G.R. No.

132816

February 5, 2002

SUSANA B. CABAHUG, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, SANDIGANBAYAN,
3rd Division, and OFFICE OF THE SPECIAL
PROSECUTOR, respondents.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for Certiorari and/or Prohibition
with Preliminary Injunction and/or Temporary
Restraining Order assailing two (2) Orders of the
Sandiganbayan in Criminal Case No. 23458,
quoted as follows:
Considering
that
the
"Motion
for
Redetermination of Existence of Probable Cause" is
in effect a second Motion for Reinvestigation and
that the facts alleged therein are evidentiary in
character which could be threshed out during
the trial of this case, said motion is hereby
denied. The arraignment of accused in Cebu shall
proceed as scheduled.
SO ORDERED.1
xxx

xxx

xxx

When this case was called, Prosecutors Cicero Jurado

and Jackielyn Ompaoco-Cortel appeared for the State
while Atty. Filemon Flores appeared for accused Susana
Cabahug. Again, the Court having already denied as of
yesterday, the Motion for Reconsideration, the Court
stands pat on its order and consequently denies the
motion at hand for lack of merit.
Let this case be reset for the arraignment of the
accused on March 20, 1998, at 2:00 oclock in the
afternoon.
Notify counsel accordingly.
SO ORDERED.2
The instant controversy stems from a negotiated
contract3 entered into by the Department of
Education, Culture and Sports (DECS) represented by
herein petitioner Susana Cabahug, by virtue of her
position as Department of Education, Culture and
Sports Director for Region XI , for the purchase of
46,000 units of Topaz Monobloc Armchairs from Rubber
Worth Industries Corporation (RWIC). It was stipulated
that the price of P495.00 per unit would cover costs for
transportation, handling, insurance and delivery of the
said chairs. The negotiated contract was approved by
Ricardo T. Gloria, then Secretary of the Department of
Education, Culture and Sports.
However, before the contract could be consummated,
another Department of Education, Culture and Sports
supplier, a certain Jesusa T. de la Cruz, assisted by her
lawyer, wrote a letter4 to Secretary Gloria stating her
objections to the said contract and seeking its
disapproval for the reason, inter alia, that the chairs
were patently overpriced, to the prejudice of the
government, and in violation of Republic Act No. 3019.
On January 2, 1996, counsel for Jesusa T. de la Cruz,
Atty. Meliton R. Reyes, wrote another letter5 to

Secretary Gloria informing the latter that the

negotiated contract for the purchase of the chairs was
overpriced by P5,000,000.00. This letter was
subsequently referred to Antonio E.B. Nachura,
Department of Education, Culture and Sports
Undersecretary for Legal Affairs, who required
petitioner Cabahug to comment on the said letter.
Petitioner Cabahug filed her comment on January 5,
1996, explaining therein the grounds why the purchase
should be given due course.
Thereafter, Department of Education, Culture and
Sports
Undersecretary
Nachura
issued
a
Memorandum6 addressed to Secretary Gloria, which
stated in part:
CONSIDERING all the foregoing, it is respectfully
recommended that the Honorable Secretary give due
course to the transaction aforesaid and, upon valid
proof of delivery of the arm chairs with tablets subject
of the contract, payment thereof be allowed.
Consequently, Atty. Reyes filed a complaint before the
Office of the Ombudsman-Mindanao, against petitioner
Cabahug, Secretary Gloria, Undersecretary Nachura,
and several others. All three (3) respondents submitted
their counter-affidavits. They claimed that the
negotiated contract was executed only after proper
consultation with the chairman of the Commission on
Audit (COA) and the Department of Education, Culture
and Sports resident auditor; that the bare allegations of
de la Cruz and Atty. Reyes can not overcome the
presumption of regularity in the performance of public
duty; that there was no overpricing because the
stipulated price was still lower than that offered by de
la Cruz; and that the latter cannot deny that she made
such an offer to petitioner Cabahug on June 20, 1995.
On August 28, 1996, Jovito A. Coresis, Jr., Graft
Investigation Officer (GIO) of the Office of the
Ombudsman-Mindanao issued a Resolution7 as follows:
WHEREFORE, FINDING PROBABLE CAUSE that violation
of Section 3 (e) has been committed and that
respondent Cabahug is probably guilty thereof, the
FILING of the enclosed Information with the
Sandiganbayan by the Office of the Special Prosecutor
is hereby recommended.
Finding insufficient evidence to hold respondents Gloria
and Nachura liable for the charge, let the instant case
against them be dismissed.
AS RESOLVED.
On September 13, 1996, the following Information
against petitioner Cabahug was filed before the
Sandiganbayan:
That sometime on or about 15 December 1995, in
Davao City, and within the jurisdiction of the Honorable
Court, the accused a public officer being then the
Regional Director of the Department of Education,
Culture and Sports (DECS), Region XI, Southern
Mindanao, Torres St., Davao City, with salary grade 29,
committing the offense in relation to her office and
taking advantage of the same, did there and then,
willfully, unlawfully and criminally, cause undue injury
to the government particularly the DECS and give
unwarranted benefits to Rubber Worth Industrial
Corporation (RWIC), a private enterprise engaged in
the sale of Plastic Monobloc Arm Chairs thru gross
inexcusable negligence in the performance of her
official duties, namely: as representative of the
Department of Education, Culture and Sports, by
entering into a contract with RWIC to purchase 46,000
units of Plastic Monobloc Arm Chairs at a unit cost of
P495.00 and a total cost of Twenty One Million Nine
Hundred Twenty One Thousand and Three Hundred

Pesos (P21,921,300.00) less tax without public bidding

and consummating the same without even verifying
the information given to her that the same unit could
be obtained from other stores at P300.00 each, thus
depriving the government of the overpriced amount of
Five Million (P5,000,000.00) more or less and of the
opportunity thru public bidding to obtain the best deal
at the lowest cost and at the same time giving
unwarranted benefit to RWIC.
CONTRARY TO LAW. 8
Unaware that an Information had already been filed
before the Sandiganbayan, petitioner Cabahug filed a
Motion before the Office of the Special Prosecutor
seeking a reconsideration of the August 28, 1996
Resolution issued by GIO Coresis, Jr. She reasoned
therein that the said Resolution was based on an
erroneous appreciation of the facts and evidence
adduced in the preliminary investigation; and that it
did not take into consideration relevant and material
evidence showing lack of malice or negligence on her
part. She assails the finding of probable cause against
her, while at the same time dismissing the complaint
against co-respondents Gloria and Nachura who, as her
superiors, found her action proper and even ordered
the consummation of the assailed transaction.
Petitioner claims that Jesusa de la Cruz was a
disgruntled Department of Education, Culture and
Sports supplier who wanted to supply the chairs
subject of the negotiated contract, that when she failed
to get petitioners cooperation, she filed the complaint
out of spite and with a desire for vengeance. Thus,
petitioner prayed for the dismissal of the complaint
against her.
Petitioner later learned of the filing of the Information
with the Sandiganbayan. On April 3, 1997, she filed a
Motion for Reinvestigation, praying that the Motion for
Reconsideration filed before the Office of the Special
Prosecutor be admitted by the graft court as her Motion
for Reinvestigation.9 The Third Division of the
Sandiganbayan issued an Order10 on April 17, 1997,
granting the Motion for Reconsideration.
Accordingly, the case was evaluated by the Office of
the Special Prosecutor. On December 8, 1997, Cicero D.
Jurado, Jr., Special Prosecution Officer (SPO) II assigned
to review the case, issued an Order11 recommending
that the case against petitioner Cabahug be dismissed,
there being no showing that she acted in bad faith or
with gross negligence.

While the Special Prosecutor, Leonardo P. Tamayo, and

his Deputy, Robert E. Kallos, concurred in the findings
and recommendation to dismiss the case, Ombudsman
Aniano Desierto did not agree. He rejected the Order of
Special Prosecution Officer II Jurado, noting thereunder
that:
Bad faith and/or gross inexcusable negligence is
deducible from the acts of the accused.

The Sandiganbayan denied petitioners Motion for Redetermination of Existence of Probable Cause and
treated the same as a second motion for
reconsideration which is not allowed by the Rules of
Court.
Petitioner Cabahug filed a Very Urgent Motion for
Reconsideration of the Order denying her earlier
motion for the re-determination of existence of
probable cause. She argued therein that the said
motion cannot be considered a second motion for
reconsideration since it was addressed to the court,
and not anymore to the Office of the Special Prosecutor
or the Ombudsman. She cited the Sandiganbayans
ruling in the case of People v. Rosario N. Lopez
(Criminal Case No. 20625) dismissing the case against
Lopez after giving due course to the latters "Motion to
Determine Probable Cause and to Dismiss the Case for
Lack Thereof."
At the hearing on February 25, 1998, the
Sandiganbayan denied the petitioners Motion for Redetermination of Existence of Probable Cause in open
court. A written Order (Annex "A") to that effect was
issued the following day. Petitioner Cabahug filed a
Very Urgent Motion for Reconsideration14 seeking a
reversal of the courts denial of the Motion for Redetermination of Existence of Probable Cause. On
February 27, 1998, the Sandiganbayan issued the
second assailed Order (Annex "A-1") denying the
petitioners Very Urgent Motion for Reconsideration.
Hence, the instant petition, which assails the said
Orders of the Sandiganbayan for having been issued
with grave abuse of discretion amounting to lack or
excess of jurisdiction. Petitioner argues that such
whimsical and arbitrary exercise of discretion
effectively denied her due process of law.
We find merit in the petition.
We are not unaware of the established principle that
the preliminary investigation proper, that is the
determination of whether or not there is reasonable
ground to believe that the accused is guilty of the
offense charged and, therefore, whether or not he
should be subjected to the expense, rigors and
embarrassment of trial, is the function of the
prosecution.15 The Ombudsman Act of 1989 (R.A. No.
6770) confers on the Office of the Special Prosecutor,
as an organic component of the Office of the
Ombudsman, the power to conduct preliminary
investigations and prosecute criminal cases within the
jurisdiction of the Sandiganbayan.16 It is the Office of
the Special Prosecutor, under the supervision of the
Office of the Ombudsman, that exercises the
investigatory and prosecutory powers granted by the
Constitution to the Office of the Ombudsman.17
In fact, the Sandiganbayan in this case deferred to the
authority of the prosecution when it granted petitioner
Cabahugs motion for reinvestigation, guided by the
rule that courts should not interfere with the
Ombudsmans exercise of his investigatory powers.18
The strict application of this rule, insofar as the
Ombudsman is concerned, is not a trivial matter. We
have time and again declared that:

Prosecution shall proceed.12

On February 19, 1998, petitioner Cabahug filed a
Motion for Re-determination of Existence of Probable
Cause,13 citing the divergence of opinion between the
Office of the Special Prosecutor and the Ombudsman.
She argued that the former, as the office mandated
under RA 6770, Section 11, Subsection 4 (a) to conduct
preliminary investigation and to prosecute criminal
cases within the jurisdiction of the Sandiganbayan,
found no probable cause to prosecute her.

The rule is based not only upon the respect for the
investigatory and prosecutory powers granted by the
Constitution to the Office of Ombudsman but upon
practicality as well. Otherwise, the functions of the
courts will be grievously hampered by innumerable
petitions assailing the dismissal of investigatory
proceedings conducted by the Office of the
Ombudsman with regard to complaints filed before it,
in much the same way that the courts would be
extremely swamped if they would be compelled to
review the exercise of discretion on the part of fiscals

or prosecuting attorneys each time they decide to file

an information in court or dismiss a complaint by a
private complainant.19
As in every rule, however, there are settled exceptions,
such as those enumerated in the landmark case of
Brocka v. Enrile.20 Thus, the courts may interfere with
the investigatory powers of the Ombudsman
a) To afford protection to the constitutional rights of the
accused;
b) When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of actions;
c) When there is a prejudicial question which is sub
judice;
d) When the acts of the officer are without or in excess
of authority;
e) Where the prosecution is under an invalid law,
ordinance or regulation;
f) When double jeopardy is clearly apparent;
g) Where the court has no jurisdiction over the offense;
h) Where it is a case of persecution rather than
prosecution;
i) Where the charges are manifestly
motivated by the lust for vengeance;

false

and

j) Where there is clearly no prima facie case against

the accused and a motion to quash on that ground has
been denied; and
k) Preliminary injunction has been issued by the
Supreme Court to prevent the threatened unlawful
arrest of petitioners.
Thus, in the case of Garcia-Rueda v. Pascasio,21 we
held that:
While the Ombudsman has the full discretion to
determine whether or not a criminal case should be
filed, this Court is not precluded from reviewing the
Ombudsmans action when there is an abuse of
discretion, in which case Rule 65 of the Rules of Court
may exceptionally be invoked pursuant to Section 1,
Article VIII of the 1987 Constitution. Accordingly, where
the finding of the Ombudsman as to the existence of
probable cause is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction,
We have held that while there is no appeal, the
aggrieved party may file a petition for certiorari under
Rule 65.22 (Underscoring ours)
The instant case is not without parallel in recent
jurisprudence. In the case of Venus v. Desierto,23
petitioner Mayor Eriberto Venus, after a flip-flopping of
findings and resolutions of the Ombudsman, Deputy
Ombudsman, and Special Prosecutor, was charged with
violation of Section 3, of R.A. No. 3019 before the
Sandiganbayan.
Upon a petition for certiorari with this Court, we
sustained petitioner Venuss position that the facts of
the case do not make out a prima facie case for
violation of Section 3 (e) of R.A. No. 3019.
The case at bar likewise presents facts and issues that
clearly show the divergent positions in the Office of the
Ombudsman.
Given
the
similar
facts
and
circumstances surrounding the Venus case and the

instant controversy, we reiterate herein our finding that

the Ombudsman committed grave abuse of discretion.
Contrary to the Ombudsmans ruling that bad faith on
the part of petitioner was deducible, good faith is
always presumed.24 Therefore, he who charges
another with bad faith must prove it. In other words,
the Office of the Ombudsman should determine with
certainty the facts indicative of bad faith. However, the
records show that the Office of the Ombudsman was
clearly uncertain of its position on the matter of
existence of bad faith on the part of petitioner
Cabahug. SPO II Jurado, Jr., in his Order dated
December 8, 199725 declared:
There is nothing in the records that show Cabahug
acted in bad faith. Neither was there gross negligence.
Cabahug has shown extra care and showed it in fully
considering the consequences insofar as to the
government she has sworn to serve and, most of all, to
the schoolchildren she has sworn to protect.
This conclusion of the reviewing officer was concurred
in by two (2) of his superiors, Deputy Special
Prosecutor Kallos, and Special Prosecutor Tamayo.
It is apparent that the above conclusion was not
arrived at haphazardly by the reviewing officer. The
question of whether or not there was bad faith or gross
negligence on the part of petitioner can only be
resolved by examining the documents pertaining to the
assailed negotiated contract, as well as the pleadings
of the parties involved.
Way back in 1995, the amount of P65,222,000.00 had
been appropriated in the General Appropriations Act for
the purchase of elementary grade desks for
Department of Education, Culture and Sports Region XI.
An offer to supply desks/armchairs made of plastic and
metal was made by Jofel Metal Industries, the sole
manufacturer of said items. Consequently, petitioner
Cabahug wrote to the Regional Director of the
Commission on Audit (COA), asking for an opinion on
whether or not the desks/armchairs could be
purchased by negotiated contract.26 The COA
recommended that the purchase be made by
competitive public bidding so that other manufacturers
could participate.27
Accordingly, an Invitation to Bid dated September 25,
1995 was prepared and approved by petitioner
Cabahug, and the same was published in the Philippine
Daily Inquirer.28 A second Invitation to Bid amending
the previous schedule was issued on October 11,
1995.29 A week later, another Bid Bulletin was issued
informing the prospective bidders that the scheduled
bidding was indefinitely postponed as a result of
several Department of Education, Culture and Sports
Memoranda addressed to all Department of Education,
Culture and Sports Regional Directors relative to the
purchase of grade school desks and chairs.
On November 24, 1995, Department of Education,
Culture and Sports Undersecretary Nachura issued a
Memorandum addressed to Department of Education,
Culture and Sports Secretary Gloria concerning the
procurement of school desks and chairs for calendar
year 1995.30 He cited therein Executive Order No. 301,
Section 1, allowing and providing guidelines for
negotiated contracts for furnishing of supplies and
materials under specific situations, such as:
x x x x x x x x x;

