filed and no affidavits and documents at the time
complaint may be dismissed without the order to submit the counter-
affidavit is issued to the respondent. in the immediately succeeding
This is clear from Section 4(b), Rule Section 4(c) of the same Rule II that a
II of the Rules of Procedure of the respondent shall have "access to the
Office of the Ombudsman when it evidence on record" does not stand
states, "[a]fter such affidavits [of the alone, but should be read in relation to
complainant and his witnesses] have the provisions of Section 4(a and b) of
been secured, the investigating officer the same Rule II requiring the
shall issue an order, attaching thereto investigating officer to furnish the
a copy of the affidavits and other respondent with the "affidavits and
supporting documents, directing the other supporting documents"
respondent to submit, within ten (10) submitted by "the complainant or
days from receipt thereof, his counter- supporting witnesses." Thus, a
affidavits x x x." At this point, there is respondent’s "access to evidence on
still no counter-affidavit submitted by record" in Section 4(c), Rule II of the
any respondent. Clearly, what Section Ombudsman’s Rules of Procedure
4(b) refers to are affidavits of the refers to the affidavits and supporting
complainant and his witnesses, not documents of "the complainant or
the affidavits of the co-respondents. supporting witnesses" in Section 4(a)
Obviously, the counter-affidavits of of the same Rule II.
the co-respondents are not part of the
supporting affidavits of the Third, Section 3(b), Rule 112 of the
complainant. No grave abuse of Revised Rules of Criminal Procedure
discretion can thus be attributed to the provides that "[t]he respondent shall
Ombudsman for the issuance of the have the right to examine the
27 March 2014 Order which denied evidence submitted by the
Sen. Estrada’s Request. complainant which he may not have
been furnished and to copy them at
Although Section 4(c), Rule II of the his expense." A respondent’s right to
Rules of Procedure of the Office of examine refers only to "the evidence
the Ombudsman provides that a submitted by the complainant."
respondent "shall have access to the
evidence on record," this provision Thus, whether under Rule 112 of the
should be construed in relation to Revised Rules of Criminal Procedure
Section 4(a) and (b) of the same Rule, or under Rule II of the Ombudsman’s
as well as to the Rules of Criminal Rules of Procedure, there is no
Procedure. First, Section 4(a) states requirement whatsoever that the
that "theinvestigating officer shall affidavits executed by the
require the complainant or supporting corespondents should be furnished to
witnesses to execute affidavits to a respondent. Justice Velasco’s
substantiate the complaint." The dissent relies on the ruling in Office
"supporting witnesses" are the of the Ombudsman v. Reyes (Reyes
witnesses of the complainant, and do case),15 an administrative case, in
not refer to the co-respondents. which a different set of rules of
procedure and standards apply. Sen.
Second, Section 4(b) states that "the Estrada’s Petition, in contrast,
investigating officer shall issue an involves the preliminary investigation
order attaching thereto a copy of the stage in a criminal case. Rule III on
affidavits and all other supporting the Procedure in Administrative
documents, directing the respondent" Cases of the Rules of Procedure of the
tosubmit his counter-affidavit. The Office of the Ombudsman applies in
affidavits referred to in Section 4(b) the Reyes case, while Rule II on the
are the affidavits mentioned in Procedure in Criminal Cases of the
Section Rules of Procedure of the Office of
the Ombudsman applies in Sen.
