G.R. No.
89139 August 2, 1990 illegal possession of firearms and ammunitions in the
ROMEO POSADAS y ZAMORA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE
PEOPLE OF THE PHILIPPINES, respondents.
Rudy G. Agravate for petitioner.
GANCAYCO, J.:
The validity of a warrantless search on the person of
petitioner is put into issue in this case.
On October 16, 1986 at about 10:00 o'clock in the morning
Pat. Ursicio Ungab and Pat. Umbra Umpar, both members
of the Integrated National Police (INP) of the Davao
Metrodiscom assigned with the Intelligence Task Force,
were conducting a surveillance along Magallanes Street,
Davao City. While they were within the premises of the Rizal
Memorial Colleges they spotted petitioner carrying a "buri"
bag and they noticed him to be acting suspiciously.
They approached the petitioner and identified themselves as
members of the INP. Petitioner attempted to flee but his
attempt to get away was thwarted by the two notwithstanding
his resistance.
They then checked the "buri" bag of the petitioner where they
found one (1) caliber .38 Smith & Wesson revolver with
Serial No. 770196 1 two (2) rounds of live ammunition for a
.38 caliber gun 2 a smoke (tear gas) grenade,3 and two (2)
live ammunitions for a .22 caliber gun. 4 They brought the
petitioner to the police station for further investigation. In the
course of the same, the petitioner was asked to show the
necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so.
He was then taken to the Davao Metrodiscom office and the
prohibited articles recovered from him were indorsed to
M/Sgt. Didoy the officer then on duty. He was prosecuted for
a warrant of the petitioner
Regional Trial Court of Davao City wherein after a plea of not
guilty and trial on the merits a decision was rendered on
October 8, 1987 finding petitioner guilty of the offense
charged as follows:
WHEREFORE, in view of all the foregoing,
this Court , finds the accused guilty beyond
reasonable doubt of the offense charged.
It appearing that the accuse d was below
eighteen (18) years old at the time of the
commission of the offense (Art. 68, par. 2),
he is hereby sentenced to an indeterminate
penalty ranging from TEN (10) YEARS and
ONE (1) DAY of prision mayor to TWELVE
(12) Years, FIVE (5) months and Eleven
(11) days of Reclusion Temporal, and to
pay the costs.
The firearm, ammunitions and smoke
grenade are forfeited in favor of the
government and the Branch Clerk of Court
is hereby directed to turn over said items to
the Chief, Davao Metrodiscom, Davao
City. 5
Not satisfied therewith the petitioner interposed an appeal to
the Court of Appeals wherein in due course a decision was
rendered on February 23, 1989 affirming in toto the
appealed decision with costs against the petitioner. 6
Hence, the herein petition for review, the main thrust of which
is that there being no lawful arrest or search and seizure, the
items which were confiscated from the possession of the
petitioner are inadmissible in evidence against him.
The Solicitor General, in justifying the warrantless search of
the buri bag then carried by the petitioner, argues that under
Section 12, Rule 136 of the Rules of Court a person lawfully
arrested may be searched for dangerous weapons or
anything used as proof of a commission of an offense without
a search warrant. It is further alleged that the arrest without
1
was lawful under the
circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure
provides as follows:
SEC. 5. Arrest without warrant; when lawful
— A peace officer or a private person may,
without a warrant, arrest a person:
(a) When in his presence, the person to be
arrested has committed is actually
committing, or is attempting to commit an
offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge
of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or temporarily confined while
his case is pending, or has escaped while
being transferred from one confinement to
another.
In cases falling under paragraphs (a) and
(b) hereof, the person arrested without a
warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be
proceeded against in accordance with Rule
112, Section 7. (6a, 17a)
From the foregoing provision of law it is clear that an arrest
without a warrant may be effected by a peace officer or
private person, among others, when in his presence the
person to be arrested has committed, is actually committing,
or is attempting to commit an offense; or when an offense
has in fact just been committed, and he has personal
knowledge of the facts indicating that the person arrested
has committed it.
The Solicitor General argues that when the two policemen
approached the petitioner, he was actually committing or had
just committed the offense of illegal possession of firearms
and ammunitions in the presence of the police officers and
consequently the search and seizure of the contraband was
incidental to the lawful arrest in accordance with Section 12,
Rule 126 of the 1985 Rules on Criminal Procedure. We
disagree.
At the time the peace officers in this case identified
themselves and apprehended the petitioner as he attempted
to flee they did not know that he had committed, or was
actually committing the offense of illegal possession of
firearms and ammunitions. They just suspected that he was
hiding something in the buri bag. They did now know what
its contents were. The said circumstances did not justify an
arrest without a warrant.
However, there are many instances where a warrant and
seizure can be effected without necessarily being preceded
by an arrest, foremost of which is the "stop and search"
without a search warrant at military or police checkpoints, the
constitutionality or validity of which has been upheld by this
Court in Valmonte vs. de Villa, 7 as follows:
Petitioner Valmonte's general allegation to
the effect that he had been stopped and
searched without a search warrant by the
military manning the checkpoints, without
more, i.e., without stating the details of the
incidents which amount to a violation of his
light against unlawful search and seizure, is
not sufficient to enable the Court to
determine whether there was a violation of
Valmonte's right against unlawful search
and seizure. Not all searches and seizures
are prohibited. Those which are reasonable
are not forbidden. A reasonable search is
not to be determined by any fixed formula
but is to be resolved according to the facts
of each case.
Where, for example, the officer merely
draws aside the curtain of a vacant vehicle
which is parked on the public fair grounds,
or simply looks into a vehicle or flashes a
light therein, these do not constitute
unreasonable search.
The setting up of the questioned
checkpoints in Valenzuela (and probably in
other areas) may be considered as a
security measure to enable the NCRDC to
pursue its mission of establishing effective
territorial defense and maintaining peace
and order for the benefit of the public.
Checkpoints may also be regarded as
measures to thwart plots to destabilize the
government in the interest of public security.
In this connection, the Court may take
judicial notice of the shift to urban centers
and their suburbs of the insurgency
movement, so clearly reflected in the
increased killings in cities of police and
military men by NPA "sparrow units," not to
mention the abundance of unlicensed
firearms and the alarming rise in
lawlessness and violence in such urban
centers, not all of which are reported in
media, most likely brought about by
deteriorating economic conditions — which
all sum up to what one can rightly consider,
at the very least, as abnormal
times. Between the inherent right of the
state to protect its existence and promote
public welfare and an individual's right
against a warrantless search which is
however reasonably conducted, the former
should prevail.
True, the manning of checkpoints by the
military is susceptible of abuse by the men
in uniform in the same manner that all
governmental power is susceptible of
abuse. But, at the cost of occasional
inconvenience, discomfort and even
2
irritation to the citizen, the checkpoints
during these abnormal times, when
conducted within reasonable limits, are part
of the price we pay for an orderly society
and a peaceful community. (Emphasis
supplied).
Thus, as between a warrantless search and seizure
conducted at military or police checkpoints and the search
thereat in the case at bar, there is no question that, indeed,
the latter is more reasonable considering that unlike in the
former, it was effected on the basis of a probable cause. The
probable cause is that when the petitioner acted suspiciously
and attempted to flee with the buri bag there was a probable
cause that he was concealing something illegal in the bag
and it was the right and duty of the police officers to inspect
the same.
It is too much indeed to require the police officers to search
the bag in the possession of the petitioner only after they
shall have obtained a search warrant for the purpose. Such
an exercise may prove to be useless, futile and much too
late.
In People vs. CFI of Rizal, 8 this Court held as follows:
. . . In the ordinary cases where warrant is
indispensably necessary, the mechanics
prescribed by the Constitution and
reiterated in the Rules of Court must be
followed and satisfied. But We need not
argue that there are exceptions. Thus in the
extraordinary events where warrant is not
necessary to effect a valid search or
seizure, or when the latter cannot be
performed except without warrant, what
constitutes a reasonable or unreasonable
search or seizure becomes purely a judicial
question, determinable from the uniqueness
of the circumstances involved, including the
purpose of the search or seizure, the
presence or absence of probable cause, the
manner in which the search and seizure
 was made, the place or thing searched and Clearly, the search in the case at bar can be sustained under
the character of the articles procured. the exceptions heretofore discussed, and hence, the
constitutional guarantee against unreasonable searches and
The Court reproduces with approval the following seizures has not been violated. 9
disquisition of the Solicitor General:
WHEREFORE, the petition is DENIED with costs against
The assailed search and seizure may still be petitioner.
justified as akin to a "stop and frisk" situation
whose object is either to determine the SO ORDERED.
identity of a suspicious individual or to
maintain the status quo momentarily while
the police officer seeks to obtain more
information. This is illustrated in the case
of Terry vs. Ohio, 392 U.S. 1 (1968). In this
case, two men repeatedly walked past a
store window and returned to a spot where
they apparently conferred with a third man.
This aroused the suspicion of a police
officer. To the experienced officer, the
behaviour of the men indicated that they
were sizing up the store for an armed
robbery. When the police officer
approached the men and asked them for
their names, they mumbled a reply.
Whereupon, the officer grabbed one of
them, spun him around and frisked him.
Finding a concealed weapon in one, he did
the same to the other two and found another
weapon. In the prosecution for the offense
of carrying a concealed weapon, the
defense of illegal search and seizure was
put up. The United States Supreme Court
held that "a police officer may in appropriate
circumstances and in an appropriate
manner approach a person for the purpose
of investigating possible criminal behaviour
even though there is no probable cause to
make an arrest." In such a situation, it is
reasonable for an officer rather than simply
to shrug his shoulder and allow a crime to
occur, to stop a suspicious individual briefly
in order to determine his identity or maintain
thestatus quo while obtaining more
information. . . .
3
G.R. No. 2869 March 25, 1907
MATEO CARIÑO, petitioner-appellant,
vs.
THE INSULAR GOVERNMENT, respondent-appellee.
Coudert Brothers for appellant.
Office of the Solicitor-General Araneta for appellee.
ARELLANO, C.J.:
Mateo Cariño, the appellant herein, on the 23d of February,
1904, filed his petition in the Court of Land Registration
praying that there be granted to him title to a parcel of land
consisting of 40 hectares, 1 are, and 13 centares, and
situated in the town of Baguio, Province of Benguet, together
with a house erected thereon and constructed of wood and
roofed with rimo, and bounded as follows: On the north, in
lines running 1,048 metes and 20 decimeters with the lands
of Sepa Cariño, H. Phelps Whitmarsh, and Calsi; on the east,
in lines running 991 meters and 50 decimeters with the land
of Kuidno, Esteban Gonzales, and of the Civil Government;
on the south, in lines of 115 meters and 60 decimeters, with
the lands of Talaca; and on the west, in lines running 982
meters and 20 decimeters, with the lands of Sisco Cariño
and Mayengmeng.
By order of the court the hearing of this petition, No. 561, and
that of Antonio Rebollo and Vicente Valpiedad filed under
No. 834, were heard together for the reason that the latter
petition claimed a small portion of land included in the parcel
set out in the former petition.
The Insular Government opposed the granting of these
petitions, alleging that the whole parcel of land is public
property of the Government and that the same was never
acquired in any manner or through any title of egresionfrom
the State.
After trial, and the hearing of documentary and oral proof,
the court of Land Registration rendered its judgment in these
terms:
Therefore the court finds that Cariño and his
predecessors have not possessed exclusively and
adversely any part of the said property prior to the
date on which Cariño constructed the house now
there — that is to say, for the years 1897 and 1898,
and Cariño held possession for some years
afterwards of but a part of the property to which he
claims title. Both petitions are dismissed and the
property in question is adjudged to be public land.
(Bill of exceptions, p. 15.)
The conclusions arrived at the set forth in definite terms in
the decision of the court below are the following:
From the testimony given by Cariño as well as from
that of several of the witnesses for the Government
it is deduced, that in or about the year 1884 Cariño
erected and utilized as a domicile a house on the
property situated to the north of that property now in
question, property which, according to the plan
attached to expediente No. 561, appears to be
property belonging to Donaldson Sim; that during
the year 1893 Cariño sold said house to one
Cristobal Ramos, who in turn sold the same to
Donaldson Sim, moving to and living on the
adjoining property, which appears on the plan
aforesaid to be the property of H. Phelps Whitmarsh,
a place where the father and the grandfather of his
wife, that is to say, Ortega and Minse, had lived . . ..
In or about the years 1898 Cariño abandoned the
property of Whitmarsh and located on the property
described in the plan attached to expediente No.
561, having constructed a house thereon in which
he now lives, and which house is situated in the
center of the property, as is indicated on the plan;
and since which time he has undoubtedly occupied
some portion of the property now claimed by him.
(Bill of exceptions, pp. 11 and 12.)
1. Therefore it is evident that this court can not decree the
registration of all of the superficial extension of the land
described in the petition and as appears on the plan filed
4
herein, such extension containing 40 hectares, 1 are, and 13
centares, inasmuch as the documentary evidence
accompanying the petition is conclusive proof against the
petitioners; this documentary proof consists of a possessory
information under date of March 7, 1901, and registered on
the 11th day of the same month and year; and, according to
such possessory information, the land therein described
contains an extension of only 28 hectares limited by "the
country road to the barrio of Pias," a road appearing on the
plan now presented and cutting the land, as might be said,
in half, or running through its center from north to south, a
considerable extension of land remaining on the other side
of the said road, the west side, and which could not have
been included in the possessory information mentioned.
2. As has been shown during the trial of this case, this land,
of which mention is made in said possessory information,
and upon which is situated the house now actually occupied
by the petitioner, all of which is set forth as argument as to
the possession in the judgment, is "used for pasture and
sowing," and belongs to the class called public lands.
3. Under the express provisions of law, a parcel of land,
being of common origin, presumptively belonged to the State
during its sovereignty, and, in order to perfect the legitimate
acquisition of such land by private persons, it was necessary
that the possession of the same pass from the State. And
there is no evidence or proof of title of egresionof this land
from the domain of the Spanish Government, nor is there
any possessory information equivalent to title
by composicion or under agreement. 4, The possessory
information filed herein is not the title to property authorized
in substitution for that of adjustment by the royal decree of
February 13, 1894, this being the last law or legal disposition
of the former sovereignty applicable to the present subject-
matter of common lands: First, for the reason that the land
referred to herein is not covered nor does it come within any
one of the three conditions required by article 19 of the said
royal decree, to wit, that the land has been in an
uninterrupted state of cultivation during a period of six years
last past; or that the same has been possessed without
interruption during a period of twelve years and has been in
a state of cultivation up to the date of the information and
during the three years immediately preceding such
information; or that such land had been possessed openly
without interruption during a period of thirty or more years,
notwithstanding the land had not been cultivated; nor is it
necessary to refer to the testimony given by the two
witnesses to the possessory information for the following
reason: Second, because the possessory information
authorized by said royal decree or last legal disposition of
the Spanish Government, as title or for the purpose of
acquiring actual proprietary right, equivalent to that of
adjustment with the Spanish Government and required and
necessary at all times until the publication of said royal
decree was limited in time to one year, in accordance with
article 21, which is as follows: " A period of one year, not to
be extended, is allowed to verify the possessory informations
which are referred to in articles 19 and 20. After the
expiration of this period of the right of the cultivators and
persons in possession to obtain gratuitous title thereto
lapses and the land together with full possession reverts to
the state, or, as the case may be, to the community, and the
said possessors and cultivators or their assigns would simply
have rights under universal or general title of average in the
event that the land is sold within a period of five years
immediately following the cancellation. The possessors not
included under this chapter can only acquire by time the
ownership and title to unappropriated or royal lands in
accordance with common law."