(c) Whenever the supplies are to be used in connection

with a project or activity which cannot be delayed
without causing detriment to the public service;
(d) Whenever the materials are sold by an exclusive
distributor or manufacturer who does not have
subdealers selling at lower prices and for which no
suitable substitute can be obtained elsewhere at more
advantageous terms to the government;
x x x x x x x x;
(f) In cases where it is apparent that the requisition of
the needed supplies thru negotiated purchase is most
advantageous to the government to be determined by
the Department Head concerned x x x.
Undersecretary Nachura also stated therein that proper
consultation had already been made with the chairman
of the COA, thereby recommending to Secretary Gloria
that the latter exercise his authority to enter into a
negotiated contract, for the following reasons:
1) The 1995 budget for this purpose has been released
and unless the same is obligated before the year ends
it will be reverted to the general fund;
2) Negotiated contract is deemed more advantageous
to the government in terms of savings from publication
expenses, time constraints in the preparation of
documents, evaluation of bids, and the pre-post
qualification requirement for public bidding;
3) Competitive public bidding could result in an
exercise in futility considering that the fair price has
already been established and announced and
therefore, a bid lower than the established price could
not be expected; that there are quite a number of
chairs and desks that passed the durability test and
hence, the difficulty if not the impossibility of these
items of varied quality, size and make to be the subject
of a public bidding; and that bidders are expected to
concentrate on their own prototype as approved by the
PBAC which could result in a failure of bidding as there
will only be one bidder (owner) for each item and
negate the very essence of competition in public
bidding.31
Undersecretary Nachura thereby recommended the
following procedure:
1) Negotiated contract shall be executed by and
between the Regional Director and the Contractor
subject to the approval of the Secretary;
2) Duly accomplished Purchase Orders and Requisition
and Issue Vouchers shall be forwarded to this Office for
approval, together with a statement of allocation or
distribution
of
the
ordered
chairs/desks
per
division/district;
3) If possible, efforts should be exerted to reduce the
prices that were approved and announced in previous
DECS Orders and Memorandum from USEC A.
Clemente;
4) Payment of the duly delivered, inspected and
accepted armchairs and graders desks shall be
effected by the Regional Office by way of duly
supported disbursement vouchers, and checks
corresponding to the approved vouchers, processed
pursuant to accounting and auditing rules and
regulations and consistent to the provisions of
negotiated contract;

5) As much as possible, items that passed

durability tests shall be considered for purchase at
sound discretion of the Director taking into account
kind of desks/chairs that are more adaptable to
place and the capability of the contractor;

the
the
the
the

6) All issuances, directives and DECS Orders that are

inconsistent with this memorandum shall be deemed
repealed or modified accordingly;
7) This method of procurement shall not be considered
a precedent for future transactions.32
The above recommendations were approved by
Department of Education, Culture and Sports Secretary
Gloria. On December 4, 1995, he issued a
memorandum33 to all Regional Directors, amending
the earlier memorandum, as follows:
In order to effect this arrangement, the following
procedure is further recommended:
1) Negotiated contract shall be executed by and
between the Regional Director and the Contractor to
the extent of the authority granted to the Regional
Directors.
2) Purchase Orders and Requisition and Issue Vouchers
together with a statement of allocation or distribution
of the ordered chairs/desk per division/district shall be
duly accomplished as supporting documents to the
negotiated contract. (Underscoring ours)
These documents indubitably show that petitioner did
not enter into the questioned negotiated contract on
her own, without regard to the proper procedure or in
contravention of the established policies and
guidelines. The authority to enter into a negotiated
contract was expressly allowed, even recommended,
by the Department of Education, Culture and Sports
Secretary himself. Had there been no such direct
instruction from her superiors, petitioner Cabahug
surely would not have entered into the negotiated
contract. It is evident from her official acts that she
was careful and prudent, making the proper inquiries
from the appropriate offices, and abiding by the
directives issued by the Department of Education,
Culture and Sports Secretary and Undersecretary.
In the Joint Counter-Affidavit34 of Department of
Education, Culture and Sports Secretary Gloria and
Undersecretary Nachura, it is admitted that the latter
recommended giving due course to the negotiated
contract executed between petitioner Cabahug and
RWIC, and expressly allowed payment upon valid proof
of delivery of the armchairs. They denied that there
was bias as alleged by the complainant since the
"primordial consideration was the needs and
convenience of the pupils in the region."35 They
further averred that "the recommendation to give due
course to the transaction was not made in a whimsical
and capricious manner."36 They also manifested that
all the parties were given ample opportunity to air and
substantiate their charges, and yet, the complainants
bare charges failed to convince that any anomaly had
been committed or that the negotiated contract was
grossly prejudicial to the government. Consequently,
as a party to the said agreement, the Department of
Education, Culture and Sports was duty-bound to
comply with its obligation in good faith.

After the investigation conducted by the Department of

Education, Culture and Sports in response to the lettercomplaint, it upheld the official acts of petitioner. The

Department of Education, Culture and Sports found

that there was no truth to the allegation that the chairs
were overpriced to the detriment of the government,
and that the complainants motives were highly
suspect. RWIC was an accredited supplier for armchairs
and was the exclusive distributor for COFTA Mouldings
Corporation, the manufacturer of "Topaz" plastic school
armchairs with writing tablet. The price stipulated in
the negotiated contract could not be assailed. This
matter was adequately explained by the Department of
Education, Culture and Sports officials, thus:
The seeming disparity in the prices of single item
purchases is explained in Annex "5" hereof. The single
items purchased were obviously old stocks sold by the
manufacturer to various dealers before November 15,
1995, the date when exclusive distributorship was
granted by Cofta in favor of RWIC. As such, the
previous dealers could sell them for prices lower than
the P450.00 unit price at which RWIC has offered to
DECS. But after November 15, 1995, the only entity
that can afford to supply the plastic armchair
requirements of DECS is the exclusive distributor,
RWIC. Stated otherwise, the store that sold 1 unit of
the product to Ms. De la Cruz for P390.00 cannot
supply 1,000 units for the simple reason that it could
no longer have access to these armchairs. How then
can it supply 40,000 units to satisfy the requirements
of DECS? This notwithstanding, the unit price of
P495.00 is still very much lower than the armchairs
being sold by Ms. De la Cruz.37
The complainants motives were patently dubious.
They were found to have lied in their assertion that Ms.
De la Cruz could not have made an offer to supply the
armchairs because she only supplies school desks. It is
documented that her company, CKL, made a written
offer to petitioner Cabahug dated June 20, 1995, at a
higher price. It is apparent that the complaint was
instigated
by
a
"distraught
and
disgruntled
businesswoman" seeking to harass the respondents.
In fine, Secretary Gloria and Undersecretary Nachura
argued
that
their
exoneration,
under
the
circumstances, is inevitable. The elements of the crime
punished under section 3 (e) of R.A. 3019 are clearly
not attendant in this case, for there was no partiality,
bad faith, inexcusable neglect, and injury to the
government resulting from the acts of the respondents.
It is worth noting that while Secretary Gloria and
Undersecretary
Nachura
were
absolved
of
responsibility, all the blame fell on petitioner Cabahug
who was just acting pursuant to her superiors
memoranda. While it may be true that they merely
relied on the representation of petitioner Cabahug,
they had every opportunity to investigate, correct, and
sanction the latter if she had violated the anti-graft law
and Department of Education, Culture and Sports and
COA rules of procedure. As it were, they ratified all of
petitioner Cabahugs actions and adopted her defenses
as their own. It is rather odd, if not unfair, that after
having declared Secretary Gloria and Undersecretary
Nachura innocent, the Ombudsman would bring the
petitioner to court, given the circumstances. If these
officials have command responsibility, and they are
exonerated upon investigation, there is no reason to
hold the subordinate who was just following the
formers orders and directives probably guilty of the
crime charged.
Under Section 3(e) of R.A. 3019, as amended, bad faith
alone on the part of petitioner is not sufficient to make
her liable. Such bad faith must be evident. Nowhere in
the records of this case is such bad faith evident. We
therefore agree with the findings of SPO II Jurado, Jr.
that there is nothing in the records that show Cabahug
acted in bad faith, or even with gross inexcusable
negligence. In the absence of evident bad faith, she

cannot be held liable for violation of Section 3(e) of

R.A. 3019, as amended.
Clearly, any further prosecution of petitioner is pure
and simple harassment.38 It is imperative that she be
spared from the trauma of having to go to trial on such
a baseless complaint. The evidence is insufficient to
sustain a prima facie case and it is evident that no
probable cause exists to form a sufficient belief as to
the petitioners guilt.39
Judicial power of review includes the determination of
whether there was grave abuse of discretion
amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the government.40
Under this definition, the Sandiganbayan should have,
considering the divergent positions in the Office of the
Ombudsman, granted the motion for redetermination
of probable cause after reviewing the evidence thus far
submitted, and dismissed the case against petitioner.
Thus, respondent court committed grave abuse of
discretion in allowing the case to proceed.
Having thus concluded, the only remaining issue is
whether or not this Court can direct the Sandiganbayan
to dismiss Criminal Case No. 23458.
Certainly, this will not be the first time that we order
the dismissal of a case filed before the Sandiganbayan
for want of probable cause.1wphi1 In the case of
Fernando v. Sandiganbayan,41 we justified our action
as follows:
We emphasize at this point that the Court has a policy
of non-interference in the Ombudsmans exercise of his
constitutionally mandated powers. The overwhelming
number of petitions brought to us questioning the filing
by the Ombudsman of charges against them are
invariably denied due course. Occasionally, however,
there are rare cases when, for various reasons there
has been a misapprehension of facts, we step in with
our review power. This is one such case.
It may also be stressed at this point that the approach
of the Courts to the quashing of criminal charges
necessarily differs from the way a prosecutor would
handle exactly the same question. A court faced with a
fifty-fifty proposition of guilt or innocence always
decides in favor of innocence. A prosecutor, conscious
that he represents the offended party, may decide to
leave the problem to the discretion of the court.
In the habeas corpus case of Juan Ponce Enrile v. Judge
Salazar, et al., (186 SCRA 217, 244 [1990]), the
situation was more clear-cut, thus prompting the
undersigned ponente to state:
"All courts should remember that they form part of an
independent judicial system; they do not belong to the
prosecution service. A court should never play into the
hands of the prosecution and blindly comply with its
erroneous manifestations. Faced with an information
charging a manifestly non-existent crime, the duty of a
trial court is to throw it out. Or at the very least and
where possible, make it conform to the law."
(Underscoring ours)
While it is the function of the Ombudsman to
determine whether or not the petitioner should be
subjected to the expense, rigors and embarrassment of
trial, he cannot do so arbitrarily. This seemingly
exclusive and unilateral authority of the Ombudsman
must be tempered by the Court when powers of
prosecution are in danger of being used for
persecution. Dismissing the case against the accused
for palpable want of probable cause not only spares
her the expense, rigors and embarrassment of trial, but
also prevents needless waste of the courts time and
saves the precious resources of the government.

We cannot overemphasize the admonition to agencies

tasked with the preliminary investigation and
prosecution of crimes that the very purpose of a
preliminary investigation is to shield the innocent from
precipitate, spiteful and burdensome prosecution. They
are duty-bound to avoid, unless absolutely necessary,
open and public accusation of crime not only to spare
the innocent the trouble, expense and torment of a
public trial, but also to prevent unnecessary expense
on the part of the State for useless and expensive
trials. Thus, when at the outset the evidence cannot
sustain a prima facie case or that the existence of
probable cause to form a sufficient belief as to the guilt
of the accused cannot be ascertained, the prosecution
must desist from inflicting on any person the trauma of
going through a trial.42
WHEREFORE, the instant petition is GRANTED. For want
of reasonable ground to believe that petitioner violated
Section 3(e) of R.A. No. 3019, as amended, or for
absence
of
probable
cause
therefor,
the
Sandiganbayan is ORDERED to forthwith DISMISS
Criminal Case No. 23458, entitled People of the
Philippines versus Susana B. Cabahug.

arrest, petitioner was transferred on August 4, 1999

from the Provincial PNP Headquarters to the Provincial
Jail.
On August 5, 1999, Judge Calvan, after conducting a
"preliminary investigation in accordance with Sec. 6 (b)
of Rule 112 of the Rules on Criminal Procedure," issued
a resolution forwarding the records of the case to the
Office of the Provincial Prosecutor of Ilocos Norte for
appropriate action.3 In addition to the records
transmitted by Judge Calvan, there was also submitted
to the Provincial Prosecutor of Ilocos Norte an NBI
"Parallel Investigation" Report dated August 13, 1999,
"pursuant to the request for Investigative Assistance
made by Dra. Thelma Lasmarias Benemerito, wife of
the victim,"4 with several annexed affidavits, sworn
statements and documents.
Subsequently, on August 19, 1999, petitioner received
a subpoena dated August 18, 1999 from the Provincial
Prosecutor of Ilocos Norte directing him to file his
counter-affidavit and the affidavits of his witnesses as
well as other supporting documents within ten (10)
days from receipt thereof.5 This petitioner did the
following day, August 20, 1999.

No pronouncement as to costs.
SO ORDERED.
G.R. No. 143802

November 16, 2001

REYNOLAN
T.
SALES, petitioner,
vs.
SANDIGANBAYAN (4th Division), OMBUDSMAN,
PEOPLE OF THE PHILIPPINES and THELMA
BENEMERITO, respondents.
YNARES-SANTIAGO, J.:
This Court is tasked to resolve the issue of whether or
not the proper procedure was followed and whether
petitioner's constitutional rights were safeguarded
during the preliminary investigation conducted before
the filing of an Information for Murder against him and
the issuance of a warrant for his arrest by respondent
Sandiganbayan. Petitioner asserts that the Information
was hastily filed and the warrant for his arrest was
improper because of an incomplete preliminary
investigation. Respondents say otherwise.

While the foregoing proceedings were ongoing,

petitioner filed a petition for habeas corpus with the
Court of Appeals docketed as CA-G.R. SP No. 54416,
alleging that: 1.] the order and warrant of arrest for
which petitioner was detained is null and void for being
issued by respondent judge who was disqualified by
law from acting on the case by reason of his affinity to
private respondent Thelma Benemerito; and 2.] the
preliminary examination by respondent judge was so
illegally and irregularly conducted as to oust the said
judge of jurisdiction over the case.
In a Decision dated November 18, 1999,6 the appellate
court granted the petition for habeas corpus and
ordered the release of petitioner from detention subject
to the outcome of the proper preliminary investigation.
In granting the petition, the Court of Appeals reasoned,
inter alia, that:
I
It is uncontroverted that respondent Judge is a
relative within the third civil degree of affinity
of private respondent Thelma Benemerito.
Respondent judge is married to Susana
Benemerito-Calvan, whose father is a brother
of the victim.

The pertinent factual antecedents are matters of

record or are otherwise uncontroverted.
On August 2, 1999, petitioner, the incumbent town
mayor of Pagudpud, Ilocos Norte, fatally shot the
former mayor and his political rival, Atty. Rafael
Benemerito, in an alleged shootout in Barangay
Caparispisan of said municipality after a heated
altercation between them. After the shooting incident,
petitioner surrendered and placed himself under the
custody of the municipal police then asked that he be
brought to the Provincial PNP Headquarters in Laoag
City.