4(a). Clearly, the affidavits to be Estrada’s Petition. In both cases, the
furnished to the respondent are the Rules of Court apply in a suppletory
affidavits of the complainant and his character or by analogy.16
supporting witnesses. The provision
In the Reyescase, the complainant particularly an administrative case
Acero executed an affidavit against and a criminal case:
Reyes and Peñaloza, who were both
employees of the Land Transportation Any lawyer worth his salt knows that
Office. Peñaloza submitted his quanta of proof and adjective rules
counter-affidavit, as well as those of vary depending on whether the cases
his two witnesses. Reyes adopted his to which they are meant to apply are
counter-affidavit in another case criminal, civil or administrative in
before the Ombudsman as it involved character. In criminal actions, proof
the same parties and the same beyond reasonable doubt is required
incident. None of the parties appeared for conviction;in civil actions and
during the preliminary conference. proceedings, preponderance of
Peñaloza waived his right to a formal evidence, as support for a judgment;
investigation and was willing to and in administrative cases,
submit the case for resolution based substantial evidence, as basis for
on the evidence on record. Peñaloza adjudication. In criminal and civil
also submitted a counter-affidavit of actions, application of the Rules of
his third witness. The Ombudsman Court is called for, with more or less
found Reyes guilty of grave strictness. In administrative
misconduct and dismissed him from proceedings, however, the technical
the service. On the other hand, rules of pleadingand procedure, and
Peñaloza was found guilty of simple of evidence, are not strictly adhered
misconduct and penalized with to; they generally apply only
suspension from office without pay suppletorily; indeed, in agrarian
for six months. This Court agreed disputes application of the Rules of
with the Court of Appeals’ finding Court is actually prohibited.17
that Reyes’ right to due process was
indeed violated. This Court remanded It should be underscored that the
the records of the case to the conduct of a preliminary investigation
Ombudsman, for two reasons: (1) is only for the determination of
Reyes should not have been meted the probable cause, and "probable cause
penalty of dismissal from the service merely implies probability of guilt
when the evidence was not and should be determined in a
substantial, and (2) there was summary manner. A preliminary
disregard of Reyes’ right to due investigation is not a part of the trial
process because he was not furnished and it is only in a trial where an
a copy of the counter-affidavits of accused can demand the full exercise
Peñaloza and of Peñaloza’s three of his rights, such as the right to
witnesses. In the Reyes case, failure confront and cross-examine his
to furnish a copy of the counter- accusers to establish his
affidavits happened in the innocence."18 Thus, the rights of a
administrative proceedings on the respondent in a preliminary
merits, which resulted in Reyes’ investigation are limited to those
dismissal from the service. In Sen. granted by procedural law.
Estrada’s Petition, the denial of his
Request happened during the A preliminary investigation is defined
preliminary investigation where the as an inquiry or proceeding for the
only issue is the existence of probable purpose of determining whether there
cause for the purpose of determining is sufficient ground to engender a well
whether an information should be founded belief that a crime
filed, and does not prevent Sen. cognizable by the Regional Trial
Estrada from requesting a copy of the Court has been committed and that
counter-affidavits of his co- the respondent is probably guilty
respondents during the pre-trial or thereof, and should be held for trial.
even during the trial. The quantum of evidence now
required in preliminary investigation
We should remember to consider the is such evidence sufficient to
differences in adjudicating cases, "engender a well founded belief" as
tothe fact of the commission of a Furthermore, the technical rules on
crime and the respondent's probable evidence are not binding on the fiscal
guilt thereof. A preliminary who has jurisdiction and control over
investigation is not the occasion for the conduct of a preliminary
the full and exhaustive display of the investigation. If by its very nature a
parties’ evidence; it is for the preliminary investigation could be
presentation of such evidence only as waived by the accused, we find no
may engender a well-grounded belief compelling justification for a strict
that an offense has been committed application of the evidentiary rules. In
and that the accused is probably guilty addition, considering that under
thereof. We are in accord with the Section 8, Rule 112 of the Rules of
state prosecutor’s findings in the case Court, the record of the preliminary
at bar that there exists prima facie investigation does not form part of the
evidence of petitioner’s involvement record of the case in the Regional
in the commission of the crime, it Trial Court, then the testimonies of
being sufficiently supported by the Galarion and Hanopol may not be
evidence presented and the facts admitted by the trial court if not
obtaining therein. presented in evidence by the
prosecuting fiscal. And, even if the
Likewise devoid of cogency is prosecution does present such
petitioner’s argument that the testimonies, petitioner can always
testimonies of Galarion and Hanopol object thereto and the trial court can
are inadmissible as to him since he rule on the admissibility thereof; or
was not granted the opportunity of the petitioner can, during the trial,
cross-examination. petition said court to compel the
presentation of Galarion and Hanopol
It is a fundamental principle that the for purposes of cross-examination.19
accused in a preliminary investigation (Emphasis supplied)
has no right to cross-examine the
witnesses which the complainant may Furthermore, in citing the Reyes case,
present. Section 3, Rule 112 of the Justice Velasco’s dissent overlooked
Rules of Court expressly provides a vital portion of the Court of
that the respondent shall only have the Appeals’ reasoning. This Court
right to submit a counter-affidavit, to quoted from the Court of Appeals’
examine all other evidence submitted decision: "x x x [A]dmissions made
by the complainant and, where the by Peñaloza in his sworn statement
fiscal sets a hearing to propound are binding only on him. Res inter
clarificatory questions to the parties alios act a alteri nocere non debet. The
or their witnesses, to be afforded an rights of a party cannot be prejudiced
opportunity to be present but without by an act, declaration or omission of
the right to examine or cross- another." In OMB-C-C-13-0313 and
examine. Thus, even if petitioner was OMB-C-C-13-0397, the admissions
not given the opportunity to cross- of Sen. Estrada’s co-respondents can
examine Galarion and Hanopol atthe in no way prejudice Sen. Estrada.
