G.R. No.
202242 April 16, 2013 as a representative in its proceedings, in accordance with Section
FRANCISCO I. CHAVEZ, Petitioner,
vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and
REP. NIEL C. TUPAS, JR., Respondents.
RESOLUTION
MENDOZA, J.:
This resolves the Motion for Reconsideration1 filed by the Office of
the Solicitor General (OSG) on behalf of the respondents, Senator
Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr.
(respondents), duly opposed2 by the petitioner, former Solicitor
General Francisco I. Chavez (petitioner).
By way of recapitulation, the present action stemmed from the
unexpected departure of former Chief Justice Renato C. Corona on
May 29, 2012, and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner asked the Court to
determine 1] whether the first paragraph of Section 8, Article VIII of
the 1987 Constitution allows more than one (1) member of Congress
to sit in the JBC; and 2] if the practice of having two (2)
representatives from each House of Congress with one (1) vote each
is sanctioned by the Constitution.
On July 17, 2012, the Court handed down the assailed subject
decision, disposing the same in the following manner:
WHEREFORE, the petition is GRANTED. The current numerical
composition of the Judicial and Bar Council is declared
UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined
to reconstitute itself so that only one (1) member of Congress will sit
8(1), Article VIII of the 1987 Constitution.
This disposition is immediately executory.
SO ORDERED.
On July 31, 2012, following respondents’ motion for reconsideration
and with due regard to Senate Resolution Nos. 111,3 112,4 113,5 and
114,6 the Court set the subject motion for oral arguments on August
2, 2012.7 On August 3, 2012, the Court discussed the merits of the
arguments and agreed, in the meantime, to suspend the effects of
the second paragraph of the dispositive portion of the July 17, 2012
Decision which decreed that it was immediately executory. The
decretal portion of the August 3, 2012 Resolution8 reads:
WHEREFORE, the parties are hereby directed to submit their
respective MEMORANDA within ten (10) days from notice. Until
further orders, the Court hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Court’s July 17, 2012
Decision, which reads: "This disposition is immediately executory."9
Pursuant to the same resolution, petitioner and respondents filed
their respective memoranda.10
Brief Statement of the Antecedents
In this disposition, it bears reiterating that from the birth of the
Philippine Republic, the exercise of appointing members of the
Judiciary has always been the exclusive prerogative of the executive
and legislative branches of the government. Like their progenitor of
American origins, both the Malolos Constitution11 and the 1935
Constitution12 vested the power to appoint the members of the
Judiciary in the President, subject to confirmation by the Commission
on Appointments. It was during these times that the country became
witness to the deplorable practice of aspirants seeking confirmation
of their appointment in the Judiciary to ingratiate themselves with
the members of the legislative body.13
Then, under the 1973 Constitution,14 with the fusion of the executive
and legislative powers in one body, the appointment of judges and
justices ceased to be subject of scrutiny by another body. The power
became exclusive and absolute to the Executive, subject only to the
condition that the appointees must have all the qualifications and
none of the disqualifications.
Prompted by the clamor to rid the process of appointments to the
Judiciary of the evils of political pressure and partisan activities,15
the members of the Constitutional Commission saw it wise to create
a separate, competent and independent body to recommend
nominees to the President.
Thus, it conceived of a body, representative of all the stakeholders in
the judicial appointment process, and called it the Judicial and Bar
Council (JBC). The Framers carefully worded Section 8, Article VIII of
the 1987 Constitution in this wise:
Section 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as
ex officio Chairman, the Secretary of Justice, and a representative of
the Congress as ex officio Members, a representative of the
Integrated Bar, a professor of law, a retired Member of the Supreme
Court, and a representative of the private sector.
From the moment of the creation of the JBC, Congress designated
one (1) representative to sit in the JBC to act as one of the ex-officio
members.16 Pursuant to the constitutional provision that Congress
is entitled to one (1) representative, each House sent a
representative to the JBC, not together, but alternately or by
rotation.
In 1994, the seven-member composition of the JBC was substantially
altered.1âwphi1 An eighth member was added to the JBC as the two
(2) representatives from Congress began sitting simultaneously in the
JBC, with each having one-half (1/2) of a vote.17
In 2001, the JBC En Banc decided to allow the representatives from
the Senate and the House of Representatives one full vote each.18 It
has been the situation since then.