Section 1, Rule 137 of the Rules of Court

disqualifies a judge from sitting in a case in
which he is related to either party within the
sixth degree of consanguinity or affinity. This
disqualification is mandatory, unlike an
inhibition which is discretionary. It extends to
all proceedings, not just to the trial as
erroneously contended by respondent judge.
Even Canon 3.12 of the Code of Judicial
Conduct mandates that a judge shall take no
part in a proceeding where the judge's
impartiality might be reasonably questioned,
as when he is "related by consanguinity or
affinity to a party litigant within the sixth
degree." Due process likewise requires hearing
before an impartial and disinterested tribunal
so that no judge shall preside in a case in
which he is not wholly free, disinterested,
impartial and independent.7

The next day, August 3, 1999, Police Chief Inspector

Crispin Agno and private respondent Thelma
Benemerito, wife of the victim, filed a criminal
complaint for Murder1 against petitioner at the
Municipal Circuit Trial Court of Bangui, Ilocos Norte,
Branch 127, presided by Judge Melvin U. Calvan.
Judge
Calvan
then
conducted
a
preliminary
examination of the witnesses, in accordance with
Section 6 (b), Rule 112 of the Rules on Criminal
Procedure, found "the existence of probable cause,"
and thereafter issued an order dated August 3, 1999
for the issuance of a warrant for the arrest of petitioner
with no bail recommended.2 By virtue of the warrant of

xxx
II

xxx

xxx

The preliminary examination conducted by

respondent Judge does not accord with the
prevailing rules. He did it under the old rules,
where the preliminary investigation by the
municipal judge has two stages: (1) the
preliminary examination stage during which
the investigating judge determines whether
there is reasonable ground to believe that an
offense has been committed and the accused
is probably guilty thereof, so that a warrant of
arrest may be issued and the accused held for
trial; and (2) the preliminary investigation
proper where the complaint or information is
read to the accused after his arrest and he is
informed of the substance of the evidence
adduced against him, after which he is allowed
to present evidence in his favor if he so
desires. Presidential Decree 911 (further
amending Sec. 1, R.A. 5180, as amended by
P.D. 77) upon which the present rule is based,
removed the preliminary examination stage
and integrated it into the preliminary
investigation proper. Now the proceedings
consists of only one stage.8
Respondent Judge did not conduct the requisite
investigation prior to issuance of the arrest
warrant. The Rules require an examination in
writing under oath in the form of searching
questions and answers.9 The statements of
witnesses were not sworn before him but
before the Provincial Prosecutor. The purported
transcript of stenographic notes do not bear
the signature of the stenographer.
Moreover, he did not complete the preliminary
investigation. He claimed to have examined
only the witnesses of the complainant. He
issued a Resolution and forwarded the records
to the Provincial Prosecutor without giving the
accused (petitioner) an opportunity to submit
counter- affidavits and supporting documents.10
While it is true that the usual remedy to an
irregular preliminary investigation is to ask for
a new preliminary investigation, such normal
remedy would not be adequate to free
petitioner from the warrant of arrest which
stemmed from that irregular investigation. The
Provincial Prosecution has no power to recall
the warrant of arrest.
Meanwhile, after receipt of the records of the case from
Judge Calvan as well as petitioner-accused's counteraffidavits, the Ilocos Norte Provincial Prosecutor,
instead of conducting a preliminary investigation of his
own, merely forwarded the said records to the
Ombudsman for the latter to conduct the same.
It appears that petitioner was only apprised of the
foregoing inaction on the case by the Provincial
Prosecutor when he received on September 10, 1999 a
Memorandum dated September 2, 1999,11 filed by
private respondent's counsel, requesting that the case,
I.S. No. 99-548, "be remanded to Office of the
Ombudsman for preliminary investigation and,
thereafter, for the prosecution of the appropriate
indictments before the Sandiganbayan."12
On January 27, 2000, petitioner received a notice from
the Ombudsman directing him to file his counteraffidavits. Considering that petitioner had already
submitted his counter-affidavits to the Ilocos Norte
Provincial Prosecutor as far back as August 20, 1999,
he found the directive superfluous and did not act on it.
On May 25, 2000, Graft Investigation Officer II Cynthia
V. Vivar issued a Resolution13 recommending the filing
of an Information for Murder against petitioner and four

others14 before
the
Sandiganbayan.
The
recommendation was approved by the Ombudsman on
June 16, 2000.15
It appears that petitioner belatedly received a copy of
the foregoing Resolution of the graft investigation
officer only on June 21, 2000, and because he was thus
effectively prevented from seeking a reconsideration
thereof, he then filed a Motion To Defer Issuance Of
Warrant Of Arrest pending determination of probable
cause dated June 22, 2000. 16 The motion was denied by
Sandiganbayan's Fourth Division in the challenged
Resolution of July 13, 2000.17
Owing to the urgency of the matter, petitioner opted to
directly resort to this recourse eschewing the filing of a
motion for reconsideration on the grounds that
(A) THE SANDIGANBAYAN DENIED MAYOR
SALES HIS RIGHT TO DUE PROCESS WHEN IT
RULED HIM TO HAVE NO STANDING TO OBJECT
TO THE ISSUANCE OF A WARRANT FOR HIS
ARREST SINCE HE HAS NOT SUBMITTED TO ITS
CUSTODY.
(B) THE SANDIGANBAYAN DENIED MAYOR
SALES HIS RIGHT TO DUE PROCESS WHEN IT
ISSUED A WARRANT FOR HIS ARREST ON THE
BASIS OF AN INCOMPLETE PRELIMINARY
INVESTIGATION.
(C) THE OMBUDSMAN DENIED MAYOR SALES
HIS RIGHT TO DUE PROCESS WHEN IT
HURRIEDLY FILED AN INFORMATION FOR
MURDER
AGAINST
HIM
WITHOUT
SCRUTINIZING, OR EVEN ONLY READING, ALL
THE EVIDENCE BEFORE HIM AND WITHOUT
CALLING FOR PRODUCTION OF THE CRITICAL
PHYSICAL EVIDENCE.
(D) NOT ONLY DID THE SANDIGANBAYAN
GRAVELY ABUSE ITS DISCRETION WHEN IT
RELIED ON AN INCOMPLETE PRELIMINARY
INVESTIGATION
CONDUCTED
BY
THE
OMBUDSMAN BUT IT FURTHER AGGRAVATED
THIS GRAVE ABUSE WHEN IT OMITTED
ALTOGETHER
TO
CONDUCT
ITS
OWN
INDEPENDENT REVIEW OF THE EVIDENCE OF
PROBABLE CAUSE.
The primordial question to be resolved in this
controversy is whether or not the Ombudsman followed
the proper procedure in conducting a preliminary
investigation and, corollarily, whether or not petitioner
was afforded an opportunity to be heard and to submit
controverting evidence.
As
this
Court
pointed
out
in Duterte
v.
Sandiganbayan,18 "[t]he purpose of a preliminary
investigation or a previous inquiry of some kind, before
an accused person is placed on trial, is to secure the
innocent against hasty, malicious and oppressive
prosecution and to protect him from an open and
public accusation of a crime, from the trouble,
expenses and anxiety of a public trial. 19 It is also
intended to protect the state from having to conduct
useless and expensive trials. 20 While the right is
statutory rather than constitutional in its fundament, it
is a component part of due process in criminal justice.
The right to have a preliminary investigation conducted
before being bound over to trial for a criminal offense
and hence formally at risk of incarceration or some
other penalty, is not a mere formal or technical right; it
is a substantive right. To deny the accused's claim to a
preliminary investigation would be to deprive him of
the full measure of his right to due process."21
Although a preliminary investigation is not a trial and is
not intended to usurp the function of the trial court, it

is not a casual affair. The officer conducting the same

investigates or inquires into the facts concerning the
commission of the crime with the end in view of
determining whether or not an information may be
prepared against the accused. Indeed, preliminary
investigation is in effect a realistic judicial appraisal of
the merits of the case. Sufficient proof of the guilt of
the accused must be adduced so that when the case is
tried, the trial court may not be bound as a matter of
law to order an acquittal. A preliminary investigation
has been called a judicial inquiry. It is a judicial
proceeding. An act becomes a judicial proceeding when
there is an opportunity to be heard and for the
production of and weighing of evidence, and a decision
is rendered thereon.22

Upon a subsequent re-assessment of the

evidence as a consequence of petitioner's
motion for reconsideration, another Special
Prosecution Officer . . . found that petitioner
had not violated Sec. 3 (e) of R.A. No. 3019, as
amended, he thus, recommended dismissal of
the case for want of probable cause and the
filing of the corresponding manifestation to
inform the Sandiganbayan of the result of the
motion for reconsideration. In this instance the
Special Prosecutor himself concurred with the
finding. However, the Ombudsman disapproved
the recommendation as he found that probable
cause existed but opted to "allow the court to
find absence of bad faith."

The authority of a prosecutor or investigating officer

duly empowered to preside or to conduct a preliminary
investigation is no less than a municipal judge or even
a regional trial court judge. While the investigating
officer, strictly speaking, is not a "judge" by the nature
of his functions, he is and must be considered to be a
quasi-judicial
officer
because
a
preliminary
investigation is considered a judicial proceeding. 23 A
preliminary
investigation
should
therefore
be scrupulously conducted so that the constitutional
right to liberty of a potential accused can be protected
from any material damage.24

This marginal note of the Ombudsman simply

meant that he believed that petitioner was in
bad faith. However, good faith is always
presumed and the Chapter on Human Relations
of the Civil Code directs every person, inter
alia, to observe good faith which, according to
the Commission, springs from the foundation of
good conscience. Therefore, he who charges
another with bad faith must prove it. In this
sense, the Ombudsman should have first
determined the facts indicative of bad faith. On
the basis alone of the finding and conclusion of
Special Prosecution Officer III Victor Pascual,
with which the Special Prosecutor concurred,
there was no showing of bad faith on the part
of petitioner. It was, therefore, error for the
Ombudsman to "pass the buck", so to speak, to
the Sandiganbayan to find "absence of bad
faith."

Indeed, since a preliminary investigation is designed to

screen cases for trial, only evidence may be
considered. While even raw information may justify the
initiation of an investigation, the stage of preliminary
investigation can be held only after sufficient evidence
has been gathered and evaluated warranting the
eventual prosecution of the case in court. 25 In other
words
. . . it is not enough that the preliminary
investigation is conducted in the sense of
making sure that a transgressor shall not
escape
with
impunity.
A
preliminary
investigation serves not only the purposes of
the State. More important, it is a part of the
guarantee of freedom and fair play which are
the birthrights of all who live in our country. It
is therefore imperative upon the fiscal or the
judge, as the case may be, to relieve the
accused from the pain of going through a trial
once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that
no probable cause exists to form a sufficient
belief as to the guilt of the accused. Although
there is no general formula or fixed rule for the
determination of probable cause since the
same must be decided in the light of the
conditions obtaining in given situations and its
existence depends to a large degree upon the
finding or opinion of the judge conducting the
examination, such a finding should not
disregard the facts before the judge nor run
counter to the clear dictates of reason.26
Measured vis-a-vis the foregoing legal yardsticks, we
hold that the proper procedure in the conduct of the
preliminary investigation was not followed, for the
following reasons:
First, the records show that the supposed preliminary
investigation was conducted in installments by at least
three (3) different investigating officers, none of
whom completed the preliminary investigation. There
was not one continuous proceeding but rather a case
of passing the buck, so to speak, the last one being the
Ombudsman hurriedly throwing the buck to the
Sandiganbayan. This practice of "passing the buck" by
the Ombudsman to the Sandiganbayan was met with
disapproval in Venus v. Desierto27 where this Court
speaking through then Associate Justice, now Chief
Justice Hilario G. Davide, Jr., trenchantly said that:

xxx

xxx

xxx.28

Second, the charge against herein petitioner is Murder,

a non-bailable offense. The gravity of the offense
alone, not to mention the fact that the principal
accused is an incumbent mayor whose imprisonment
during the pendency of the case would deprive his
constituents of their duly-elected municipal executive,
should have merited a deeper; and more thorough
preliminary investigation. The Ombudsman, however,
did nothing of the sort and instead swallowed hook,
line and sinker the resolution and recommendation of
Graft Investigation Officer II Cynthia V. Vivar, among
them the finding that, "aside from the averment of
respondent that the victim fired at him and he was only
forced to fire back, no other evidence was adduced to
indicate that such was what happened."29
There are, however, four affidavits on record 30 which
state in categorical terms that it was the victim who
first fired at petitioner with his Armalite rifle and that
petitioner merely returned fire. An Armalite rifle and
empty shells were recovered from the scene of the
incident by the PNP and impounded by it. According to
the Physical Science Report No. C-147A-99, 31 some of
the shells correspond to the Armalite rifle, thereby
indicating that the firearm was fired. The Ombudsman,
however, neither called for the production of the
firearm and the empty shells, nor did he ask for the
production of the ballistic and laboratory examinations
of the bloodstains on the Armalite rifle despite the
statement by the Provincial Fiscal of Ilocos Norte that
these pieces of evidence were all available.32
There are, furthermore, other dubious circumstances
which should have prompted the Ombudsman to take a
second, deeper look instead of adopting in toto the
recommendation of GIO II Vivar. Among these is the
matter of the two (2) different autopsies on the
cadaver of the victim, one indicating that the victim
sustained two (2) wounds only and the other showing
that the victim had three (3) wounds. The significance
of this fact was not appreciated by the Ombudsman
who likewise glossed over the adamant refusal of the

private respondent to subject the cadaver of the victim

to a paraffin test, despite the claims of the accused's
witnesses that the victim fired the Armalite rifle.
Given the foregoing circumstances, the Ombudsman
for all practical purposes did an even worse job than
Judge Calvan for, by adopting in its entirety the
findings of the investigating officer despite its obvious
flaws, he actually did nothing at all and, in effect, threw
everything to the Sandiganbayan for evaluation. This
practice, as earlier stated, was not condoned in Venus
v. Desierto, supra. Nor will it be in this case.
Prosecutors are endowed with ample powers in order
that they may properly fulfill their assigned role in the
administration of justice. It should be realized,
however, that when a man is haled to court on a
criminal charge, it brings in its wake problems not only
for the accused but for his family as well. Therefore, it
behooves a prosecutor to weigh the evidence carefully
and to deliberate thereon to determine the existence
of a prima facie case before filing the information in
court. Anything less would be a dereliction of duty.33
Third, a person under preliminary investigation by the
Ombudsman is entitled to file a motion for
reconsideration of the adverse resolution. This right is
provided for in the very Rules of Procedure of the
Ombudsman,34 which states:
SEC. 7. Motion for Reconsideration.
a) Only one motion for reconsideration or
reinvestigation of an approved order or
resolution shall be allowed, the same to be
filed within fifteen (15) days from notice
thereof with the Office of the Ombudsman or
the Deputy Ombudsman as the case may be.
b)
No
motion
for
reconsideration
or
reinvestigation shall be entertained after the
information shall have been filed in court,
except upon order of the court wherein the
case was filed. (Emphasis supplied).
The filing of a motion for reconsideration is an integral
part of the preliminary investigation proper. There is no
dispute that the Information was filed without first
affording petitioner-accused his right to file a motion
for reconsideration. The denial thereof is tantamount to
a denial of the right itself to a preliminary
investigation. This fact alone already renders
preliminary
investigation
conducted
in
this
case incomplete. The inevitable conclusion is that the
petitioner was not only effectively denied the
opportunity to file a motion for reconsideration of the
Ombudsman's final resolution but also deprived of his
right to a full preliminary investigation preparatory to
the filing of the information against him.35
As stated earlier, it appears that petitioner belatedly
received a copy of the May 25, 2000 Resolution of Graft
Investigation Officer II Cynthia V. Vivar only on June 21,
2000. Because he was thus effectively precluded from
seeking a reconsideration thereof, he then filed a
Motion To Defer Issuance Of Warrant Of Arrest pending
determination of probable cause.36 The Sandiganbayan
denied the motion in its challenged Resolution of July
13, 2000,37 and forthwith ordered the issuance of the
warrant of arrest against petitioner. Suffice it to state in
this regard that such a deprivation of the right to a full
preliminary investigation preparatory to the filing of
the information warrants the remand of the case to the
Ombudsman for the completion thereof.38
Fourth, it was patent error for the Sandiganbayan to
have relied purely on the Ombudsman's certification of
probable cause given the prevailing facts of this case
much more so in the face of the latter's flawed report
and one-sided factual findings. In the order of