time they were presented to testify Even granting Justice Velasco’s
during the separate trial of the case argument that the 28 March 2014
against Galarion and Roxas, he Joint Resolution in OMB-C-C-13-
cannot assert any legal right to cross- 0313 and OMB-C-C-13-039720
examine them at the preliminary mentioned the testimonies of Sen.
investigation precisely because such Estrada’s corespondents like Tuason
right was never available to him. The and Cunanan, their testimonies were
admissibility or inadmissibility of merely corroborative of the
said testimonies should be ventilated testimonies of complainants’
before the trial court during the trial witnesses Benhur Luy, Marina Sula,
proper and not in the preliminary and Merlina Suñas and were not
investigation. mentioned in isolation from the
testimonies of complainants’
witnesses.
Moreover, the sufficiency of the (3) "While the duty to deliberatedoes
evidence put forward by the not impose the obligation to decide
Ombudsman against Sen. Estrada to right, it does imply a necessity which
establish its finding of probable cause cannot be disregarded, namely, that of
in the 28 March 2014 Joint Resolution having something to support its
in OMB-C-C-13-0313 and OMB-CC- decision. A decision with absolutely
13-0397 was judicially confirmed by nothing to support it is a nullity, x x
the Sandiganbayan, when it examined x."
the evidence, found probable cause,
and issued a warrant of arrest against (4) Not only must there be some
Sen. Estrada on 23 June 2014. evidence to support a finding or
conclusion, but the evidence must be
We likewise take exception to Justice "substantial." "Substantial evidence is
Brion’s assertion that "the due more than a mere scintilla. It means
process standards that at the very least such relevant evidence as a
should be considered in the conduct reasonable mind might accept as
of a preliminary investigation are adequate to support a conclusion." x x
those that this Court first articulated x.
in Ang Tibay v. Court of Industrial
Relations [Ang Tibay]."21 Simply (5) The decision must be rendered on
put, the Ang Tibay guidelines for the evidence presented at the hearing,
administrative cases do not apply to or at least contained in the record and
preliminary investigations in criminal disclosed to the parties affected. x x x.
cases. An application of the Ang
Tibay guidelines to preliminary (6) The Court of Industrial Relations
investigations will have absurd and or any of its judges, therefore, must
disastrous consequences. act on its or his own independent
consideration of the law and facts of
Ang Tibay enumerated the the controversy, and not simply
constitutional requirements of due accept the views of a subordinate in
process, which Ang Tibay described arriving at a decision. x x x.
as the "fundamental and essential
requirements of due process in trials (7) The Court of Industrial Relations
and investigations of an should, in all controversial questions,
administrative character."22 These render its decision in sucha manner
requirements are "fundamental and that the parties to the proceeding can
essential" because without these, know the various issues involved, and
there isno due process as mandated by the reasons for the decisions rendered.