Grounds relied upon by Respondents
Through the subject motion, respondents pray that the Court
reconsider its decision and dismiss the petition on the following
grounds: 1] that allowing only one representative from Congress in
the JBC would lead to absurdity considering its bicameral nature; 2]
that the failure of the Framers to make the proper adjustment when
there was a shift from unilateralism to bicameralism was a plain
oversight; 3] that two representatives from Congress would not
subvert the intention of the Framers to insulate the JBC from political
partisanship; and 4] that the rationale of the Court in declaring a
seven-member composition would provide a solution should there
be a stalemate is not exactly correct.
While the Court may find some sense in the reasoning in
amplification of the third and fourth grounds listed by respondents,
still, it finds itself unable to reverse the assailed decision on the
principal issues covered by the first and second grounds for lack of
merit. Significantly, the conclusion arrived at, with respect to the first
and second grounds, carries greater bearing in the final resolution of
this case.
As these two issues are interrelated, the Court shall discuss them
jointly.
Ruling of the Court
The Constitution evinces the direct action of the Filipino people by
which the fundamental powers of government are established,
limited and defined and by which those powers are distributed
among the several departments for their safe and useful exercise for
the benefit of the body politic.19 The Framers reposed their wisdom
and vision on one suprema lex to be the ultimate expression of the
principles and the framework upon which government and society
were to operate. Thus, in the interpretation of the constitutional
provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say. The language used in the Constitution
must be taken to have been deliberately chosen for a definite
purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained
inviolate against disobedience and defiance. What the Constitution
clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.
For this reason, the Court cannot accede to the argument of plain
oversight in order to justify constitutional construction. As stated in
the July 17, 2012 Decision, in opting to use the singular letter "a" to
describe "representative of Congress," the Filipino people through
the Framers intended that Congress be entitled to only one (1) seat
in the JBC. Had the intention been otherwise, the Constitution could
have, in no uncertain terms, so provided, as can be read in its other
provisions.
A reading of the 1987 Constitution would reveal that several
provisions were indeed adjusted as to be in tune with the shift to
bicameralism. One example is Section 4, Article VII, which provides
that a tie in the presidential election shall be broken "by a majority
of all the Members of both Houses of the Congress, voting
separately."20 Another is Section 8 thereof which requires the
nominee to replace the Vice-President to be confirmed "by a majority
of all the Members of both Houses of the Congress, voting
separately."21 Similarly, under Section 18, the proclamation of
martial law or the suspension of the privilege of the writ of habeas
corpus may be revoked or continued by the Congress, voting
separately, by a vote of at least a majority of all its Members."22 In
all these provisions, the bicameral nature of Congress was recognized
and, clearly, the corresponding adjustments were made as to how a
matter would be handled and voted upon by its two Houses.
Thus, to say that the Framers simply failed to adjust Section 8, Article
VIII, by sheer inadvertence, to their decision to shift to a bicameral
form of the legislature, is not persuasive enough. Respondents
cannot just lean on plain oversight to justify a conclusion favorable to
them. It is very clear that the Framers were not keen on adjusting the
provision on congressional representation in the JBC because it was
not in the exercise of its primary function – to legislate. JBC was
created to support the executive power to appoint, and Congress, as
one whole body, was merely assigned a contributory non-legislative
function.
The underlying reason for such a limited participation can easily be
discerned. Congress has two (2) Houses. The need to recognize the
existence and the role of each House is essential considering that the
Constitution employs precise language in laying down the functions
which particular House plays, regardless of whether the two Houses
consummate an official act by voting jointly or separately. Whether
in the exercise of its legislative23 or its non-legislative functions such
as inter alia, the power of appropriation,24 the declaration of an
existence of a state of war,25 canvassing of electoral returns for the
President and Vice-President,26 and impeachment,27 the dichotomy
of each House must be acknowledged and recognized considering the
interplay between these two Houses. In all these instances, each
House is constitutionally granted with powers and functions peculiar
to its nature and with keen consideration to 1) its relationship with
the other chamber; and 2) in consonance with the principle of checks
and balances, as to the other branches of government.