5. In accordance with the preceding provisions, the right that
remained to Cariño, if it be certain that he was the true
possessor of the land in question, was the right of average
in case the Government or State could have sold the same
within the period of five years immediately following for
example, if the denouncement of purchase had been carried
out by Felipe Zafra or any other person, as appears from the
record of the trial of the case. Aside from this right, in such
event, his possession as attested in the possessory
information herein could not, in accordance with common
law, go to show any right of ownership until after the
expiration of twenty years from the expiration of twenty years
from the verification and registry of the same in conformity
with the provisions of article 393 of the Mortgage Law and
other conditions prescribe by this law.
6. The right of possession in accordance with common law
— that is to say, civil law — remains at all times subordinate
to the Spanish administrative law, inasmuch as it could only
be of force when pertaining to royal transferable or
alienable lands, which condition and the determination
thereof is reversed to the government, which classified and
designated the royal alienable lands for the purpose of
distinguishing them from those lands strictly public, and from
forestry lands which could at no time pass to private
ownership nor be acquired through time even after the said
royal decree of February 13, 1894.
7. The advent of the new sovereignty necessarily brought a
new method of dealing with lands and particularly as to the
classification and manner of transfer and acquisition of royal
or common lands then appropriated, which were thenceforth
merely called public lands, the alienation of which was
reserved to the Government, in accordance with section 12
and 13 of the act of Congress of July 1, 1902,1 and in
conformity with other laws enacted under this act of
Congress by the Philippine Commission prescribing rules for
the execution thereof, one of which is Act No. 648,2herein
mentioned by the petitioner, in connection with Act No.
627,3 which appears to be the law upon which the petition
herein is founded.
8. Section 6 of Act No. 627 admits prescription, in
accordance with the provisions contained in Act No. 190, as
a basis for obtaining the right of ownership. "The petitioners
claims title under the period of prescription of ten years
established by that act, as well as by reason of his
occupancy and use thereof from time immemorial."
(Allegation 1.) But said act admits such prescription for the
purpose of obtaining title and ownership to lands "not
exceeding more that sixteen hectares in extent." (Sec. 6 of
said act.) The land claimed by Cariño is 40 hectares in
extent, if we take into consideration his petition, or an
extension of 28 hectares, according to the possessory
information, the only thing that can be considered.
Therefore, it follows that the judgment denying the petition
herein and now appealed from was strictly in accordance
with the law invoked herein.
5
9. And of the 28 hectares of land as set out in the possessory
information, one part of same, according to the testimony of
Cariño, belongs to Vicente Valpiedad, the extent of which is
not determined. From all of which it follows that the precise
extent has not been determined in the trial of this case on
which judgment might be based in the event that the
judgment and title be declared in favor of the petitioner,
Mateo Cariño. And we should not lose sight of the fact that,
considering the intention of Congress in granting ownership
and title to 16 hectares, that Mateo Cariño and his children
have already exceeded such amount in various
acquirements of lands, all of which is shown in different
cases decided by the said Court of Land Registration,
donations or gifts of land that could only have been made
efficacious as to the conveyance thereof with the assistance
of these new laws.
By reason of the findings set forth it is clearly seen that the
court below did not err:
1. In finding that Mateo Cariño and those from whom
he claims his right had not possessed and claimed
as owners the lands in question since time
immemorial;
2. In finding that the land in question did not belong
to the petitioner, but that, on the contrary, it was the
property of the Government. (Allegation 21.)
Wherefore, the judgment appealed from is affirmed with the
costs of this instance against the appellant. After the
expiration of twenty days from the notification of this decision
let judgment be entered in accordance herewith, and ten
days thereafter let the case be remanded to the court from
whence it came for proper action. So ordered.
Torres, Mapa, Willard, and Tracey, JJ., concur.
Johnson, J., reserves his vote.
G.R. No. 217456, November 24, 2015
MARILOU S. LAUDE AND MESEHILDA S.
LAUDE, Petitioners, v. HON. ROLINE M. GINEZ-JABALDE,
PRESIDING JUDGE, BRANCH 74, REGIONAL TRIAL
COURT OF THE CITY OF OLONGAPO; HON. PAQUITO N.
OCHOA, JR., EXECUTIVE SECRETARY; HON. ALBERT F.
DEL ROSARIO, SECRETARY OF THE DEPARTMENT OF
FOREIGN AFFAIRS; HON. GEN. GREGORIO PIO P.
CATAPANG, CHIEF OF STAFF OF THE ARMED FORCES
OF THE PHILIPPINES; HON. EMILIE FE DELOS SANTOS,
CHIEF CITY PROSECUTOR OF OLONGAPO CITY; AND
L/CPL JOSEPH SCOTT PEMBERTON, Respondent.
DECISION
LEONEN, J.:
Failure to meet the three-day notice rule for filing motions
and to obtain the concurrence of the Public Prosecutor to
move for an interlocutory relief in a criminal prosecution
cannot be excused by general exhortations of human rights.
This Petition fails to show any grave abuse of discretion on
the part of the trial court judge. Furthermore, the accused,
while undergoing trial and before conviction, is already
detained in the Philippines in compliance with the obligations
contained in the Agreement Between the Government of the
United States of America and the Government of the
Republic of the Philippines Regarding the Treatment of
United States Armed Forces Visiting the Philippines (Visiting
Forces Agreement).
This is a Petition for Certiorari1 under Rule 65, with prayer
for the issuance of a writ of mandatory injunction filed by
Marilou S. Laude and Mesehilda S. Laude (petitioners).
On October 11, 2014, Jeffrey "Jennifer" Laude (Jennifer)
was killed at the Celzone Lodge on Ramon Magsaysay Drive
in Olongapo City allegedly by 19-year-old US Marine L/CPL
Joseph Scott Pemberton (Pemberton).2 On October 15,
2014, a Complaint for murder was filed by Jennifer's sibling,
Marilou S. Laude, against Pemberton before the Olongapo
City Office of the City Prosecutor.3 On October 22, 2014,
Pemberton was detained in Camp Aguinaldo, the general
headquarters of the Armed Forces of the Philippines.4
On December 15, 2014, the Public Prosecutor filed an
Information for murder against Pemberton before the
Regional Trial Court in Olongapo City. 5 The case was
docketed as Case No. 865-14, and was raffled to Branch
74.6 A warrant of arrest against Pemberton was issued on
December 16, 2014.7 Pemberton surrendered personally to
Judge Roline M. Ginez-Jabalde8 (Judge Ginez-Jabalde) on
December 19, 2014, and he was then arraigned.9
On the same day, Marilou S. Laude filed an Urgent Motion
to Compel the Armed Forces of the Philippines to Surrender
Custody of Accused to the Olongapo City Jail and a Motion
to Allow Media Coverage.10 "The [M]otion was [scheduled]
for hearing on December 22, 2014, at 2 p.m."11 According to
petitioners, they were only able to serve the Motion on
Pemberton's counsel through registered mail.12 In any case,
they claim to have also "furnished a copy of the [M]otion
personally ... at the hearing of the [M]otion."13
On December 23, 2014, Judge Ginez-Jabalde denied
petitioners' Urgent Motion for lack of merit, the dispositive
portion of which reads:14chanroblesvirtuallawlibrary
Wherefore, the . . . UrgentMotion [sic] to Compel the Armed
Forces of the Philippines to Surrender Custody of Accused
to the Olongapo City Jail [is] denied for utter lack of
merit.15 (Emphasis in the original)
cralawlawlibrary
Petitioners received a copy of the Order on January 5,
2015.16 On January 9, 2015, petitioners filed a Motion for
Reconsideration.17 On February 18, 2015, Judge Ginez-
Jabalde issued an Order denying petitioners' Motion for
Reconsideration for lack of merit.
In a Resolution19 dated April 21, 2015, respondents were
required to file their Comment on the Petition. On June 5,
2015, public respondents, as represented by the Office of
the Solicitor General, filed their (First) Motion for Extension
of Time to File Comment20 for 60 days. On the same day,
Pemberton posted his Motion for Additional Time to File
6
Comment21 for 10 days. Pemberton filed his Comment by
counsel on June 16, 2015,22 while public respondents,
through the Office of the Solicitor General, filed their
Comment on September 23, 2015.23
Petitioners argue that "[Respondent Judge committed grave
abuse of discretion tantamount to an excess or absence of
jurisdiction when she dismissed the Urgent Motion to
Compel the Armed Forces of the Philippines to Surrender
Custody o[f] Accused to the Olongapo City Jail [based] on
mere technicalities[.]"24 In particular, they argue that the
three-day rule on motions under Rule 15, Section 425 of the
1997 Rules of Court is not absolute, and should be liberally
interpreted when a case is attended by exigent
circumstances.26
Petitioners advance that the rationale behind the three-day
notice rule is satisfied when there is an opportunity to be
heard, which was present in this case since Pemberton's
counsel and the Public Prosecutor were present in the
hearing of the two Motions filed by petitioners.27 Petitioners
allege that the court noted their attendance, and were able
to make comments during the December 22, 2014 Motion
hearing.28 They assert that the rights of Pemberton were not
compromised in any way.29
Petitioners also aver that the three-day notice rule should be
liberally applied due to the timing of the arrest and
arraignment.30 "The Urgent Motion was set for hearing on
December 22, 2014[.]"31 This date preceded a series of legal
holidays beginning on December 24, 2014, where all the
courts and government offices suspended their
work.32 Petitioners point out that a "murder trial is under a
distinctly special circumstance in that Paragraph 6, Article V
of the Visiting Forces Agreement. . . provides for [a] one-year
trial period[,] after which the United States shall be relieved
of any obligations under said paragraph[.]"33 Petitioners had
to file and set the Motion hearing at the earliest possible
date.34
Petitioners further argue that Judge Ginez-Jabalde should
not have dismissed the Urgent Motion to Compel the Armed
Forces of the Philippines to Surrender Custody of Accused
to the Olongapo City Jail "considering that the Urgent Motion
raised issues that are of transcendental importance and of
primordial public interest."35 Petitioners aver that under
international human rights law, in particular the International
Covenant on Civil and Political Rights and the United
Nations Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power, they have the right to access
to justice,36 which is "distinct from the power of the Public
Prosecutors to prosecute [the] criminal case."37
Furthermore, petitioners advance that Philippine authorities
ought to "have primary jurisdiction over [Respondent
Pemberton's person while [he] is being tried [in] a Philippine
Court[,]"38 in accordance with Article V, paragraph (3)(b) of
the Visiting Forces Agreement,39 which
states:chanRoblesvirtualLawlibrary
3. In cases where the right to exercise jurisdiction is
concurrent, the following rules shall apply:
(a) Philippine authorities shall have the primary right to
exercise jurisdiction over all offenses committed by United
States personnel . . .
(Emphasis and underscoring in the original)40
cralawlawlibrary
Petitioners argue that the custody of Pemberton must be
ordered transferred to the Olongapo City Jail, considering
that the crime involved is murder, which is non-
bailable.41 They aver that it is unconstitutional to refuse to
put him "in the custody of Philippine jail authorities[,]" as such
refusal "undermines the Constitutional Powers of [the Court]
to hear a jurisdictional matter brought before it"42and to
promulgate rules for the practice of law.43 Petitioners argue
that even though the Visiting Forces Agreement gives the
United States the "sole discretion" to decide whether to
surrender custody of an accused American military
personnel to the Philippine authorities, "the rule is that . . .
the Court [still] has control over any proceeding involving a
jurisdictional matter brought before it, even if it may well
involve the country's relations with another foreign power."44
As for the nonconformity of the Public Prosecutor, petitioners
argue that the Public Prosecutor's refusal to sign the Urgent
Motion to Compel the Armed Forces of the Philippines to
Surrender Custody of Accused to the Olongapo City Jail
rendered the requirement for conformity
superfluous.45 Petitioners allege that the Public Prosecutor's
act is contrary to Department of Justice Secretary Leila M.
De Lima's (Secretary De Lima) position on the
matter.46 They quote Secretary De Lima as having said the
following statement in a news article dated December 17,
2014:chanRoblesvirtualLawlibrary
The Philippines will now insist on the custody (of Pemberton)
now that the (case) is filed in court and especially since the
warrant of arrest has been issued," De Lima told reporters in
an ambush interview.47cralawlawlibrary
Petitioners also quoted Secretary De Lima as having stated
in another news article dated December 18, 2014 the
following:chanRoblesvirtualLawlibrary
Justice Secretary Leila De Lima stressed that Pemberton
should be under the custody of Philippine authorities,
following the filing of charges.
"There is also a provision in the Visiting Forces Agreement
that, in cases of extraordinary circumstances, the Philippine
government can insist on the custody and for me, there are
enough such circumstances, such as cruelty and treachery,
that justified the filing of the murder and not homicide," De
Lima said.48cralawlawlibrary
The contrary manifestations made by Secretary De Lima,
according to petitioners, meant that "[t]he conformity of the
Public Prosecutor . . . is a mere superfluity"49 and was meant
"to deny [petitioners' 'quest for justice[.]'"50
Due to the nature of the case, petitioners pray in this Petition
that procedural requirements be set aside.51
In his Comment dated June 16, 2015, Pemberton argues
that Judge Ginez-Jabalde did not commit grave abuse of
discretion in denying the Urgent Motion to Compel the
Armed Forces of the Philippines to Surrender Custody of
Accused to the Olongapo City Jail since petitioners violated
the three-day notice rule and failed to secure the conformity
7
of the Public Prosecutor assigned to the case.52 He claims
that he "was not given an opportunity to be heard"53 on
petitioners' Motion.
In his counterstatement of facts, Pemberton avers that he
voluntarily surrendered to the Regional Trial Court, Branch
74, on December 19, 2014.54 On the same day, Marilou S.
Laude filed an Urgent Motion to Compel the Armed Forces
of the Philippines to Surrender Custody of the Accused to
the Olongapo City Jail, and setting the Motion hearing for
December 22, 2015, but did not obtain the Public
Prosecutor's conformity.55 Marilou S. Laude also failed to
personally serve a copy of the Urgent Motion on Pemberton
at least three days prior to the hearing thereof.56
Pemberton further avers that on December 22, 2014, Judge
Ginez-Jabalde heard the Urgent Motion to Compel the
Armed Forces of the Philippines to Surrender Custody of the
Accused to the Olongapo City Jail and a Motion to Suspend
the Proceedings.57 Counsel for Pemberton was in court to
attend the hearing for the Motion to Suspend the
Proceedings, but did not have knowledge of the Urgent
Motion to Compel the Armed Forces of the Philippines to
Surrender Custody of the Accused to the Olongapo City Jail
filed by Marilou S. Laude.58 Counsel for Pemberton received
a copy of the Urgent Motion only "a few minutes"59 before it
was to be heard.60
On December 23, 2014, Judge Ginez-Jabalde denied
Marilou S. Laude's Urgent Motion to Compel the Armed
Forces of the Philippines to Surrender Custody of the
Accused to the Olongapo City Jail for being devoid of
merit.61 Marilou S. Laude filed a Motion for Reconsideration
on January 9, 2015,62 without conformity of the Public
Prosecutor.63 On January 20, 2015, Pemberton filed his Ad
Cautelam Opposition [To Private Complainant's Motion for
Reconsideration], arguing that Judge Ginez-Jabalde
correctly denied Marilou S. Laude's Urgent Motion due to the
latter's "failure to comply with settled procedure regarding
hearing of motions[.]"64 Pemberton further argues that the
custody over him "rightfully remain[ed] with the [United
States] authorities. . . ." He cites Section 6 of the Visiting
Forces Agreement, which provides that the "custody of any
United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United
States military authorities, if they so request, from the
commission of the offense, until completion of all judicial
proceedings."65
Pemberton further argues in his Comment that the presence
of his counsel during the Urgent Motion to Compel the Armed
Forces of the Philippines to Surrender Custody of the
Accused to the Olongapo City Jail hearing did "not equate to
an opportunity to be heard as to satisfy the purpose of the
three-day notice rule."66 Citing Preysler, Jr. v. Manila
Southcoast Development Corporation,67 Cabrera v.
