RULE 112 Castillo, SPO3 Ciriaco Sulit.

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.

The petition in G.R. No. 123442 was filed

by the Solicitor General on behalf of the
MENDOZA, J.: People of the Philippines, while the
petition in G.R. No. 123191 was filed by
complainant Edna Dyogi. In a
These are two special civil actions for manifestation, dated February 7, 1996,
certiorari under Rule 65, §1 of the Rules complainant adopted the petition of the
of Court seeking to set aside order, dated Solicitor General, for which reason the
October 18, 1995, November 22, 1995, Court directed in its resolution, dated
and January 3, 1996, issued by August 5, 1996, the consolidation of the
respondent Judge Paterno Tac-an of the two cases.
Regional Trial Court, Batangas City. A
summary of the gist of the orders follows:
The facts are as follows:

1.) Under dated October Blg 18, 1995 —

Respondent judge directed the Office of It appears that on the night of February 9,
the Provincial Prosecutor, Batangas City 1995, the officials, teachers, and students
to amend the information filed on June of the Concepcion Aguila Memorial
26, 1995 for the death of Gilbert Dyogi by College in San Jose, Batangas organized
the Office of the Deputy Ombudsman for a school party. While the party was going
the Military against private respondents on, the principal, Felizardo Aguila, was
SPO2 Jaime Blanco, SPO3 Pedro informed that several men, who appeared
to be drunk, were trying to force their way National police of San Jose, Batangas,
through the main gate. One of the men conspiring and confederating, and taking
seemed armed with a handgun. After advantage of their official positions, with
calling the police. Aguila went to the treachery and taking advantage of
main gate, where he asked the men what superior strength, with intent to kill, did
their business was.1 then and there, wilfully, unlawfully and
feloniously shoot with a firearm one
Gilbert Dyogi, who was then weak and
At this point, private respondents Blanco defenseless, thereby inflicting upon the
and Atienza arrived at the school. They latter, a fatal wound which caused his
were shortly joined by private instantaneous death.5
respondents Pedro Castillo, Sulit, and
Ildefonso Castillo, who were all members
of the Philippine National Police of San Private respondents Blanco, Pedro
Jose, Batangas. They demanded from the Castillo, Sulit, Atienza, and Ildefonso
man armed with the handgun, who later Castillo filed a Motion to Hold Issuance
turned out to be the victim Gilbert Dyogi, of Warrant and Motion to Quash with
that he surrender his gun and go with Motion to Set Incidents for Hearing in
them to the station.2 Gilbert Dyogi gave which they prayed:
the handgun to the respondents, who then
asked to see his license. He produced a
sheet of paper from his wallet which he WHEREFORE, it is respectfully prayed
handed to private respondents. After that the Honorable Court first determine
allowing them to inspect the weapon and whether or not there is probable cause
the alleged license, Gilbert Dyogi asked against all the accused before the issuance
the private respondents to give them back of a warrant of arrest, and the case be set
to him. However, private respondent for open hearing with notice to all the
Blanco, who had the handgun, refused to parties for that purpose, and that in the
do so.3 meantime, the issuance of a warrant of
arrest be held in abeyance, in the interest
of justice, and thereafter the information
What exactly followed is unclear. Before be quashed and/or dismissed as against
long the two were grappling for the accused against whom there is no
possession of the gun. Apparently, probable cause.6
Blanco pulled out his sidearm and fired at
Gilbert Dyogi twice.4
Petitioner Edna Dyogi opposed the
motion. She maintained that there was
In connection with the fatal incident, probable cause for the filing of the case
Gerald Varez, Investigator in the Office against private respondents Blanco,
of the Ombudsman for the Military, Pedro Castillo, Sulit, Atienza, and
charged private respondents Blanco, Ildefonso Castillo. Respondent Tac-an
Pedro Castillo, Sulit, Atienza, and heard the parties on their motion after
Ildefonso Castillo with murder in an which, in an order dated October 18,
information filed with the Regional Trial 1995, he ruled as follows:
Court of Batangas City. The information
alleged:
WHEREFORE, it is the opinion of this
Court that there is probable cause to hold
That sometime on February 9, 1995 at SPO2 Jaime V. Blanco to stand trial for
Poblacion, San Jose, Batangas, and homicide only. His co-accused SPO3
within the jurisdiction of this Honorable Pedro V. Castillo, SPO3 Ciriaco R. Sulit,
Court, accused SPO2 Jaime V. Blanco, SPO2 Aniano Atienza and Ildefonso R.
SPO3 Pedro V. Castillo, SPO3 Ciriaco R. Castillo are hereby discharged from the
Sulit, SPO2 Aniano Atienza and SPO1 information for insufficiency of evidence.
Ildefonso R. Castillo, all public officers,
being then members of the Philippine
xxx xxx xxx 1. That the finding of probable cause for
homicide only against accused Jaime V.
Blanco for shooting to death Gilbert
Let a warrant of arrest be issued for the Dyogi on February 9, 1995 at around
apprehension of SPO2 Jaime V. Blanco eleven in the evening is hereby
who is reportedly assigned at the maintained.
Provincial Command Headquarters, PNP,
Puerto Princesa, Palawan. The amount of
P50,000.00 in cash and/or property is 2. That there is probable cause to hold
hereby fixed for his provisional liberty. accused PEDRO V. CASTILLO liable as
accomplice only by cooperating with a
simultaneous act of intervention which
xxx xxx xxx act was not indispensable, but facilitated
the killing of Dyogi by Blanco, by then
holding Ben Flores and preventing him
The Provincial Prosecutor or his from approaching and dissuading Dyogi
authorized assistants are hereby directed from insisting in retaining his firearm in
to file an Amended Information for his person or recovering the possession
purposes of formality and convenience thereof from said Blanco or in preventing
within five (5) days from receipt thereof. Flores from pacifying Blanco from
shooting Dyogi. Such act is contrary to
law.
xxx xxx xxx

Let a Warrant of Arrest be issued for his

. . . . This duty of the judge necessarily apprehension. Bail for his temporary
includes the determination of the proper liberty is fixed at P10,000.00. If an
offense under which the accused is to insurance company should serve as
undergo trial. To do otherwise would be bondsman, the authority of the issuing
tantamount to dereliction of duty. Any person must be supported by a board
pronouncement to the contrary has been resolution to that effect;
repealed by the 1987 Constitution and by
the latest Supreme Court rulings on this
matter.7 3. As regards the rest of the accused,
namely: Ciriaco P. Sulit, Aniano Atienza,
and Ildefonso R. Castillo, the finding that
Petitioner Dyogi moved for a there is no probable cause is hereby
reconsideration, arguing that the crime maintained. However, the prosecution
committed was murder, and not may, at its option, within a period of
homicide, and that there was probable twenty (20) days from receipt of this
cause to believe that private respondents Order, adduce additional evidence, if any,
Blanco, Pedro Castillo, Sulit, Atienza, against them before this Court;
and Ildefonso Castillo were guilty of the
offense. In his order, dated November 22,
1995, respondent judge partially 4. That the information shall be amended
reconsidered his order by directing the accordingly by the public prosecutor, as a
inclusion of respondent Pedro Castillo in matter of form and for convenience in the
the information not as principal but only proceedings. The public prosecutor's
as an accomplice. In all other respect, he office is hereby enjoined not only to show
affirmed his previous order. The obedience to duty and fairness, but moral
dispositive portion of his order, dated courage as well, to follow the path of
November 22, 1996, reads: legal rectitude, which hitherto was
covered with mist but is now illuminated
by the guidance of the Constitution unto
WHEREFORE, PREMISES this Court. The Court is now the final
CONSIDERED, this Court resolves: arbiter under the 1987 Constitution in
determining probable cause before a
Warrant of Arrest shall issue whereas
before it was the prerogative of the public
Rule 112, §1 of the Rules of Court defines
prosecutor to so determine and whose
a preliminary investigation as "an inquiry
own ascertainment or exercise of
or proceeding for the purpose of
discretion may not be interfered with by
determining whether there is sufficient
the Court, save in cases of grave abuse of
ground to engender a well-founded belief
discretion, and whose information filed
that a crime cognizable by the Regional
may not be ordered to be amended by the
Trial Court has been committed and that
Court. Any public officer must yield to
the respondent is probably guilty thereof,
the Constitution as he has the sworn duty
and should be held for trial." Rule 112, §2
to obey and defend
of the Rules of Court enumerates the
it.8 officers authorized to conduct
preliminary investigations, as follows:

On December 8, 1995, petitioner Edna

Dyogi filed another motion for The following may conduct a preliminary
reconsideration, contending that the investigation:
power to determine the nature of the
offense to be charged was vested in the
Provincial Prosecutor and not in the (a) Provincial or city fiscals and their
Regional Trial Court. However, assistants;
petitioner's motion was denied by the
court in its order, dated January 3, 1996,
on the ground that it was actually a (b) Judges of the Municipal Trial Courts
second motion for reconsideration which and Municipal Circuit Trial Courts;
is not allowed to be filed. Hence, these
petitions for certiorari filed by the
Solicitor General and by the complainant (c) National and Regional state
in the criminal case, Edna Dyogi. prosecutors; and

Petitioners raise the following issues: (d) Such other officers as may be
authorized by law.