In checkered contrast, there is essentially no interaction between the
two Houses in their participation in the JBC. No mechanism is
required between the Senate and the House of Representatives in
the screening and nomination of judicial officers. Rather, in the
creation of the JBC, the Framers arrived at a unique system by adding
to the four (4) regular members, three (3) representatives from the
major branches of government - the Chief Justice as ex-officio
Chairman (representing the Judicial Department), the Secretary of
Justice (representing the Executive Department), and a
representative of the Congress (representing the Legislative
Department). The total is seven (7), not eight. In so providing, the
Framers simply gave recognition to the Legislature, not because it
was in the interest of a certain constituency, but in reverence to it as
a major branch of government.
On this score, a Member of Congress, Hon. Simeon A. Datumanong,
from the Second District of Maguindanao, submitted his well-
considered position28 to then Chief Justice Reynato S. Puno:
I humbly reiterate my position that there should be only one
representative of Congress in the JBC in accordance with Article VIII,
Section 8 (1) of the 1987 Constitution x x x.
The aforesaid provision is clear and unambiguous and does not need
any further interpretation. Perhaps, it is apt to mention that the oft-
repeated doctrine that "construction and interpretation come only
after it has been demonstrated that application is impossible or
inadequate without them."
Further, to allow Congress to have two representatives in the Council,
with one vote each, is to negate the principle of equality among the
three branches of government which is enshrined in the Constitution.
In view of the foregoing, I vote for the proposition that the Council
should adopt the rule of single representation of Congress in the JBC
in order to respect and give the right meaning to the above-quoted
provision of the Constitution. (Emphases and underscoring supplied)
On March 14, 2007, then Associate Justice Leonardo A. Quisumbing,
also a JBC Consultant, submitted to the Chief Justice and ex-officio
JBC Chairman his opinion,29 which reads:
8. Two things can be gleaned from the excerpts and citations above:
the creation of the JBC is intended to curtail the influence of politics
in Congress in the appointment of judges, and the understanding is
that seven (7) persons will compose the JBC. As such, the
interpretation of two votes for Congress runs counter to the
intendment of the framers. Such interpretation actually gives
Congress more influence in the appointment of judges. Also, two
votes for Congress would increase the number of JBC members to
eight, which could lead to voting deadlock by reason of even-
numbered membership, and a clear violation of 7 enumerated
members in the Constitution. (Emphases and underscoring supplied)
In an undated position paper,30 then Secretary of Justice Agnes VST
Devanadera opined:
As can be gleaned from the above constitutional provision, the JBC is
composed of seven (7) representatives coming from different
sectors. From the enumeration it is patent that each category of
members pertained to a single individual only. Thus, while we do not
lose sight of the bicameral nature of our legislative department, it is
beyond dispute that Art. VIII, Section 8 (1) of the 1987 Constitution is
explicit and specific that "Congress" shall have only "xxx a
representative." Thus, two (2) representatives from Congress would
increase the number of JBC members to eight (8), a number beyond
what the Constitution has contemplated. (Emphases and
underscoring supplied)
In this regard, the scholarly dissection on the matter by retired Justice
Consuelo Ynares-Santiago, a former JBC consultant, is worth
reiterating.31 Thus:
A perusal of the records of the Constitutional Commission reveals
that the composition of the JBC reflects the Commission’s desire "to
have in the Council a representation for the major elements of the
community." xxx The ex-officio members of the Council consist of
representatives from the three main branches of government while
the regular members are composed of various stakeholders in the
judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to
treat each ex-officio member as representing one co-equal branch of
government. xxx Thus, the JBC was designed to have seven voting
members with the three ex-officio members having equal say in the
choice of judicial nominees.
xxx
No parallelism can be drawn between the representative of Congress
in the JBC and the exercise by Congress of its legislative powers under
Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial
branches of government, is constitutionally treated as another co-
equal branch in the matter of its representative in the JBC. On the
other hand, the exercise of legislative and constituent powers
requires the Senate and the House of Representatives to coordinate
and act as distinct bodies in furtherance of Congress’ role under our
constitutional scheme. While the latter justifies and, in fact,
necessitates the separateness of the two Houses of Congress as they
relate inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.