procedure for criminal cases, the task of determining

probable cause for purposes of issuing a warrant of
arrest is a responsibility which is exclusively reserved
by the Constitution to judges. 39 People v. Inting40 clearly
delineated the features of this constitutional
mandate, viz: 1.] The determination of probable cause
is a function of the judge; it is not for the provincial
fiscal or prosecutor to ascertain. Only the judge and
the judge alone makes this determination; 2.] The
preliminary inquiry made by a prosecutor does not
bind the judge. It merely assists him in making the
determination of probable cause. It is the report, the
affidavits, the transcripts of stenographic notes, if any,
and all other supporting documents behind the
prosecutor's certification which are material in
assisting the judge in his determination of probable
cause; and 3.] Judges and prosecutors alike should
distinguish the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest
from the preliminary investigation proper which
ascertains whether the offender should be held for trial
or be released. Even if the two inquiries be made in
one and the same proceeding, there should be no
confusion about their objectives. The determination of
probable cause for purposes of issuing the warrant of
arrest is made by the judge. The preliminary
investigation proper whether or not there is
reasonable ground to believe that the accused is guilty
of the offense charged and, therefore, whether or not
he should be subjected to the expense, rigors and
embarrassment of trial is the function of the
prosecutor.
Stated differently, while the task of conducting a
preliminary investigation is assigned either to an
inferior court magistrate or to a prosecutor, 41 only a
judge may issue a warrant of arrest. When the
preliminary investigation is conducted by an
investigating
prosecutor,
in
this
case
the
Ombudsman,42 the determination of probable cause by
the investigating prosecutor cannot serve as the sole
basis for the issuance by the court of a warrant of
arrest. This is because the court with whom the
information is filed is tasked to make its own
independent determination of probable cause for the
issuance of the warrant of arrest. Indeed
. . . the Judge cannot ignore the clear words of
the 1987 Constitution which requires . . .
probable cause to be personally determined by
the judge . . . not by any other officer or
person.
xxx

xxx

xxx

The extent of the Judge's personal examination

of the report and its annexes depends on the
circumstances of each case. We cannot
determine
beforehand
how
cursory
or
exhaustive the Judge's examination should be.
The Judge has to exercise sound discretion for,
after all, the personal determination is vested
in the Judge by the Constitution. It can be brief
or as detailed as the circumstances of each
case may require. To be sure, the Judge must
go beyond the Prosecutor's certification and
investigation report whenever necessary. He
should call for the complainant and witnesses
themselves to answer the court's probing
questions when the circumstances so require.
xxx

xxx

xxx

We reiterate that in making the required

personal determination, a Judge is not
precluded from relying on the evidence earlier
gathered by responsible officers. The extent of
the reliance depends on the circumstances of

each case and is subject to the Judge's sound

discretion. However, the Judge abuses that
discretion when having no evidence before
him, he issues a warrant of arrest.
Indubitably, the respondent Judge committed a
grave error when he relied solely on the
Prosecutor's certification and issued the
questioned Order dated July 5, 1990 without
having before him any other basis for his
personal determination of the existence of
probable cause.43
All told, the Court cannot accept the Sandiganbayan's
assertions of having found probable cause on its own,
considering the Ombudsman's defective report and
findings, which merely relied on the testimonies of the
witnesses for the prosecution and disregarded the
evidence for the defense.44 In Roberts v. CA,45 the trial
judge was chastised by the Court for issuing a warrant
of arrest without even reviewing the records of the
preliminary investigation which were then still with the
Department of Justice. In the case at bar, it cannot be
said that the Sandiganbayan reviewed all the records
forwarded to it by the Ombudsman considering the fact
that the preliminary investigation which was
incomplete escaped its notice.
What the Sandiganbayan should have done, faced with
such a slew of conflicting evidence from the
contending parties, was to take careful note of the
contradictions in the testimonies of the complainant's
witnesses as well as the improbabilities in the
prosecution evidence.46 Certainly
. . . probable cause may not be established
simply by showing that a trial judge
subjectively believes that he has good grounds
for his action. Good faith is not enough. If
subjective good faith alone were the test, the
constitutional protection would be demeaned
and the people would be "secure in their
persons, houses, papers and effects" only in
the fallible discretion of the judge.47 On the
contrary, the probable cause test is an
objective one, for in order that there be
probable cause the facts and circumstances
must be such as would warrant a belief by a
reasonably discreet and prudent man that the
accused is guilty of the crime which has just
been committed.48 This, as we said is the
standard. x x x
xxx

xxx

xxx

The sovereign power has the inherent right to

protect itself and its people from the vicious
acts which endanger the proper administration
of justice; hence the State has every right to
prosecute and punish violators of the law. This
is essential for its self-preservation, nay its very
existence. But this does not confer a license for
pointless assaults on its citizens. The right of
the State to prosecute is not a carte
blanche for government agents to defy and
disregard the rights of its citizens under the
Constitution.
Confinement,
regardless
of
duration, is too a high a price to pay for
reckless and impulsive prosecution. x x x
The purpose of the Bill of Rights is to protect
the people against arbitrary and discriminatory
use of political power. This bundle of rights
guarantees the preservation of our natural
rights which include personal liberty and
security against invasion by the government or
any of its branches or instrumentalities.
Certainly, in the hierarchy of rights, the Bill of
Rights takes precedence over the right of the

State to prosecute, and when weighed against

each other, the scales of justice tilt towards the
former. Thus, relief may be availed of to stop
the purported enforcement of criminal law
where it is necessary to provide for an orderly
administration of justice, to prevent the use of
the strong arm of the law in an oppressive and
vindictive manner, and to afford adequate
protection to constitutional rights.49
In this case, the undue haste in filing of the information
against petitioner cannot be ignored. From the
gathering of evidence until the termination of the
preliminary investigation, it appears that the state
prosecutors were overly-eager to file the case and to
secure a warrant of arrest of petitioner without bail and
his consequent detention. There can be no gainsaying
the fact that the task of ridding society of criminals and
misfits and sending them to jail in the hope that they
will in the future reform and be productive members of
the community rests both on the judiciousness of
judges and the prudence of the prosecutors. There is
however, a standard in the determination of the
existence of probable cause. The determination has not
measured up to that standard this case.
WHEREFORE, in view of all the foregoing, judgment is
hereby rendered:
1.]
SETTING
ASIDE
the
Resolutions
of
the
Sandiganbayan dated July 13, 2000 and the Resolution
of Graft Investigation Officer II Cynthia V. Vivar dated
May 25, 2000 in Criminal Case No. 26115;
2.] Ordering the Sandiganbayan to QUASH the warrant
of arrest it issued against petitioner;
3.] REMANDING the case to the Ombudsman for
completion of the preliminary investigation.
SO ORDERED.

G.R. No. 138859-60

February 22, 2001

ALVAREZ
ARO
YUSOP, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN (First Division),
respondent.
PANGANIBAN, J.:
The right of a person to preliminary investigation is
recognized by the law and is governed by the Rules of
Court. However, the failure to accord this right does
not ipso facto result in the dismissal of the information;
the case is merely suspended, and the prosecutor
directed to conduct the proper investigation.
The Case
Before us is a Petition for Certiorari under Rule 65 of
the Rules of Court, assailing two Orders 1 of the
Sandiganbayan,2 both dated February 15, 1999. The
first Order rejected the attempt of petitioner to stop his
arraignment in Criminal Case Nos. 24524-25, on the
ground that he had been denied the right to a
preliminary investigation. In the assailed second Order,
the Sandiganbayan directed that a plea of not guilty be
entered for all the accused, including herein petitioner.
The Facts
Acting on an Affidavit-Complaint3 filed by a certain
Erlinda Fadri, the Office of the Ombudsman-Mindanao

issued an Order4 dated September 19, 1995, naming

the following as respondents: benjamin Arao, Fredireck
Winters, Pelaez Pantaran, Eduardo Dablo, Efren Sissay
and the city jail warden of Pagadian City. The Order
also reqquired respondents, within ten days from
receipt thereof, to submit their counter-affidavits and
other pieces of controverting evidence.
The Office of the Ombudsman for Mindanao issued a
Resolution dated January 15, 1998, 5 recommending the
prosecution of "the aforenamed respondents" for
violation of Article 269 of the Revised Penal Code and
Section 3-a in relation to Section 3-e of Republic Act
No. 3019 as amended. Significantly, the name of
Petitioner Alvarez A. Yusop was included as one of the
persons to be prosecuted, although he was not one of
the original respondents mentioned in the Order of
September 19, 1995. Ombudsman Aniano A. Desierto
approved the recommendation.1wphi1.nt
Accordingly, two Informations were filed with the
Sandiganbayan. They were docketed as Criminal Case
Nos. 24524 (violation of Section 3-a of RA 3019) and
24525 (unlawful arrect under Article 269 of the Revised
Penal Code).
On April 16, 1998, an Order of Arrest was issued by the
Sandiganbayan in Criminal Case No. 24524. Petitioner,
however, posted a bail bond before the Regional Trial
Court of Dipolos City on May 20 of the same year. On
the same day, he filed a "Motion To Remand Case To
The Ombudsman - Mindanao For Preliminary
Investigation."
In Resolution dated June 8, 1998, the Sandiganbayan
denied the Motion of petitioner for his alleged failure to
submit himself to the jurisdiction of the anti-graft court.
On August 8, 1998, petitioner filed a Motion to Dismiss,
grounded again on the lack of preliminary
investigation. In an Order dated September 22, 1998,
the Sandiganbayan resolved not to take action on the
Motion, because petitioner had not yet submitted
himself to its jurisdiction insofar as Criminal Case No.
24525 was concerned.
On the scheduled arraignment on February 15, 1999,
petitioner reiterated his claim that he had not been
accorded preliminary investigation. In its two assailed
Orders, the Sandigabayan rejected his claim and
proceeded with the arraignment.

proceedings as against him could still be

validly entertained at this time. This is more
particularly significant under Section 27 of
Republic Act 6770 and xxx Criminal Cases
24524 and 24525 refer to the same incident
although the prosecution, for its part, has filed
Infomations under different statutes covering
the same incident. Thus, the claim of accused
Yusop that he was not notified with respect to
one of the cases on an identical set of facts
herein is not [of] particular significance since
this would the be indulging in a superfluity.
xxx

xxx

xxx

"Thus, in view of all the following, the Court will

now proceed to the arraignment of the accused
herein."
The Issue
Although the parties did not specify the issue in this
case, it is clear from their submissions that they are
asking this Court to resolve this question: Whether the
Sanduganbayan, despite being informed of the lack of
preliminary investigation with respect to petitioner, In
Criminal Case No. 24524, committed grave abuse of
discretion in proceeding with his arraignment.
The Court's Ruling
The Petition is meritorious in part. While petitioner is
entitled to preliminary investigation, the case against
him should not be dismissed.
Main Issue:
Preliminary Investigation
Preliminary investigation is "an inquiry or proceeding to
determine 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." 7 The Court
explained
that
the
rationable
of
preliminary
investigation is to "protect the accused from the
inconvenience, expense and burden of defending
himself in a formal trial unless the reasonable
probability of his guilt shall have been first ascertained
in a fairly summary proceeding by a competent
officer."8

Hence, this recourse.6

Ruling of the Sandiganbayan
The Sandibayan rejected petitioner's
preliminary investigation in this wise:

plea

for

"This morning, the accused herein appeared for

arraignment duly represented by their counsel.
Before proceeding, Atty. Omar A. Rivera
appearing in behalf of accused Yusop informed
this court of his reservations about proceeding
with the arraignment this morning, primarily on
the ground that accused Yusop did not undergo
preliminary furnished any notice nor was he
informed of the proceedings before the
Ombudsman with respect to these cases. It
would appear that one of the reasons [therefor]
is that the accused despite notice of the
existence of the accusation against him in
Criminal Case No. 24525, had not given any
timely notice nor any statement of any alleged
inadequacy of the proceeding regarding the
filing of the Information herein; thus, the Court
is not persuaded that the claim of the accused
Yusop with regard to the inadequacy of the

The Rules of Court requires such investigation before

an information for an offense punishable by at least
four years, two months and one day may be filed in
court.9 The old Rules, on the other hand, mandates
preliminary investigation of an offense cognizable by
the regional trial court.10
Petitioner is charged in Criminal Case No. 24254 with
violation of Section 3-a of RA of 3019. Such offense is
punishable with, among other penalties, imprisonment
of six years and one month to fifteen years. 11 Under the
aforecited Rules, whether in the old or the revised
version, he is entitled to a preliminary investigation.
It is undisputed, however, that before the Information
against
petitioner
was
filed,
no
preliminary
invertigation had been conducted. In fact, the Office of
the Ombudsman admitted that "petitioner was denied
of his right to preliminary investigation."12
We find no basis for the Sandiganbayan's ruling that
petitioner "had not given timely notice nor any
statement of the alleged inadequacy of the proceeding
regarding the filing of the Information."

First, there was no showing that petitioner was notified

of the charges filed by Erlinda Fadri. As earlier noted,
he had not been named a s arepondent in the
September 19, 1995 Order of the Office of the
Ombudsman in Mindanao. His name did not even
appear in the caption of its January 15, 1998
Resolution,13 which recommended the filing of charges
against the accused. Indeed, in his Compliance with
the
August
26,
1998
Sandiganbayan
Resolution,14 Special Prosecution Officer Diosdado V.
Calonge manifested that petitioner "was not notified of
the proceedings of the preliminary investigation and
was accordingly not given the opportunity to be heard
thereon."15

Dismissal
Not Justified

of

the

Charges

Petitioner also prays that the cases against him be

dismissed for lack of preliminary investigation. 20 We
disagree. In the first place, nowhere in the Revised
Rules of Criminal Procedure, or even the old Rules, is
there any mention that this lack is a ground for a
motion to quash.21 Furthermore, it has been held that
responsibility for the "absence of preliminary
investigation does not go to the jurisdiction of the court
but merely to the regularity of the proceedings." 22 We
reiterate the following ruling of the Court in People v.
Gomez:

After learning of the filing of the Information against

him when he was served a Warrant of Arrest, petitioner
did not dally. He immediately informed the
Sandiganbayan that no preliminary investigation had
been conducted in regard to him. Several months later,
moments before his arraignment, he reiterated his
prayer that the preliminary investigation be conducted.
In this light, the Sandiganbayan erred in saying that he
had not given the court timely notice of this deficiency.

"If there were no preliminary investigations and

the defendants, before entering their plea,
invite the attention of the court of their
absence, the court, instead of dismissing the
information, should conduct such investigation,
order the fiscal to conduct it or remand the
case to the inferior court so the the preliminary
investigation may be conducted."23

Even assuming that prior to the filing of the

Information petitioner had known that the proceedings
and the investigation against his co-accused were
pending, he cannot be expected to know of the
investigator's subsequent act of charging him.
Precisely, he had not been previously included therein
and, consequently, he had not been notified thereof.

In sum, Criminal Case No. 24524 must be suspended

with respect to petitioner even if the case is already
undergoing trial, because "[t]o reach any other
conclusion here, that is, to hold that petitioner's rights
to a preliminary investigation and to bail were
effectively obliterated to benefit from its own wrong or
culpable ommission and effectively to dilute important
rights of accused persons well-nigh to the vanishing
point."24

In Go v. Court of Appeals, 16 this Court held that "the

right to preliminary investigation is waived when the
accused fails to invoke it before or at the time of
entering a plea at arraignment." Conversely, if the
accused does invoke it before arraignment, as the
petitioner did in this case, the right is not waived.
Neither did the filing of a bail bond constitute a waiver
of petitioner's right to preliminary investigation. Under
Section 26, Rule 114 of the Revised Rules of Criminal
Procedure, "[a]n application for or admission to bai;
shall not bar the accused from challenging the validity
of his arrest or the legality of the warrant issued
therefor, or from assailing the regularity or questioning
the absence of a preliminary investigation of the
charge against him, provided that he raises them
before entering his plea. xxx."
We stress that the right to preliminary investigation is
substantive, not merely formal or technical. To deny it
to petitioner would deprive him of the full measure of
his right to due process.17 Hence, preliminary
investigation with regard to him must be conducted.
We desagree with the Sandiganbayan's reliance on
Section 27 of Republic Act 6770.18 This provision cannot
justify the evasion of the requirement set forth in the
Rules of Court for conducting preliminary investigation.
The law does not sanction such interpretation, for it
deals merely with the finality of orders, directives and
decisions of the Office of the Ombudsman -- not the
deprivation of the substantive right to a preliminary
investigation. Moreover, petitioner cannot be bound by
the Ombudsman's January 15, 1998 Resolution, which
recommended the filing of charges. He was not a party
to the case and was not accorded any right to present
evidence on his behalf.
In any event, even the Ombudsman agrees that
petitioner was deprived of this right and believes that
the baisc rudiments of due process are complied
with."19 For its part, the Sandiganbayan opted to
remain silent when asked by this Court to comment on
the Petition.