Ng,68 and Jehan Shipping Corporation v. National Food
Authority,69 Pemberton avers that an opposing party is given
opportunity to be heard when he is "afforded sufficient time
to study the motion and to meaningfully oppose and
controvert the same."70 Even though his counsel was able to
orally comment on the Urgent Motion,71 Pemberton was
deprived of any meaningful opportunity to study and oppose
it,72having been furnished a copy a few minutes before the
hearing.73 Marilou S. Laude also failed to provide "justifiable
reason for . . . failure to comply with the three-day notice that
would warrant a liberal construction of the rules."74
Pemberton likewise argues that Marilou S. Laude, being only
the private complainant, lacks the legal personality to file the
Urgent Motion to Compel the Armed Forces of the
Philippines to Surrender Custody of Accused to the
Olongapo City Jail and the subsequent Motion for
Reconsideration "without the conformity of the Public
Prosecutor."75 Quoting Rule 110, Section 576 of the Revised
Rules of Criminal Procedure, Pemberton states that the
Public Prosecutor's lack of consent "rendered the Urgent
Motion a mere scrap of paper."77 He adds that the defect is
"not a mere technicality[.]"78
Pemberton also argues that Marilou S. Laude cannot rely on
the alleged statements of Secretary De Lima for the following
reasons:79 First, Secretary De Lima did not direct the
Olongapo City Office of the City Prosecutor to give its
approval to the Urgent Motion and Motion for
Reconsideration;80 second, Secretary De Lima did not state
that the Public Prosecutor should insist on turning over the
custody of Pemberton to the Philippine authorities.81 Neither
was there any such order from Secretary De
Lima.82 Petitioners' claims are, therefore, without legal
basis.83
According to Pemberton, petitioners' use of the '"right to
access to justice' under international law did not excuse
[petitioner Marilou [S. Laude] from securing the authority and
conformity of the Public Prosecutor[.]"84 He argues that both
the International Covenant on Civil and Political Rights and
the United Nations Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power "refer to national or
domestic legislation in affording [victims] access to
justice."85 The Rules of Court and jurisprudence have
established procedures for criminal proceedings, and these
require Marilou S. Laude "to obtain authority and consent
from the Public Prosecutor"86 before filing a Motion in the
ongoing criminal proceeding.87
As for the issue of custody under the Visiting Forces
Agreement, Pemberton argues that there is a difference
between "jurisdiction" and "custody."88 He avers that
jurisdiction is "the power and authority of a court to try, hear[,]
and decide a case."89 Pemberton does not dispute that
"Philippine authorities have the primary right to exercise
jurisdiction over offenses committed by [a] United States
personnel[,] [which is] why the case is being tried [in] a
Philippine court."90 However, custody "pertains to [the]
actual physical control over the person of the
accused[,]"91 and under the Visiting Forces Agreement,
Pemberton argues that custody shall reside with the United
States Military authorities, since the Visiting Forces
Agreement expressly provides that "[t]he custody of any
United States personnel . . . shall immediately reside with
[the] United States military authorities . . . from the
commission of the offense until completion of all judicial
proceedings."92
Public respondents advance that Judge Ginez-Jabalde did
not commit grave abuse of discretion when she denied the
Urgent Motion to Compel the Armed Forces of the
Philippines to Surrender Custody of Accused to the
Olongapo City Jail.93 Public respondents, through their
Comment filed by the Office of the Solicitor General, argue
that "[petitioners are not real parties in interest[.]" 94 They
8
claim that "the real party in interest is the People [of the
Philippines], represented by the public prosecutor in the
lower court and by the Office of the Solicitor General ... in the
Court of Appeals and in the Supreme Court."95 While public
respondents recognize that petitioners may intervene as
private offended parties, "the active conduct of. . . trial [in a
criminal case] is properly the duty of the public
prosecutor."96 The nonconformity of the Public Prosecutor in
petitioners' Urgent Motion to Compel the Armed Forces of
the Philippines to Surrender Custody of Accused to the
Olongapo City Jail is fatal in light of its nature pertaining to
the place of Pemberton's confinement.97 The issue of
confinement of an accused pertains to the criminal aspect of
the case and "involves the right to prosecute[,] which [is
lodged] exclusively to the People[.]"98
Referring to Rule 110, Section 5 of the Rules of Court, public
respondents aver that the requirement for motions to be
"filed in the name of and under the authority of the public
prosecutor"99 is not a mere technical requirement, but is part
of "the essential, inherent, and exclusive power of the State
to prosecute criminals[.]"100 Public respondents counter
petitioners' claim that the Public Prosecutor's approval is
superfluous given the alleged position of Secretary De Lima
in the newspaper articles. Citing Feria v. Court of
Appeals, public respondents argue that newspaper articles
are "hearsay evidence, twice removed"101 and are
"inadmissible" for having no probative value, "whether
objected to or not."102
As for the three-day notice rule under the Rules of Court,
public respondents argue that petitioners' failure to comply
cannot be excused in light of the rule's purpose, that is, for
the Motion's adverse party not to be surprised, granting one
sufficient time to study the Motion and be able to meet the
arguments contained in it.103
Public respondents argue that while the Visiting Forces
Agreement "grants primary jurisdiction to Philippine
authorities"104 in this case, Pemberton's handover
specifically to the Olongapo City Jail is unnecessary. 105 The
Visiting Forces Agreement does not specify the place of an
accused American personnel's confinement. The issue of
custody is thus "best left to the discretion of the trial
court."106According to public respondents, for so long as the
present arrangement neither renders it difficult for
Pemberton to appear in court when he is required nor
impairs Judge Ginez-Jabalde's authority to try the case, the
trial court may validly decide for Pemberton to remain where
he currently is.107
Lastly, public respondents maintain that petitioners are not
entitled to a mandatory injunction since they have no "clear
and unmistakable right to the transfer of [respondent
Pemberton] from Camp Aguinaldo to the Olongapo City
Jail."108 They underscore that "petitioners are private
offended parties[,] not the real party in interest in [this]
criminal case[.]"109
We dismiss the Petition.
I underscore the urgency of the Motion by making a reference
The failure of petitioners to comply with the three-day notice
rule is unjustified.
Rule 15, Section 4 of the Rules of Court clearly makes it a
mandatory rule that the adverse party be given notice of
hearing on the motion at least three days prior.
Failure to comply with this notice requirement renders the
motion defective consistent with protecting the adverse
party's right to procedural due process.110 In Jehan Shipping
Corporation:111chanroblesvirtuallawlibrary
As an integral component of procedural due process, the
three-day notice required by the Rules is not intended for the
benefit of the movant. Rather, the requirement is for the
purpose of avoiding surprises that may be sprung upon the
adverse party, who must be given time to study and meet the
arguments in the motion before a resolution by the court.
Principles of natural justice demand that the right of a party
should not be affected without giving it an opportunity to be
heard.112 (Emphasis supplied, citations
omitted)cralawlawlibrary
While the general rule is that a motion that fails to comply
with the requirements of Rule 15 is a mere scrap of paper,
an exception may be made and the motion may still be acted
upon by the court, provided doing so will neither cause
prejudice to the other party nor violate his or her due process
rights.113 The adverse party must be given time to study the
motion in order to enable him or her to prepare properly and
engage the arguments of the movant.114 In this case, the
general rule must apply because Pemberton was not given
sufficient time to study petitioners' Motion, thereby depriving
him of his right to procedural due process.
Petitioners admit that they personally furnished Pemberton
a copy of the Urgent Motion to Compel the Armed Forces of
the Philippines to Surrender Custody of Accused to the
Olongapo City Jail only during the hearing.115 They attempt
to elude the consequences of this belated notice by arguing
that they also served a copy of the Motion by registered
mail on Pemberton's counsel.116 They also attempt to
to the Christmas season and the "series of legal
holidays"117 where courts would be closed.118 To compound
their obfuscation, petitioners claim that the hearing held on
December 22, 2014, attended by Pemberton's counsel
sufficiently satisfied the rationale of the three-day notice rule.
These circumstances taken together do not cure the
Motion's deficiencies. Even granting that Pemberton's
counsel was able to comment on the motion orally during the
hearing, which incidentally was set for another incident, 119 it
cannot be said that Pemberton was able to study and
prepare for his counterarguments to the issues raised in the
Motion. Judge Ginez-Jabalde was correct to deny the Urgent
Motion to Compel the Armed Forces of the Philippines to
Surrender Custody of Accused to the Olongapo City Jail
based on noncompliance of procedural rules. To rule
otherwise would be to prejudice Pemberton's rights as an
accused.
II
Petitioners also argue that the Urgent Motion to Compel the
Armed Forces of the Philippines to Surrender Custody of
Accused to the Olongapo City Jail is an assertion of their
right to access to justice as recognized by international law
and the 1987 Constitution. They justify the separate filing of
9
the Motion as a right granted by Article 2, paragraph (3) of
the International Covenant on Civil and Political
Rights,120 independent of "the power of the Public
Prosecutors to prosecute [a] criminal case."121
Article 2, paragraph (3) of the International Covenant on Civil
and Political Rights states:
3. Each State Party to the present Covenant
undertakes:chanRoblesvirtualLawlibrary
(a) To ensure that any person whose rights or freedoms as
herein recognized are violated shall have an effective
remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall
have his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other
competent authority provided for by the legal system of the
State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce
such remedies when granted.122ChanRoblesVirtualawlibrary
cralawlawlibrary
There is no need to discuss whether this provision has
attained customary status, since under treaty law, the
Philippines, as a State Party,123 is obligated to comply with
its obligations under the International Covenant on Civil and
Political Rights.124 However, petitioners went too far in their
interpretation, ignoring completely the nature of the
obligation contemplated by the provision in an attempt to
justify their failure to comply with a domestic procedural rule
aimed to protect a human right in a proceeding, albeit that of
the adverse party.
On March 29, 2004, the United Nations Human Rights
Committee issued General Comment No. 31, 125which
pertained to the nature of the general legal obligations
imposed by the International Covenant on Civil and Political
Rights on State Parties. On Article 2, paragraph (3), the
General Comment states:chanRoblesvirtualLawlibrary
15. Article 2, paragraph 3, requires that in addition to
effective protection of Covenant rights[,] States Parties must
ensure that individuals also have accessible and effective
remedies to vindicate those rights. Such remedies should be
appropriately adapted so as to take account of the special
vulnerability of certain categories of person, including in
particular children. The Committee attaches importance to
States Parties' establishing appropriate judicial and
administrative mechanisms for addressing claims of rights
violations under domestic law. The Committee notes that the
enjoyment of the rights recognized under the Covenant can
be effectively assured by the judiciary in many different
ways, including direct applicability of the Covenant,
application of comparable constitutional or other provisions
of law, or the interpretive effect of the Covenant in the
application of national law. Administrative mechanisms are
particularly required to give effect to the general obligation to
investigate allegations of violations promptly, thoroughly and
effectively through independent and impartial bodies.
National human rights institutions, endowed with appropriate
powers, can contribute to this end. A failure by a State Party
to investigate allegations of violations could in and of itself
give rise to a separate breach of the Covenant. Cessation of
an ongoing violation is an essential element of the right to an
effective remedy.
16. Article 2, paragraph 3, requires that States Parties make
reparation to individuals whose Covenant rights have been
violated. Without reparation to individuals whose Covenant
rights have been violated, the obligation to provide an
effective remedy, which is central to the efficacy of article 2,
paragraph 3, is not discharged. In addition to the explicit
reparation required by articles 9, paragraph 5, and 14,
paragraph 6, the Committee considers that the Covenant
generally entails appropriate compensation. The Committee
notes that, where appropriate, reparation can involve
restitution, rehabilitation and measures of satisfaction, such
as public apologies, public memorials, guarantees of non-
repetition and changes in relevant laws and practices, as
well as bringing to justice the perpetrators of human rights
violations.126 (Emphasis supplied)
cralawlawlibrary
The obligation contemplated by Article 2, paragraph (3) is for
the State Party to establish a system of accessible and
effective remedies through judicial and administrative
mechanisms. The present trial of Pemberton, to which
petitioner, Marilou S. Laude, is included as a private
complainant, indicates that there is a legal system of redress
for violated rights. That petitioners chose to act on their own,
in total disregard of the mechanism for criminal proceedings
established by this court, should not be tolerated under the
guise of a claim to justice. This is especially in light of
petitioners' decision to furnish the accused in the case a
copy of her Motion only during the hearing. Upholding
human rights pertaining to access to justice cannot be
eschewed to rectify an important procedural deficiency that
was not difficult to comply with. Human rights are not a
monopoly of petitioners. The accused also enjoys the
protection of these rights.
III
The conformity of the Public Prosecutor to the Urgent Motion
to Compel the Armed Forces of the Philippines to Surrender
Custody of Accused to the Olongapo City Jail is not a mere
"superfluity."127 In Jimenez v. Sorongon,128 this court held
that in criminal cases, the People is the real party in interest,
which means allowing a private complainant to pursue a
criminal action on his own is a rare
exception:129chanroblesvirtuallawlibrary
Procedural law basically mandates that "[ajll criminal actions
commenced by complaint or by information shall be
prosecuted under the direction and control of a public
prosecutor." In appeals of criminal cases before the CA and
before this Court, the OSG is the appellate counsel of the
People. . . . should be declared "unconstitutional insofar as it impairs the
. . . .
The People is the real party in interest in a criminal case and
only the OSG can represent the People in criminal
proceedings pending in the CA or in this Court. This ruling
has been repeatedly stressed in several cases and
continues to be the controlling doctrine.
While there may be rare occasions when the offended party
may be allowed to pursue the criminal action on his own
10
behalf (as when there is a denial of due process), this
exceptional circumstance does not apply in the present
case.