Whether or not the Respondent Judge

acted without or in excess of jurisdiction Their authority to conduct preliminary
and/or with grave abuse of discretion investigation shall include all crimes
amounting to lack of jurisdiction: cognizable by the proper court in their
respective territorial Jurisdictions.

1. in conducting another preliminary

investigation in a proceeding to Thus, as provided in Rule 112, §2(d),
determine probable cause for the issuance other officers may be authorized by law
of warrants of arrest. to conduct preliminary investigations.
Indeed, under R.A. No. 6770, otherwise
known as the Ombudsman Act of 1989,
2. in ordering the amendment of the crime investigators of the Office of the
charged in the information from "murder" Ombudsman may conduct preliminary
to "homicide" and the number and nature investigations of cases involving public
of the participation of the accused officers. Thus, §15 (1) of the said law
charged in the information filed by the provides:
Office of the Deputy Ombudsman for the
Military.9
The Office of the Ombudsman shall have
the following powers, functions and
We find both petitions to be meritorious. duties:
 Judges of Regional Trial Courts
(formerly Courts of First Instance) no
(1) Investigate and prosecute on its own
longer have authority to conduct
or on complaint by any person, any act or
preliminary investigations. That
omission of any public officer or
authority, at one time reposed in them
employee, office or agency, when such
under Sections 13, 14 and 16, Rule 112 of
act or omission appears to be illegal,
the Rules of Court of 1964, was removed
unjust, improper, or inefficient. It has
from them by the 1985 Rules on Criminal
primary jurisdiction over cases
Procedure, effective on January 1, 1985,
cognizable by the Sandiganbayan and, in
which deleted all provisions granting that
the exercise of this primary jurisdiction, it
power to said judges.
may take over, at any stage, from any
investigatory agency of Government, the
investigation of such cases.
The 1988 Amendments to the 1985 Rules
on Criminal Procedure, declared effective
on October 1, 1988, did not restore that
The investigators of the Office of the
authority to Judges of Regional Trial
Ombudsman have concurrent jurisdiction
Courts; said amendments did not in fact
with public prosecutors to conduct
deal at all with the officers or courts
preliminary investigations in all cases
having authority to conduct preliminary
involving public officers, whether falling
investigations.
under the jurisdiction of the
Sandiganbayan or the regular courts. For
this purpose, Administrative Order No. 8,
As explained in Salta v. Court of
dated November 8, 1990, of the Office of
Appeals,11 the preliminary investigation
the Ombudsman provides:
proper is, therefore, not a judicial
function. It is a part of the prosecution's
job, a function of the executive.
For purposes of investigation and
prosecution. Ombudsman cases
involving criminal offenses may be
It is evident that in this case, respondent
subdivided into two classes to wit: (1)
judge conducted an inquiry, not only for
those cognizable by the Sandiganbayan,
the purpose of determining whether there
and (2) those falling under the jurisdiction
was probable cause to order the arrest of
of the regular courts. . . .
private respondents Blanco, Pedro
Castillo, Sulit, Atienza, and Ildefonso
Castillo, but for the purpose of
The power to investigate or conduct a
determining whether there was sufficient
preliminary investigation in any
evidence to prosecute them as well.
Ombudsman case may be exercised by an
Indeed, in his questioned orders,
investigator or prosecutor of the Office of
respondent judge did not only determine
the Ombudsman, or by any Provincial or
the existence of probable cause for the
City Prosecutor or their assistants, either
issuance of warrants of arrest, but also
in their regular capacities or as deputized
what the charge should be and who
Ombudsman Prosecutors.
should be charged. In so doing,
respondent judge exceeded his authority.

Thus, while the power of an investigator

of the Office of the Ombudsman for the
To justify his orders, respondent judge
Military is undoubted, no similar
invokes Art. III, §2 of the 1997
authority is vested in judges of Regional
Constitution, which provides that "no
Trial Courts as they are not among those
search warrant or warrant of arrest shall
mentioned in Rule 112, §2 as authorized
issue except upon probable cause to be
to conduct preliminary investigations. As
determined personally by the judge after
this Court pointed out in Castillo v.
examination under oath or affirmation of
Villaluz:10
the complainant and the witnesses he may
produce, and particularly describing the
place to be searched and the persons or Motion to Set Incidents for Hearing" they
things to be seized." However, this also sought to quash the original
provision applies to the issuance of arrest information filed by Ombudsman
and search warrants, which should be Investigator Varez of the Office of the
distinguished from a preliminary Ombudsman for the Military, respondent
investigation. As already stated, the judge properly acted in hearing the
determination of probable cause for the motion to quash. However, private
issuance of such orders is vested in the respondents sought to quash the
courts, but the conduct of preliminary information on the theory that there was
investigations is entrusted to the no probable cause against them. Lack of
executive branch, with the exception of probable cause is not one of the grounds
inferior court judges. According to this for a motion to quash under Rule 117, §3
Court in People v. Inting:12 of the Rules of Criminal Procedure. A
motion to quash should be based on a
defect in the information which is evident
Judges and prosecutors alike should on its face. The guilt or innocence of the
distinguish the preliminary inquiry which accused, their degree of participation, and
determines probable cause for the the mitigating, aggravating, or alternative
issuance of a warrant of arrest from the circumstances which should be
preliminary investigation proper which appreciated are properly the subject of
ascertains whether the offender should be trial on the merits rather than a motion to
held for trial or released . . . . The quash. As held in Cruz v. People.13
determination of probable cause for the
warrant of arrest is made by the Judge.
The preliminary investigation proper — It must here be stressed that a preliminary
whether or not there is reasonable ground investigation is merely inquisitorial, and
to believe that the accused is guilty of the it is often the only means of discovering
offense charged and, therefore, whether the persons who may be reasonably
or not he should be subjected to the charged with a crime, to enable the
expenses, rigors and embarrassment of prosecutor to prepare his complaint or
trial — is the function of the prosecutor. information. It is not a trial of the case on
the merits and has no purpose except that
of determining whether a crime has been
xxx xxx xxx committed and whether there is probable
cause to believe that the accused is guilty
thereof, and it does not place the persons
We reiterate that preliminary against whom it is taken in jeopardy.
investigation should be distinguished as
to whether it is an investigation for the
determination of a sufficient ground for The established rule is that a preliminary
the filing of the information or it is an investigation is not the occasion for the
investigation for the determination of a full and exhaustive display of the parties'
probable cause for the issuance of a evidence; it is for the presentation of such
warrant of arrest. The first kind of evidence only as may engender a well-
preliminary investigation is executive in grounded belief that an offense has been
nature. It is part of the prosecution's job. committed and that the accused is
The second kind of preliminary probably guilty thereof.
investigation which is more properly
called preliminary examination is judicial
in nature and is lodged with the judge. Hence, notwithstanding the contrary
opinion of the judge regarding the
designation of the offense committed, for
Private respondents Pedro Castillo, Sulit, as long as he finds probable cause for the
Atienza, and Ildefonso Castillo defend offense charged, he should issue a
the assailed orders on the theory that, warrant of arrest against the accused for
since in their "Motion to Hold Issuance of the crime charged in the information.
Warrant and Motion to Quash with
WHEREFORE, the petition is hereby father, repaired to said office on August
granted and the orders, dated October 18, 1, 2003.
1995, November 22, 1995, and January 3,
1996, of respondent Judge Paterno Tac-
an are ANNULLED and SET ASIDE. An "Inquest Investigation" of Apura was
conducted on August 2, 2003, a Saturday,
by a prosecutor who recommended the
SO ORDERED. impleading of Apura as co-accused in the
case. A warrant for Apura’s arrest was on
2. Enriquez v Sarmiento
even date issued by Judge Apolinario
A.M. No. RTJ-06-2011 August 7, 2006 Taypin, Presiding Judge of Branch 12 of
the Cebu RTC, who was on duty that day.
4 Apura was immediately arrested and
[formerly OCA I.P.I. No. 04-2083-RTJ] detained.