It is more in keeping with the co-equal nature of the three
governmental branches to assign the same weight to considerations
that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of
Representatives act as such for one branch and should not have any
more quantitative influence as the other branches in the exercise of
prerogatives evenly bestowed upon the three. Sound reason and
principle of equality among the three branches support this
conclusion. [Emphases and underscoring supplied]
The argument that a senator cannot represent a member of the
House of Representatives in the JBC and vice-versa is, thus,
misplaced. In the JBC, any member of Congress, whether from the
Senate or the House of Representatives, is constitutionally
empowered to represent the entire Congress. It may be a constricted
constitutional authority, but it is not an absurdity.
From this score stems the conclusion that the lone representative of
Congress is entitled to one full vote. This pronouncement effectively
disallows the scheme of splitting the said vote into half (1/2),
between two representatives of Congress. Not only can this
unsanctioned practice cause disorder in the voting process, it is
clearly against the essence of what the Constitution authorized. After
all, basic and reasonable is the rule that what cannot be legally done
directly cannot be done indirectly. To permit or tolerate the splitting
of one vote into two or more is clearly a constitutional circumvention
that cannot be countenanced by the Court. Succinctly put, when the
Constitution envisioned one member of Congress sitting in the JBC, it
is sensible to presume that this representation carries with him one
full vote.
It is also an error for respondents to argue that the President, in
effect, has more influence over the JBC simply because all of the
regular members of the JBC are his appointees. The principle of
checks and balances is still safeguarded because the appointment of
all the regular members of the JBC is subject to a stringent process of
confirmation by the Commission on Appointments, which is
composed of members of Congress.
Respondents’ contention that the current irregular composition of
the JBC should be accepted, simply because it was only questioned
for the first time through the present action, deserves scant
consideration. Well-settled is the rule that acts done in violation of
the Constitution no matter how frequent, usual or notorious cannot
develop or gain acceptance under the doctrine of estoppel or laches,
because once an act is considered as an infringement of the
Constitution it is void from the very beginning and cannot be the
source of any power or authority.
It would not be amiss to point out, however, that as a general rule,
an unconstitutional act is not a law; it confers no rights; it imposes no
duties; it affords no protection; it creates no office; it is inoperative
as if it has not been passed at all. This rule, however, is not absolute.
Under the doctrine of operative facts, actions previous to the
declaration of unconstitutionality are legally recognized. They are not
nullified. This is essential in the interest of fair play. To reiterate the
doctrine enunciated in Planters Products, Inc. v. Fertiphil
Corporation:32
The doctrine of operative fact, as an exception to the general rule,
only applies as a matter of equity and fair play. It nullifies the effects
of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative
fact and may have consequences which cannot always be ignored.
The past cannot always be erased by a new judicial declaration. The
doctrine is applicable when a declaration of unconstitutionality will
impose an undue burden on those who have relied on the invalid law.
Thus, it was applied to a criminal case when a declaration of
unconstitutionality would put the accused in double jeopardy or
would put in limbo the acts done by a municipality in reliance upon a
law creating it.33
Under the circumstances, the Court finds the exception applicable in
this case and holds that notwithstanding its finding of
unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.
Considering that the Court is duty bound to protect the Constitution
which was ratified by the direct action of the Filipino people, it cannot
correct what respondents perceive as a mistake in its mandate.
Neither can the Court, in the exercise of its power to interpret the
spirit of the Constitution, read into the law something that is contrary
to its express provisions and justify the same as correcting a
perceived inadvertence. To do so would otherwise sanction the Court
action of making amendment to the Constitution through a judicial
pronouncement.
In other words, the Court cannot supply the legislative omission.
According to the rule of casus omissus "a case omitted is to be held
as intentionally omitted."34 "The principle proceeds from a
reasonable certainty that a particular person, object or thing has
been omitted from a legislative enumeration."35 Pursuant to this,
"the Court cannot under its power of interpretation supply the
omission even though the omission may have resulted from
inadvertence or because the case in question was not foreseen or
contemplated."36 "The Court cannot supply what it thinks the
legislature would have supplied had its attention been called to the
omission, as that would be judicial legislation."37

Stated differently, the Court has no power to add another member

by judicial construction.