WHEREFORE, the Petition is partially GRANTED. The

assailed Orders are REVERSED, and the Office of the
Ombudsman is hereby ORDERED to conduct forthwith
a preliminary investigation of the charge of violation of
Section 3-a of RA 3019 against Petitioner Alvarez Aro
Yusop. The trial on the merits of Criminal Case No.
24524 shall be SUSPENDED in regard to petitioner until
the conclusion of the preliminary investigation. No
pronouncement as to costs.
SO ORDERED.
G.R. No. 130191

April 27, 1998

RODRIGO R. DUTERTE and BENJAMIN C. DE GUZMAN,

petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, respondent.

KAPUNAN, J.:
The right to a preliminary investigation is not a mere
formal right; it is a substantive right. To deny the
accused of such right would be to deprive him of due
process.
In this special civil action for certiorari with preliminary
injunction, petitioners seek to set aside the Order of
the Sandiganbayan dated 27 June 1997 denying the
Motion to Quash the information filed against them for
violating Sec. 3(g) of R.A. No. 3019, otherwise known
as the Anti-Graft And Corrupt Practices Act. Petitioners
similarly impugn the Resolution of the Sandiganbayan
dated 5 August 1997 which denied their Motion for
Reconsideration thereof.
Pertinent to this case are the following facts:
In 1990, the Davao City Local Automation Project was
launched by the city government of Davao. The goal of
said project was to make Davao City a leading center
for computer systems and technology development. It
also aimed to provide consultancy and training services

and to assist all local government units in Mindanao set

up their respective computer systems.
To implement the project, a Computerization Program
Committee, composed of the following was formed:
Chairman
:
City Administrator

Atty. Benjamin C. de Guzman,

Members
Treasurer

Mr. Jorge Silvosa, Acting City

Atty. Victorino Advincula, City Councilor

Mr. Alexis Almendras, City Councilor
Atty. Onofre Francisco, City Legal Officer
Mr. Rufino Ambrocio, Jr., Chief of Internal Control Office

12 by Dean Pilar Braga, Hospicio C. Conanan, Jr.

Korsung Dabaw
Foundation, Inc.
against
petitioners, the City Council, various city officials
SPI for the judicial declaration of nullity of
aforestated resolutions and ordinances and
computer contract executed pursuant thereto.

and
the
and
the
the

On 22 February 1991, Goldstar, through its agent, Mr.

S.Y. Lee sent a proposal to petitioner Duterte for the
cancellation of the computerization contract.
Consequently, on 8 April 1991, the Sanggunian issued
Resolution No. 449 and Ordinance No. 53 accepting
Goldstar's offer to cancel the computerization contract
provided the latter return the advance payment of
P1,748,521.58 to the City Treasurer's Office within a
period of one month. Petitioner Duterte, as city mayor,
was thus authorized to take the proper steps for the
mutual cancellation of the said contract and to sign all
documents relevant thereto. 6

Atty. Mariano Kintanar, COA Resident Auditor. 1

The Committee's duty was to "conduct a thorough
study of the different computers in the market, taking
into account the quality and acceptability of the
products, the reputation and track record of the
manufacturers and/or their Philippine distributors, the
availability of the replacement parts and accessories in
the Philippines, the availability of service centers in the
country that can undertake preventive maintenance of
the computer hardwares to ensure a long and
uninterrupted use and, last but not the least, the
capability of the manufacturers and/or Philippine
distributors to design and put into place the computer
system complete with the flow of paperwork, forms
to be used and personnel required." 2
Following
these
guidelines,
the
Committee
recommended the acquisition of Goldstar computers
manufactured
by
Goldstar
Information
and
Communication, Ltd., South Korea and exclusively
distributed in the Philippines by Systems Plus, Inc.
(SPI).
After obtaining prior clearance from COA Auditor
Kintanar, the Committee proceeded to negotiate with
SPI, represented by its President Rodolfo V. Jao and
Executive Vice President Manuel T. Asis, for the
acquisition and installation of the computer hardware
and the training of personnel for the Electronic DataProcessing Center. The total contract cost amounted to
P11,056,810.00.
On 5 November 1990, the City Council (Sangguniang
Panlungsod) of Davao unanimously passed Resolution
No. 1402 and Ordinance No. 173 approving the
proposed contract for computerization between Davao
City and SPI. The Sanggunian, likewise, authorized the
City Mayor (petitioner Duterte) to sign the said contract
for and in behalf of Davao City. 3
On the same day, the Sanggunian issued Resolution
No. 1403 and Ordinance No. 174, the General Fund
Supplemental Budget No. 07 for CY 1990 appropriating
P3,000,000.00 for the city's computerization project.
Given the go-signal, the contract was duly signed by
the parties thereto and on 8 November 1990, petitioner
City Administrator de Guzman released to SPI PNB
Check No. 65521 in the amount of P1,748,521.58 as
downpayment.
On 27 November 1990, the Office of the OmbudsmanMindanao received a letter-complaint from a
"concerned citizen," stating that "some city officials are
going to make a killing" in the transaction. 4 The
complaint was docketed as OMB-MIN-90-0425.
However, no action was taken thereon. 5
Thereafter, sometime in February 1991, a complaint
docketed as Civil Case No. 20,550-91, was instituted
before the Regional Trial Court of Davao City, Branch

Pursuant to the aforestated authority, on 6 May 1991,

petitioner Duterte, in behalf of Davao City, and SPI
mutually rescinded the contract and the downpayment
was duly refunded.
In the meantime, a Special Audit Team of the
Commission on Audit was tasked to conduct an audit of
the Davao City Local Automation Project to determine if
said contract conformed to government laws and
regulations.
On 31 May 1991, the team submitted its Special Audit
Report (SAR) No. 91-05 recommending rescission of the
subject contract. A copy of the report was sent to
petitioner Duterte by COA Chairman Eufemio C.
Domingo on 7 June 1991. In the latter's transmittal
letter, Chairman Domingo summarized the findings of
the special audit team, thus:
1.
The award of the contract for the "Davao City
Local Automation Project" to Systems Plus, Inc., for
P11,656,810 was done thru negotiated contract rather
than thru competitive public bidding in violation of
Sections 2 and 8 of PD 526. Moreover, there was no
sufficient appropriation for this particular contract in
violation of Sec. 85 of PD 1445.
2.
Advance payment of P1.7M was made to
Systems Plus, Inc. covering 15% of the contract cost of
P11.6M in violation of Sec. 45 of PD 477 and Sec. 88 of
PD 1445.
3.
The
cost
of
computer
hardware
and
accessories under contract with "Systems Plus, Inc.
(SPI)" differed from the team's canvass by as much as
1200% or a total of P1.8M.
4.
The City had no Information Systems Plan (ISP)
prior to the award of the contract to SPI in direct
violation of Malacaang Memo. Order No. 287 and NCC
Memo. Circular 89-1 dated June 22, 1989. This
omission resulted in undue disadvantage to the City
Government.
5.
To remedy the foregoing deficiencies, the team
recommends that the contract with Systems Plus, Inc.
be rescinded in view of the questionable validity due to
insufficient funding. Further, the provisions of NCC-MC
89-1 dated June 22, 1989 regarding procurement
and/or installation of computer hardware/system
should be strictly adhered to. 7
The city government, intent on pursuing its
computerization plan, decided to follow the audit
team's recommendation and sought the assistance of
the National Computer Center (NCC). After conducting
the necessary studies, the NCC recommended the
acquisition of Philips computers in the amount of
P15,792,150.00. Davao City complied with the NCC's
advice and hence, was finally able to obtain the
needed computers.

Subsequently, on 1 August 1991, the Anti-Craft

League-Davao City Chapter, through one Miguel C.
Enriquez, filed an unverified complaint with the
Ombudsman-Mindanao against petitioners, the City
Treasurer, City Auditor, the whole city government of
Davao and SPI. The League alleged that the
respondents, in entering into the computerization
contract, violated R.A. No. 3019 (Anti-Graft and Corrupt
Practices Act), PD No. 1445 (Government Auditing Code
of the Philippines), COA circulars and regulations, the
Revised Penal Code and other pertinent penal laws.
The case was docketed as OMB-3-91-1768. 8
On 9 October 1991, Graft Investigation Officer (GIO)
Pepito A. Manriquez of the Office of the Ombudsman
sent a letter 9 to COA Chairman Domingo requesting
the Special Audit Team to submit their joint affidavit to
substantiate the complaint in compliance with Section
4, par. (a) of the Rules of Procedure of the Office of the
Ombudsman (A.O. No. 07).
On 14 October 1991, Judge Paul T. Arcangel, issued an
Order dismissing Civil Case No. 20,550-91. The
dispositive portion reads, thus:
WHEREFORE, in view of all the foregoing, this case is
hereby dismissed on the ground of prematurity and
that it has become moot and academic with the mutual
cancellation of the contract. The other claims of the
parties are hereby denied. No pronouncement as to
costs.
SO ORDERED. 10
On 12 November 1991, Graft Investigator Manriquez
issued an order in OMB-3-91-1768 directing petitioners,
Jorge Silvosa (City Treasurer), Mariano Kintanar (City
Auditor) and Manuel T. Asis of SPI to:
. . . file in ten (10) days (1) their respective verified
point-by-point comment under oath upon every
allegation of the complaint in Civil Case No. 20,550-91
in the Regional Trial Court (RTC), Branch 12, Davao City
"Dean Pilar C. Braga, et al. vs. Hon. Rodrigo Duterte,"
for Judicial Declaration of Nullity and Illegality of City
Council of Davao Resolutions and Ordinances, and the
Computer Contract executed Pursuant Thereto, for
Recovery of Sum of Money, Professional Fees and Costs
with Injunctive Relief, including the Issuance of a
Restraining Order and/or a Writ of Preliminary
Prohibitory Injunction in which they filed a motion to
dismiss, not an answer and (2) the respective
comments, also under oath, on the Special Audit
Report No. 91-05, a copy of which is attached. 11
On 4 December 1991, the Ombudsman received the
affidavits of the Special Audit Team but failed to furnish
petitioners copies thereof.
On 18 February 1992, petitioners submitted a
manifestation adopting the comments filed by their corespondents Jorge Silvosa and Mariano Kintanar dated
25 November 1991 and 17 January 1992, respectively.
Four years after, or on 22 February 1996, petitioners
received a copy of a Memorandum prepared by Special
Prosecution Officer I, Lemuel M. De Guzman dated 8
February 1996 addressed to Ombudsman Aniano A.
Desierto regarding OMB-MIN-90-0425 and OMB-3-911768. Prosecutor De Guzman recommended that the
charges of malversation, violation of Sec. 3(e), R.A. No.
3019 and Art. 177, Revised Penal Code against
petitioners and their co-respondents be dismissed. He
opined that any issue pertaining to unwarranted
benefits or injury to the government and malversation
were rendered moot and academic by the mutual
rescission of the subject contract before the COA
submitted its findings (SAR No. 91-05) or before the
disbursement was disallowed. However, Prosecutor De
Guzman recommended that petitioners be charged
under Sec. 3(g) of R.A. No. 3019 "for having entered

into a contract manifestly and grossly disadvantageous

to the government, the elements of profit, unwarranted
benefits or loss to government being immaterial." 12
Accordingly, the following information dated 8 February
1996 was filed against petitioners before the
Sandiganbayan (docketed as Criminal Case No. 23193):
That on or about November 5, 1990, in the City of
Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, both
public officers, accused Rodrigo R. Duterte being then
the City Mayor and accused Benjamin C. De Guzman
being then the City Administrator of Davao City,
committing the crime herein charged in relation to,
while in the performance and taking advantage of their
official functions, and conspiring and confederating
with each other, did then and there willfully, unlawfully
and criminally enter into a negotiated contract for the
purchase of computer hardware and accessories with
the Systems Plus, Incorporated for and in consideration
of the amount of PESOS: ELEVEN MILLION SIX
HUNDRED FIFTY-SIX THOUSAND EIGHT HUNDRED TEN
(P11,656,810.00), which contract is manifestly and
grossly disadvantageous to the government, said
accused knowing fully-well that the said acquisition
cost has been overpriced by as much as twelve
hundred (1200%) percent and without subjecting said
acquisition to the required public bidding.
CONTRARY TO LAW. 13
On 27 February 1996, petitioners filed a motion for
reconsideration and on 29 March 1996, a Supplemental
Motion for Reconsideration on the following grounds:
1.
Petitioners were deprived of their right to a
preliminary investigation, due process and the speedy
disposition of their case;
2.
Petitioner Duterte acted in good faith and was
clothed with authority to enter into the subject
contract;
3.
There is no contract manifestly and grossly
disadvantageous to the government since the subject
contract has been duly rescinded.
On 19 March 1996,
Resolution
denying
reconsideration.

the Ombudsman issued a

petitioners'
motion
for

On 18 June 1997, petitioners filed a Motion to Quash

which was denied by the Sandiganbayan in its Order
dated 27 June 1997. The Sandiganbayan ruled:
It appears, however, that the accused were able to file
motions for the reconsideration of the Resolution
authorizing the filing of the Information herein with the
Ombudsman in Manila. This would mean, therefore,
that whatever decision which might have occurred with
respect to the preliminary investigation would have
been remedied by the motion for reconsideration in the
sense that whatever the accused had to say in their
behalf, they were able to do in that motion for
reconsideration.
Considering the denial thereof by the Office of the
Ombudsman, the Court does not believe itself
empowered to authorize a reinvestigation on the
ground of an inadequacy of the basic preliminary
investigation nor with respect to a dispute as to the
proper appreciation by the prosecution of the evidence
at that time.
In view hereof, upon further representation by Atty.
Medialdea that he represents not only Mayor Duterte
but City Administrator de Guzman as well, upon his
commitment, the arraignment hereof is now set for July
25, 1997 at 8:00 o'clock in the morning. 14

On 15 July 1997, petitioners moved for reconsideration

of the above order but the same was denied by the
Sandiganbayan for lack of merit in its Resolution dated
5 August 1997. 15

contract in question had been complied with) as his

bases for criminal prosecution, then the procedure was
plainly anomalous and highly irregular. As a
consequence, petitioners' constitutional right to due
process was violated.

Hence, the present recourse.

Petitioners allege that:

Sections (2) and (4), Rule II of Administrative Order No.

07 (Rules of Procedure of the Office of the
Ombudsman) provide:

THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN DENYING PETITIONERS'
MOTION
TO
QUASH
AND
MOTION
FOR
RECONSIDERATION, CONSIDERING THAT:

Sec. 2. Evaluation. Upon evaluating the complaint,

the investigating officer shall recommend whether or
not it may be:
a)

dismissed outright for want of palpable merit;

b)

referred to respondent for comment;

A
(1)
PETITIONERS WERE EFFECTIVELY DEPRIVED OF
THEIR RIGHT TO A PRELIMINARY INVESTIGATION
PURSUANT TO SEC. 4, RULE II OF ADMINISTRATIVE
ORDER NO. 07 (RULES OF PROCEDURE OF THE OFFICE
OF THE OMBUDSMAN); AND
(2)
ASSUMING
THAT
A
PRELIMINARY
INVESTIGATION WAS PROPERLY CONDUCTED, THERE
WAS AN INORDINATE DELAY IN TERMINATING THE
SAME THEREBY DEPRIVING THEM OF THEIR RIGHT TO
DUE PROCESS AND SPEEDY DISPOSITION OF THE CASE.

c)
endorsed to the proper government office or
agency which has jurisdiction over the case;
d)
forwarded to the appropriate office or official
for fact-finding investigation;
e)

referred for administrative adjudication; or

f)

subjected to a preliminary investigation

xxx

xxx

xxx

B
THERE IS NO SUFFICIENT BASIS, IN FACT AND IN LAW,
TO CHARGE PETITIONERS DUTERTE AND DE GUZMAN
OF VIOLATING SEC. 3 (G) OF R.A. 3019 IN THAT:
(1)
PETITIONER DUTERTE ACTED IN GOOD FAITH
AND WAS CLOTHED WITH FULL LEGAL AUTHORITY
FROM THE CITY COUNCIL TO ENTER INTO A CONTRACT
WITH SYSTEMS PLUS, INC.;
(2)
THERE IS NO CONTRACT MANIFESTLY AND
GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT
TO SPEAK OF AS THE SAME HAS BEEN RESCINDED AND
NO
DAMAGE
WAS
SUFFERED
BY
THE
CITY
GOVERNMENT;
(3)
ASSUMING THAT THE CONTRACT WAS NOT
RESCINDED, THE SAME CANNOT BE CONSIDERED AS
MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE
GOVERNMENT. 16
On 4 September 1997, the Court issued a Temporary
Restraining Order enjoining the Sandiganbayan from
further proceeding with Criminal Case No. 23193.
The Court finds the petition meritorious.