IMELDA S. ENRIQUEZ, Petitioner, Apura assailed the legality of his arrest

via a "Motion to Dismiss" the
vs. Information, which he filed on August 5,
JUDGE OLEGARIO R. SARMIENTO, 2003 before Branch 24 of the Cebu RTC
JR. Respondent. to which the case was raffled.

DECISION By Order of August 13, 2003, Branch 24

Presiding Judge Olegario R. Sarmiento,
Jr., herein respondent, "believ[ing] that
CARPIO MORALES, J.: there [wa]s lack of preliminary
investigation," ordered the remand of the
case against Apura to the Cebu City
The facts that gave rise to the filing of the Prosecutor’s Office for preliminary
present administrative case, as culled investigation, and ordered Apura’s
from the rollo, follow: release from custody on a bail of P20,000.
Respondent’s said Order reads:

Following the death in Cebu City of one

Mark James Enriquez on July 21, 2003, Accused-movant Anthony John Apura
Cebu City Prosecutor Jesus P. Feliciano alleged in his Motion to Dismiss that his
filed before the Regional Trial Court arrest was illegal because he [went] to the
(RTC) of Cebu on July 23, 2003 an police station upon invitation but
Information 1 charging Sherwin Que immediately thereafter he was placed
a.k.a. Bungol, a certain Junjun, and nine under custody of the police. His arrest
Does with Murder. does not fall under a warrantless arrest
nor it is within the purview of "hot
pursuit" concept, considering that the
subject incident happened on July 19,
Warrants for the arrest 2 of Sherwin Que
2003 and he was placed under arrest on
a.k.a. Bungol, John Doe, Peter Doe, Paul
August 2, 2003.
Doe, Richard Doe, Arnold Doe, Dexter
Doe, James Doe, Robert Doe, and Arthur
Doe were thereupon issued by the
Executive Judge of the Cebu RTC. The Court believes that there is lack of
preliminary investigation on the part of
accused Anthony John Apura. The
warrant of arrest issued on July 24, 2003
On the invitation 3 of the 7th Regional
on the basis of the original information
Criminal Investigation and Detection
filed on July 24, 2003 cannot be made as
Group Unit (CIDGU) at Camp Sotero
valid basis for the arrest of the accused
Cabahug in Cebu City, Anthony John
Anthony John Apura on August 2, 2003.
Apura (Apura), accompanied by his
The court notes that accused Anthony inquest proceedings which followed . . .
John Apura is not the certain "Junjun" the "invitation" was [sic] highly irregular.
mentioned in the original Information. The prosecutors knew this fact, which is
why, during the hearing on the "Motion
to Dismiss", they agreed for [sic] the
What appalled the Court is the manner by remand of the record for preliminary
which the accused was placed under investigation.
custody. The actuation wherein a person
is invited to the police station for
investigation and to place said person Had he granted the Motion to Dismiss, on
under detention when his appearance the ground that the trial court did not
therein was only to explain his side acquire jurisdiction over the person of
thereof, is foreboding. Apura because of the illegal arrest,
accused would be released just the same.
Yet, to strike a balance of the possible
WHEREFORE, short of declaring the abuse on the rights of accused and the
arrest of movant illegal, and acting on the effort of the police at prosecution of
Motion to Dismiss, remand this case to crimes, respondent did not categorically
the Cebu City Prosecution Office for declare the arrest illegal but allowed the
Prosecutor Jesus Feliciano to conduct accused to post cash bail bond with an
preliminary investigation on Anthony accompanying "hold-departure" order. At
John Apura and said accused is ordered least, to get hold of the accused while
released from custody, being admitted to preliminary investigation is conducted. 6
bail in the amount of PhP 20,000.000 in (Emphasis and underscoring supplied)
cash, pending preliminary investigation,
pursuant to Section 7 of Rule 112.
By Report dated October 4, 2005, the
Office of the Court Administrator (OCA),
Furnish parties and counsels copy of this finding that respondent violated Section
Order and Prosecutor Feliciano, who is 7, Rule 114 of the Revised Rules of
directed to submit his preliminary Criminal Procedure reading:
investigation report sixty (60) days from
today. 5 (Emphasis and underscoring
supplied) SEC. 7. Capital offense or an offense
punishable by reclusion perpetua or life
imprisonment, not bailable. – No person
Hence, arose the present administrative charged with a capital offense, or an
complaint filed on September 7, 2004 by offense punishable by reclusion perpetua
petitioner Imelda S. Enriquez, the mother or life imprisonment, shall be admitted to
of the deceased Mark James Enriquez, bail when evidence of guilt is strong,
against respondent for knowingly regardless of the stage of the criminal
rendering an unjust order and gross prosecution,
ignorance of the law and procedure for
ordering the release of Apura on bail
without first conducting a hearing for the recommended that respondent be fined in
purpose. the amount of P21,000 for gross
ignorance of the law. 7

To the complaint, respondent gives the

following comment: By Resolution 8 dated December 14,
2005, this Court ordered the parties to
manifest whether they are submitting the
Respondent judge was trying to check the case on the basis of the pleadings/records
abuse committed by the State through its already filed and submitted, within ten
law enforcement agency upon the rights days from notice. Respondent responded
of an accused person guaranteed to him in the affirmative in a Manifestation 9
by no less than the Constitution. The received on January 27, 2006 to which he
attached additional papers in support of investigation is "an inquiry or proceeding
his case. On petitioner’s part, she also to determine whether there is sufficient
responded in the affirmative by ground to engender a well-founded belief
Manifestation 10 received on January 31, that a crime has been committed and the
2006. respondent is probably guilty thereof, and
should be held for trial." 13 An inquest is
"a summary inquiry conducted by a
An application to bail from Murder, for prosecutor for the purpose of determining
which Apura was indicted on August 2, whether the warrantless arrest of a person
2003 when it was a capital offense, 11 was based on probable cause." 14
now punishable by reclusion perpetua,
calls for a hearing, as called for under
Section 8 of Rule 114 reading: Where the penalty prescribed by law for
an offense is at least four years, two
months and one day of imprisonment
SEC. 8. Burden of proof in bail without regard to the fine, a preliminary
application. – At the hearing of an investigation must be conducted before
application for bail filed by a person who the filing of a complaint or information
is in custody of the commission of an for such offense. 15 The conduct of an
offense punishable by death, reclusion inquest investigation does not fulfill the
perpetua, or life imprisonment, the requirement for the conduct of a
prosecution has the burden of showing preliminary investigation before the filing
that evidence of guilt is strong. The of an information or complaint involving
evidence presented during the bail any such offenses, except when the
hearing shall be considered automatically accused was lawfully arrested without a
reproduced at the trial but, upon motion warrant. 16
of either party, the court may recall any
witness for additional examination unless
the latter is dead, outside the Philippines, In the case at bar, the accused was not
or otherwise unable to testify. (Italics in even arrested. He repaired to the CIDGU
the original), on its invitation. He should thus have
been subjected to a preliminary
investigation, not a mere inquest
in order to determine whether the investigation. 17
evidence of guilt against the accused is
strong. 12
An Amended Information was
subsequently filed, however, upon which
In the case at bar, respondent ordered a Warrant of Arrest was issued against
Apura to be released on bail, without Apura by Judge Taypin. By so issuing a
conducting a prior hearing. warrant, Judge Taypin is presumed to
have , before issuing the warrant,
previously regularly discharged his duty
The lack of preliminary investigation, in to personally determine the existence of
light of the finding that Apura was not probable cause against the accused, as
lawfully arrested without warrant, he mandated by Section 6 of Rule 112,
having gone to the CIDGU in response to which provides:
its invitation, did not justify respondent’s
disregard of the mandatory procedure
governing the grant of bail. SEC. 6. When warrant of arrest may
issue. – (a) By the Regional Trial Court.
– Within ten (10) days from the filing of
Indeed, a preliminary investigation the complaint or information, the judge
should have been conducted before the shall personally evaluate the resolution of
filing of the Amended Information. A the prosecutor and its supporting
preliminary investigation is a proceeding evidence. He may immediately dismiss
distinct from an inquest. A preliminary the case if the evidence on record clearly
fails to establish probable cause. If he In fine, respondent’s release on bail of
finds probable cause, he shall issue a Apura, without priorly conducting a
warrant of arrest, or a commitment order hearing for the purpose, betrays his gross
if the accused has already been arrested ignorance of the law, it being settled that
pursuant to a warrant issued by the judge where the law involved is simple and
who conducted the preliminary elementary, lack of observance thereof
investigation or when the complaint or constitutes gross ignorance of the law. 20
information was filed pursuant to section
7 of this Rule. In case of doubt on the
existence of probable cause, the judge Gross ignorance of the law may be
may order the prosecutor to present punished with dismissal from the service,
additional evidence within five (5) days forfeiture of all or part of the benefits as
from notice and the issue must be the Court may determine, and
resolved by the court within thirty (30) disqualification from reinstatement or
days from the filing of the complaint or appointment to any public office,
information. including government-owned or
controlled corporations; suspension from
office without salary and other benefits
x x x x (Underscoring supplied) for more than three (3) but not exceeding
six (6) months; or a fine of more than
P20,000 but not exceeding P40.000. 21
At all events, the absence of a preliminary
investigation did not justify Apura’s
release, the defect not having nullified the This Court, however, appreciates as
information and the warrant of arrest mitigating in respondent’s favor his
against him. Thus this Court held in issuance of a hold-departure order against
Larranaga v. CA: 18 the accused. 22 It is in this light that it
reduces the recommended penalty of fine
to P15,000.
We hold, therefore, that petitioner’s
detention at the Bagong Buhay
Rehabilitation Center is legal in view of WHEREFORE, respondent, Judge
the information and the warrant of arrest Olegario R. Sarmiento, Jr., is found guilty
against him. The absence of a preliminary of gross ignorance of the law and is
investigation will not justify petitioner’s FINED Fifteen Thousand (P15,000)
release because such defect did not Pesos, with warning that a repetition of
nullify the information and the warrant of the same or similar infraction shall be
arrest against him. We ruled in dealt with more severely.
Sanciangco, Jr. v. People: 19