The call for judicial activism fails to stir the sensibilities of the Court
tasked to guard the Constitution against usurpation. The Court
remains steadfast in confining its powers in the sphere granted by
the Constitution itself. Judicial activism should never be allowed to
become judicial exuberance.38 In cases like this, no amount of
practical logic or convenience can convince the Court to perform
either an excision or an insertion that will change the manifest intent
of the Framers. To broaden the scope of congressional
representation in the JBC is tantamount to the inclusion of a subject
matter which was not included in the provision as enacted. True to
its constitutional mandate, the Court cannot craft and tailor
constitutional provisions in order to accommodate all of situations no
matter how ideal or reasonable the proposed solution may sound. To
the exercise of this intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is

hereby DENIED.

The suspension of the effects of the second paragraph of the

dispositive portion of the July 17, 2012 Decision of the Court, which
reads, "This disposition is immediately executory," is hereby LIFTED.

SO ORDERED.
G.R. No. 149453 October 7, 2003
PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR
GENERAL OF THE PHILIPPINE NATIONAL POLICE, CHIEF STATE
PROSECUTOR JOVENCITO ZUÑO, STATE PROSECUTORS PETER L. ONG
and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY PROSECUTOR
CONRADO M. JAMOLIN and CITY PROSECUTOR OF QUEZON CITY
CLARO ARELLANO, petitioners,
vs.
PANFILO M. LACSON, respondent.
RESOLUTION
CALLEJO, SR., J.:
Before the Court are the following motions of the respondent, to wit:
(a) Omnibus Motion;1 (b) Motion for Reconsideration;2 (c)
Supplement to Motion for Reconsideration;3 (d) Motion To Set for
Oral Arguments.4
The Omnibus Motion
The respondent seeks the reconsideration of the April 29, 2003
Resolution of this Court which granted the petitioners’ motion for
reconsideration. The respondent thereafter prays to allow Associate
Justices Renato C. Corona, Ma. Alicia Austria-Martinez, Conchita C.
Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna to voluntary
inhibit themselves or, absent their consent, rule that such inhibition
is in order and to recuse them from further deliberating, discussing
or, in any manner, participating in the resolution of the Motion for
Reconsideration and the Supplement to Motion for Reconsideration.
The respondent points out that the aforenamed members of the
Court were appointed by President Gloria Macapagal-Arroyo after
the February 19, 2002 oral arguments and after the case at bar was
submitted for the decision of the Court. He asserts that although A.M.
No. 99-8-09-SC5 specifically provides that it applies only to the
divisions of the Court, it should likewise apply to this case, in light of
the April 1, 2003 Resolution of this Court which set aside its
Resolution dated May 28, 2002, apart from the constitutional issues
raised by the respondent in his motion for reconsideration and its
supplement. As such, according to the respondent, the instant case
should be unloaded by Justice Callejo, Sr. and re-raffled to any other
member of the Court.
The Court resolves to deny the respondent’s motion for lack of merit.
The records show that as early as May 24, 2002, the respondent filed
an urgent motion for the recusation of Justices Renato C. Corona and
Ma. Alicia Austria-Martinez for the reason that they were appointed
to the Court after the February 19, 2002 oral arguments and did not
participate in the integral portions of the proceedings. Justices
Corona and Austria-Martinez refused to inhibit themselves and
decided to participate in the deliberation on the petition.6 On March
18, 2003, the respondent filed a motion with the Court for the
recusation of Justice Romeo J. Callejo, Sr. on account of his voluntary
inhibition when the case was pending before the Court of Appeals.
On March 25, 2003, this Court issued a resolution denying the
respondent’s Motion dated March 18, 2003. The respondent
thereafter filed his motion for reconsideration of the April 1, 2003
Resolution of the Court in which he prayed, inter alia, for the
inhibition of Justice Callejo, Sr. under A.M. No. 99-8-09-SC and that
the case be re-raffled to another member of the Court who had
actually participated in the deliberation and the rendition of its May
28, 2002 Resolution. The respondent likewise sought the inhibition
of Justices Conchita C. Morales and Adolfo S. Azcuna, again for the
reason that they were appointed to the Court after the oral
arguments on February 19, 2002 and after the case had already been
submitted for decision.