the Constitution. These "fundamental The performance of this duty is
and essential requirements" cannot be inseparable from the authority
taken away by legislation because conferred upon it.23
theyare part of constitutional due
process. These "fundamental and The guidelines set forth in Ang Tibay
essential requirements" are: are further clarified in GSIS v. CA24
(GSIS): "what Ang Tibay failed to
(1) The first of these rights is the right explicitly state was, prescinding from
to a hearing, which includes the right the general principles governing due
of the party interested or affected to process, the requirement of an
present his own case and submit impartial tribunalwhich, needless to
evidence in support thereof. x x x. say, dictates that one called upon to
resolve a dispute may not sit as judge
(2) Not only must the party be given and jury simultaneously, neither may
an opportunity to present his case and he review his decision on appeal."25
adduce evidence tending to establish The GSIS clarification affirms the
the rights which he asserts but the non applicability of the Ang Tibay
tribunal must consider the evidence guidelines to preliminary
presented. x x x. investigations in criminal cases: The
investigating officer, which is the role Request, is not yet an accused person,
that the Office of the Ombudsman and hence cannot demand the full
plays in the investigation and exercise of the rights of an accused
prosecution of government personnel, person:
will never be the impartial tribunal
required in Ang Tibay, as amplified in A finding of probable cause needs
GSIS. The purpose of the Office of only to rest on evidence showing that
the Ombudsman in conducting a more likely than not a crime has been
preliminary investigation, after committed and was committed by the
conducting its own factfinding suspects. Probable cause need not be
investigation, is to determine based on clear and convincing
probable cause for filing an evidence of guilt, neither on evidence
information, and not to make a final establishing guilt beyond reasonable
adjudication of the rights and doubt and definitely, not on evidence
obligations of the parties under the establishing absolute certainty of
law, which is the purpose of the guilt. As well put in Brinegar v.
guidelines in Ang Tibay. The United States, while probable cause
investigating officer investigates, demands more than "bare suspicion,"
determines probable cause, and it requires "less than evidence which
prosecutes the criminal case after would justify . . . conviction." A
filing the corresponding information. finding of probable cause merely
binds over the suspect to stand trial. It
The purpose in determining probable is not a pronouncement of guilt.
cause is to make sure that the courts
are not clogged with weak cases that Considering the low quantum and
will only be dismissed, as well as to quality of evidence needed to support
spare a person from the travails of a a finding of probable cause, wealso
needless prosecution.26 The hold that the DOJ Panel did not
Ombudsman and the prosecution gravely abuse its discretion in
service under the control and refusing to call the NBI witnesses for
supervision of the Secretary of the clarificatory questions. The decision
Department of Justice are inherently to call witnesses for clarificatory
the fact-finder, investigator, hearing questions is addressed to the sound
officer, judge and jury of the discretion of the investigator and the
respondent in preliminary investigator alone. If the evidence on
investigations. Obviously, this hand already yields a probable cause,
procedure cannot comply with Ang the investigator need not hold a
Tibay, as amplified in GSIS. clarificatory hearing. To repeat,
However, there is nothing probable cause merely implies
unconstitutional with this procedure probability of guilt and should be
because this is merely an Executive determined in a summary manner.
function, a part of the law Preliminary investigation is not a part
enforcement process leading to trial of trial and it is only in a trial where
in court where the requirements an accused can demand the full
mandated in Ang Tibay, as amplified exercise of his rights, such as the right
in GSIS, will apply. This has been the to confront and cross-examine his
procedure under the 1935, 1973 and accusers to establish his innocence. In
1987 Constitutions. To now rule that the case at bar, the DOJ Panel
Ang Tibay, as amplified in GSIS, correctly adjudged that enough
should apply to preliminary evidence had been adduced to
investigations will mean that all past establish probable cause and
and present preliminary clarificatory hearing was
investigations are in gross violation of unnecessary.27
constitutional due process.
Justice J.B.L. Reyes, writing for the
Moreover, a person under preliminary Court, emphatically declared in
investigation, as Sen. Estrada is in the Lozada v. Hernandez,28 that the
present case when he filed his "rights conferred upon accused
persons to participate in preliminary case. Ang Tibay refers to "substantial
investigations concerning themselves evidence," while the establishment of
depend upon the provisions of law by probable cause needs "only more than
which such rights are specifically ‘bare suspicion,’ or ‘less than
secured, rather than upon the phrase evidence which would justify . . .