Sec. 4. Procedure. The preliminary investigation of

cases
falling
under
the
jurisdiction
of
the
Sandiganbayan and Regional Trial Courts shall be
conducted in the manner prescribed in Section 3, Rule
112 of the Rules of Court, subject to the following
provisions:
a)
If the complaint is not under oath or is based
only on official reports, the investigating officer shall
require the complainant or supporting witnesses to
execute affidavits to substantiate the complaints.
b)
After such affidavits have been secured, the
investigating officer shall issue an order, attaching
thereto a copy of the affidavits and other supporting
documents, directing the respondent to submit, within
ten (10) days from receipt thereof, his counteraffidavits and controverting evidence with proof of
service thereof on the complainant. The complainant
may file reply affidavits within ten (10) days after
service of the counter-affidavits.
c)
If the respondent does not file a counteraffidavit, the investigating officer may consider the
comment filed by him, if any, as his answer to the
complaint. In any event, the respondent shall have
access to the evidence on record.

I
We have judiciously studied the case records and we
find that the preliminary investigation of the charges
against petitioners has been conducted not in the
manner laid down in Administrative Order No. 07.
In the 12 November 1991 Order of Graft Investigator
Manriquez, petitioners were merely directed to submit
a point-by-point comment under oath on the
allegations in Civil Case No. 20,550-91 and on SAR No.
91-05. The said order was not accompanied by a single
affidavit of any person charging petitioners of any
offense as required by law. 17 They were just required
to comment upon the allegations in Civil Case No.
20,550-91 of the Regional Trial Court of Davao City
which had earlier been dismissed and on the COA
Special Audit Report. Petitioners had no inkling that
they were being subjected to a preliminary
investigation as in fact there was no indication in the
order that a preliminary investigation was being
conducted. If Graft Investigator Manriquez had
intended merely to adopt the allegations of the
plaintiffs in the civil case or the Special Audit Report
(whose recommendation for the cancellation of the

d)
No motion to dismiss shall be allowed except
for lack of jurisdiction. Neither may a motion for a bill
of particulars be entertained. If respondent desires any
matter in the complainant's affidavit to be clarified, the
particularization thereof may be done at the time of
clarificatory questioning in the manner provided in
paragraph (f) of this section.
e)
If the respondent cannot be served with the
order mentioned in paragraph 6 hereof, or having been
served, does not comply therewith, the complaint shall
be deemed submitted for resolution on the basis of the
evidence on record.
f)
If, after the filing of the requisite affidavits and
their supporting evidences, there are facts material to
the case which the investigating officer may need to be
clarified on, he may conduct a clarificatory hearing
during which the parties shall be afforded the
opportunity to be present but without the right to
examine or cross-examine the witness being
questioned. Where the appearance of the parties or
witnesses is impracticable, the clarificatory questioning
may be conducted in writing, whereby the questions

desired to be asked by the investigating officer or a

party shall be reduced into writing and served on the
witness concerned who shall be required to answer the
same in writing and under oath.
g)
Upon the termination of the preliminary
investigation, the investigating officer shall forward the
records of the case together with his resolution to the
designated authorities for their appropriate action
thereon.
No information may be filed and no complaint may be
dismissed without the written authority or approval of
the Ombudsman in cases falling within the jurisdiction
of the Sandiganbayan, or the proper Deputy
Ombudsman in all other cases.
In what passes off as application of the foregoing rules,
all that petitioners were asked to do was merely to file
their comment upon every allegation of the complaint
in Civil Case No. 20,550-91 in the Regional Trial Court
(RTC) and on the COA Special Audit Report. The
comment referred to in Section 2(b) Rule II, of A.O. No.
07 is not part of or is equivalent to the preliminary
investigation contemplated in Sec. 4, Rule II, of the
same Administrative Order. A plain reading of Sec. 2
would convey the idea that upon evaluation of the
complaint, the investigating officer may recommend its
outright dismissal for palpable want of merit;
otherwise, or if the complaint appears to have some
merit, the investigator may recommend action under
any of those enumerated from (b) to (f), that is, the
investigator may recommend that the complaint be:
referred to respondent for comment, or endorsed to
the proper government office or agency which has
jurisdiction over the case; or forwarded to the
appropriate
office
or
official
for
fact-finding
investigation;
or
referred
for
administrative
adjudication; or subjected to preliminary investigation.
Now, if the investigator opts to recommend the filing of
a comment by the respondent, it is presumably
because he needs more facts and information for
further evaluation of the merits of the complaint. That
being done, the investigating officer shall again
recommend any one of the actions enumerated in
Section 2, which include the conduct of a preliminary
investigation.
A preliminary investigation, on the other hand, takes
on an adversarial quality and an entirely different
procedure comes into play. This must be so because
the purpose of a preliminary investigation or a previous
inquiry of some kind, before an accused person is
placed on trial, is to secure the innocent against hasty,
malicious and oppressive prosecution, and to protect
him from an open and public accusation of a crime,
from the trouble, expenses and anxiety of public trial.
18 It is also intended to protect the state from having
to conduct useless and expensive trials. 19 While the
right is statutory rather than constitutional in its
fundament, it is a component part of due process in
criminal justice. The right to have a preliminary
investigation conducted before being bound over to
trial for a criminal offense and hence formally at risk of
incarceration or some other penalty, is not a mere
formal or technical right; it is a substantive right. To
deny the accused's claim to a preliminary investigation
would be to deprive him of the full measure of his right
to due process. 20
Note that in preliminary investigation, if the complaint
is unverified or based only on official reports (which is
the situation obtaining in the case at bar), the
complainant is required to submit affidavits to
substantiate the complaint. The investigating officer,
thereafter, shall issue an order, to which copies of the
complaint-affidavit
are
attached,
requiring
the
respondent to submit his counter-affidavits. In the
preliminary investigation, what the respondent is
required to file is a counter-affidavit, not a comment. It
is only when the respondent fails to file a counteraffidavit may the investigating officer consider the

respondent's comment as the answer to the complaint.

Against the foregoing backdrop, there was a palpable
non-observance by the Office of the Ombudsman of
the
fundamental
requirements
of
preliminary
investigation.
Apparently, in the case at bar, the investigating officer
considered the filing of petitioner's comment as a
substantial compliance with the requirements of a
preliminary investigation. Initially, Graft Investigator
Manriquez directed the members of the Special Audit
Team on 9 October 1991 to submit their affidavits
relative to SAR No. 91-05. However, on 12 November
1991, before the affidavits were submitted, Manriquez
required petitioners to submit their respective
comments on the complaint in the civil case and on
Special Audit Report (SAR) 91-05. Even when the
required affidavits were filed by the audit team on 4
December 1991, petitioners were still not furnished
copies thereof. The Ombudsman contends that failure
to provide petitioners the complaint-affidavits is
immaterial since petitioners were well aware of the
existence of the civil complaint and SAR No. 91-05. We
find the Ombudsman's reasoning flawed. The civil
complaint and the COA Special Audit Report are not
equivalent to the complaint-affidavits required by the
rules. Moreover, long before petitioners were directed
to file their comments, the civil complaint (Civil Case
No. 20,550-91) was rendered moot and academic and,
accordingly,
dismissed
following
the
mutual
cancellation of the computerization contract. In SAR
No. 91-05, on the other hand, petitioners were merely
advised to rescind the subject contract which was
accomplished even before the audit report came out. In
light of these circumstances, the Court cannot blame
petitioners for being unaware of the proceedings
conducted against them.
In Olivas vs. Office of the Ombudsman, 21 this Court,
speaking through Justice Vicente V. Mendoza,
emphasized that it is mandatory requirement for the
complainant to submit his affidavit and those of his
witnesses before the respondent can be compelled to
submit his counter-affidavits and other supporting
documents. Thus:
Even in investigations looking to the prosecution of a
party, Rule I, 3 can only apply to the general criminal
investigation, which in the case at bar was already
conducted by the PCGG. But after the Ombudsman and
his deputies have gathered evidence and their
investigation has ceased to be a general exploratory
one and they decide to bring the action against a
party, their proceedings become adversary and Rule II
4(a) then applies. This means that before the
respondent can be required to submit counteraffidavits and other supporting documents, the
complaint must submit his affidavit and those of his
witnesses. This is true not only of prosecutions of graft
cases under Rep. Act No. 3019 but also of actions for
the recovery of unexplained wealth under Rep. Act No.
1379, because 2 of this latter law requires that before
a petition is filed there must be a "previous inquiry
similar to preliminary investigation in criminal cases."
Indeed, since a preliminary investigation is designed to
screen cases for trial, only evidence may be
considered. While reports and even raw information
may justify the initiation of an investigation, the stage
of preliminary investigation can be held only after
sufficient evidence has been gathered and evaluated
warranting the eventual prosecution of the case in
court. As this Court held in Cojuangco, Jr. v. PCGG:
Although such a preliminary investigation is not a trial
and is not intended to usurp the function of the trial
court, it is not a casual affair. The officer conducting
the same investigates or inquires into the facts
concerning the commission of the crime with the end in
view of determining whether or not an information may
be prepared against the accused. Indeed, a preliminary
investigation is in effect a realistic judicial appraisal of

the merits of the case. Sufficient proof of the guilt of

the accused must be adduced so that when the case is
tried, the trial court may not be bound as a matter of
law to order an acquittal. A preliminary investigation
has then been called a judicial inquiry. It is a judicial
proceeding. An act becomes judicial when there is
opportunity to be heard and for the production and
weighing of evidence, and a decision is rendered
thereof.
II
Compounding the deprivation of petitioners of their
right to a preliminary investigation was the undue and
unreasonable delay in the termination of the irregularly
conducted
preliminary
investigation.
Petitioners'
manifestation adopting the comments of their corespondents was filed on 18 February 1992. However,
it was only on 22 February 1996 or four (4) years later,
that petitioners received a memorandum dated 8
February 1996 submitted by Special Prosecutor Officer
I Lemuel M. De Guzman recommending the filing of
information against them for violation of Sec. 3(g) of
R.A. No. 3019 (Anti-Graft and Corrupt Practices Act).
The inordinate delay in the conduct of the "preliminary
investigation" infringed upon their constitutionally
guaranteed right to a speedy disposition of their case.
22 In Tatad vs. Sandiganbayan, 23 we held that an
undue delay of close to three (3) years in the
termination of the preliminary investigation in the light
of the circumstances obtaining in that case warranted
the dismissal of the case:
We find the long delay in the termination of the
preliminary investigation by the Tanodbayan in the
instant case to be violative of the constitutional right of
the accused to due process. Substantial adherence to
the requirements of the law governing the conduct of
preliminary
investigation,
including
substantial
compliance with the time limitation prescribed by the
law for the resolution of the case by the prosecutor, is
part of the procedural due process constitutionally
guaranteed by the fundamental law. Not only under the
broad umbrella of the due process clause, but under
the constitutional guarantee of "speedy disposition" of
cases as embodied in Section 16 of the Bill of Rights
(both in the 1973 and 1987 Constitution), the
inordinate delay is violative of the petitioner's
constitutional rights. A delay of close to three (3) years
can not be deemed reasonable or justifiable in the light
of the circumstances obtaining in the case at bar. We
are not impressed by the attempt of the
Sandiganbayan to sanitize the long delay by indulging
in the speculative assumption that "the delay may be
due to a painstaking and grueling scrutiny by the
Tanodbayan as to whether the evidence presented
during
the
preliminary
investigation
merited
prosecution of a former high-ranking government
official." In the first place, such a statement suggests a
double standard of treatment, which must be
emphatically rejected. Secondly, three out of the five
charges against the petitioner were for his alleged
failure to file his sworn statement of assets and
liabilities required by Republic Act No. 3019, which
certainly did not involve complicated legal and factual
issues necessitating such "painstaking and grueling
scrutiny" as would justify a delay of almost three years
in terminating the preliminary investigation. The other
two charges relating to alleged bribery and alleged
giving of unwarranted benefits to a relative, while
presenting more substantial legal and factual issues,
certainly do not warrant or justify the period of three
years, which it took the Tanodbayan to resolve the
case.
It has been suggested that the long delay in
terminating the preliminary investigation should not be
deemed fatal, for even the complete absence of a
preliminary investigation does not warrant dismissal of
the information. True but the absence of a
preliminary investigation can be corrected by giving
the accused such investigation. But an undue delay in

the conduct of the preliminary investigation can not be

corrected, for until now, man has not yet invented a
device for setting back time.
In the recent case of Angchangco, Jr. vs. Ombudsman,
24 the Court upheld Angchangco's right to the speedy
disposition of his case. Angchangco was a sheriff in the
Regional Trial Court of Agusan del Norte and Butuan
City. In 1990 criminal complaints were filed against him
which remained pending before the Ombudsman even
after his retirement in 1994. The Court thus ruled:
Here, the Office of the Ombudsman, due to its failure to
resolve the criminal charges against petitioner for more
than six years, has transgressed on the constitutional
right of petitioner to due process and to a speedy
disposition of the cases against him, as well as the
Ombudsman's own constitutional duty to act promptly
on complaints filed before it. For all these past 6 years,
petitioner has remained under a cloud, and since his
retirement in September 1994, he has been deprived
of the fruits of his retirement after serving the
government for over 42 years all because of the
inaction of respondent Ombudsman. If we wait any
longer, it may be too late for petitioner to receive his
retirement benefits, not to speak of clearing his name.
This is a case of plain injustice which calls for the
issuance of the writ prayed for. 25
We are not persuaded by the Ombudsman's argument
that the Tatad ruling does not apply to the present case
which is not politically motivated unlike the former,
pointing out the following findings of the Court in the
Tatad decision:
A painstaking review of the facts can not but leave the
impression that political motivations played a vital role
in activating and propelling the prosecutorial process in
this case. Firstly, the complaint came to life, as it were,
only after petitioner Tatad had a falling out with
President Marcos. Secondly, departing from established
procedures prescribed by law for preliminary
investigation, which require the submission of affidavits
and counter-affidavits by the complainant and the
respondent and their witnesses, the Tanodbayan
referred the complaint to the Presidential Security
Command for fact-finding investigation and report.
We find such blatant departure from the established
procedure as a dubious, but revealing attempt to
involve an office directly under the President in the
prosecutorial process, lending credence to the
suspicion that the prosecution was politically
motivated. We cannot emphasize too strongly that
prosecutors should not allow, and should avoid, giving
the impression that their noble office is being used or
prostituted, wittingly or unwittingly, for political ends,
or other purposes alien to, or subversive of, the basic
and fundamental objective observing the interest of
justice evenhandedly, without fear or favor to any and
all litigants alike whether rich or poor, weak or strong,
powerless or mighty. Only by strict adherence to the
established procedure may be public's perception of
the impartiality of the prosecutor be enhanced. 26
The Ombudsman endeavored to distinguish the
present suit from the Angchangco case by arguing that
in the latter, Angchangco filed several motions for
early resolution, implying that in the case at bar
petitioners were not as vigilant in asserting or
protecting their rights.
We disagree. The constitutional right to speedy
disposition of cases does not come into play only when
political considerations are involved. The Constitution
makes no such distinction. While political motivation in
Tatad may have been a factor in the undue delay in the
termination of the preliminary investigation therein to
justify the invocation of their right to speedy
disposition of cases, the particular facts of each case
must be taken into consideration in the grant of the
relief sought. In the Tatad case, we are reminded:

In a number of cases, this Court has not hesitated to

grant the so-called "radical relief" and to spare the
accused from undergoing the rigors and expense of a
full-blown trial where it is clear that he has been
deprived of due process of law or other constitutionally
guaranteed rights. Of course, it goes without saying
that in the application of the doctrine enunciated in
those cases, particular regard must be taken of the
facts and circumstances peculiar to its case. 27
In Alviso vs. Sandiganbayan, 28 the Court observed
that the concept of speedy disposition of cases "is a
relative term and must necessarily be a flexible
concept" and that the factors that may be considered
and balanced are the "length of the delay, the
assertion or failure to assert such right by the accused,
and the prejudice caused by the delay."