On April 29, 2003, this Court issued a resolution denying the aforesaid
motions of the respondent.7 The Court ruled that A.M. No. 99-8-09-
SC is applicable only to cases assigned to the divisions of the Court:
The respondent’s reliance on Supreme Court Circular No. 99-8-09 is
misplaced. As admitted by the respondent, the said circular is
applicable only to motions for reconsideration in cases assigned to
the Divisions of the Court. For cases assigned to the Court En Banc,
the policy of the Court had always been and still is, if the ponente is
no longer with the Court, his replacement will act upon the motion
for reconsideration of a party and participate in the deliberations
thereof. This is the reason why Justice Callejo, Sr. who had replaced
retired Justice De Leon, prepared the draft of the April 1, 2003
Resolution of the Court.8
The Court also ruled that there was no need for its newest members
to inhibit themselves from participating in the deliberation of the
respondent’s Motion for Reconsideration:
Although Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr., and
Adolfo S. Azcuna were not yet members of the Court during the
February 18, 20029 oral arguments before the Court, nonetheless
they were not disqualified to participate in the deliberations on the
petitioner’s motion for reconsideration of the May 28, 2002
Resolution of the Court or of the instant motion for reconsideration.
Neither is Justice Callejo, Sr. disqualified to prepare the resolution of
the Court on the motion for reconsideration of the respondent.
When the Court deliberated on petitioners’ motion for
reconsideration, Justices Conchita Carpio-Morales, Romeo J. Callejo,
Sr. and Adolfo S. Azcuna were already members of the Court.
It bears stressing that transcripts of stenographic notes taken during
the February 18, 2002 hearing and oral arguments of the parties are
parts of the records of this case. Said transcripts are available to the
parties or to any member of the Court. Likewise, Attys. Rene A.V.
Saguisag and Felix Carao, Jr. may not yet have been the counsel of
the respondent on February 18, 2002 but by reading the said
transcripts and the records of this case they are informed of what
transpired during the hearing and oral arguments of the parties.10
It is thus clear that the grounds cited by the respondent in his
omnibus motion had already been passed upon and resolved by this
Court. The respondent did not make any new substantial arguments
in his motion to warrant a reconsideration of the aforesaid
resolutions.
Besides, the respondent sought the inhibition of Justices Conchita C.
Morales and Adolfo S. Azcuna only after they had already concurred
in the Court’s Resolution dated April 1, 2003. Case law has it that a
motion for disqualification must be denied when filed after a
member of the Court has already given an opinion on the merits of
the case, the rationale being that a litigant cannot be permitted to
speculate upon the action of the Court, only to raise an objection of
this sort after a decision has been rendered.11
The Motion to Set the Case for Oral Arguments
The Court denies the motion of the respondent. The parties have
already extensively discussed the issues involved in the case. The
respondent’s motion for reconsideration consists of no less than a
hundred pages, excluding the supplement to his motion for
reconsideration and his reply to the petitioners’ comment on his
motion. There is no longer a need to set the instant case for oral
arguments.
The Issue as to the Application of the Time-bar under Section 8, Rule
117 of the Revised Rules of Criminal Procedure – Whether
Prospective or Retroactive
The respondent seeks the reconsideration of the April 1, 2003
Resolution of the Court and thereafter reinstate its Resolution of May
28, 2002.
He asserts that pursuant to a long line of jurisprudence and a long-
standing judicial practice in applying penal law, Section 8, Rule 117 of
the Revised Rules of Criminal Procedure (RRCP) should be applied
prospectively and retroactively without reservations, only and solely
on the basis of its being favorable to the accused. He asserts that case
law on the retroactive application of penal laws should likewise apply
to criminal procedure, it being a branch of criminal law. The
respondent insists that Section 8 was purposely crafted and included
as a new provision to reinforce the constitutional right of the accused
to a speedy disposition of his case. It is primarily a check on the State
to prosecute criminal cases diligently and continuously, lest it loses
its right to prosecute the accused anew. The respondent argues that
since Section 8 is indubitably a rule of procedure, there can be no
other conclusion: the rule should have retroactive application, absent
any provision therein that it should be applied prospectively.