‘due process of law’." This reiterates conviction’." In the United States,
Justice Jose P. Laurel’s oft-quoted from where we borrowed the concept
pronouncement in Hashim v. of probable cause,35 the prevailing
Boncan29 that "the right to a definition of probable cause is this:
preliminary investigation is statutory,
not constitutional." In short, the rights In dealing with probable cause,
of a respondent ina preliminary however, as the very name implies,
investigation are merely statutory we deal with probabilities.These are
rights, not constitutional due process not technical; they are the factual and
rights. An investigation to determine practical considerations of everyday
probable cause for the filing of an life on which reasonable and prudent
information does not initiate a men, not legal technicians, act. The
criminal action so as to trigger into standard of proof is accordingly
operation Section 14(2), Article III of correlative to what must be proved.
the Constitution.30 It is the filing of a
complaint or information in court that "The substance of all the definitions"
initiates a criminal action.31 of probable cause "is a reasonable
ground for belief of guilt." McCarthy
The rights to due process in v. De Armit, 99 Pa. St. 63, 69, quoted
administrative cases as prescribed in with approval in the Carroll opinion.
Ang Tibay,as amplified in GSIS, are 267 U. S. at 161. And this "means less
granted by the Constitution; hence, than evidence which would justify
these rights cannot be taken away by condemnation" or conviction, as
merelegislation. On the other hand, as Marshall, C. J., said for the Court
repeatedly reiterated by this Court, more than a century ago in Locke v.
the right to a preliminary United States, 7 Cranch 339, 348.
investigation is merely a statutory Since Marshall’s time, at any rate, it
right,32 not part of the "fundamental has come to mean more than bare
and essential requirements" of due suspicion: Probable cause exists
process as prescribed in Ang Tibay where "the facts and circumstances
and amplified in GSIS. Thus, a within their [the officers’] knowledge
preliminary investigation can be and of which they had reasonably
taken away by legislation. The trustworthy information [are]
constitutional right of an accused to sufficient in themselves to warrant a
confront the witnesses against him man of reasonable caution in the
does not apply in preliminary belief that" an offense has been or is
investigations; nor will the absence of being committed. Carroll v. United
a preliminary investigation be an States, 267 U. S. 132, 162.
infringement of his right to confront
the witnesses against him.33 A These long-prevailing standards seek
preliminary investigation may be to safeguard citizens from rash and
done away with entirely without unreasonable interferences with
infringing the constitutional right of privacy and from unfounded charges
an accused under the due process of crime. They also seek to give fair
clause to a fair trial.34 leeway for enforcing the law in the
community’s protection. Because
The quantum of evidence needed in many situations which confront
Ang Tibay, as amplified in GSIS, is officers in the course of executing
greater than the evidenceneeded in a their duties are more or less
preliminary investigation to establish ambiguous, room must be allowed for
probable cause, or to establish the some mistakes on their part. But the
existence of a prima facie case that mistakes must be those of reasonable
would warrant the prosecution of a men, acting on facts leading sensibly
to their conclusions of probability. of the complainant and the witnesses
The rule of probable cause is a he may produce, and particularly
practical, non technical conception describing the place to be searched
affording the best compromise that and the things to be seized which may
has been found for accommodating be anywhere in the Philippines.
these often opposing interests.
Requiring more would unduly In all these instances, the evidence
hamper law enforcement. To allow necessary to establish probable cause
less would be to leave law-abiding is based only on the likelihood, or
citizens at the mercy of the officers’ probability, of guilt. Justice Brion, in
whim or caprice.36 the recent case of Unilever
Philippines, Inc. v. Tan37 (Unilever),
In the Philippines, there are four stated:
instances in the Revised Rules of
Criminal Procedure where probable The determination of probable cause
cause is needed to be established: needs only to rest on evidence
showing that more likely than not, a
(1) In Sections 1 and 3 of Rule 112: crime has been committed and there
By the investigating officer, to is enough reason to believe that it was
determine whether there is sufficient committed by the accused. It need not
ground to engender a well-founded be based on clear and convincing
belief that a crime has been evidence of guilt, neither on evidence
committed and the respondent is establishing absolute certainty of
probably guilty thereof, and should be guilt. What is merely required is
held for trial. A preliminary "probability of guilt." Its
investigation is required before the determination, too, does not call for
filing of a complaint or information the application of rules or standards of
for an offense where the penalty proof that a judgment of conviction
prescribed by law is at least four requires after trial on the merits. Thus,
years, two months and one day in concluding that there is probable
without regard to the fine; cause, it suffices that it is believed
that the act or omission complained of
(2) In Sections 6 and 9 of Rule 112: constitutes the very offense charged.