DISMISSED. The temporary restraining order issued on

4 September 1997 is made PERMANENT.
SO ORDERED.
G.R. Nos. 71404-09

October 26, 1988

HERMILO RODIS, SR., petitioner,

vs.
THE SANDIGANBAYAN, SECOND DIVISION, and PEOPLE
OF THE PHILIPPINES, respondents.
Quisimbing & Associates for petitioner.
The Solicitor General for respondents.

Petitioners in this case, however, could not have urged

the speedy resolution of their case because they were
completely unaware that the investigation against
them was still on-going. Peculiar to this case, we
reiterate, is the fact that petitioners were merely asked
to comment, and not file counter-affidavits which is the
proper procedure to follow in a preliminary
investigation. After giving their explanation and after
four long years of being in the dark, petitioners,
naturally, had reason to assume that the charges
against them had already been dismissed.

FERNAN, C.J.:

On the other hand, the Office of the Ombudsman failed

to present any plausible, special or even novel reason
which could justify the four-year delay in terminating
its investigation. Its excuse for the delay the many
layers of review that the case had to undergo and the
meticulous scrutiny it had to entail has lost its
novelty and is no longer appealing, as was the
invocation in the Tatad case. The incident before us
does not involve complicated factual and legal issues,
specially in view of the fact that the subject
computerization contract had been mutually cancelled
by the parties thereto even before the Anti-Graft
League filed its complaint.

On May 22, 1985, petitioner Hermilo v. Rodis, Sr.,

former President of the Philippine Underwriters Finance
Corporation (PHILFINANCE) together with some other
persons, was charged before the Sandiganbayan in
separate informations docketed therein as Criminal
Cases Nos. 10389, 10390, 10391, 10393 and 10394
with five (5) counts of violation of Section 3(b) of
Republic Act No. 3019, otherwise known as the AntiGraft and Corruption Practices Act.

The Office of the Ombudsman capitalizes on

petitioners' three motions for extension of time to file
comment which it imputed for the delay. However, the
delay was not caused by the motions for extension.
The delay occurred after petitioners filed their
comment. Between 1992 to 1996, petitioners were
under no obligation to make any move because there
was
no
preliminary
investigation
within
the
contemplation of Section 4, Rule II of A.O. No. 07 to
speak of in the first place.
III
Finally, under the facts of the case, there is no basis in
law or in fact to charge petitioners for violation of Sec.
3(g) of R.A. No. 3019. To establish probable cause
against the offender for violation of Sec. 3(g), the
following elements must be present: (1) the offender is
a public officer; (2) he entered into a contract or
transaction in behalf of the government; and (3) the
contract or transaction is grossly and manifestly
disadvantageous to the government. The second
element of the crime that the accused public officers
entered into a contract in behalf of the government
is absent. The computerization contract was rescinded
on 6 May 1991 before SAR No. 91-05 came out on 31
May 1991 and before the Anti-Graft League filed its
complaint with the Ombudsman on 1 August 1991.
Hence, at that time the Anti-Graft League instituted
their complaint and the Ombudsman issued its Order
on 12 November 1991, there was no longer any
contract to speak of. The contract, after 6 May 1991
became in contemplation of law, non-existent, as if no
contract was ever executed.
WHEREFORE, premises considered, the petition is
GRANTED and Criminal Case No. 23193 is hereby

This is a petition for certiorari with prayer for a writ of

preliminary injunction seeking to annul the Resolution
1 of the Sandiganbayan dated July 15, 1985 denying
herein petitioner's Motion to Quash the Informations in
Criminal Cases Nos. 10389, 10390, 10391, 10393, and
10394 pending before said court and to enjoin the
arraignment, pre-trial and trial herein.
The antecedents are as follows:

On May 31, 1985, petitioner filed a motion to quash

said informations as against him on the ground of lack
of preliminary investigation, with the alternative prayer
that the "issue and/or enforcement of the warrant of
arrests as against him be held in abeyance while he
seeks a reinvestigation by the Tanodbayan pursuant to
his right of (sic) preliminary investigation. 2
In its opposition to said motion, the Prosecution cited
as basis therefor Sec. 3, Rule 117 of the 1985 Rules on
Criminal Procedure enumerating the grounds for a
motion to quash. It argued that since lack of
preliminary investigation is not among those
enumerated thereunder, the motion to quash on this
ground should be denied for lack of merit and instead,
petitioner should be ordered to file his Petition for
Reinvestigation and/or Motion for Reconsideration in
accordance with Section 13 of the Revised Rules of
Procedure of the Tanodbayan. 3
Petitioner filed a Reply to the Opposition controverting
the prosecution's claim that lack of preliminary
investigation is not a ground for quashing the
information; but manifesting that he would file a
petition for re-investigation with the Tanodbayan as
suggested. 4 This he did, on June 24,1985.
On July 15, 1985, while petitioner's petition for
reinvestigation was pending action by the Tanodbayan,
the
Sandiganbayan
promulgated
the
assailed
resolution denying petitioner's motion to quash for lack
of merit, stating:
... this Court is of the considered opinion that the
alleged absence of preliminary investigation with
respect to the accused movant (herein petitioner) or
his inability to participate in the preliminary
investigation for the reason that he was not duly
served with a subpoena is not a proper ground for a
motion to quash. If the accused was not afforded due
preliminary investigation, the proper remedy for him is

to file a Petition for Reinvestigation with the Office of

the Tanodbayan, pursuant to Section (13) of
Administrative Order No. 111 of the Revised Rules of
Procedure of the Tanodbayan, promulgated on
December 1, 1979. 5
On the premise that no appeal or any plain and speedy
remedy in the ordinary course of law will prove
adequate under the circumstances obtaining in the
case at bar arraignment, pre-trial and trial having been
set on August 26, 27 and 28, 1985and on the
allegation that in denying his motion to quash,
respondent Sandiganbayan had acted with grave
abuse of discretion amounting to lack or excess of
jurisdiction, petitioner brought the instant petition.
On August 1, 1985, the Court issued a Temporary
Restraining
Order
enjoining
the
respondent
Sandiganbayan from proceeding with the arraignment,
pre-trial and trial of Criminal Cases Nos. 10389, 10390,
10391, 10392, 6 10393 and 10394. 7
Petitioner contends that while it may be true that lack
of preliminary investigation neither affects the
jurisdiction of the court nor impairs the validity of the
information filed, nonetheless such lack of preliminary
investigation affects the regularity of the proceedings
which led to the filing of the information, such that in
several cases, the Court had ordered the quashal of the
information on said ground; and that although lack of
preliminary investigation is not enumerated as one of
the grounds for a motion to quash, the Sandiganbayan
can nevertheless order the quashal of the informations
pursuant to its inherent power to amend and control its
processes so as to make them conformable to law and
justice. 8 He further claims that given the chance to be
heard on preliminary investigation, he will demonstrate
to the Tanodbayan that he had no participation in the
transactions complained of, except in one where he
merely approved for reimbursement representation
expense incurred by one subordinate to him, the
Executive Vice-President, and after it had been
approved by one superior to him, the vice-Chairman of
the Executive Committee and Chief Executive Officer of
the (PHILFINANCE).
Respondent People of the Philippines on the other hand
avers that as petitioner does not dispute that a
preliminary investigation was indeed conducted, what
he is really protesting against is the lost opportunity to
participate therein due to the alleged failure of the
Tanodbayan to serve a subpoena upon him. It is,
however, contended that this alleged failure did not
affect the regularity of the preliminary investigation as
the Tanodbayan is justified under Section 3, Rule 112 of
the 1985 Rules of Criminal Procedure in proceeding
with the preliminary investigation after an attempt to
subpoena petitioner at the latter's known address
proved unavailing, and in basing its resolution on the
evidence presented by the complainant.
The analysis of respondent People, thru the Solicitor
General, as to the real nature of the controversy at bar
is correct. It is not disputed that a preliminary
investigation was conducted by the Tanodbayan prior
to the filing of the informations. Petitioner, however,
was not able to participate therein as the subpoena
addressed to him at (PHILFINANCE) his last known
address, was returned "unserved," petitioner having
already severed his employment with said company at
the time of service. As petitioner reportedly left
(PHILFINANCE) under most unfriendly circumstances,
PHILFINANCE did not give the process server his
residence address on record with it.
Under Section 3, sub-section (d) of Rule 112 of the
1985 Rules on Criminal Procedure, "if the respondent
cannot be subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten (10) day
period, the investigating officer shall base his
resolution on the evidence presented by the
complainant." It is to be noted that this provision does

not require as a condition sine qua non to the validity

of the proceedings the presence of the accused for as
long as efforts to reach him were made, and an
opportunity to controvert the evidence of the
complainant is accorded him. The obvious purpose of
the rule is to block attempts of unscrupulous
respondents to thwart the prosecution of offenses by
hiding themselves or by employing dilatory tactics.
Considering that petitioner has voluntarily appeared
before the respondent Sandiganbayan in connection
with the criminal cases in question and has appeared
in
other
preliminary
investigations
of
other
PHILFINANCE charges filed in various fiscals' offices
and the Ministry (now Department) of Justice, it is
apparent that the non-service of the subpoena upon
him was not of his own doing or liking. To apply the full
force and effect of section 3, sub-section (d) of Rule
112 of the 1985 Rules on Criminal Procedure would, to
our mind, greatly prejudice him.
It is worthwhile repeating that the avowed purposes of
a preliminary investigation are "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 9 and while the "absence of
preliminary investigations does not affect the court's
jurisdiction over the case (n)or do they impair the
validity of the information or otherwise render it
defective, but, if there were no preliminary
investigations and the defendants, before entering
their plea, invite the attention of the court to their
absence, the court, instead of dismissing the
information, should conduct such investigation, order
the fiscal to conduct it or remand the case to the
inferior court so that the preliminary investigation may
be conducted. 10 In this case, the Tanodbayan, has the
duty to conduct the said investigation. 11
Thus, although the Sandiganbayan was correct in
ruling that the absence of a preliminary investigation is
not a ground for quashing an information, it should
have held the proceedings in the criminal cases in
abeyance pending resolution by the Tanodbayan of
petitioner's petition for reinvestigation, as alternatively
prayed for by him in his motion to quash.
During the pendency of the case at bar, petitioner
manifested to the Court that in a Joint Order dated
September 26, 1985, Tanodbayan Special Prosecutors
Roger C. Berbano Sr. and Eleuterio F. Guerrero had
recommended that the separate petitions for
reinvestigation filed by petitioner and his co-accused
be given due course by the Tanodbayan and that said
special prosecutors be given clearance and authority to
conduct such reinvestigation. Although it appears that
these recommendations were approved by then
Tanodbayan Bernardo P. Fernandez on October 14,
1985 12 no further report on this matter has reached
the Court. As we cannot assume that the
reinvestigation was indeed conducted as would render
the instant petition moot and academic, and
considering the importance of the issue involved, we
deemed it proper to decide the petition on the merits.
WHEREFORE, the assailed resolution of the respondent
Sandiganbayan dated July 15, 1985 in Criminal Cases
Nos. 10389, 10390, 10391, 10393 and 10394 is hereby
affirmed, but respondent Sandiganbayan is ordered to
hold in abeyance the proceedings therein with respect
to petitioner, subject to the outcome of the
reinvestigation of the Tanodbayan of the aforesaid
cases. The Temporary Restraining Order issued by the
Court on August 1, 1985 is deemed superseded by this
directive.
SO ORDERED.
G.R. No. L-25133

September 28, 1968

S/SGT. JOSE SANTIAGO, petitioner-appellant,

vs.
LT. COL. CELSO ALIKPALA, ET AL., respondentsappellees.
Floro A. Sarmiento and Noe Maines for petitionerappellant.
Cuadrato Palma and the Office of the Solicitor General
for respondents-appellees.

FERNANDO, J.:
The validity of a court-martial proceeding was
challenged in the lower court on due process grounds
to show lack of jurisdiction. Petitioner, a sergeant in the
Philippine Army and the accused in a court-martial
proceeding, through a writ of certiorari and prohibition,
filed on April 17, 1963, with the lower court, sought to
restrain respondents, the officers, constituting the
court-martial, that was then in the process of trying
petitioner for alleged violation of two provisions of the
Articles of War, from continuing with the proceedings
on the ground of its being without jurisdiction. There
was likewise a plea for a restraining order, during the
pendency of his petition, but it was unsuccessful.
No response, either way, was deemed necessary by
the then Presiding Judge of the lower court, now Justice
Nicasio Yatco of the Court of Appeals, as petitioner had,
in the meanwhile, been convicted by the court-martial.
The lower court verdict, rendered on September 16,
1963, was one of dismissal, as in its opinion, "this case
had already become moot and academic ... ."
An appeal was taken to us, the same due process
objections being raised. We think that the question
before us is of such import and significance that an
easy avoidance through the technicality of the "moot
and academic" approach hardly recommends itself. For
reasons to be more fully set forth, we find that such
court-martial was not lawfully convened, and,
consequently, devoid of jurisdiction. Accordingly, we
reverse the lower court.
There was a stipulation of facts submitted to the lower
court on July 10, 1963, to the following effect: "That the
arraignment of the petitioner on December 17, 1962
was for the purpose of avoiding prescription pursuant
to Article of War 38 of one of the offenses with which
the accused is charged since, as charged, same was
allegedly committed on or about December 18, 1960;
That prior to the said arraignment, no written summons
or subpoena was issued addressed to the petitioner or
his counsel, informing them of said arraignment; That
instead of said written summons or subpoena Col.
Eladio Samson, Constabulary Staff Judge Advocate
called up First Sergeant Manuel Soriano at the
Headquarters II Philippine Constabulary Zone, Camp
Vicente Lim, Canlubang, Laguna on December 16,
1962 by telephone with instructions to send the
petitioner to HPC, Camp Crame, Quezon City, under
escort, for arraignment and only for arraignment; That
upon arrival in HPC, the petitioner was directed to
proceed to the PC Officer's Clubhouse, where a General
Court-Martial composed of the respondents, created to
try the case of 'People vs. Capt. Egmidio Jose, for
violation of Articles of War 96 and 97', pursuant to
paragraph 10, Special Order No. 14, Headquarters
Philippine Constabulary, dated 18 July 1962, ..., was to
resume, as scheduled, the trial of 'People vs. Pfc.
Numeriano Ohagan, for violation of Articles of War 64,
85, and 97'; That it was only at the time (December 17,
1962) that petitioner learned that he will be arraigned
for alleged violation of Articles of War 85 and 97, after
being informed by one of the respondents, Capt.
Cuadrato Palma as Trial Judge Advocate why he was
there; That prior to that arraignment on December 17,
1962 there was no special order published by the
Headquarters Philippine Constabulary creating or