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.

- Paderanga v. Drilon1 On 3 December 2013, the

Ombudsman served upon Sen.
This case is a Petition for Certiorari2 Estrada a copy of the complaint in
with prayer for (1) the issuance of a OMB-C-C-13-0397, filed by the FIO
temporary restraining order and/or of the Ombudsman, which prayed,
Writ of Preliminary Injunction among others, that criminal
enjoining respondents Office of the proceedings for Plunder, as defined in
Ombudsman (Ombudsman), Field RA No. 7080, and for violation of
Investigation Office (FIO) of the Section 3(e) of RA No. 3019, be
Ombudsman, National Bureau of conducted against Sen. Estrada. Sen.
Investigation (NBI), and Atty. Levito Estrada filed his counter affidavit in
D. Baligod (Atty. Baligod) OMB-C-C-13-0397 on 16 January
(collectively, respondents), from 2014.
conducting further proceedings in
OMB-CC-13-03013 and OMB-C-C- Eighteen of Sen. Estrada’s co-
13-0397 until the present Petition has respondents in the two complaints
been resolved with finality; and (2) filed their counter-affidavits between
this Court’s declaration that petitioner 9 December 2013 and 14 March
Senator Jinggoy Ejercito Estrada 2014.5
(Sen. Estrada)was denied due process
of law, and that the Order of the On 20 March 2014, Sen. Estrada filed
Ombudsman dated 27 March 2014 his Request to be Furnished with
and the proceedings in OMB-C-C-13- Copies of Counter-Affidavits of the
03013 and OMB-C-C-13-0397 Other Respondents, Affidavits of
subsequent to and affected by the New Witnesses and Other Filings
issuance of the challenged 27 March (Request) in OMB-C-C-13-0313. In
2014 Order are void. his Request, Sen. Estrada asked for
copies of the following documents:
OMB-C-C-13-0313,3 entitled
National Bureau of Investigation and (a) Affidavit of [co-respondent] Ruby
Atty. Levito D. Baligod v. Jose Tuason (Tuason);
"Jinggoy" P. Ejercito Estrada, et
al.,refers to the complaint for Plunder (b) Affidavit of [co-respondent]
as defined under Republic Act (RA) Dennis L. Cunanan (Cunanan);
No. 7080, while OMB-C-C-13-
0397,4 entitled Field Investigation (c) Counter-Affidavit of [co-
Office, Office of the Ombudsman v. respondent] Gondelina G. Amata
Jose "Jinggoy" P. Ejercito-Estrada, et (Amata);
al., refers to the complaint for Plunder
(d) Counter-Affidavit of [co- documents relied upon for his
respondent] Mario L. Relampagos defense. The counter affidavits shall
(Relampagos); be subscribed and sworn to and
certified as provided in paragraph (a)
(e) Consolidated Reply of of this section, with copies thereof
complainant NBI, if one had been furnished by him to the complainant.
filed; and
Further to quote the rule in furnishing
(f) Affidavits/Counter- copies of affidavits to parties under
Affidavits/Pleadings/Filings filed by the Rules of Procedure of the Office
all the other respondents and/or of the Ombudsman [Section 4 of Rule
additional witnesses for the II of Administrative Order No. 07
Complainants.6 issued on April 10, 1990]:

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."

Justice Velasco’s dissent prefers We underscore Sen. Estrada’s

thatSen. Estrada not "be subjected to procedural omission. Sen. Estrada did
the rigors of a criminal prosecution not file any pleading, much less a
incourt" because there is "a pending motion for reconsideration, to the 27
March 2014 Order inOMB-C-C-13- Petitioner filed a motion for
0313. Sen. Estrada immediately reconsideration of the decision on the
proceeded to file this Petition for ground that she was not furnished
Certiorari before this Court. Sen. copies of the affidavits of the private
Estrada’s resort to a petitionfor respondent’s witnesses. The
certiorari before this Court stands in Ombudsman subsequently ordered
stark contrast to his filing of his 7 that petitioner be furnished with
April 2014 Motion for copies of the counter-affidavits of
Reconsideration of the 28 March private respondent’s witnesses, and
2014 Joint Resolution finding that petitioner should "file, within ten
probable cause. The present Petition (10) days from receipt of this Order,
for Certiorari is premature. such pleading which she may deem fit
under the circumstances." Petitioner
A motion for reconsideration allows received copies of the affidavits, and
the public respondent an opportunity simply filed a manifestation where
to correct its factual and legal errors. she maintained that her receipt of the
Sen. Estrada, however, failed to affidavits did not alter the deprivation
present a compelling reason that the of her right to due process or cure the
present Petition falls under the irregularity in the Ombudsman’s
exceptions41 to the general rule that decision to penalize her.
the filing of a motion for
reconsideration is required prior to In Ruivivar, petitioner received the
the filing of a petition for certiorari. affidavits of the private respondent’s
This Court has reiterated in numerous witnesses afterthe Ombudsman
decisions that a motion for rendered a decision against her. We
reconsideration is mandatory before disposed of petitioner’s deprivation of
the filing of a petition for certiorari.42 due process claim in this manner:

Justice Velasco’s dissent faults the The CA Decision dismissed the

majority for their refusal to apply the petition for certiorari on the ground
Reyes case to the present Petition. that the petitioner failed to exhaust all
Justice Velasco’s dissent insists that the administrative remedies available
"this Court cannot neglect to to her before the Ombudsman. This
emphasize that, despite the variance ruling is legallycorrect as exhaustion
in the quanta of evidence required, a of administrative remedies is a
uniform observance of the singular requisite for the filing of a petition for
concept of due process is certiorari. Other than this legal
indispensable in all proceedings." significance, however, the ruling
necessarily carries the direct and
As we try to follow Justice Velasco’s immediate implication that the
insistence, we direct Justice Velasco petitioner has been granted the
and those who join him in his dissent opportunity to be heard and has
to this Court’s ruling in Ruivivar v. refused to avail of this opportunity;
Office of the Ombudsman hence, she cannot claim denial of due
(Ruivivar),43 wherein we stated that process. In the words of the CA ruling
"[t]he law can no longer help one who itself: "Petitioner was given the
had been given ample opportunity to opportunity by public respondent to
be heard but who did not take full rebut the affidavits submitted by
advantage of the proffered chance." private respondent. . . and had a
speedy and adequate administrative
The Ruivivar case, like the Reyes44 remedy but she failed to avail thereof
case, was also an administrative case for reasons only known to her."
before the Ombudsman. The
Ombudsman found petitioner Rachel For a fuller appreciation of our above
Beatriz Ruivivar administratively conclusion, we clarify that although
liable for discourtesy in the course of they are separate and distinct
her official functions and imposed on concepts, exhaustion of
her the penalty of reprimand. administrative remedies and due
process embody linked and related
principles. The "exhaustion" principle Given this opportunity to act on the
applies when the ruling court or belatedly-furnished affidavits, the
tribunal is not given the opportunity petitioner simply chose to file a
tore-examine its findings and "Manifestation" where she took the
conclusions because of an available position that "The order of the
opportunity that a party seeking Ombudsman dated 17 January 2003
recourse against the court or the supplying her with the affidavits of
tribunal’s ruling omitted to take. the complainant does not cure the 04
Under the concept of "due process," November 2002 order," and on this
on the other hand, a violation occurs basis prayed that the Ombudsman’s
when a court or tribunal rules against decision "be reconsidered and the
a party without giving him orher the complaint dismissed for lack of
opportunity to be heard. Thus, the merit."
exhaustion principle is based on the
perspective of the ruling court or For her part, the private respondent
tribunal, while due process is filed a Comment/Opposition to
considered from the point of view of Motion for Reconsideration dated 27
the litigating party against whom a January 2003 and prayed for the
ruling was made. The commonality denial of the petitioner’s motion.
they share is in the same"opportunity"
that underlies both. In the context of In the February 12, 2003 Order, the
the present case, the available Ombudsman denied the petitioner’s
opportunity to consider and motion for reconsideration after
appreciate the petitioner’s counter- finding no basis to alter or modify its
statement offacts was denied the ruling. Significantly, the Ombudsman
Ombudsman; hence, the petitioner is fully discussed in this Order the due
barred from seeking recourse at the process significance of the
CA because the ground she would petitioner’s failure to adequately
invoke was not considered at all at the respond to the belatedly-furnished
Ombudsman level. At the same time, affidavits. The Ombudsman said:
the petitioner – who had the same
opportunity to rebut the belatedly- "Undoubtedly, the respondent herein
furnished affidavits of the private has been furnished by this Office with
respondent’s witnesses – was not copies of the affidavits, which she
denied and cannot now claim denial claims she has not received.
of due process because she did not Furthermore, the respondent has been
take advantage of the opportunity given the opportunity to present her
opened to her at the Ombudsman side relative thereto, however, she
level. chose not to submit countervailing
evidence orargument. The
The records show that the petitioner respondent, therefore (sic), cannot
duly filed a motion for claim denial of due process for
reconsideration on due process purposes of assailing the Decision
grounds (i.e., for the private issued in the present case. On this
respondent’s failure to furnish her score, the Supreme Court held in the
copies of the affidavits of witnesses) case of People v. Acot, 232 SCRA
and on questions relating to the 406, that "a party cannot feign denial
appreciation of the evidence on of due process where he had the
record. The Ombudsman acted on this opportunity to present his side". This
motion by issuing its Order of January becomes all the more important since,
17, 2003 belatedly furnishing her with as correctly pointed out by the
copies of the private respondent’s complainant, the decision issued in
witnesses, together with the "directive the present case is deemed final and
to file, within ten (10) days from unappealable pursuant to Section 27
receipt of this Order, such pleading of Republic Act 6770, and Section 7,
which she may deem fit under the Rule III of Administrative Order No.
circumstances." 07. Despite the clear provisions of the
law and the rules, the respondent terminate its preliminary
herein was given the opportunity not investigation.
normally accorded, to present her
side, but she opted not to do so which As we follow the reasoning in Justice
is evidently fatal to her cause." Velasco’s dissent, it becomes more
[emphasis supplied]. apparent that Sen. Estrada’s present
Petition for Certiorari is premature for
Under these circumstances, we lack of filing of a motion for
cannot help but recognize that the reconsideration before the
petitioner’s cause is a lost one, not Ombudsman. When the Ombudsman
only for her failure to exhaust her gave Sen. Estrada copies of the
available administrative remedy, but counter-affidavits and even waited for
also on due process grounds. The law the lapse of the given period for the
can no longer help one who had been filing of his comment, Sen. Estrada
given ample opportunity to be heard failed to avail of the opportunity to be
but who did not take full advantage of heard due to his own fault. Thus, Sen.
the proffered chance.45 Estrada’s failure cannot in any way be
construed as violation of due process
Ruivivar applies with even greater by the Ombudsman, much less of
force to the present Petition because grave abuse of discretion. Sen.
here the affidavits of Sen. Estrada’s Estrada has not filed any comment,
co-respondents were furnished to him and still chooses not to.
beforethe Ombudsman rendered her 4
June 2014 Joint Order. In Ruivivar, Third. Sen. Estrada’s present Petition
the affidavits were furnished after the for Certiorari constitutes forum
Ombudsman issued a decision. shopping and should be summarily
dismissed.
Justice Velasco’s dissent cites the
cases of Tatad v. Sandiganbayan46 In his verification and certification of
(Tatad) and Duterte v. non-forum shopping in the present
Sandiganbayan47 (Duterte) in an petition filed on 7 May 2014, Sen.
attempt to prop up its stand. A careful Estrada stated:
reading of these cases, however,
would show that they do not stand on 3.1 I, however, disclose that I have
all fours with the present case. In filed a Motion for Reconsideration
Tatad, this Court ruled that "the dated 07 April 2014 in OMB-C-C-13-
inordinate delay in terminating the 0313 and OMB-CC-13-0397, raising
preliminary investigation and filing as sole issuethe finding of probable
the information [by the Tanodbayan] cause in the Joint Resolution dated 28
in the present case is violative of the March 2014.
constitutionally guaranteed right of
the petitioner to due process and to a Such Motion for Reconsideration has
speedy disposition of the cases yet to be resolved by the Office of the
against him."48 The Tanod bayan Ombudsman.49 (Emphasis supplied)
took almost three years to terminate
the preliminary investigation, despite Sen. Estrada’s Motion for
Presidential Decree No. 911’s Reconsideration of the 28 March
prescription of a ten-day period for 2014 Joint Resolution prayed that the
the prosecutor to resolve a case under Ombudsman reconsider and issue a
preliminary investigation. We ruled new resolution dismissing the charges
similarly in Duterte, where the against him. However, in this Motion
petitioners were merely asked to for Reconsideration, Sen. Estrada
comment and were not asked to file assailed the Ombudsman’s 27 March
counter-affidavits as isthe proper 2014 Joint Order denying his
procedure in a preliminary Request, and that such denial is a
investigation. Moreover, in Duterte, violation of his right to due process.
the Ombudsman took four years to
8. It is respectfully submitted that the in his Motion for Reconsideration
Ombudsman violated the foregoing with the Ombudsman the violation of
rule [Rule 112, Section 4 of the Rules his right to due process, the same
of Court] and principles. A reading of issue he is raising in this petition. In
the Joint Resolution will reveal that the verification and certification of
various pieces of evidence which non-forum shopping attached to his
Senator Estrada was not furnished petition docketed as G.R. Nos.
with – hence, depriving him of the 212761-62 filed on 23 June 2014,
opportunity to controvert the same – Sen. Estrada disclosed the pendency
were heavily considered by the of the present petition, as well as
Ombudsman in finding probable those before the Sandiganbayan for
cause to charge him with Plunder and the determination of the existence of
with violations of Section 3(e) of R.A. probable cause. In his petition in G.R.
No. 3019. Nos. 212761-62, Sen. Estrada again
mentioned the Ombudsman’s 27
xxxx March 2014 Joint Order denying his
Request.
11. Notably, under dated 20 March
2014, Senator Estrada filed a 17. Sen. Estrada was shocked not only
"Request to be Furnished with Copies at the Office of the Ombudsman’s
of Counter-Affidavits of the Other finding of probable cause, which he
Respondents, Affidavits of New maintains is without legal or factual
Witnesses and Other Filings," basis, but also thatsuch finding of
pursuant to the right of a respondent probable cause was premised on
"to examine the evidence submitted evidence not disclosed tohim,
by the complainant which he may not including those subject of his Request
have been furnished" (Section 3[b], to be Furnished with Copiesof
Rule 112 of the Rules of Court), and Counter-Affidavits of the Other
to "have access to the evidence on Respondents, Affidavits of New
record" (Section 4[c], Rule II of the Witnesses and Other Filings dated 20
Rules of Procedure of the Office of March 2014.
the Ombudsman).
In particular, the Office of the
However, notwithstanding the gravity Ombudsman used as basis for the
of the offenses leveled against Joint Resolution the following
Senator Estrada and the law’s documents –
vigilance in protecting the rights of an
accused, the Special Panel of i. Alexis G. Sevidal’s Counter-
Investigators, in an Order dated 27 Affidavits dated 15 January and 24
March 2014, unceremoniously denied February 2014;
the request on the ground that "there
is no provision under this Office’s ii. Dennis L. Cunanan’s Counter-
Rules of Procedure which entitles Affidavits both dated 20 February
respondent to be furnished all the 2014;
filings by the other parties x x x x."
(Order dated 27 March 2013, p. 3) iii. Francisco B. Figura’s Counter-
Affidavit dated 08 January 2014;
As such, Senator Estrada was not
properly apprised of the evidence iv. Ruby Tuason’s Counter-
offered against him, which were Affidavits both dated 21 February
eventually made the bases of the 2014;
Ombudsman’s finding of probable
cause.50 v. Gregoria G. Buenaventura’s
Counter-Affidavit dated 06 March
The Ombudsman denied Sen. 2014; and
Estrada’s Motion for Reconsideration
in its 4 June 2014 Joint Order. vi. Philippine Daily Inquirer Online
Clearly, Sen. Estrada expressly raised Edition news article entitled "Benhur
Luy upstages Napoles in Senate Moreover, even though Sen. Estrada
Hearing" by Norman Bordadora and acknowledged his receipt of the
TJ Borgonio, published on 06 March Ombudsman’s 4 June 2014 Joint
2014, none of which were ever Order which denied his motion for
furnished Sen. Estrada prior to the reconsideration of the 28 March 2014
issuance of the challenged Joint Joint Resolution, Sen. Estrada did not
Resolution, despite written request. mention that the 4 June 2014 Joint
Order stated that the Ombudsman
xxxx "held in abeyance the disposition of
the motions for reconsideration in this
II proceeding in light of its grant to
[Sen. Estrada] a period of five days