In this case, the petitioner has no legal personality to assail
the dismissal of the criminal case since the main issue raised
by the petitioner involved the criminal aspect of the case, i.e.,
the existence of probable cause. The petitioner did not
appeal to protect his alleged pecuniary interest as an
offended party of the crime, but to cause the reinstatement
of the criminal action against the respondents. This involves
the right to prosecute which pertains exclusively to the
People, as represented by the OSG.130 (Emphasis supplied,
citations omitted)cralawlawlibrary
In this case, petitioners have not shown why the Motion may
be allowed to fall under the exception. The alleged grave
abuse of discretion of the Public Prosecutor was neither
clearly pleaded nor argued. The duty and authority to
prosecute the criminal aspects of this case, including the
custody issue, are duly lodged in the Public Prosecutor. Her
refusal to give her conforme to the Motion is an act well
within the bounds of her position. That petitioners used as
bases newspaper articles for claiming that the Public
Prosecutor acted contrary to the position of Secretary De
Lima cannot be given weight. Public respondents are correct
in asserting that the proper remedy would have been for
petitioners to have the act reversed by Secretary De Lima
through proper legal venues.
IV
Finally, petitioners argue that the Visiting Forces Agreement
. . . power of the Supreme Court[.]"131 They advance this
argument in the context of their Motion to place Pemberton
under the custody of Philippine authorities while the case is
being tried,132 with their prayer in this Petition phrased
thus:chanRoblesvirtualLawlibrary
(b) Declare the VFA unconstitutional insofar as it impairs the
constitutional power of the Supreme Court to promulgate
rules for practice before it, including the Rules of Criminal
Procedure[.]133cralawlawlibrary

The constitutionality of an official act may be the subject of
judicial review, provided the matter is not raised collaterally.
In Planters Products, Inc. v. Fertiphil
Corporation:134chanroblesvirtuallawlibrary
Judicial review of official acts on the ground of
unconstitutionality may be sought or availed of through any
of the actions cognizable by courts of justice, not necessarily
in a suit for declaratory relief. . . The constitutional issue,
however, (a) must be properly raised and presented in the
case, and (b) its resolution is necessary to a determination
of the case, i.e., the issue of constitutionality must be the
very lis mota presented.135 (Emphasis supplied, citation
omitted)cralawlawlibrary
The constitutionality of the Visiting Forces Agreement is not
the lis mota of this Petition. Petitioners started their Petition
with a claim that their right to access to justice was violated,
but ended it with a prayer for a declaration of the Visiting
Forces Agreement's unconstitutionality. They attempt to
create the connection between the two by asserting that the
Visiting Forces Agreement prevents the transfer of
Pemberton to Olongapo City Jail, which allegedly is
tantamount to the impairment of this court's authority.
First, this Petition is not the proper venue to rule on the issue
of whether the Visiting Forces Agreement transgresses the
judicial authority of this court to promulgate rules pertaining
to criminal cases. Second, the issues of criminal jurisdiction
and custody during trial as contained in the Visiting Forces
Agreement were discussed in Nicolas v. Secretary Romulo,
et al:136chanroblesvirtuallawlibrary
The VFA being a valid and binding agreement, the parties
are required as a matter of international law to abide by its
terms and provisions.
The VFA provides that in cases of offenses committed by the
members of the US Armed Forces in the Philippines, the
following rules apply:
Article V Forces Agreements involving foreign military units around
Criminal Jurisdiction
xxx xxx xxx
6. The custody of any United States personnel over whom
the Philippines is to exercise jurisdiction shall immediately
reside with United States military authorities, if they so
request, from the commission of the offense until completion
of all judicial proceedings. United States military authorities
shall, upon formal notification by the Philippine authorities
and without delay, make such personnel available to those
authorities in time for any investigative or judicial
proceedings relating to the offense with which the person
has been charged. In extraordinary cases, the Philippine
Government shall present its position to the United States
Government regarding custody, which the United States
Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one
year, the United States shall be relieved of any obligations
under this paragraph. The one year period will not include
the time necessary to appeal. Also, the one year period will
not include any time during which scheduled trial procedures
are delayed because United States authorities, after timely
notification by Philippine authorities to arrange for the
presence of the accused, fail to do so.
Petitioners contend that these undertakings violate another
provision of the Constitution, namely, that providing for the
exclusive power of this Court to adopt rules of procedure for
all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue
that to allow the transfer of custody of an accused to a
foreign power is to provide for a different rule of procedure
for that accused, which also violates the equal protection
clause of the Constitution (Art. Ill, Sec. 1. [sic]).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is
a substantial basis for a different treatment of a member of a
foreign military armed forces allowed to enter our territory
and all other accused.
The rule in international law is that a foreign armed forces
allowed to enter one's territory is immune from local
jurisdiction, except to the extent agreed upon. The Status of
the world vary in terms and conditions, according to the
situation of the parties involved, and reflect their bargaining
11
power. But the principle remains, i.e., the receiving State can
exercise jurisdiction over the forces of the sending State only
to the extent agreed upon by the parties.
As a result, the situation involved is not one in which the
power of this Court to adopt rules of procedure is curtailed or
violated, but rather one in which, as is normally encountered
around the world, the laws (including rules of procedure) of
one State do not extend or apply — except to the extent
agreed upon — to subjects of another State due to the
recognition of extraterritorial immunity given to such bodies
as visiting foreign armed forces.
Nothing in the Constitution prohibits such agreements
recognizing immunity from jurisdiction or some aspects of
jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats and
members of the armed forces contingents of a foreign State
allowed to enter another State's territory. On the contrary,
the Constitution states that the Philippines adopts the
generally accepted principles of international law as part of
the law of the land. (Art. II, Sec. 2).
Applying, however, the provisions of VFA, the Court finds
that there is a different treatment when it comes to detention
as against custody. The moment the accused has to be
detained, e.g., after conviction, the rule that governs is the
following provision of the VFA:
Article V
Criminal Jurisdiction
xxx xxx xxx
Sec. 10. The confinement or detention by Philippine
authorities of United States personnel shall be carried out in
facilities agreed on by appropriate Philippines and United
States authorities. United States personnel serving
sentences in the Philippines shall have the right to visits and
material assistance.
It is clear that the parties to the VFA recognized the
difference between custody during the trial and detention
after conviction, because they provided for a specific
arrangement to cover detention. And this specific
arrangement clearly states not only that the detention shall
be carried out in facilities agreed on by authorities of both
parties, but also that the detention shall be "by Philippine
authorities."137 (Emphasis supplied, citations omitted)
cralawlawlibrary
In any case, Pemberton is confined, while undergoing trial,
in Camp Aguinaldo, which by petitioners' own description is
the "General Head Quarters of the Armed Forces of the
Philippines[.] "138Their claim that the detention facility is
under the "control, supervisionfj and jurisdiction of American
military authorities"139is not substantiated.
Petitioners' prayer for the issuance of a writ of mandatory
injunction to compel public respondents to turn over the
custody of Pemberton "from American military authorities to
the OLONGAPO CITY JAIL"140 is likewise denied for lack of
merit. In Semirara Coal Corporation v. HGL Development
Corporation:141chanroblesvirtuallawlibrary
It is likewise established that a writ of mandatory injunction
is granted upon a showing that (a) the invasion of the right is
material and substantial; (b) the right of complainant is clear
and unmistakable; and (c) there is an urgent and permanent
necessity for the writ to prevent serious
damage.142 (Emphasis supplied, citation
omitted)cralawlawlibrary
Nowhere in their Petition did petitioners discuss the basis for
their claim that they are entitled to the sought writ, let alone
mention it in their arguments. This court cannot consider the
issuance of a writ of mandatory injunction or a temporary
restraining order without any legal and factual basis.
Besides, considering the extent of the scope of this court's
power to issue a temporary restraining order, prayers for the
issuance of a writ of mandatory injunction is usually
unnecessary.
WHEREFORE, premises considered, the Petition for
Certiorari is DISMISSED for lack of grave abuse of
discretion resulting in lack or excess of jurisdiction. The
prayer for the issuance of a writ of mandatory injunction is
likewise DENIED for lack of merit.
SO ORDERED.
Sereno, C.J., Velasco, Jr., Leonardo-De Castro, Brion,
Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez,
Mendoza, and Reyes, JJ., concur.
Carpio, and Jardeleza, JJ., on official leave.
Perlas-Bernabe, J., on leave.
G.R. No. 209330, January 11, 2016
SECRETARY LEILA DE LIMA, ASSISTANT STATE
PROSECUTOR STEWART ALLAN A. MARIANO,
ASSISTANT STATE PROSECUTOR VIMAR M.
BARCELLANO AND ASSISTANT STATE PROSECUTOR
GERARD E. GAERLAN, Petitioners, v. MARIO JOEL T.
REYES, Respondent.
DECISION
LEONEN, J.:
The Secretary of Justice has the discretion, upon motion
or motu proprio, to act on any matter that may cause a
probable miscarriage of justice in the conduct of a
preliminary investigation. This action may include, but is not
limited to, the conduct of a reinvestigation. Furthermore, a
petition for certiorari under Rule 65 questioning the regularity
of preliminary investigation becomes moot after the trial
court completes its determination of probable cause and
issues a warrant of arrest.
This Petition for Review on Certiorari assails the
Decision1 dated March 19, 2013 and Resolution2 dated
September 27, 2013 of the Court of Appeals, which rendered
null and void Department of Justice Order No. 710 3 issued
by the Secretary of Justice.4 The Department Order created
a second panel of prosecutors to conduct a reinvestigation
of a murder case in view of the first panel of prosecutors'
failure to admit the complainant's additional evidence.
Dr. Gerardo Ortega (Dr. Ortega), also known as "Doc Gerry,"
was a veterinarian and anchor of several radio shows in
12
Palawan. On January 24, 2011, at around 10:30 am, he was
shot dead inside the Baguio Wagwagan Ukay-ukay in San
Pedro, Puerto Princesa City, Palawan.5 After a brief chase
with police officers, Marlon B. Recamata was arrested. On
the same day, he made an extrajudicial confession admitting
that he shot Dr. Ortega. He also implicated Rodolfo "Bumar"
O. Edrad (Edrad), Dennis C. Aranas, and Armando
"Salbakotah" R. Noel, Jr.6
On February 6, 2011, Edrad executed a Sinumpaang
Salaysay before the Counter-Terrorism Division of the
National Bureau of Investigation where he alleged that it was
former Palawan Governor Mario Joel T. Reyes (former
Governor Reyes) who ordered the killing of Dr. Ortega.7
On February 7, 2011, Secretary of Justice Leila De Lima
issued Department Order No. 0918 creating a special panel
of prosecutors (First Panel) to conduct preliminary
investigation. The First Panel was composed of Senior
Assistant Prosecutor Edwin S. Dayog, Assistant State
Prosecutor Bryan Jacinto S. Cacha, and Assistant State
Prosecutor John Benedict D. Medina.9
On February 14, 2011, Dr. Patria Gloria Inocencio-Ortega
(Dr. Inocencio-Ortega), Dr. Ortega's wife, filed a
Supplemental Affidavit-Complaint implicating former
Governor Reyes as the mastermind of her husband's
murder. Former Governor Reyes' brother, Coron Mayor
Mario T. Reyes, Jr., former Marinduque Governor Jose T.
Carreon, former Provincial Administrator Atty. Romeo
Seratubias, Marlon Recamata, Dennis Aranas, Valentin
Lesias, Arturo D. Regalado, Armando Noel, Rodolfo O.
Edrad, and several John and Jane Does were also
implicated.10
On June 8, 2011, the First Panel concluded its preliminary
investigation and issued the Resolution11dismissing the
Affidavit-Complaint.
On June 28, 2011, Dr. Inocencio-Ortega filed a Motion to Re-
Open Preliminary Investigation, which, among others,
sought the admission of mobile phone communications
between former Governor Reyes and Edrad.12 On July 7,
2011, while the Motion to Re-Open was still pending, Dr.
Inocencio-Ortega filed a Motion for Partial Reconsideration
Ad Cautelam of the Resolution dated June 8, 2011. Both
Motions were denied by the First Panel in the
Resolution13 dated September 2, 2011.14
On September 7, 2011, the Secretary of Justice issued
Department Order No. 710 creating a new panel of
investigators (Second Panel) to conduct a reinvestigation of
the case. The Second Panel was composed of Assistant
State Prosecutor Stewart Allan M. Mariano, Assistant State
Prosecutor Vimar M. Barcellano, and Assistant State
Prosecutor Gerard E. Gaerlan.
Department Order No. 710 ordered the reinvestigation of the
case "in the interest of service and due process"15 to address
the offer of additional evidence denied by the First Panel in
its Resolution dated September 2, 2011. The Department
Order also revoked Department Order No. 091.16
Pursuant to Department Order No. 710, the Second Panel
issued a Subpoena requiring former Governor Reyes to
appear before them on October 6 and 13, 2011 and to submit
his counter-affidavit and supporting evidence.17
On September 29, 2011, Dr. Inocencio-Ortega filed before
the Secretary of Justice a Petition for Review (Ad Cautelam)
assailing the First Panel's Resolution dated September 2,
2011.18
On October 3, 2011, former Governor Reyes filed before the
Court of Appeals a Petition for Certiorari and Prohibition with
Prayer for a Writ of Preliminary Injunction and/or Temporary
Restraining Order assailing the creation of the Second
Panel. In his Petition, he argued that the Secretary of Justice
gravely abused her discretion when she constituted a new
panel. He also argued that the parties were already afforded
due process and that the evidence to be addressed by the
reinvestigation was neither new nor material to the case.19
On March 12, 2012, the Second Panel issued the Resolution
finding probable cause and recommending the filing of
informations on all accused, including former Governor
Reyes.20 Branch 52 of the Regional Trial Court of Palawan
subsequently issued warrants of arrest on March 27, 2012.
However, the warrants against former Governor Reyes and
his brother were ineffective since the two allegedly left the
country days before the warrants could be served.22
On March 29, 2012, former Governor Reyes filed before the
Secretary of Justice a Petition for Review Ad
Cautelam23 assailing the Second Panel's Resolution dated
March 12, 2012. . Decision dated March 19, 2013. The Motion, however, was
On April 2, 2012, he also filed before the Court of Appeals a
Supplemental Petition for Certiorari and Prohibition with
Prayer for Writ of Preliminary Injunction and/or Temporary
Restraining Order impleading Branch 52 of the Regional
Trial Court of Palawan.24
In his Supplemental Petition, former Governor Reyes argued
that the Regional Trial Court could not enforce the Second
Panel's Resolution dated March 12, 2012 and proceed with
the prosecution of his case since this Resolution was
void.25cralawred
On March 19, 2013, the Court of Appeals, in a Special
Division of Five, rendered the Decision26 declaring
Department Order No. 710 null and void and reinstating the
First Panel's Resolutions dated June 8, 2011 and September
2, 2011.
According to the Court of Appeals, the Secretary of Justice
committed grave abuse of discretion when she issued
Department Order No. 710 and created the Second Panel.
The Court of Appeals found that she should have modified
or reversed the Resolutions of the First Panel pursuant to the
2000 NPS Rule on Appeal27 instead of issuing Department
Order No. 710 and creating the Second Panel. It found that
because of her failure to follow the procedure in the 2000
NPS Rule on Appeal, two Petitions for Review Ad Cautelam
filed by the opposing parties were pending before her. 28
The Court of Appeals also found that the Secretary of
Justice's admission that the issuance of Department Order
No. 710 did not set aside the First Panel's Resolution dated
June 8, 2011 and September 2, 2011 "[compounded] the
already anomalous situation."29 It also stated that
Department Order No. 710 did not give the Second Panel
13
the power to reverse, affirm, or modify the Resolutions of the
First Panel; therefore, the Second Panel did not have the
authority to assess the admissibility and weight of any
existing or additional'evidence.30
The Secretary of Justice, the Second Panel, and Dr.