directing the General Court-Martial composed of the

respondents to arraign and try the case against the
petitioner, there however was already an existing court
trying another case; That the respondents relied on the
first indorsement of the Acting Adjutant General, HPC,
Camp Crame, Quezon City, dated December 14, 1962
and addressed to the Trial Judge Advocate of the
General Court-martial ... directing the said Trial Judge
Advocate to refer the case against petitioner to the
above-mentioned court, ...; That the above paragraph
10, Special Order No. 14 dated 18 July 1962, does not
contain the phrase 'and such other cases which may be
referred to it,' but however said orders were amended
only on 8 January 1963, to include such phrase, ... ." 1
It was further stipulated that petitioner's counsel did
object to his arraignment asserting that a general
court-martial then convened was without jurisdiction,
as there was no special order designating respondents
to compose a general court-martial for the purpose of
trying petitioner, as petitioner was not furnished a copy
of the charge sheet prior to his arraignment as required
in the Manual for Court-Martial, except on the very day
thereof, and as there was no written summons or
subpoena served on either the petitioner, as accused,
or the counsel. Respondents, acting as the general
court-martial, overruled the above objections, and the
Trial Judge Advocate was then ordered to proceed to
read the charges and specifications against petitioner
over the vigorous objections of counsel. It was shown,
likewise, in the stipulation of facts, that the case,
having been postponed to February 21, 1963,
petitioner's counsel had in the meanwhile complained
to the Chief of Constabulary against the proceedings
on the ground of its nullity, and sought to have
respondents restrained from continuing with the trial of
petitioner due to such lack of jurisdiction but the Chief
of Constabulary ruled that he could not act on such
complaint until the records of the trial were forwarded
to him for review. With such a ruling, and with the
denial of two other motions by petitioner upon the
court-martial being convened anew on February 21,
1963, one to invalidate his arraignment on December
17, 1962, and the other to quash the complaint based
on the denial of due process and lack of jurisdiction,
the present petition for certiorari and prohibition was
filed with the lower court. 2
As above noted, the lower court dismissed the petition
due to its belief that, petitioner having been convicted
in the meanwhile, there being no restraining order, the
matter had become moot and academic. As was set
forth earlier, we differ, the alleged lack of jurisdiction
being too serious a matter to be thus summarily
ignored.
The firm insistence on the part of petitioner that the
general court-martial lacks jurisdiction on due process
grounds, cannot escape notice. The basic objection was
the absence of a special order "designating
respondents to compose a general court-martial to
convene and try the case of petitioner; ... ." It was
expressly stipulated that the respondents were
convened to try the case of a certain Capt. Egmidio
Jose and not that filed against petitioner. As a matter of
fact, the opening paragraph of the stipulation of facts
made clear that he was arraigned on December 17,
1962 by respondents as a general court-martial
appointed precisely to try the above Capt. Jose solely
"for the purpose of avoiding prescription pursuant to
Article of War 38 of one of the offenses with which the
accused is charged ... ."
Is such a departure from what the law and regulations
3 prescribe offensive to the due process clause? If it
were, then petitioner should be sustained in his plea
for a writ of certiorari and prohibition, as clearly the
denial of the constitutional right would oust
respondents of jurisdiction, even on the assumption
that they were vested with it originally. Our decisions to
that effect are impressive for their unanimity.

In Harden v. The Director of Prisons, 4 Justice Tuason,

speaking for the Court, explicitly announced that
"deprivation of any fundamental or constitutional
rights" justify a proceeding for habeas corpus on the
ground of lack of jurisdiction. Abriol v. Homeres 5 is
even more categorical. In that case, the action of a
lower court, denying the accused the opportunity to
present proof for his defense, his motion for dismissal
failing, was held by this Court as a deprivation of his
right to due process. As was made clear by the opinion
of Justice Ozaeta: "No court of justice under our system
of government has the power to deprive him of that
right. If the accused does not waive his right to be
heard but on the contrary as in the instant case
invokes the right, and the court denies it to him, that
court no longer has jurisdiction to proceed; it has no
power to sentence the accused without hearing him in
his defense; and the sentence thus pronounced is void
and may be collaterally attacked in a habeas corpus
proceeding." 6
A recent decision rendered barely a month ago, in
Chavez v. Court of Appeals, 7 is even more in point.
Here, again, habeas corpus was relied upon by
petitioner whose constitutional rights were not
respected, but, in addition, the special civil actions of
certiorari and mandamus were likewise availed of, in
view of such consequent lack of jurisdiction. The stress
though in the opinion of Justice Sanchez was on habeas
corpus. Thus: "The course which petitioner takes is
correct. Habeas corpus is a high prerogative writ. It is
traditionally considered as an exceptional remedy to
release a person whose liberty is illegally restrained
such as when the accused's constitutional rights are
disregarded. Such defect results in the absence or loss
of jurisdiction and therefore invalidates the trial and
the consequent conviction of the accused whose
fundamental right was violated. That void judgment of
conviction may be challenged by collateral attack,
which precisely is the function of habeas corpus. This
writ may issue even if another remedy which is less
effective may be availed of by the defendant."
The due process concept rightfully referred to as "a
vital and living force in our jurisprudence" calls for
respect and deference, otherwise the governmental
action taken suffers from a fatal infirmity. As was so
aptly expressed by the then Justice, now Chief Justice,
Concepcion: "... acts of Congress, as well as those of
the Executive, can deny due process only under pain of
nullity, and judicial proceedings suffering from the
same flaw are subject to the same sanction, any
statutory provision to the contrary notwithstanding." 8
The crucial question, then, is whether such failure to
comply with the dictates of the applicable law insofar
as convening a valid court martial is concerned,
amounts to a denial of due process. We hold that it
does. There is such a denial not only under the broad
standard which delimits the scope and reach of the due
process requirement, but also under one of the specific
elements of procedural due process.
It is to be admitted that there is no controlling and
precise definition of due process which, at the most
furnishes a standard to which governmental action
should conform in order to impress with the stamp of
validity any deprivation of life, liberty or property. A
recent decision of this Court, in Ermita-Malate Hotel v.
Mayor of Manila 9 treated the matter thus: "It is
responsiveness to the supremacy of reason, obedience
to the dictates of justice. Negatively put, arbitrariness
is ruled out and unfairness avoided. To satisfy the due
process requirement, official action, to paraphrase
Cardozo, must not outrun the bounds of reason and
result in sheer oppression. Due process is thus hostile
to any official action marred by lack of reasonableness.
Correctly has it been identified as freedom from
arbitrariness. It is the embodiment of the sporting idea
of fair play. It exacts fealty 'to those strivings for
justice' and judges the act of officialdom of whatever
branch 'in the light of reason drawn from

considerations of fairness that reflect [democratic]

traditions of legal and political thought.'"
Nor is such a reliance on the broad reach of due
process the sole ground on which the lack of
jurisdiction of the court-martial convened in this case
could be predicated. Recently, stress was laid anew by
us on the first requirement of procedural due process,
namely, the existence of the court or tribunal clothed
with judicial, or quasi-judicial, power to hear and
determine the matter before it. 10 This is a
requirement that goes back to Banco Espaol-Filipino v.
Palanca, a decision rendered half a century ago. 11
There is the express admission in the statement of
facts that respondents, as a court-martial, were not
convened to try petitioner but someone else, the action
taken against petitioner being induced solely by a
desire to avoid the effects of prescription; it would
follow then that the absence of a competent court or
tribunal is most marked and undeniable. Such a denial
of due process is therefore fatal to its assumed
authority to try petitioner. The writ of certiorari and
prohibition should have been granted and the lower
court, to repeat, ought not to have dismissed his
petition summarily.
The significance of such insistence on a faithful
compliance with the regular procedure of convening
court-martials in accordance with law cannot be overemphasized. As was pointed out by Justice Tuason in
Ruffy v. The Chief of Staff, Philippine Army: 12 "Courtsmartial are agencies of executive character, and one of
the authorities for the ordering of courts-martial has
been held to be attached to the constitutional functions
of the President as Commander-in-Chief, independently
of legislation. (Winthrop's Military Law and Precedents,
2d Edition, p. 49.) Unlike courts of law, they are not a
portion of the judiciary." Further on, his opinion
continues: "Not belonging to the judicial branch of the
government, it follows that courts-martial must pertain
to the executive department; and they are in fact
simply instrumentalities of the executive power,
provided by Congress for the President as Commanderin-Chief, to aid him in properly commanding the army
and navy and enforcing discipline therein, and utilized
under his orders or those of his authorized military
representatives." 13
It is even more indispensable, therefore, that such
quasi-judicial agencies, clothed with the solemn
responsibility of depriving members of the Armed
Forces of their liberties, even of their lives, as a matter
of fact, should be held all the more strictly bound to
manifest fidelity to the fundamental concept of fairness
and the avoidance of arbitrariness for which due
process stands as a living vital principle. If it were
otherwise, then, abuses, even if not intended, might
creep in, and the safeguards so carefully thrown about
the freedom of an individual, ignored or disregarded.
Against such an eventuality, the vigilance of the
judiciary furnishes a shield. That is one of its grave
responsibilities. Such a trust must be lived up to; such
a task cannot be left undone.
WHEREFORE, the order of respondent Court of
September 6, 1963, dismissing the petition for
certiorari and prohibition is reversed, and the writ of
certiorari and prohibition granted, annulling the
proceedings as well as the decision rendered by
respondents as a court-martial and perpetually
restraining them from taking any further action on the
matter. Without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Sanchez,
Angeles and Capistrano, JJ., concur.
Dizon and Zaldivar, JJ., are on leave.
Separate Opinions
CASTRO, J., concurring:

My concurrence in the decision of this Court in the able

pen of Mr. Justice Fernando is unqualified.

In sum, a court-martial is not a continuing permanent

tribunal.

Nonetheless, I feel compelled to express my views on

certain disturbing facets of this case which to my mind
not merely indicate a censurabe denial of due process,
but as well pointedly exposes, from the perspective of
military law, tradition and usage, the intrinsic nullity of
the proceedings had by the general court-martial in
question.

Thus it is that, in the Armed Forces of the Philippines,

the general rule has commanded undiminished respect
that a court-martial is appointed to try only a single
case, or several cases pertaining to a single individual.
There is of course no legal impediment to empowering
a court-martial, in the same order creating it, to try
more than one case, but such creations are the
exception and quite infrequent. And even if "roving" or
"semi-permanent" courts-martial were the rule in our
Armed Forces, which I do not concede, the general
court-martial in the case at bar was not one such.

The history and development of courts-martial as

tribunals for the enforcement of discipline in bodies of
military character 1 underscore several time-honored
tenets: a court-martial is an instrumentality of the
executive power, to aid the President as commanderin-chief in properly commanding and controlling the
armed forces and enforcing discipline therein; it has
only such powers as are expressly vested in it by
statute or as may be derived from military usage; it is a
creature of orders; as a purely executive agency
designed for military uses, it is brought into being by a
military order; it is transient in its duration; it has no
fixed place of session, nor permanent office or clerk, no
inherent power to issue a judicial mandate; its
judgment is in quintessence simply a recommendation
until approved by the proper revisory commander; its
competency cannot be expanded by implication; and
no intendment in favor of its acts can be made where
their legality does not indubitably appear. 2
The original concept of a court-martial in British Law,
even with American and Philippine statutory
accretions, remains fundamentally the same today,
with few modifications of consequence.
Why a court-martial is essentially transient in nature,
and is as a rule appointed to try a single case, is not
difficult to comprehend.
Firstly, in a military organization, every officer thereof
belongs to a particular branch of services and is for
that reason assigned to a position which calls for the
discharge, in a continuing manner and for a period
which is denominated tour of duty, of duties pertaining
to his specialization or branch of service. Thus an
ordnance officer is assigned to ordnance work, a field
artillery officer to field artillery duties, a finance officer
to duties
involving money and finances, a
quartermaster officer to duties involving supplies and
other aspects of logistics, and so forth. Although
generic military duty perforce embraces occasional
membership in courts-martial, it does not envision such
membership as a continuing assignment of long
duration.
Secondly, the court-martial, as its history and
development demonstrate, is a blend of the jury
system and the one-judge (non-jury) judicial system. In
common law jurisdictions, an accused is tried by his
peers. In one-judge (non-jury) jurisdictions, the
accused is tried by a lone judicial arbiter. In a courtmartial trial, the entire panel of officers who constitute
the court-martial is judge and jury.1awphl.nt
Thirdly, by virtue of military law, tradition and usage, a
court-martial is constituted to try a particular case (or
several cases involving the same accused). After
completion of the trial and resolution of necessary
post-trial incidents, the court is dissolved, and the
members thereof return to and resume their respective
normal assignments. Even the law member of a courtmartial (who rules on questions of law and admissibility
of evidence and advises the other members on court
procedure and the legal intricacies of trial), rejoins his
regular office or unit (although he may thereafter again
be appointed law member of a subsequent general
court-martial, or an ordinary member of another
general court-martial, or even president of still another
general court-martial).

It is undisputed as in fact it is stipulated by the

parties that the general court-martial in question
was constituted to try Captain Egmidio Jose. Nothing in
the phraseology of the order that created it authorized
it to try the petitioner staff-sergeant Santiago. It could
not therefore proceed in any manner, which we can
view as properly coming within the periphery of its
limited powers, with respect to the charge against
Santiago.When it arraigned Santiago on December 17,
1962, it was absolutely without legal power to do so,
and the arraignment was a futile ceremony, as
meaningless as it was inefficacious.
Undeniably the record shows that the order creating
the court-martial to try Captain Egmidio Jose was
belatedly amended on January 8, 1963 by the addition
of the phrase, "and such other cases that may be
referred to it." But this afterthought could not, in law,
serve to invest with validity an act that was ab initio a
nullity. And it is of no moment that petitioner was
thereafter arraigned anew, assuming arguendo that he
was. The proceedings would have been palpably
objectionable on the patent ground that the offense
imputed to the petitioner which was committed on
December 18, 1960 was already time-barred on
December 18, 1962, pursuant to the provisions of
Article of War 38 of Commonwealth Act 408, as
amended.
As I see it, the arraignment of the petitioner by the
general court-martial constituted to try Captain
Egmidio Jose was a desperate measure resorted to
remedy a desperate situation solely to interrupt the
running of the prescriptive period provided by Article of
War 38. This action was not only completely devoid of
any semblance of legality; it likewise conclusively
evinces gross negligence on the part of the military.
Why nothing was done toward the creation of a courtmartial to try Santiago within the two years following
the commission of the crime is not explained by the
record, and I venture the opinion that there can be no
satisfactory
explanation
therefor.
The
military
authorities allowed that long period to lapse without
any assiduous effort at bringing the petitioner to the
forum of a duly constituted general court-martial. This
should never come to pass in the Armed Forces where
disciplinary measures of whatever specie or character,
by law and tradition and usage, should be swiftly
administered. For, the officer of average military
learning knows or should be cognizant of the
proliferation in the Articles of War of provisions
designed to insure speedy trial of accused
persons.1awphl.nt
Because an accused charged with a serious offense
such as that in the case at bar unlawful disposition
of ten carbines belonging to the Government is
ordinarily placed in arrest and is not entitled to bail,
time is of the essence as undue delay would obviously
be prejudicial to the accused. The Articles of War
(Commonwealth Act 408 as amended by Rep. Act 242)
and implementing military manuals and regulations
explicitly enjoin that the report of investigation, if
practicable, be completed within 48 hours, that the
investigator
forthwith
make
the
proper
recommendation as to the disposition of the case, and
that the officer exercising general court-martial

jurisdiction over the accused act on the report of the

investigator with deliberate speed. As a matter of fact,
Article of War 71 explicitly commands that when a
person subject to military law is placed in arrest or
confinement immediate steps be taken to try him or to
dismiss the charge; that when a person is held for trial
by general court-martial his commanding officer, within
eight days after the accused is arrested or confined,
forward the charges to the officer exercising general
court-martial jurisdiction and furnish the accused a
copy of such charges; and that if the same be not
practicable, he report to superior authority the reasons
for the delay. The same Article of War poises the threat
of punishment (as a court-martial may direct) over any
officer responsible for unnecessary delay "in
investigating or carrying the case to final conclusion."

The record propels me to the conclusion that

everything that the military authorities did or
neglected to do with respect to the case of the
petitioner was contrary to all the imperatives of
military law, tradition and usage.
In fine, it is my considered view that at the time the
petitioner was arraigned, there was no court-martial
validly in existence that could legally take cognizance
of the charge against him. At best, the general courtmartial in question, vis-a-vis the petitioner, was
disembodied if not innominate, with neither shape nor
substance.