By the judge, to determine whether a
warrant of arrest or a commitment It is also important to stress that the
order, if the accused has already been determination of probable cause does
arrested, shall be issued and that there not depend on the validity or merits of
is a necessity of placing the a party’s accusation or defense or on
respondent under immediate custody the admissibility or veracity of
in order not to frustrate the ends of testimonies presented. As previously
justice; discussed, these matters are better
ventilated during the trial proper of
(3) In Section 5(b) of Rule 113: By a the case. As held in Metropolitan
peace officer or a private person Bank & Trust Company v. Gonzales:
making a warrantless arrest when an
offense has just been committed, and Probable cause has been defined as
he has probable cause to believe the existence of such facts and
based on personal knowledge of facts circumstances as would excite the
or circumstances that the person to be belief in a reasonable mind, acting on
arrested has committed it; and the facts within the knowledge of the
prosecutor, that the person charged
(4) In Section 4 of Rule 126: By the was guilty of the crime for which he
judge, to determine whether a search was prosecuted. x x x. The term does
warrant shall be issued, and only upon not mean "actual or positive cause"
probable cause in connection with nor does it import absolute certainty.
one specific offense to be determined It is merely based on opinion and
personally by the judge after reasonable belief. Thus, a finding of
examination under oath or affirmation probable cause does not require an
inquiry into whether there is "informed of some of the underlying
sufficient evidence to procure a circumstances" supporting the
conviction. It is enough that it is affiant’s conclusions and his belief
believed that the act or omission that any informant involved "whose
complained of constitutes the offense identity need not be disclosed . . ."
charged. Precisely, there is a trial for was "credible" or his information
the reception of evidence of the "reliable." Aguilar v. Texas, supra, at
prosecution in support of the charge. 378 U.S. 114. (Emphasis supplied)
(Bold facing and italicization
supplied) Thus, probable cause can be
established with hearsay evidence, as
Justice Brion’s pronouncement in long as there is substantial basis for
Unilever that "the determination of crediting the hearsay. Hearsay
probable cause does not depend on evidence is admissible in determining
the validity or merits of a party’s probable cause in a preliminary
accusation or defense or on the investigation because such
admissibility or veracity of investigation is merely preliminary,
testimonies presented" correctly and does not finally adjudicate rights
recognizes the doctrine in the United and obligations of parties. However,
States that the determination of in administrative cases, where rights
probable cause can rest partially, or and obligations are finally
even entirely, on hearsay evidence, as adjudicated, what is required is
long as the person making the hearsay "substantial evidence" which cannot
statement is credible. In United States rest entirely or even partially on
v. Ventresca,38 the United States hearsay evidence. Substantial basis is
Supreme Court held: not the same as substantial evidence
because substantial evidence
While a warrant may issue only upon excludes hearsay evidence while
a finding of "probable cause," this substantial basis can include hearsay
Court has long held that "the term evidence. To require the application
‘probable cause’ . . . means less than of Ang Tibay, as amplified in GSIS,
evidence which would justify in preliminary investigations will
condemnation," Locke v. United change the quantum of evidence
States, 7 Cranch 339, 11 U.S. 348, required in determining probable
and that a finding of "probable cause" cause from evidence of likelihood or
may rest upon evidence which is not probability of guilt to substantial
legally competent in a criminal trial. evidence of guilt.
Draper v. United States, 358 U.S.