Inocencio-Ortega filed a Motion for Reconsideration of the
denied by the Court of Appeals in the Resolution 31 dated
September 27, 2013.
In its Resolution, the Court of Appeals stated that the
Secretary of Justice had not shown the alleged miscarriage
of justice sought to be prevented by the creation of the
Second Panel since both parties were given full opportunity
to present their evidence before the First Panel. It also ruled
that the evidence examined by the Second Panel was not
additional evidence but "forgotten evidence"32 that was
already available before the First Panel during the conduct
of the preliminary investigation.33
Aggrieved, the Secretary of-Justice and the Second Panel
filed the present Petition for Review on Certiorari34 assailing
the Decision dated March 19, 2013 and Resolution dated
September 27, 2013 of the Court of Appeals. Respondent
Mario Joel T. Reyes filed his Comment35 to the Petition in
compliance with this court's Resolution dated February 17,
2014.36 Petitioners' Reply37 to the Comment was filed on
October 14, 2014 in compliance with this court's Resolution
dated June 23, 2014.38
Petitioners argue that the Secretary of Justice acted within
her authority when she issued Department Order No. 710.
They argue that her issuance was a purely executive
function and not a quasi-judicial function that could be the
subject of a petition for certiorari or prohibition. 39 In their
submissions, they point out that under Republic Act No.
10071 and the 2000 NPS Rule on Appeal, the Secretary of
Justice has the power to create a new panel of prosecutors
to reinvestigate a case to prevent a miscarriage of justice. 40
Petitioners' position was that the First Panel "appear[ed] to
have ignored the rules of preliminary investigation"41 when it
refused to receive additional evidence that would have been
crucial for the determination of the existence of probable
cause.42 They assert that respondent was not deprived of
due process when the reinvestigation was ordered since he
was not prevented from presenting controverting evidence to
Dr. Inocencio-Ortega's additional evidence.43 Petitioners
argue that since the Information had been filed, the
disposition of the case was already within the discretion of
the trial court.44
Respondent, on the other hand, argues that the Secretary of
Justice had no authority to order motu proprio the
reinvestigation of the case since Dr. Inocencio-Ortega was
able to submit her alleged new evidence to the First Panel
when she filed her Motion for Partial Reconsideration. He
argues that all parties had already been given the
opportunity to present their evidence before the First Panel
so it was not necessary to conduct a reinvestigation.45
Respondent argues that the Secretary of Justice's discretion
to create a new panel of prosecutors was not
"unbridled"46 since the 2000 NPS Rule on Appeal requires
that there be compelling circumstances for her to be able to
designate another prosecutor to conduct the
reinvestigation.47 He argues that the Second Panel's
Resolution dated March 12, 2012 was void since the Panel
was created by a department order that was beyond the
Secretary of Justice's authority to issue. He further argues
that the trial court did not acquire jurisdiction over the case
since the Information filed by the Second Panel was void. 48
The issues for this court's resolution
are:chanRoblesvirtualLawlibrary
First, whether the Court of Appeals erred in ruling that the
Secretary of Justice committed grave abuse of discretion
when she issued Department Order No. 710, and with regard
to this:chanRoblesvirtualLawlibrary
a. Whether the issuance of Department Order No. 710
was an executive function beyond the scope of a
petition for certiorari or prohibition; and
b. Whether the Secretary of Justice is authorized to
create motu proprio another panel of prosecutors in
order to conduct a reinvestigation of the case.
Lastly, whether this Petition for Certiorari has already been
rendered moot by the filing of the information in court,
pursuant to Crespo v. Mogul.49
I
The determination by the Department of Justice of the
existence of probable cause is not a quasi-judicial
proceeding. However, the actions of the Secretary of Justice
in affirming or reversing the findings of prosecutors may still
be subject to judicial review if it is tainted with grave abuse
of discretion.
Under the Rules of Court, a writ of certiorari is directed
against "any tribunal, board or officer exercising judicial or
quasi-judicial functions."50 A quasi-judicial function is "the
action, discretion, etc., of public administrative officers or
bodies, who are required to investigate facts, or ascertain the
existence of facts, hold hearings, and draw conclusions from
them, as a basis for their official action and to exercise
discretion of a judicial nature."51 Otherwise stated, an
administrative agency performs quasi-judicial functions if it
renders awards, determines the rights of opposing parties,
or if their decisions have the same effect as the judgment of
a court.52
In a preliminary investigation, the prosecutor does not
determine the guilt or innocence of an accused. The
prosecutor only determines "whether there is sufficient
ground to engender a well-founded belief that a crime has
been committed and the respondent-is probably guilty
thereof, and should be held for trial."53As such, the
prosecutor does not perform quasi-judicial functions.
In Santos v. Go:54chanroblesvirtuallawlibrary
[T]he prosecutor in a preliminary investigation does not
determine the guilt or innocence of the accused. He does not
exercise adjudication nor rule-making functions. Preliminary
investigation is merely inquisitorial, and is often the only
14
means of discovering the persons who may be reasonably
charged with a crime and to enable the fiscal to prepare-his
complaint or 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 committed and whether there is
probable cause to believe that the accused is guilty thereof.
While the fiscal makes that determination, he cannot be said
to be acting as a quasi-court, for it. is the courts, ultimately,
that pass judgment on the accused, not the fiscal.
Though some cases describe the public prosecutors power
to conduct a preliminary investigation as quasi-judicial in
nature, this is true only to the extent that, like quasi-judicial
bodies, the prosecutor is an officer of the executive
department exercising powers akin to those of a court, and
the similarity ends at this point. A quasi-judicial body is as an
organ of government other than a court and other than a
legislature which affects the rights of private parties through
either adjudication or rule-making. A quasi-judicial agency
performs adjudicatory functions such that its awards,
determine the rights of parties, and their decisions have the
same effect as judgments of a court. Such is not the case
when a public prosecutor conducts a preliminary
investigation to determine probable cause to file an
information against a person charged with a criminal offense,
or when the Secretary of Justice is reviewing the formers
order or resolutions.55ChanRoblesVirtualawlibrary
cralawlawlibrary
In Spouses Dacudao v. Secretary of Justice,56 a petition for
certiorari, prohibition, and mandamus was filed against the
Secretary of Justice's issuance of a department order. The
assailed order directed all prosecutors to forward all cases
already filed against Celso de los Angeles of the Legacy
Group to the Secretariat of the Special Panel created by the
Department of Justice.
This court dismissed the petition on the ground that petitions
for certiorari and prohibition are directed only to tribunals that
exercise judicial or quasi-judicial functions. The issuance of
the department order was a purely administrative or
executive function of the Secretary of Justice. While the
Department of Justice may perform functions similar to that
of a court of law, it is not a quasi-judicial
agency:chanRoblesvirtualLawlibrary
The fact that the DOJ is the primary prosecution arm of the
Government does not make it a quasi-judicial office or
agency. Its preliminary investigation of cases is not a quasi-
judicial proceeding. Nor does the DOJ exercise a quasi-
judicial function when it reviews the findings of a public
prosecutor on the finding of probable cause in any
case. Indeed, in Bautista v. Court of Appeals, the Supreme
Court has held that a preliminary investigation is not a quasi-
judicial proceeding, stating:
. . . [t]he prosecutor in a preliminary investigation does not
determine the guilt or innocence of the accused. He does not
exercise adjudication nor rule-making functions. Preliminary
investigation is merely inquisitorial, and is often the only
means of discovering the persons who may be reasonably
charged with a crime and to enable the fiscal to prepare his
complaint or 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 committed and whether there is
probable cause to believe that the accused is guilty thereof.
While the fiscal makes that determination, he cannot be said
to be acting as a quasi-court, for it is the courts, ultimately,
that pass judgment on the accused, not the
fiscal.cralawlawlibrary
There may be some decisions of the Court that have
characterized the public prosecutor's power to conduct a
preliminary investigation as quasi-judicial in nature. Still, this
characterization is true only to the extent that the public
prosecutor, like a quasi-judicial body, is an officer of the
executive department exercising powers akin to those of a
court of law.
But the limited similarity, between the public prosecutor and
a quasi-judicial body quickly ends there. For sure, a quasi-
judicial body is an organ of government other than a court of
law or a legislative office that affects the rights of private
parties through either adjudication or rule-making; it
performs adjudicatory functions, and its awards and
adjudications determine the rights of the parties coming
before it; its decisions have the same effect as the judgments
of a court of law. In contrast, that is not the effect whenever
a public prosecutor conducts a preliminary investigation to
determine probable cause in order to file a criminal
information against a person properly charged with the
offense, or whenever the Secretary of Justice reviews the
public prosecutor's orders or resolutions.57(Emphasis
supplied)cralawlawlibrary
Similarly, in Callo-Claridad v.Esteban,58we have stated that
a petition for review under Rule 43 of the Rules of Court
cannot be brought to assail the Secretary of Justice's
resolution dismissing a complaint for lack of probable cause
since this is an "essentially executive
function":59chanroblesvirtuallawlibrary
A petition for review under Rule 43 is a mode of appeal to be
taken only to review the decisions, resolutions or awards by
the quasi-judicial officers, agencies or bodies, particularly
those specified in Section 1 of Rule 43. In the matter before
us, however, the Secretary of Justice was not an officer
performing a quasi-judicial function. In reviewing the findings
of the OCP of Quezon City on the matter of probable cause,
the Secretary of Justice performed an essentially executive
function to determine whether the crime alleged against the
respondents was committed, and whether there was
'probable cause to believe that the respondents were guilty
thereof.60ChanRoblesVirtualawlibrary
cralawlawlibrary
A writ of prohibition, on the other hand, is directed against
"the proceedings of any tribunal, corporation, board, officer
or person, whether exercising judicial, quasi-judicial or
ministerial functions."61 The Department of Justice is not a
court of law and its officers do not perform quasi-judicial
functions. The Secretary of Justice's review of the
resolutions of prosecutors is also not a ministerial function.
An act is considered ministerial if "an officer or tribunal
performs in the context of a given set of facts, in a prescribed
manner and without regard for the exercise of his or its own
judgment, upon the propriety or impropriety of the act
done."62 In contrast, an act is considered discretionary "[i]f
the law imposes a duty upon a public officer, and gives him
the right to decide how or when the duty shall be
15
performed."63Considering that "full discretionary authority
has been delegated to the executive branch in the
determination of probable cause during a preliminary
investigation,"64 the functions of the prosecutors and the
Secretary of Justice are not ministerial.
However, even when an administrative agency does not
perform a judicial, quasi-judicial, or ministerial function, the
Constitution mandates the exercise of judicial review when
there is an allegation of grave abuse of discretion.65 In Auto
Prominence Corporation v.
Winterkorn:66chanroblesvirtuallawlibrary
In ascertaining whether the Secretary of Justice committed
grave abuse of discretion amounting to lack or excess of
jurisdiction in his determination of the existence of probable
cause, the party seeking the writ of certiorari must be able to
establish that the Secretary of Justice exercised his
executive power in an arbitrary and despotic manner, by
reason of passion or personal hostility, and the abuse of
discretion must be so patent and gross as would amount to
an evasion or to a unilateral refusal to perform the duty
enjoined or to act in contemplation of law. Grave abuse of
discretion is not enough; it must amount to lack or excess of
jurisdiction. Excess of jurisdiction signifies that he had
jurisdiction over the case, but (he) transcended the same or
acted without authority.67cralawlawlibrary
Therefore, any question on whether the Secretary of Justice
committed grave abuse of discretion amounting to lack or
excess of jurisdiction in affirming, reversing, or modifying the
resolutions of prosecutors may be the subject of a petition
for certiorari under Rule 65 of the Rules of Court.
II
Under existing laws, rules of procedure, and jurisprudence,
the Secretary of Justice is authorized to issue Department
Order No. 710.
Section 4 of Republic Act No. 1007168 outlines the powers
granted by law to the Secretary of Justice. The provision
reads:chanRoblesvirtualLawlibrary
Section 4. Power of the Secretary of Justice. - The power
vested in the Secretary of Justice includes authority to act
directly on any matter involving national security or a
probable miscarriage of justice within the jurisdiction of the
prosecution staff, regional prosecution office, and the.
provincial prosecutor or the city prosecutor and to review,
reverse, revise, modify or affirm on appeal or petition for
review as the law or the rules of the Department of Justice
(DOJ) may provide, final judgments and orders of the
prosecutor general, regional prosecutors, provincial
prosecutors, and city prosecutors.cralawlawlibrary
A criminal prosecution is initiated by the filing of a complaint
to a prosecutor who shall then conduct a preliminary
investigation in order to determine whether there is probable
cause to hold the accused for trial in court. 69 The
recommendation of the investigating prosecutor on whether
to dismiss the complaint or to file the corresponding
information in court is still subject to the approval of the
provincial or city prosecutor or chief state prosecutor.70
However, a party is not precluded from appealing the
resolutions of the provincial or city prosecutor or chief state
prosecutor to the Secretary of Justice. Under the 2000 NPS
Rule on Appeal,71 appeals may be taken within 15 days
within receipt of the resolution by filing a verified petition for
review before the Secretary of Justice.72
In this case, the Secretary of Justice designated a panel of
prosecutors to investigate on the Complaint filed by Dr.
Inocencio-Ortega. The First Panel, after conduct of the
preliminary investigation, resolved to dismiss the Complaint
on the ground that the evidence was insufficient to support a
finding of probable cause. Dr. Inocencio-Ortega filed a
Motion to Re-Open and a Motion for Partial Investigation,
which were both denied by the First Panel. Before Dr.
Inocencio-Ortega could file a petition for review, the
Secretary of Justice issued Department Order No. 710 and
constituted another panel of prosecutors to reinvestigate the
case. The question therefore is whether, under the 2000
NPS Rule on Appeal, the Secretary of Justice may, even
without a pending petition for review, motu proprio order the
conduct of a reinvestigation.
The 2000 NPS Rule on Appeal requires the filing of a petition
for review before the Secretary of Justice can reverse, affirm,
or modify the appealed resolution of the provincial or city
prosecutor or chief state prosecutor.73 The Secretary of
Justice may also order the conduct of a reinvestigation in
order to resolve the petition for review. Under Section
11:chanRoblesvirtualLawlibrary
SECTION 11. Reinvestigation. If the Secretary of Justice
finds it necessary to reinvestigate the case, the
reinvestigation shall be held by the investigating prosecutor,
unless, for compelling reasons, another prosecutor is
designated to conduct the same.cralawlawlibrary
Under Rule 112, Section 4 of the Rules of Court, however,
the Secretary of Justice may motu proprioreverse or modify
resolutions of the provincial or city prosecutor or the chief
state prosecutor even without a pending petition for review.
Section 4 states:chanRoblesvirtualLawlibrary
SEC. 4. Resolution of investigating prosecutor and its
review. — If the investigating prosecutor finds cause to hold
the respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information that
he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof;
that the accused was informed of the complaint and of the
evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he
shall recommend the dismissal of the complaint.
. . . .