THE OFFICE OF THE from receipt of the 7 May 2014 [Joint]
OMBUDSMAN, IN ISSUING THE Order to formally respond to the
CHALLENGED JOINT abovenamed co-respondent’s
RESOLUTION DATED 28 MARCH claims."
2014 AND CHALLENGED JOINT
ORDER DATED 04 JUNE 2014, Sen. Estrada claims that his rights
NOT ONLY ACTED WITHOUT OR were violated but he flouts the rules
IN EXCESS OF ITS himself.
JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION The rule against forum shopping is
AMOUNTING TO LACK OR not limited tothe fulfillment of the
EXCESS OF JURISDICTION, BUT requisites of litis pendentia.52 To
ALSO VIOLATED SEN. determine whether a party violated
ESTRADA’S CONSTITUTIONAL the rule against forum shopping, the
RIGHT TO DUE PROCESS OF most important factor to ask is
LAW AND TO EQUAL whether the elements of litis
PROTECTION OF THE LAWS. pendentia are present, or whether a
final judgment in one case will
xxxx amount to res judicatain another.53
Undergirding the principle of litis
2.17 x x x x pendentia is the theory that a party
isnot allowed to vex another more
Notably, in its Joint Order dated 07 than once regarding the same subject
May 2014, the Office of the matter and for the same cause of
Ombudsman even arbitrarily limited action. This theory is founded on the
the filing of Sen. Estrada’s comment public policy that the same matter
to the voluminous documents should not be the subject of
comprisingthe documents it furnished controversy in court more than once
Sen. Estrada to a "non-extendible" in order that possible conflicting
period offive (5) days, making it judgments may be avoided, for the
virtually impossible for Sen. Estrada sake of the stability in the rights and
to adequately study the charges status of persons.54
leveled against him and intelligently
respond to them. The Joint Order also x x x [D]espite the fact that what the
failed to disclose the existence of petitioners filed wasa petition for
other counter-affidavits and failed to certiorari, a recourse that – in the
furnish Sen. Estrada copies of such usual course and because of its nature
counter-affidavits.51 and purpose – is not covered by the
rule on forum shopping. The
Sen. Estrada has not been candid with exception from the forum shopping
this Court. His claim that the finding rule, however, is true only where a
of probable cause was the "sole issue" petition for certiorari is properly or
he raised before the Ombudsman in regularly invoked in the usual course;
his Motion for Reconsideration dated the exception does not apply when the
7 April 2014 is obviously false. relief sought, through a petition for
certiorari, is still pending with or has
as yet to be decided by the respondent SUMMARY
court, tribunal or body exercising
judicial or quasi-judicial body, e.g., a The Ombudsman, in furnishing Sen.
motion for reconsideration of the Estrada a copy of the complaint and
order assailed via a petition for its supporting affidavits and
certiorari under Rule 65, as in the documents, fully complied with
present case. This conclusion is Sections 3 and 4 of Rule 112 of the
supported and strengthened by Revised Rules of Criminal Procedure,
Section 1, Rule 65 of the Revised and Section 4, Rule II of the Rules of
Rules of Court which provides that Procedure of the Office of the
the availability of a remedy in the Ombudsman, Administrative Order
ordinary course of law precludes the No. 7. Both the Revised Rules of
filing of a petition for certiorari; under Criminal Procedure and the Rules of
this rule, the petition’s dismissal is the Procedure of the Office of the
necessary consequence if recourse to Ombudsman require the investigating
Rule 65 is prematurely taken. officer to furnish the respondent with
copies of the affidavits of the
To be sure, the simultaneous remedies complainant and affidavits of his
the petitioners sought could result in supporting witnesses. Neither of these
possible conflicting rulings, or at the Rules require the investigating officer
very least, to complicated situations, to furnish the respondent with copies
between the RTC and the Court of of the affidavits of his co-
Appeals. An extreme possible result respondents. The right of the
is for the appellate court to confirm respondent is only "to examine the
that the RTC decision is meritorious, evidence submitted by the
yet the RTC may at the same time complainant," as expressly stated in
reconsider its ruling and recall its Section 3(b), Rule 112 of the Revised
order of dismissal. In this eventuality, Rules of Criminal Procedure. This
the result is the affirmation of the Court has unequivocally ruled in
decision that the court a quo has Paderanga that "Section 3, Rule 112
backtracked on. Other permutations of the Revised Rules of Criminal
depending on the rulings of the two Procedure expressly provides that the
courts and the timing of these rulings respondent shall only have the right to
are possible. In every case, our justice submit a counter-affidavit, to
system suffers as this kind of sharp examine all other evidence submitted
practice opens the system to the by the complainant and, where the
possibility of manipulation; to fiscal sets a hearing to propound
uncertainties when conflict of rulings clarificatory questions to the parties
arise; and at least to vexation for or their witnesses, to be afforded an
complications other than conflict of opportunity to be present but without
rulings. Thus, it matters not that the right to examine or cross-
ultimately the Court of Appeals may examine." Moreover, Section 4 (a, b
completely agree with the RTC; what and c) of Rule II of the Ombudsman’s
the rule on forum shopping addresses Rule of Procedure, read together, only
are the possibility and the actuality of require the investigating officer to
its harmful effects on our judicial furnish the respondent with copies of
system.55 the affidavits of the complainant and
his supporting witnesses.1âwphi1
Sen. Estrada resorted to simultaneous There is no law or rule requiring the
remedies by filing this Petition investigating officer to furnish the
alleging violation of due process by respondent with copies of the
the Ombudsman even as his Motion affidavits of his co-respondents.
for Reconsideration raising the very
same issue remained pending with the In the 7 May 2014 Joint Order, the
Ombudsman. This is plain and simple Ombudsman went beyond legal duty
forum shopping, warranting outright and even furnished Sen. Estrada with
dismissal of this Petition. copies of the counter-affidavits of his
co-respondents whom he specifically
named, as well as the preliminary investigations, the
counteraffidavits of some of other co- respondent has no such rights.
respondents. In the 4 June 2014 Joint
Order, the Ombudsman even held in Also, in an administrative case
abeyancethe disposition of the governed by Ang Tibay, as amplified
motions for reconsideration because in GSIS, the hearing officer must be
the Ombudsman granted Sen. Estrada impartial and cannot be the fact-
five days from receipt of the 7 May finder, investigator, and hearing
2014 Joint Order to formally respond officer atthe same time. In
to the claims made by his co- preliminary investigations, the same
respondents. The Ombudsman public officer may be the investigator
faithfully complied with the existing and hearing officer at the same time,
Rules on preliminary investigation or the fact-finder, investigator and
and even accommodated Sen. Estrada hearing officer may be under the
beyond what the Rules required. control and supervisionof the same
Thus, the Ombudsman could not be public officer, like the Ombudsman or
faulted with grave abuse of discretion. Secretary of Justice. This explains
Since this is a Petition for Certiorari why Ang Tibay, as amplified in GSIS,
under Rule 65, the Petition fails in the does not apply to preliminary
absence of grave abuse of discretion investigations. To now declare that
on the part of the Ombudsman. the guidelines in Ang Tibay, as
amplified in GSIS, are fundamental
The constitutional due process and essential requirements in
requirements mandated in Ang Tibay, preliminary investigations will render
as amplified in GSIS, are not all past and present preliminary
applicable to preliminary investigations invalid for violation of
investigations which are creations of constitutional due process. This will
statutory law giving rise to mere mean remanding for reinvestigation
statutory rights. A law can abolish all criminal cases now pending in all
preliminary investigations without courts throughout the country. No
running afoul with the constitutional preliminary investigation can
requirements of dueprocess as proceeduntil a new law designates a
prescribed in Ang Tibay, as amplified public officer, outside of the
in GSIS. The present procedures for prosecution service, to determine
preliminary investigations do not probable cause. Moreover, those
comply, and were never intended to serving sentences by final judgment
comply, with Ang Tibay, as amplified would have to be released from prison
in GSIS. Preliminary investigations because their conviction violated
do not adjudicate with finality rights constitutional due process. Sen.
and obligations of parties, while Estrada did not file a Motion for
administrative investigations Reconsideration of the 27 March
governed by Ang Tibay, as amplified 2014 Order in OMB-C-C-13-0313
in GSIS, so adjudicate. Ang Tibay,as denying his Request, which is the
amplified in GSIS, requires subject of the present Petition. He
substantial evidencefor a decision should have filed a Motion for R
against the respondent in the econsideration, in the same manner
administrative case.In preliminary that he filed a Motion for
investigations, only likelihood or Reconsideration of the 15 May 2014
probability of guiltis required. To Order denying his motion to suspend
apply Ang Tibay,as amplified in proceedings. The unquestioned rule
GSIS,to preliminary investigations in this jurisdiction is that certiorari
will change the quantum of evidence will lie only if there is no appeal or
required to establish probable cause. any other plain, speedy and adequate
The respondent in an administrative remedy in the ordinary course of law
case governed by Ang Tibay,as against the acts of the public
amplified in GSIS,has the right to an respondent.56 The plain, speedy and
actual hearing and to cross-examine adequate remedy expressly provided
the witnesses against him. In by law is a Motion for
 Reconsideration of the 27 March and Isagani Ocampo.chanrob1es
2014 Order of the Ombudsman. Sen. virtua1 1aw 1ibrary
Estrada's failure to file a Motion for
Reconsideration renders this Petition As found by the Court of Appeals, on
premature. 1 October 1993 at around three
o’clock in the afternoon, private
respondent Isagani Ocampo was on
Sen. Estrada also raised in this
his way home when petitioner Noel
Petition the same issue he raised in his
Advincula and two (2) of his drinking
Motion for Reconsideration of the 28 companions started shouting
March 2014 Joint Resolution of the invectives at him and challenging him
Ombudsman finding probable cause. to a fight. Petitioner, armed with a
While his Motion for Reconsideration bolo, ran after Isagani who was able
of the 28 March 2014 Joint to reach home and elude his attackers.
Resolution was pending, Sen. Estrada Petitioner kept cursing Isagani who
did not wait for the resolution of the eventually left. A certain Enrique
Ombudsman and instead proceeded to Rosas told private respondent
file the present Petition for Certiorari. Amando Ocampo, father of Isagani,
The Ombudsman issued a Joint Order that petitioner had chased his son with
on 4 June 2014 and specifically a bolo. Amando then got his .22
caliber gun, which he claimed was
addressed the issue that Sen. Estrada
licensed, and confronted petitioner
is raising in this Petition. Thus, Sen. who continued drinking with his
Estrada's present Petition for friends. But petitioner threatened to
Certiorari is not only premature, it attack Amando with his bolo, thus
also constitutes forum shopping. prompting the latter to aim his gun
WHEREFORE, we DISMISS the upwards and fire a warning shot.
Petition for Certiorari in G.R. Nos. Cooler heads intervened and Amando
212140-41. was pacified. He left to check on his
son. Later, however, he saw
SO ORDERED. petitioner’s drinking companions
4. Advincula v CA firing at petitioner’s house. 1
5. SECOND DIVISION
Petitioner however has a different
[G.R. No. 131144. October 18, version. According to him, on 1
2000.] October 1993 he and his friends were
having a conversation outside his
NOEL ADVINCULA, Petitioner, v. house when Isagani passed by and
HON. COURT OF APPEALS, shouted at them. This led to a heated
HON. SOLICITOR GENERAL, argument between him and Isagani
HON. EDELWINA PASTORAL, Then Isagani left but returned with his
Presiding Judge, RTC-Br. 91, father Amando and brother Jerry.
Bacoor, Cavite, HON. HERMINIO Isagani and Amando were each armed
P. GERVACIO, Provincial with a gun and started petitioner who
Prosecutor of Cavite, AMANDO ran home to avoid harm but private
OCAMPO and ISAGANI firing at respondents Isagani and
OCAMPO, Respondents. Amando continued shooting, hitting
petitioner’s residence in the process.
DECISION 2