307, 358 U.S. 311. As the Court It is, moreover, necessary to
stated in Brinegar v. United States, distinguish between the
338 U.S. 160, 173, "There is a large constitutionally guaranteed rights of
difference between the two things an accused and the right to a
tobe proved (guilt and probable preliminary investigation. To treat
cause), as well as between the them the same will lead toabsurd and
tribunals which determine them, and disastrous consequences.
therefore a like difference in the
quanta and modes of proof required to All pending criminal cases in all
establish them." Thus, hearsay may courts throughout the country will
be the basis for issuance of the have to be remanded to the
warrant "so long as there . . . [is] a preliminary investigation level
substantial basis for crediting the because none of these will satisfy Ang
hearsay." Jones v. United States, Tibay, as amplified in GSIS.
supra, at 362 U.S. 272. And, in Preliminary investigations are
Aguilar, we recognized that "an conducted by prosecutors, who are
affidavit may be based on hearsay the same officials who will determine
information and need not reflect the probable cause and prosecute the
direct personal observations of the cases in court. The prosecutor is
affiant," so long as the magistrate is hardly the impartial tribunal
contemplated in Ang Tibay, as question regarding the Ombudsman’s
amplified in GSIS. A reinvestigation grave abuse of its discretion
by an investigating officer outside of preceding the finding of a probable
the prosecution service will be cause to indict him." Restated bluntly,
necessary if Ang Tibay, as amplified Justice Velasco’s dissent would like
in GSIS, were to be applied. This will this Court to conclude that the mere
require a new legislation. In the filing of the present Petition for
meantime, all pending criminal cases Certiorari questioning the
in all courts will have to be remanded Ombudsman’s denial of Sen.
for reinvestigation, to proceed only Estrada’s Request should have, by
when a new law is in place. To require itself, voided all proceedings related
Ang Tibay, as amplified in GSIS, to to the present case.
apply to preliminary investigation
will necessarily change the concept of Although it is true that, in its 27
preliminary investigation as we know March 2014 Order, the Ombudsman
it now. Applying the constitutional denied Sen. Estrada’s Request, the
due process in Ang Tibay, as Ombudsman subsequently
amplified in GSIS, to preliminary reconsidered its Order. On 7 May
investigation will necessarily require 2014, the same date that Sen. Estrada
the application of the rights of an filed the present Petition, the
accused in Section 14(2), Article III Ombudsman issued a Joint Order in
of the 1987 Constitution. This means OMB-C-C-13-0313 and OMB-C-C-
that the respondent can demand an 13-0397 that furnishedSen. Estrada
actual hearing and the right to cross- with the counter-affidavits of Ruby
examine the witnesses against him, Tuason, Dennis Cunanan, Gondelina
rights which are not afforded at Amata, Mario Relampagos, Francisco
present toa respondent in a Figura, Gregoria Buenaventura, and
preliminary investigation. AlexisSevidal, and directed him to
comment within a non-extendible
The application of Ang Tibay, as period of five days from receipt of
amplified in GSIS, is not limited to said Order. Sen. Estrada did not file
those with pending preliminary any comment, as noted in the 4 June
investigations but even to those 2014 Joint Order of the Ombudsman.
convicted by final judgment and
already serving their sentences. The On 4 June 2014, the Ombudsman
rule is well-settled that a judicial issued another Joint Order and denied
decision applies retroactively if it has Sen. Estrada’s Motion for
a beneficial effect on a person Reconsideration ofits 28 March 2014
convicted by final judgment even if Joint Resolution which found
he is already serving his sentence, probable cause toindict Sen. Estrada
provided that he is not a habitual and his corespondents with one count
criminal.39 This Court retains its of plunder and 11 counts of violation
control over a case "until the full of Section 3(e), Republic Act No.
satisfaction of the final judgment 3019. In this 4 June 2014 Joint Order,
conformably with established legal the Ombudsman stated that "[t]his
processes."40 Applying Ang Tibay, Office, in fact, held in abeyance the
as amplified in GSIS, to preliminary disposition of motions for
investigations will result in thousands reconsideration in this proceeding in
of prisoners, convicted by final light of its grant to Senator Estrada a
judgment, being set free from prison. period of five days from receipt of the
7 May 2014 Order to formally
Second. Sen. Estrada’s present respond to the above-named
Petition for Certiorari is premature. respondents’ claims."
SO ORDERED.