If upon petition by a proper party under such rules as the
Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of
the provincial or city prosecutor or chief state prosecutor, he
shall direct the prosecutor concerned either to file the
corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal
of the complaint or information with notice to the parties. The
same rule shall apply in preliminary investigations conducted
by the officers of the Office of the Ombudsman. (Emphasis
16
supplied)
cralawlawlibrary
The Secretary of Justice exercises control and supervision
over prosecutors and it is within her- authority to affirm,
nullify, reverse, or modify the resolutions of her prosecutors.
In Ledesma v. Court of
Appeals:74chanroblesvirtuallawlibrary
Decisions or resolutions of prosecutors are subject to appeal
to the secretary of justice who, under the Revised
Administrative Code, exercises the power of direct control
and supervision over said prosecutors; and who may thus
affirm, nullify, reverse or modify their rulings.
Section 39, Chapter 8, Book IV. in relation to Section 5, 8,
and 9, Chapter 2, Title III of the Code gives the secretary of
justice supervision and control over the Office of the .Chief
Prosecutor and the Provincial and City Prosecution Offices.
The scope of his power of supervision and control is
delineated in Section 38, paragraph 1, Chapter 7, Book IV of
the Code:
(1) Supervision and Control. Supervision and control shall
include authority to act directly whenever a specific function
is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of
subordinate officials or units[.]75ChanRoblesVirtualawlibrary
cralawlawlibrary
Similarly, in Rural Community Bank ofGuimba v. Hon.
Talavera:76chanroblesvirtuallawlibrary
The actions of prosecutors are not unlimited; they are
subject to review by the secretary of justice who may affirm,
nullify, reverse or modify their actions or opinions.'
Consequently the secretary may direct them to file either a
motion to dismiss the case or an information against the
accused.
In short, the secretary of justice, who has the power of
supervision and control over prosecuting officers, is the
ultimate authority who decides which of the conflicting
theories of the complainants and the respondents should be
believed.77cralawlawlibrary
Section 4 of Republic Act No. 10071 also gives the Secretary
of Justice the authority to directly act on any "probable
miscarriage of justice within the jurisdiction of the
prosecution staff, regional prosecution office, and the
provincial prosecutor or the city prosecutor." Accordingly, the
Secretary of Justice may step in and order a reinvestigation
even without a prior motion or petition from a party in order
to prevent any probable miscarriage of justice.
Dr. Inocencio-Ortega filed a Motion to Re-Open the
preliminary investigation before the First Panel in order to
admit as evidence mobile phone conversations between
Edrad and respondent and argued that these phone
conversations tend to prove that respondent was the
mastermind of her husband's murder. The First Panel,
however, dismissed the Motion on the ground that it was filed
out of time. The First Panel
stated:chanRoblesvirtualLawlibrary
Re-opening of the preliminary investigation for the purpose
of receiving additional evidence presupposes that the case
has been submitted for resolution but no resolution has been
promulgated therein by the investigating prosecutor. Since a
resolution has already been promulgated by the panel of
prosecutors in this case, the motion to re-open the
preliminary investigation is not proper and'has to be
denied.78cralawlawlibrary
In the same Resolution, the First Panel denied Dr. Inocencio-
Ortega's Motion for Partial Reconsideration on the ground
that "the evidence on record does not suffice to establish
probable cause."79 It was then that the Secretary of Justice
issued Department Order No. 710, which
states:chanRoblesvirtualLawlibrary
In the interest of service and due process, and to give both
parties all the reasonable opportunity to present their
evidence during the preliminary investigation, a new panel is
hereby created composed of the following for the purpose of
conducting a reinvestigation . . . .
. . . .
The reinvestigation in this case is hereby ordered to address
the offer of additional evidence by the complainants, which
was denied by the former panel in its Resolution of 2
September 2011 on the ground that an earlier resolution has
already been promulgated prior to the filing of the said
motion, and such other issues which may be raised before
the present panel.80 (Emphasis supplied)cralawlawlibrary
In her reply-letter dated September 29, 2011 to respondent's
counsel, the Secretary of Justice further explained
that:chanRoblesvirtualLawlibrary
The order to reinvestigate was dictated by substantial justice
and our desire to have a comprehensive investigation. We
do not want any stone unturned, or any evidence
overlooked. As stated in D.O. No. 710, we want to give "both
parties all the reasonable opportunity to present their
evidence."81cralawlawlibrary
Under these circumstances, it is clear that the Secretary of
Justice issued Department Order No. 710 because she had
reason to believe that the First Panel's refusal to admit the
additional evidence may cause a probable miscarriage of
justice to the parties. The Second Panel was created not to
overturn the findings and recommendations of the First
Panel but to make sure that all the evidence, including the
evidence that the First Panel refused to admit, was
investigated. Therefore, the Secretary of Justice did not act
in an "arbitrary and despotic manner,'by reason of passion
or personal hostility."82
Accordingly, Dr. Inocencio-Ortega's Petition for Review
before the Secretary of Justice was rendered moot with the
issuance by the Second Panel of the Resolution dated
March 12, 2012 and the filing of the Information against
respondent before the trial court.
III
The filing of the information and the issuance by the trial
court of the respondent's warrant of arrest has already
17
rendered this Petition moot.
It is settled that executive determination of probable cause is
different from the judicial determination of probable cause.
In People v. Castillo and Mejia:83chanroblesvirtuallawlibrary
There are two kinds of determination of probable cause:
executive and judicial. The executive determination of
probable cause is one made during preliminary investigation.
It is a function that properly pertains to the public prosecutor
who is given a broad discretion to determine whether
probable cause exists and to charge those whom he
believes to have committed the crime as defined by law and
thus should be held for trial. Otherwise stated, such official
has the quasi-judicial authority to determine whether or not
a criminal case must be filed in court. Whether or not that
function has been correctly discharged by the public
prosecutor, i.e., whether or not he has made a correct
ascertainment of the existence of probable cause in a case,
is a matter that the trial court itself does not and may not be
compelled to pass upon.
The judicial determination of probable cause, on the other
hand, is one made by the judge to ascertain whether a
warrant of arrest should be issued against the accused. The
judge must satisfy himself that based on the evidence
submitted, there is necessity for placing the accused under
custody in order not to frustrate the ends of justice. If the
judge finds no probable cause, the judge cannot be forced
to issue the arrest warrant.84 (Emphasis supplied)
cralawlawlibrary
The courts do not interfere with the prosecutor's conduct of
a preliminary investigation. The prosecutor's determination
of probable cause is solely within his or her discretion.
Prosecutors are given a wide latitude of discretion to
detennine whether an information should be filed in court or
whether the complaint should be dismissed.85
A preliminary investigation is "merely inquisitorial,"86 and is
only conducted to aid the prosecutor in preparing the
information.87 It serves a two-fold purpose: first, to protect
the innocent against wrongful prosecutions; and second, to
spare the state from using its funds and resources in useless
prosecutions. In Salonga v. Cruz-
Paño:88chanroblesvirtuallawlibrary
The purpose of a preliminary investigation is to secure the
innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety
of a public trial, and also to protect the state from useless
and expensive trials.89cralawlawlibrary
Moreover, a preliminary investigation is merely preparatory
to a trial. It is not a trial on the merits. An accused's right to
a preliminary investigation is merely statutory;' it is not a right
guaranteed by the Constitution. Hence, any alleged
irregularity in an investigation's conduct does not render the
information void nor impair its validity. In Lozada v.
Fernando:90chanroblesvirtuallawlibrary
It has been said time and again that a preliminary
investigation is not properly a trial or any part thereof but is
merely preparatory thereto, its only purpose being to
determine whether a crime has been committed and whether
there is probable cause to'believe the accused guilty thereof.
The right to such investigation is not a fundamental right
guaranteed by the constitution. At most, it is statutory. And
rights conferred upon accused persons to participate in
preliminary investigations concerning themselves depend
upon the provisions of law by which such rights are
specifically secured, rather than upon the phrase "due
process of law."91 (Citations omitted)
cralawlawlibrary
People v. Narca92 further
states:chanRoblesvirtualLawlibrary
It must be emphasized that the preliminary investigation is
not the venue for the full exercise of the rights of the parties.
This is why preliminary investigation is not considered as a
part of trial but merely preparatory thereto and that the
records therein shall not form part of the records of the case
in court. Parties' may submit affidavits but have no right to
examine witnesses though they can propound questions
through the investigating officer. In fact, a preliminary
investigation may even be conducted ex-part'e in certain law.
cases. Moreover, in Section 1 of Rule 112, the purpose of a
preliminary investigation is only to determine a well Whether the accused had been arraigned or not and whether
grounded belief if a crime was probably committed by an it was due to a reinvestigation by the fiscal or a review by the
accused. In any case, the invalidity or absence of a Secretary of Justice whereby a motion to dismiss was
preliminary investigation does not affect the jurisdiction of submitted to the Court, the Court in the exercise of its
the court which may have taken cognizance of the discretion may grant the motion or deny it and require that
information nor impair the validity of the information or the trial on the merits proceed for the proper determination
otherwise render it defective.93 (Emphasis of the case.
supplied)cralawlawlibrary
However, one may ask, if the trial court refuses to grant the
motion to dismiss filed by the fiscal upon the directive of the
Once the information is filed in court, the court acquires
Secretary of Justice will there not be a vacuum in the
jurisdiction of the case and any motion to dismiss the case
or to determine the accused's guilt or innocence rests within prosecution? A state prosecutor to handle the case cannot
the sound discretion of the court. In Crespo v. possibly be designated by the Secretary of Justice who does
not believe that there is a basis for prosecution nor can the
Mogul:94chanroblesvirtuallawlibrary
fiscal be expected to handle the prosecution of the case
thereby defying the superior order of the Secretary of
The filing of a complaint or information in Court initiates a
Justice.
criminal action. The Court thereby acquires jurisdiction over
the case, which is the authority to hear and determine the
The answer is simple. The role of the fiscal or prosecutor as
case. When after the filing of the complaint or information a
We all know is to see that justice is -done and not necessarily
warrant for the arrest of the accused is issued by the trial
to secure the conviction of the person accused before the
court and the accused either voluntarily submitted himself to
Courts. Thus, in spite of his opinion to the contrary, it is the
the Court or was duly arrested, the Court thereby acquired
duty of the fiscal to proceed with the presentation of evidence
jurisdiction over the person of the accused.
of the prosecution to the Court to enable the Court to arrive
at its own independent judgment as to whether the accused
The preliminary investigation conducted by the fiscal for the
should be convicted or acquitted. The fiscal should not shirk
purpose of determining whether a prima facie case exists
from the responsibility of appearing for the People of the
warranting the prosecution of the accused is terminated
Philippines even under such circumstances much less
upon the filing of the information in the proper court. In turn,
should he abandon the prosecution of the case leaving it to
as above stated, the filing of said information sets in motion
the hands of a private prosecutor for then the entire
the criminal action against the accused in Court. Should the
proceedings will be null and void. The least that the fiscal
fiscal find it proper to conduct a reinvestigation of the case,
should do is to continue to appear for the prosecution
at such stage, the permission of the Court must be secured.
although he may turn over the presentation of the evidence
After such reinvestigation the finding and recommendations
to the private prosecutor but still under his direction and
of the fiscal should be submitted to the Court for appropriate
control.
action. While it is true that the fiscal has the quasi judicial
discretion to determine whether or not a criminal case should
The rule therefore in this jurisdiction is that once a complaint
be filed in court or not, once the case had already been
or information is filed in Court, any disposition of the case as
brought to Court whatever disposition the fiscal may feel
to its dismissal or the conviction or acquittal of the accused
should be proper in the case thereafter should be addressed
rests in the sound discretion of the Court. Although the fiscal
for the consideration of the Court, the only qualification is that
retains the direction and control of the prosecution of criminal
the action of the Court must not impair the substantial rights
cases even while the case is already in Court he cannot
of the accused or the right of the People to due process of
18
impose his opinion on the trial court. The Court is the best jurisdiction over the case and the existence of probable 2015; GRANTSthe petitioners' respective demurrers to
and sole judge on what to do with the case before it. The cause has been judicially determined, a petition for certiorari evidence; DISMISSES Criminal Case No. SB-12-CRM-0174
determination of the case is within its exclusive jurisdiction questioning the conduct of the preliminary investigation as to the petitioners GLORIAMACAPAGAL-
and competence. A motion to dismiss the case filed by the ceases to be the "plain, speedy, and adequate ARROYO and BENIGNOAGUAS for insufficiency of
fiscal should be addressed to the Court who has the option remedy"99provided by law. Since this Petition for Review is evidence; ORDERS the immediate release from detention of
to grant or deny the same. It does not matter if this is done an appeal from a moot Petition for Certiorari, it must also be said petitioners; and MAKES no pronouncements on costs
before or after the arraignment of the accused or that the rendered moot. of suit.
motion was filed after a reinvestigation or upon instructions
of the Secretary of Justice who reviewed the records of the The prudent course of action at this stage would be to SO ORDERED. 1
investigation.95 (Emphasis supplied)cralawlawlibrary proceed to trial. Respondent, however, is not without
remedies. He may still file any appropriate action before the
On August 3, 2016, the State, through the Office of the
trial court or question any alleged irregularity in the
Thus, it would be ill-advised for the Secretary of Justice to Ombudsman, has moved for the reconsideration of the
preliminary investigation during pre-trial.
proceed with resolving respondent's Petition for Review decision, submitting that:
pending before her. It would be more prudent to refrain from
entertaining the Petition considering that the trial court WHEREFORE, the Petition is DISMISSED for being moot.
Branch 52 of the Regional Trial Court of Palawan I. THIS HONORABLE COURT'S GIVING DUE COURSE TO
already issued a warrant of arrest against respondent.96 The A CERTIORARI ACTION ASSAILING AN
is DIRECTED to proceed with prosecution of Criminal Case
issuance of the warrant signifies that the trial court has made INTERLOCUTORY ORDER DENYING DEMURRER TO
No. 26839.
an independent determination of the existence of probable EVIDENCE VIOLA TES RULE 119, SECTION 23 OF THE
cause. In Mendoza v. People:97chanroblesvirtuallawlibrary RULES OF COURT, WHICH PROVIDES THAT AN ORDER
SO ORDERED.chanroblesvirtuallawlibrary
DENYING THE DEMURRER TO EVIDENCE SHALL NOT
While it is within the trial court's discretion to make an BE REVIEWABLE BY APPEAL OR BY
Carpio, (Chairperson), Brion, Del Castillo, and Mendoza,
independent assessment of the evidence on hand, it is only CERTIORARI BEFORE JUDGMENT.