6.
A series of criminal complaints were
7. BELLOSILLO, J.: filed by petitioner on one hand and
8. private respondents on the other. But
the controversy in this petition arose
9. NOEL ADVINCULA, in this petition from the complaint filed by petitioner
for review, assails the Decision of the on 5 April 1994 for Illegal Possession
Court of Appeals which set aside the of Firearms against private
resolution of the Secretary of Justice respondents before the Provincial
ordering the Provincial Prosecutor of Prosecutor of Cavite. Petitioner’s
Cavite to file an Information for complaint was supported by his
Illegal Possession of Firearms against complaint-affidavit, the affidavit of
private respondents Amando Ocampo one Federico San Miguel,
photocopies of photographs showing On 21 October 1994 petitioner filed a
bullet holes on petitioner’s residence, petition for review with the Secretary
and certification of the Firearms and of Justice insisting that the pieces of
Explosives Unit of the Philippine evidence he presented before the
National Police that private Provincial Prosecutor were sufficient
respondents had no records in that to make a prima facie case against
office. private respondents and prayed that
the dismissal of his complaint be set
After private respondents submitted aside. Private respondents filed their
their counter-affidavits, the Assistant opposition thereto stating in essence
Provincial Prosecutor, with the that Amando’s gun was licensed and
approval of the Provincial Prosecutor, that there was no proof other than
dismissed on 26 May 1994 petitioner’s self-serving statement
petitioner’s complaint against private that Isagani had carried a firearm.
respondents for Illegal Possession of
Firearms for lack of evidence. In his Resolution of 6 June 1996 the
According to the Provincial Secretary of Justice granted
Prosecutor — petitioner’s appeal and ordered the
Provincial Prosecutor of Cavite to file
After a close and careful study of the the corresponding charges of Illegal
records of the instant case, Possession of Firearms against
undersigned finds and so holds that private respondents. As the Secretary
the evidence presented by the of Justice held —
complainant is not sufficient to
engender a well founded belief that There is no dispute as to the fact that
the crime for Illegal Possession of respondent Amando Ocampo, by his
Firearms has been committed and the own admission, was in possession of
respondents are probably guilty a firearm. His defense that it was duly
thereof. While it is true that licensed, however, by the records of
respondent Amando Ocampo was the Firearms and Explosives Office
possessing a gun on the date of the (FEO). Granting, however, that said
incident per the allegations in his firearm was duly licensed by the
counter-affidavit that he fired a gun Philippine National Police, no
upwards to prevent complainant from evidence was submitted to prove that
further assaulting him yet the he is possessed of the necessary
possession of said firearm cannot be permit to carry the firearm outside of
considered illegal or unlawful as the his residence. In other words, his
same is covered by a firearm license possession of the firearm, while valid
duly issued by the chief of the at first, became illegal the moment he
Firearm and Explosives carried it out of his place of abode.
Office.chanrob1es virtua1 1aw
1ibrary With regard to respondent Isagani
Ocampo, his bare denial cannot
With respect to respondent Isagani overcome his positive identification
Ocampo, no convincing evidence has by complainant and his witnesses.
been presented by the complainant Physical evidence, such as the bullet
except the allegations appearing in his marks on the walls of complainant’s
affidavit and that of his witness which residence, indeed strengthen the
is not sufficient to establish a prima latter’s allegation that respondents
facie case for charging the former actually fired at him. The case was
with Illegal Possession of Firearms. nevertheless dismissed on the ground
Even the slug depicted in the xeroxed of lack of evidence. This is erroneous.
photo copies marked as Annex "E" of In cases falling under violations of PD
the complaint do not show that said 1866, it is not indispensable that the
slugs were fired from different firearm used be presented in evidence
firearms hence it can be presumed as long as the possession and use
that the same were fired from the gun thereof have been duly established by
of respondent Amando Ocampo an the testimony of several witnesses.
indication that during the incident, (People v. Jumanoy, 221 SCRA 333).
only the latter was in possession of a 4
firearm. 3
On 25 June 1996, pursuant to the
Resolution of the Secretary of Justice, even identified with certainty . . . 5
the Provincial Prosecutor of Cavite
filed two (2) separate Informations On the basis of the evidence on
against Amando and Isagani Ocampo record, the Court of Appeals granted
for Illegal Possession of Firearms private respondents’ petition and set
before the Regional Trial Court of aside the disputed Resolution of the
Bacoor, Cavite, docketed as Crim. Secretary of Justice. Hence, this
Case No. B-96-141 and B-96-142, petition.
respectively. On 17 December 1996,
private respondents filed a Petition The main issue to be resolved is
for Certiorari and Prohibition under whether the Court of Appeals erred in
Rule 65 of the Rules of Court with a granting private respondents’ petition
prayer for Preliminary Injunction and and in setting aside the Resolution of
Temporary Restraining Order with the Secretary of Justice. In
the Court of Appeals questioning the determining this question, we need to
Resolution of the Secretary of address these questions: (a) Was there
Justice.chanrob1es virtua1 1aw sufficient evidence to warrant the
1ibrary filing of charges for Illegal
Possession of Firearms against
In giving due course to private private respondents; and (b) May the
respondents’ petition, the Court of Court of Appeals set aside the
Appeals agreed with the position of Decision of the Secretary of Justice
the Solicitor General — when the corresponding Information
has already been filed with the trial
A judicious examination of the court?
records will show that there is no
probable cause to hail petitioners for The Court of Appeals found that no
trial for illegal possession of firearms. charges for Illegal Possession of
Firearms could be filed against
The weakness of the case against private respondents for two (2)
petitioners is highlighted by the reasons: First, as to private
failure of the Information to allege the respondent Amando Ocampo, he had
identity of the firearms allegedly the requisite license to possess the
possessed by petitioners at the time of firearm, which was established by
the incident. No guns were seized or sufficient evidence on record.
recovered from them. There is no Second, as to private respondent
corpus delicti. It could not therefore Isagani Ocampo, there was no
be ascertained with verisimilitude that convincing evidence that he was in
petitioners did not have the license to possession of a gun during the
possess or carry guns. Given the incident involving him, his father and
mutual recriminations which were petitioner, except for the eyewitness
generated by the incident, it would account of petitioner and one
have been facile for any of the Federico San Miguel.chanrob1es
protagonists to concoct a charge of virtua1 1aw 1ibrary
illegal possession of firearms against
their adversary . . . In crimes Indeed, the rule is well settled that in
involving illegal possession of cases of Illegal Possession of
firearms, the prosecution has the Firearms, two (2) things must be
burden of proving the elements shown to exist: (a) the existence of the
thereof, viz.: The existence of the firearm, and (b) the fact that it is not
subject firearm and the fact that the licensed. 6 However, it should be
accused who owned or possessed the noted that in People v. Ramos, 7
firearm does not have the citing People v. Gy Gesiong, 8 this
corresponding license or permit to Court ruled: ". . . Even if he has the
possess the same. Negative allegation license, he cannot carry the firearm
of the lack of a license is an essential outside his residence without legal
ingredient of the offense which the authority therefor."cralaw virtua1aw
prosecution must prove. How could library
the people prove beyond reasonable
doubt that petitioners committed the This ruling is obviously a reiteration
offense of illegal possession of of the last paragraph of Sec. 1 of PD
firearms when the firearms are not 1866 —
 constitute a violation of PD 1866.
SECTION 1. Unlawful Manufacture, Hence, the Secretary of Justice did
Sale, Acquisition, Disposition or not commit grave abuse of discretion
Possession of Firearms or in directing the filing of criminal
Ammunition or Instruments Used or Informations against private
Intended to be Used in the respondents, and clearly, it was error
Manufacture of Firearms or for the Court of Appeals to grant
Ammunition . . . The penalty of private respondents’ petition
prision mayor shall be imposed upon for certiorari.
any person who shall carry any
licensed firearm outside his residence The Court of Appeals also took note
without legal authority therefor. of the fact that petitioner’s appeal to
the Secretary of Justice was filed out
The Secretary of Justice, in his of time. Per DOJ Circular No. 7 dated
contested Resolution, thus made the 25 January 1990, the aggrieved party
following findings: Even if Amando has fifteen (15) days to appeal
had the requisite license, there was no resolutions of, among others, the
proof that he had the necessary permit Provincial Prosecutor dismissing a
to carry it outside his residence; and criminal complaint. Petitioner filed
Isagani’s plain denial could not his appeal four (4) months after
overcome his positive identification receiving the Provincial Prosecutor’s
by petitioner that he carried a firearm decision dismissing his complaint.
in assaulting him. These are findings This notwithstanding, the Secretary
of fact supported by evidence which of Justice gave due course to the
cannot be disturbed by this Court. appeal. It can be surmised then that
DOJ Circular No. 7, while aimed at
Besides, the rulings relied upon by the facilitating the expeditious resolution
Court of Appeals and private of preliminary investigations, does
respondents deal with the quantum of not tie the hands of the Secretary of
evidence needed to convict persons Justice if he thinks that injustice will
for Illegal Possession of Firearms. result from the dismissal of the
This petition arose from a case which criminal complaint when there is a
was still in its preliminary stages, the good ground to file it.
issue being whether there was
probable cause to hold private Assuming arguendo that the Secretary
respondents for trial. And probable of Justice was not able to establish
cause, for purposes of filing criminal probable cause to direct the
information, has been defined as such Provincial Prosecutor to file the
facts as are sufficient to engender a charges of Illegal Possession of
well-founded belief that a crime has Firearms against private respondents,
been committed and that respondent the filing of the Petition
is probably guilty thereof. The for Certiorari with the Court of
determination of its existence lies Appeals was not the proper remedy
within the discretion of the for Private Respondents. It should be
prosecuting officers after conducting noted that when the Petition was filed,
a preliminary investigation upon the Information was already filed by
complaint of an offended party. 9 the Provincial Prosecutor with the
Their decisions are reviewable by the Regional Trial Court of Bacoor,
Secretary of Justice who may direct Cavite. The criminal case
the filing of the corresponding commenced from that time at its
information or to move for the course would now be under the
dismissal of the case. 10 The direction of the trial court. As we held
procedure is in no wise in the nature in Crespo v. Mogul 11 —
of a trial that will finally adjudicate
the guilt or innocence of private The preliminary investigation
respondents. The requisite evidence conducted by the fiscal for the
for convicting a person of the crime of purpose of determining whether a
Illegal Possession of Firearms is not prima facie exists warranting the
needed at this point. It is enough that prosecution of the accused is
the Secretary of Justice found that the terminated upon the filing of the
facts, as presented by both petitioner information in the proper court. In
and private respondents, would turn, as above stated, the filing of said
information sets in motion the
criminal action against the accused in
Court . . . While it is true that the fiscal
has the quasi judicial discretion to
determine whether or not a criminal
case should be filed in court, once the
case had already been brought to
court whatever disposition the fiscal
may feel should be proper in the case
thereafter should be addressed for the
consideration of the Court. The only
qualification is that the action of the
Court must not impair the substantial
rights of the accused, or the right of
the People to due process of law.