JJ., concur.chanroble
for the purpose of determining whether a warrant of arrest
should be issued. The judge does not act as an appellate II. THE HONORABLE COURT COMMITTED GRAVE
court' of the prosecutor and has no capacity to review the ERRORS WHICH AMOUNT TO A VIOLATION OR
prosecutor's determination of probable cause; rather, the G.R. No. 220598
DEPRIVATION OF THE STATE'S FUNDAMENTAL RIGHT
judge makes a determination of probable cause independent TO DUE PROCESS OF LAW.
of the prosecutor's finding.98cralawlawlibrary GLORIA MACAPAGAL ARROYO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND THE A. THE DECISION
Here, the trial court has already determined, independently REQUIRES ADDITIONAL ELEMENTS IN THE
of any finding or recommendation by the First Panel or the SANDIGANBAYAN, (First Division), Respondents
PROSECUTION OF
Second Panel, that probable cause exists for the issuance PLUNDER, VIZ. IDENTIFICATION OF THE MAIN
of the warrant of arrest against respondent. Probable cause RESOLUTION PLUNDERER AND PERSONAL BENEFIT TO
has been judicially determined. Jurisdiction over the case, HIM/HER, BOTH OF WHICH ARE NOT PROVIDED
therefore, has transferred to the trial court. A petition for BERSAMIN,, J.: IN THE TEXT OF REPUBLIC ACT (R.A.) NO. 7080.
certiorari questioning the validity of the preliminary
investigation in any other venue has been rendered moot by On July 19, 2016, the Court promulgated its decision, B. THE EVIDENCE PRESENTED BY THE
the issuance of the warrant of arrest and the conduct of disposing: PROSECUTION WAS NOT FULLY TAKEN INTO
arraignment. ACCOUNT, INCLUDING BUT NOT LIMITED TO
WHEREFORE, the Court GRANTS the petitions THE IRREGULARITIES IN THE
The Court of Appeals should have dismissed the Petition for CONFIDENTIAL/INTELLIGENCE FUND (CIF)
for certiorari; ANNULS and SETS ASIDE the resolutions
Certiorari filed before them when the trial court issued its DISBURSEMENT PROCESS, QUESTIONABLE
issued in Criminal Case No. SB-12-CRM-0174 by
warrant of arrest. Since the trial court has already acquired PRACTICE OF CO-MINGLING OF
the Sandiganbayan on April 6, 2015 and September 10,
19
 FUNDSAND AGUAS' REPORTS TO THE
COMMISSION ON AUDIT (COA) THAT BULK OF
THE PHP365,997,915.00 WITHDRAWN FROM
THE PHILIPPINE CHARITY SWEEPSTAKES
OFFICE'S (PCSO) CIF WERE DIVERTED TO THE
ARROYO-HEADED OFFICE OF THE PRESIDENT.
C. ARROYO AND AGUAS, BY INDISPENSABLE
COOPERATION, IN CONSPIRACY WITH THEIR
COACCUSED IN SB-12-CRM-0174, COMMITTED
PLUNDER VIA· A COMPLEX ILLEGAL SCHEME
WHICH DEFRAUDED PCSO IN HUNDREDS OF
MILLIONS OF PESOS.
D. EVEN ASSUMING THAT THE ELEMENTS OF
PLUNDER WERE NOT PROVEN BEYOND
REASONABLE DOUBT, THE EVIDENCE
PRESENTED BY THE PEOPLE SHOWS, BEYOND
REASONABLE DOUBT, THAT ARROYO, AGUAS
AND THEIR COACCUSED IN SB-12-CRM-0174
ARE GUILTY OF MALVERSATION.2
In contrast, the petitioners submit that the decision has
effectively barred the consideration and granting of the
motion for reconsideration of the State because doing so
would amount to the re-prosecution or revival of the charge
against them despite their acquittal, and would thereby
violate the constitutional proscription against double
jeopardy.
Petitioner Gloria M. Macapagal-Arroyo (Arroyo) points out
that the State miserably failed to prove the corpus delicti of
plunder; that the Court correctly required the identification of
the main plunderer as well as personal benefit on the part of
the raider of the public treasury to enable the successful
prosecution of the crime of plunder; that the State did not
prove the conspiracy that justified her inclusion in the
charge; that to sustain the case for malversation against her,
in lieu of plunder, would violate her right to be informed of
the accusation against her because the information did not
necessarily include the crime of malversation; and that even
if the information did so, the constitutional prohibition against
double jeopardy already barred the re-opening of the case
for that purpose.
Petitioner Benigno B. Aguas echoes the contentions of
Arroyo in urging the Com1 to deny the motion for
reconsideration.
In reply, the State avers that the prohibition against double
jeopardy does not apply because it was denied its day in
court, thereby rendering the decision void; that the Court
should re-examine the facts and pieces of evidence in order
to find the petitioners guilty as charged; and that the
allegations of the information sufficiently included all that
was necessary to fully inform the petitioners of the
accusations against them.
Ruling of the Court
The Court DENIES the motion for reconsideration for its lack
of merit.
To start with, the State argues' that the consolidated petitions
for certiorari were improper remedies in light of Section 23,
Rule 119 of the Rules of Court expressly prohibiting the
review of the denial of their demurrer prior to the judgment in
the case either by appeal or by certiorari; that the Court has
thereby limited its own power, which should necessarily
prevent the giving of due course to the petitions
for certiorari, as well as the undoing of the order denying the
petitioners' demurrer to evidence; that the proper remedy
under the Rules of Court was for the petitioners to proceed
to trial and to present their evidence-in-chief thereat; and that
even if there had been grave abuse of discretion attending
the denial, the Court's certiorari powers should be exercised
only upon the petitioners' compliance with the stringent
requirements of Rule 65, particularly with the requirement
that there be no plain, speedy or adequate remedy in the
ordinary course of law, which they did not establish.
Section 23, Rule 119 of the Rules of Court, pertinently
provides:
Section 23. Demurrer to evidence. – xxx
20
xxxx
The order denying the motion for leave of court to file
demurrer to evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before judgment. (n)
The argument of the State, which is really a repetition of its
earlier submission, was squarely resolved in the decision, as
follows:
The Court holds that it should take cognizance of the
petitions for certiorari because the Sandiganbayan, as shall
shortly be demonstrated, gravely abused its discretion
amounting to lack or excess of jurisdiction.
The special civil action for certiorari is generally not proper
to assail such an interlocutory order issued by the trial court
because of the availability of another remedy in the ordinary
course of law. Moreover, Section 23, Rule 119 of the Rules
of Court expressly provides that "the order denying the
motion for leave of court to file demurrer to evidence or the
demurrer itself shall not be reviewable by appeal or
by certiorari before judgment." It is not an insuperable
obstacle to this action, however, that the denial of the
demurrers to evidence of the petitioners was an interlocutory
order that did not terminate the proceedings, and the proper
recourse of the demurring accused was to go to trial, and
that in case of their conviction they may then appeal the
conviction, and assign the denial as among the errors to be
reviewed. Indeed, it is doctrinal that the situations in which
the writ of certiorari may issue should not be limited,
because to do so -
x x x would be to destroy its comprehensiveness and
usefulness. So wide is the discretion of the com1 that
authority is not wanting to show that certiorari is more
discretionary than either prohibition or mandamus. In the
exercise of oursuperintending control over other courts, we
are to be guided by all the circumstances of each particular
case 'as the ends of justice may require.' So it is that the writ
will be granted where necessary to prevent a substantial
wrong or to do substantial justice.
The Constitution itself has imposed upon the Court and the
other courts of justice the duty to correct errors of jurisdiction
as a result of capricious, arbitrary, whimsical and despotic
exercise of discretion by expressly incorporating in Section
1 of Article VIII the following provision:
Section 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. The exercise of this
power to correct grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the Government cannot be thwarted by
rules of procedure to the contrary or for the sake of the
convenience of one side. This is because the Court has the
bounden constitutional duty to strike down grave abuse of
discretion whenever and wherever it is committed. Thus,
notwithstanding the interlocutory character and effect of the
denial of the demurrers to evidence, the petitioners as the
accused could avail themselves of the remedy
of certiorari when the denial was tainted with grave abuse of
discretion. As we shall soon show, the Sandiganbayan as
the trial court was guilty of grave abuse of discretion when it
capriciously denied the demurrers to evidence despite the
absence of competent and sufficient evidence to sustain the
indictment for plunder, and despite the absence of the
factual bases to expect a guilty verdict.3
We reiterate the foregoing resolution, and stress that the
prohibition contained in Section 23, Rule 119 of the Rules of
Court is not an insuperable obstacle to the review by the
Court of the denial of the demurrer to evidence
through certiorari. We have had many rulings to that effect in
the past. For instance, in Nicolas v. Sandiganbayan,4the
Court expressly ruled that the petition for certiorari was the
proper remedy to assail the denial of the demurrer to
evidence that was tainted with grave abuse of discretion or
excess of jurisdiction, or oppressive exercise of judicial
authority.
Secondly, the State submits that its right to due process was
violated because the decision imposed additional elements
for plunder that neither ' Republic Act No. 7080 nor
jurisprudence had theretofore required, i.e., the identification
of the main plunderer, and personal benefit on the part of the
accused committing the predicate crime of raid on the public
treasury. The State complains that it was not given the
opportunity to establish such additional elements; that the
imposition of new elements fu1iher amounted to judicial
legislation in violation of the doctrine of separation of powers;
that the Court nitpicked on the different infirmities of the
information despite the issue revolving only around the
sufficiency of the evidence; and that it established all the
elements of plunder beyond reasonable doubt.
The State cites the plain meaning rule to highlight that the
crime of plunder did not require personal benefit on the part
of the raider of the public treasury. It insists that the definition
of raids on the public treasury, conformably with the plain
meaning rule, is the taking of public money through
fraudulent or unlawful means, and such definition does not
require enjoyment or personal benefit on the part of
plunderer or on the part of any of his co-conspirators for them
to be convicted for plunder.
The submissions of the State are unfounded.
The requirements for the identification of the main plunderer
and for personal benefit in the predicate act of raids on the
public treasury have been written in R.A. No. 7080 itself as
well as embedded in pertinent jurisprudence. This we made
clear in the decision, as follows:
A perusal of the information suggests that what the
Prosecution sought to show was an implied conspiracy to
commit plunder among all of the accused on the basis of
their collective actions prior to, during and after the implied
agreement. It is notable that the Prosecution did not allege
that the conspiracy among all of the accused was by express
agreement, or was a wheel conspiracy or a chain
conspiracy.
This was another fatal flaw of the Prosecution.
21
In its present version, under which the petitioners were
charged, Section 2 of Republic Act No. 7080 (Plunder Law)
states:
Section 2. Definition of the Crime of Plunder: Penalties. -
Any public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity,
business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through
a combination or series of overt criminal acts as described in
Section 1 (d) hereof in the aggregate amount or total value
of at least Fifty million pesos (₱50,000,000.00) shall be guilty
of the crime of plunder and shall be punished by reclusion
perpetua to death. Any person who participated with the said
public officer in the commission of an offense contributing to
the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised
Penal Code, shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests and
other incomes and assets including the properties and
shares of stocks derived from the deposit or investment
thereof forfeited in favor of the State. [As Amended by
Section 12, Republic Act No. 7659 (The Death Penalty Law)]
Section l(d) of Republic Act No. 7080 provides:
Section 1. Definition of terms. - As used in this Act, the term:
xxxx
d. "Ill-gotten wealth" means any asset, property, business
enterprise or material possession of any person within the
purview of Section two (2) hereof, acquired by him directly or
indirectly through dummies, nominees, agents, subordinates
and/or business associates by any combination or series of
the following means or similar schemes:
1. Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public
treasury;
 2. By receiving, directly or indirectly, any
commission, gift, share, percentage, kickbacks or
any/or entity in connection with any government
contract or project or by reason of the office or
position of the public officer concerned;
3. By the illegal or fraudulent conveyance or
disposition of assets belonging to the National
Government or any of its subdivisions, agencies or
instrumentalities or government-owned or controlled
corporations and their subsidiaries;
4. By obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other
form of interest or participation including the promise
of future employment in any business enterprise or
undertaking;
5. By establishing agricultural, industrial or
commercial monopolies or other combinations
and/or implementation of decrees and orders
intended to benefit particular persons or special
interests; or
6. By taking undue advantage of official positi0n,
authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense
and to the damage and prejudice
The law on plunder requires that a particular public officer
must be identified as the one who amassed, acquired or
accumulated ill-gotten wealth because it plainly states that
plunder is committed by any public officer who, by himself or
in connivance with members of his family, relatives by affinity
or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth
in the aggregate amount or total value of at least
₱50,000,000.00 through a combination or series of overt
criminal acts as described in Section l(d) hereof. Surely, the
law requires in the criminal charge for plunder against
several individuals that there must be a main plunderer and
her co-conspirators, who may be members of her family,
relatives by affinity or consanguinity, business associates,
subordim1tes or other persons. In other words, the allegation
of the wheel conspiracy or express conspiracy in the
information was appropriate because the main plunderer
would then be identified in either manner. Of course, implied
conspiracy could also identify the main plunderer, but that
fact must be properly alleged and duly proven by the
Prosecution.
This interpretation is supported by Estrada v.
Sandiganbayan, where the Court explained the nature of the
conspiracy charge and the necessity for the main plunderer
for whose benefit the amassment, accumulation and
acquisition was made, thus:
There is no denying the fact that the "plunder of an entire
nation resulting in material damage to the national economy"
is made up of a complex and manifold network of crimes. In
the crime of plunder, therefore, different parties may be
united by a common purpose. In the case at bar, the different
accused and their different criminal acts have a commonality
- to help the former President amass, accumulate or acquire
ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended
Information alleged the different participation of each
accused in the conspiracy. The gravamen of the conspiracy
charge, therefore, is not that each accused agreed to receive
protection money from illegal gambling, that each
misappropriated a portion of the tobacco excise tax, that
each accused ordered the GSIS and SSS to purchase
shares of Belle Corporation and receive commissions from
such sale, nor that each unjustly enriched himself from
commissions, gifts and kickbacks; rather, it is that each of
them, by their individual acts, agreed to participate, directly
or indirectly, in the amassing, accumulation and acquisition
of ill-gotten wealth of and/or for former President
Estrada. 5 [bold underscoring supplied for emphasis]
Indeed, because plunder is a crime that only a public official
can commit by amassing, accumulating, or acquiring ill-
gotten wealth in the aggregate amount or total value of at
least ₱50,000,000.00, the identification in the information of
such public official as the main plunderer among the several
individuals thus charged is logically necessary under the law
itself. In particular reference to Criminal Case No. SB-12-
CRM-0174, the individuals charged therein - including the
22
petitioners - were 10 public officials; hence, it was only
proper to identify the main plunderer or plunderers among
the 10 accused who herself or himself had amassed,
accumulated, or acquired ill-gotten wealth with the total
value of at least ₱50,000,000.00.
The phrase raids on the public treasury as used in Section 1
(d) of R. A. No. 7080 is itself ambiguous. In order to ascertain
the objective meaning of the phrase, the act of raiding the
public treasury cannot be divided into parts. This is to
differentiate the predicate act of raids on the public
treasury from other offenses involving property, like robbery,
theft, or estafa. Considering that R.A. No. 7080 does not
expressly define this predicate act, the Court has necessarily
resorted to statutory construction. In so doing, the Court did
not adopt the State's submission that personal benefit on the
part of the accused need not be alleged and shown because
doing so would have defeated the clear intent of the law
itself,6 which was to punish the amassing, accumulating, or
acquiring of ill-gotten wealth in the aggregate amount or total
value of at least ₱150,000,000.00 by any combination or
series of acts of misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury.