Whatever irregularity in the

proceedings the private parties may
raise should be addressed to the sound
discretion of the trial court which has
already acquired jurisdiction over the
case. Certiorari, being an
extraordinary writ, cannot be resorted
to when there are other remedies
available. Private respondents could
file a Motion to Quash the
Information under Rule 117 of the
Rules of Court, or let the trial proceed
where they can either file a demurrer
to evidence or present their evidence
to disprove the charges against them.
It is well settled that criminal
prosecutions may not be restrained or
stayed by injunction, preliminary or
final, subject to certain exceptions,
e.g., when the determination of
probable cause is done with grave
abuse of discretion, 12 or where a
sham preliminary investigation was
hastily conducted, 13 or where it is
necessary for the courts to do so for
the orderly administration of justice
or to prevent the use of the strong arm
of the law in an oppressive and
vindictive manner. 14 None of these
exceptions is present in the instant
case. Hence, the Court of Appeals
erred in granting private respondents’
Petition for Certiorari and, worse,
setting aside the Resolution of the
Secretary of Justice.chanrob1es
virtua1 1aw 1ibrary

WHEREFORE, the instant petition

for review is GRANTED and the
assailed Decision of the Court of
Appeals is REVERSED. The
Resolution dated 6 June 1996 of the
Secretary of Justice is
REINSTATED.

SO ORDERED.