As the decision has observed, the rules of statutory
construction as well as the deliberations of Congress
indicated the intent of Congress to require personal benefit
for the predicate act of raids on the public treasury, viz.:
The phrase raids on the public treasury is found in Section 1
(d) of R.A. No. 7080, which provides:
Section l .Definition of Terms. – xxx
xxxx
d) Ill-gotten wealth means any asset, prope1iy, business
enterprise or material possession of any person within the
purview of Section Two (2) hereof, acquired by him directly
or indirectly through dummies, nominees, agents,
subordinates and/or business associates by any
combination or series of the following means or similar
schemes:
1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury;
xxxx
To discern the proper import of the phrase raids on the public
treasury, the key is to look at the accompanying
words: misappropriation, conversion,
misuse or malversation of public funds. This process is
conformable with the maxim of statutory
construction noscitur a sociis, by which the correct
construction of a particular word or phrase that is ambiguous
in itself or is equally susceptible of various meanings may be
made by considering the company of the words in which the
word or phrase is found or with which it is associated. Verily,
a word or phrase in a statute is always used in association
with other words or phrases, and its meaning may, therefore,
be modified or restricted by the latter.
To convert connotes the act of using or disposing of
another's property as if it were one's own; to
misappropriate means to own, to take something for one's
own benefit; misuse means "a good, substance, privilege, or
right used improperly, unforcsccably, or not as intended;"
and malversation occurs when "any public officer who, by
reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same or shall take or
misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public
funds, or property, wholly or partially." The common thread
that binds all the four terms together is that the public
officer used the property taken. Considering that raids on the
public treasury is in the company of the four other terms that
require the use of the property taken, the phrase raids on the
public treasury similarly requires such use of the property
taken. Accordingly, the Sandiganbayan gravely erred in
contending that the mere accumulation and gathering
constituted the forbidden act of raids on the public
treasury. Pursuant to the maxim of noscitur a sociis, raids on
the public treasury requires the raider to use the property
taken impliedly for his personal benefit.7
The Prosecution asserts that the Senate deliberations
removed personal benefit as a requirement for plunder. In
not requiring personal benefit, the Sandiganbayan quoted
the following exchanges between Senator Enrile and
Senator Tafiada, viz.:
Senator Enrile. The word here, Mr. President, "such public
officer or person who conspired or knowingly benefited".
One does not have to conspire or rescheme. The only
element needed is that he "knowingly benefited". A
candidate for the Senate for instance, who received a
political contribution from a plunderer, knowing that the
contributor is a plunderer and therefore, he knowingly
benefited from the plunder, would he also suffer the penalty,
Mr. President, for life imprisonment?
Senator Tafiada. In the committee amendments, Mr.
President, we have deleted these lines 1 to 4 and part of line
5, on page 3. But, in a way, Mr. President, it is good that the
Gentleman is bringing out these questions, I believe that
under the examples he has given, the Court will have to...
Senator Enrile. How about the wife, Mr. President, he may
not agree with the plunderer to plunder the country but
because she is a dutiful wife or a faithful husband, she has
to keep her or his vow of fidelity to the spouse. And, of
course, she enjoys the benefits out of the plunder. Would the
Gentleman now impute to her or him the crime of plunder
simply because she or he knowingly benefited out of the
fruits of the plunder and, therefore, he must suffer or he must
suffer the penalty of life imprisonment?
The President. That was stricken out already in the
Committee amendment.
Senator Tañada. Yes, Mr. President. Lines 1 to 4 and part of
line 5 were stricken out in the Committee amendment. But,
as I said, the examples of the Minority Floor Leader are still
worth spreading the Record. And, I believe that in those
examples, the Court will have just to take into consideration
all the other circumstances prevailing in the case and the
evidence that will be submitted.
23
The President. In any event, 'knowingly benefited' has
already been stricken off."
The exchanges between Senator Enrile and Senator Tañada
reveal, therefore, that what was removed from the coverage
of the bill and the final version that eventually became the
law was a person who was not the main plunderer or a co-
conspirator, but one who personally benefited from the
plunderers' action. The requirement of personal benefit on
the part of the main plunderer or his co-conspirators by virtue
of their plunder was not removed.
As a result, not only did the Prosecution fail to show where
the money went but, more importantly, that GMA and Aguas
had personally benefited from the same. Hence, the
Prosecution did not prove the predicate act of raids on the
public treasury beyond reasonable doubt. 8
Thirdly, the State contends that the Court did not appreciate
the totality of its evidence, particularly the different
irregularities committed in the disbursement of the PCSO
funds, i.e., the commingling of funds, the non-compliance
with LOI No. 1282, and the unilateral approval of the
disbursements. Such totality, coupled with the fact of the
petitioners' indispensable cooperation in the pilfering of
public funds, showed the existence of the conspiracy to
commit plunder among all of the accused.
The contention lacks basis.
As can be readily seen from the decision, the Court
expressly granted the petitioners' respective demurrers to
evidence and dismissed the plunder case against them for
insufficiency of evidence because:
x x x the Sandiganbayan as the trial court was guilty of grave
abuse of discretion when it capriciously denied the
demurrers to evidence despite the absence of competent
and sufficient evidence to sustain the indictment for plunder,
and despite the absence of the factual bases to expect a
guilty verdict. 9
Such disposition of the Court fully took into
consideration all the evidence adduced against the
petitioners. We need not rehash our review of the evidence
thus adduced, for it is enough simply to stress that the
Prosecution failed to establish the corpus delicti of plunder -
that any or all of the accused public officials, particularly
petitioner Arroyo, had amassed, accumulated, or acquired
ill-gotten wealth in the aggregate amount or total value of at
least ₱50,000,000.00.
Fourthly, in accenting certain inadequacies of the allegations
of the information, the Court did not engage in purposeless
nitpicking, and did not digress from the primary task of
determining the sufficiency of the evidence presented by the
State against the petitioners. What the Court thereby
intended to achieve was to highlight what would have been
relevant in the proper prosecution of plunder and thus
enable itself to discern and determine whether the evidence
of guilt was sufficient or not. In fact, the Court categorically
clarified that in discussing the essential need for the
identification of the main plunderer it was not harping on the
sufficiency of the information, but was only enabling itself to
search for and to find the relevant proof that unequivocally
showed petitioner Arroyo as the "mastermind" - which was
how the Sandiganbayan had characterized her participation
- in the context of the implied conspiracy alleged in the
information. But the search came to naught, for the
information contained nothing that averred her commission
of the overt act necessary to implicate her in the supposed
conspiracy to commit the crime of plunder. Indeed, the Court
assiduously searched for but did not find the sufficient
incriminatory evidence against the petitioners. Hence, the
Sandiganbayan capriciously and oppressively denied their
demurrers to evidence.
Fifthly, the State posits that it established at least a case for
malversation against the petitioners.
Malversation is defined and punished under Article 217 of
the Revised Penal Code, which reads thusly:
Article 217. Malversation of public funds or property;
Presumption of malversation. - Any public officer who, by
reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same or shall take or
misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public
funds, or property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of such funds
or property, shall suffer:
1. The penalty of prision correccional in its medium
and maximum periods, if the amount involved in the
misappropriation or malversation does not exceed
two hundred pesos.
2. The penalty of prision mayor in its minimum and
medium periods, if the amount involved is more than
two hundred pesos but does not exceed six
thousand pesos.
3. The penalty of prision mayor in its maximum
period to reclusion temporal in its minimum period, if
the amount involved is more than six thousand
pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium
and maximum periods, if the amount involved is
more than twelve thousand pesos but is less than
twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in
its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer
the penalty of perpetual special disqualification and a fine
equal to the amount of the funds malversed or equal to the
total value of the property embezzled.
The failure of a public officer to have duly forthcoming any
public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or
property to personal use. (As amended by RA 1060).
The elements of malversation are that: (a) the offender is an
accountable public officer; (b) he/she is responsible for the
24
misappropriation of public funds or property through intent or
negligence; and (c) he/she has custody of and received such
funds and property by reason of his/her office. 10
The information in Criminal Case No. SB-12-CRM-
017411 avers:
The undersigned Assistant Ombudsman and Graft
Investigation and Prosecution Officer III, Office of the
Ombudsman, hereby accuse GLORIA MACAPAGAL-
ARROYO, ROSARIO C. URIARTE, SERGIO O. VALENCIA,
MANUEL L. MORATO, JOSE R. TARUC V, RAYMUNDO T.
ROQUERO, MA. FATIMA AS. VALDES, BENIGNO B.
AGUAS, REYNALDO A. VILLAR and NILDA B. PLARAS, of
the crime of PLUNDER, as defined by, and penalized under
Section 2 of Republic Act (R.A.) No. 7080, as amended by
R.A. No. 7659, committed, as follows:
That during the period from January 2008 to June 2010 or
sometime prior or subsequent thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable
Court, accused GLORIA MACAPAGAL-ARROYO, then the
President of the Philippines, ROSARIO C. URIARTE, then
General Manager and Vice Chairman, SERGIO 0.
VALENCIA, then Chairman of the Board of Directors,
MANUEL L. MORA TO, JOSE R. TARUC V, RAYMUNDO
T. ROQUERO, MA. FATIMA AS. VALDES, then members of
the Board of Directors, BENIGNO B. AGUAS, then Budget
and Accounts Manager, all of the Philippine Charity
Sweepstakes Office (PCSO), REYNALDO A. VILLAR, then
Chairman, and NILDA B. PLARAS, then Head of
Intelligence/Confidential Fund Fraud Audit Unit, both of the
Commission on Audit, all public officers committing the
offense in relation to their respective offices and taking
undue advantage of their respective official positions,
authority, relationships, connections or influence, conniving,
conspiring and confederating with one another, did then and
there willfully, unlawfully and criminally 'amass,, accumulate
and/or acquire directly or indirectly, ill-gotten wealth in the
aggregate amount or total value of THREE HUNDRED
SIXTY FIVE MILLION NINE HUNDRED NINETY SEVEN
THOUSAND NINE HUNDRED FIFTEEN PESOS
(PHP365,997,915.00), more or less, through any or a
combination or a series of overt or criminal acts, or similar
schemes or means, described as follows:
(a) diverting in several instances, funds from the
operating budget of PCSO to its
Confidential/Intelligence Fund that could be
accessed and withdrawn at any time with minimal
restrictions, and converting, misusing, and/or
illegally conveying or transferring the proceeds
drawn from said fund in the aforementioned sum,
also in several instances, to themselves, in the guise
of fictitious expenditures, for their personal gain and
benefit;
(b) raiding the public treasury by withdrawing and
receiving, in several instances, the above-
mentioned amount from the
Confidential/Intelligence Fund from PCSO's
accounts, and or unlawfully transferring or
conveying the same into their possession and
control through irregularly issued disbursement
vouchers and fictitious expenditures; and
(c) taking advantage of their respective official
positions, authority, relationships, connections or
influence, in several instances, to unjustly enrich
themselves in the aforementioned sum, at the
expense of, and the damage and prejudice of the
Filipino people and the Republic of the Philippines.
CONTRARY TO LAW.
In thereby averring the predicate act of malversation, the
State did not sufficiently allege the aforementioned essential
elements of malversation in the information. The omission
from the information of factual details descriptive of the
aforementioned elements of malversation highlighted the
insufficiency of the allegations. Consequently, the State's
position is entirely unfounded.
Lastly, the petitioners insist that the consideration and
granting of the motion for reconsideration of the State can
amount to a violation of the constitutional prohibition against
double jeopardy because their acquittal under the decision
was a prior jeopardy within the context of Section 21, Article
III (Bill of Rights) of the 1987 Constitution, to wit:
Section 21. No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished by a
law and an ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for the same
act.
The insistence of the petitioners is fully warranted. Indeed,
the consideration and granting of the motion for
reconsideration of the State will amount to the violation of the
constitutional guarantee against double jeopardy.
The Court's consequential dismissal of Criminal Case No.
SB-12- CRM-0174 as to the petitioners for insufficiency of
evidence amounted to their acquittal of the crime of plunder
charged against them. In People v. Tan, 12the Court shows
why:
In People v. Sandiganbayan, this Com1 explained the
general rule that the grant of a demurrer to evidence
operates as an acquittal and is, thus, final and unappealable,
to wit:
The demurrer to evidence in criminal cases, such as the one
at bar, is ''filed after tile prosecution had rested its case," and
when the same is granted, it calls "for an appreciation of the
evidence adduced by the prosecution and its sufficiency to
warrant conviction beyond reasonable doubt, resulting in
a dismissal of the case on the merits, tantamount to an
acquittal of the accused." Such dismissal of a criminal case
by the grant of demurrer to evidence may not be appealed,
for to do so would be to place the accused in double
jeopardy. The verdict being one of acquittal, the case ends
there.
xxxx
The rule on double jeopardy, however, is not without
exceptions. In People v. Laguio, Jr., this Court stated that
25
the only instance when double jeopardy will not attach is
when the RTC acted with grave abuse of discretion, thus:
... The only instance when double ,jeopardy will not attach is
when the trial court acted with grave abuse of discretion
amounting to lack or excess of jurisdiction, such as where
the prosecution was denied the opportunity to present its
case or where the trial was a sham. However,
while certiorari may be availed of to correct an erroneous
acquittal, the petitioner in such an extraordinary proceeding
must clearly demonstrate that the trial court blatantly abused
its authority to a point so grave as to deprive it of its very
power to dispense justice. 13
The constitutional prohibition against placing a person under
double jeopardy for the same offense bars not only a new
and independent prosecution but also an appeal in the same
action after jeopardy had attached. 14 As such,
every acquittal becomes final immediately upon
promulgation and cannot be recalled for correction or
amendment. With the acquittal being immediately final,
granting the State's motion for reconsideration in this case
would violate the Constitutional prohibition against double
jeopardy because it would effectively reopen the prosecution
and subject the petitioners to a second jeopardy despite their
acquittal.
It is cogent to remind in this regard that the Constitutional
prohibition against double jeopardy provides to the accused
three related protections, specifically: protection against a
second prosecution for the same offense after acquittal;
protection against a second prosecution for the same
offense after conviction; and protection against multiple
punishments for the same offense. 15The rationale for the
three protections is expounded in United States v. Wilson: 16
The interests underlying these three protections arc quite
similar. When a defendant has been once convicted and
punished for a particular crime, principles of fairness and
finality require that he not be subjected to the possibility of
further punishment by being again tried or sentenced for the
same offense.Ex pa rte Lange, 18 Wall 163 (1874); In re
Nielsen, 131 U.S. 176 (1889). When a defendant has been
acquitted of an offense, the Clause guarantees that the State
shall not be permitted to make repeated attempts to convict
him,

"thereby subjecting him to embarrassment, expense and

ordeal, and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the possibility
that, even though innocent, he may be found guilty."

Green v. United States, 355 U.S. 184, 187-188 (1957).

The policy of avoiding multiple trials has been regarded as

so important that exceptions to the principle have been only
grudgingly allowed. Initially, a new trial was thought to be
unavailable after appeal, whether requested by the
prosecution or the defendant. See United States v.
Gibert, 25 F. Cas. 1287 (No. 15,204) (CCD Mass. 1834)
(Story, J.). It was not until 1896 that it was made clear that a
defendant could seek a new trial after conviction, even
though the Government enjoyed no similar right. United
States v. Ball, 163 U.S. 662. (Bold underscoring supplied for
emphasis)

WHEREFORE, the Court DENIES the motion for

reconsideration for lack of merit.

SO ORDERED.

26