Accordingly, prospective application thereof would in effect give the
petitioners more than two years from March 29, 1999 within which
to revive the criminal cases, thus violating the respondent’s right to
due process and equal protection of the law.
The respondent asserts that Section 8 was meant to reach back in
time to provide relief to the accused. In this case, the State had been
given more than sufficient opportunity to prosecute the respondent
anew after the March 29, 1999 dismissal of the cases by then Judge
Wenceslao Agnir, Jr. and even before the RRCP took effect on
December 1, 2000. According to the respondent, the petitioners filed
the Informations with the RTC in Criminal Cases Nos. 01-101102 to
01-101112 beyond the two-year bar, in violation of his right to a
speedy trial, and that such filing was designed to derail his bid for the
Senate.
In their comment on the respondent’s motions, the petitioners assert
that the prospective application of Section 8 is in keeping with
Section 5(5), Article VIII of the 1987 Constitution, which provides in
part that the rules of procedure which the Court may promulgate
shall not diminish, increase or modify substantial rights. While
Section 8 secures the rights of the accused, it does not and should
not preclude the equally important right of the State to public justice.
If such right to public justice is taken away, then Section 8 can no
longer be said to be a procedural rule. According to the petitioners,
if a procedural rule impairs a vested right, or would work injustice,
the said rule may not be given a retroactive application. They contend
that the right of the accused to a speedy trial or disposition of the
criminal cases applies only to outstanding and pending cases and not
to cases already dismissed. The petitioners assert that the "refiling of
the cases" under Section 8 should be taken to mean as the filing of
the criminal complaint with the appropriate office for the purpose of
conducting a preliminary investigation, and not the actual filing of the
criminal complaint or information in court for trial. Furthermore,
according to the petitioners, the offended parties must be given
notices of the motion for provisional dismissal of the cases under
Section 8 since the provision so expressly states. Thus, if the requisite
notices to the heirs of the deceased would be taken into
consideration, the two-year period had not yet even commenced to
run.
In his consolidated reply to the comment of the petitioners, the
respondent asserts that the State is proscribed from refiling a
criminal case if it can be shown that the delay resulted in a violation
of the right of the accused to due process. In this case, there was an
inordinate delay in the revival of the cases, considering that the
witnesses in the criminal cases for the State in March 1999 are the
same witnesses in 2001. The State had reasonable opportunity to
refile the cases before the two-year bar but failed to do so because
of negligence; and perhaps institutional indolence. Contrary to the
petitioners’ contention, the respondent posits that the revival of the
cases contemplated in Section 8 refers to the filing of the
Informations or complaints in court for trial. The operational act then
is the refiling of the Informations with the RTC, which was done only
on June 6, 2001, clearly beyond the two-year bar.
The Court finds the respondent’s contentions to be without merit.
First. The Court approved the RRCP pursuant to its power under
Article VIII, Section 5, paragraph 5 of the Constitution which reads:
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts,
the admission to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights. Rules of procedure
of special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court.
The Court is not mandated to apply Section 8 retroactively simply
because it is favorable to the accused. It must be noted that the new
rule was approved by the Court not only to reinforce the
constitutional right of the accused to a speedy disposition of the case.
The time-bar under the new rule was fixed by the Court to excise the
malaise that plagued the administration of the criminal justice
system for the benefit of the State and the accused; not for the
accused only. The Court emphasized in its assailed resolution that:
In the new rule in question, as now construed by the Court, it has
fixed a time-bar of one year or two years for the revival of criminal
cases provisionally dismissed with the express consent of the accused
and with a priori notice to the offended party. The time-bar may
appear, on first impression, unreasonable compared to the periods
under Article 90 of the Revised Penal Code. However, in fixing the
time-bar, the Court balanced the societal interests and those of the
accused for the orderly and speedy disposition of criminal cases with
minimum prejudice to the State and the accused. It took into account
the substantial rights of both the State and of the accused to due
process. The Court believed that the time limit is a reasonable period
for the State to revive provisionally dismissed cases with the consent
of the accused and notice to the offended parties. The time-bar fixed
by the Court must be respected unless it is shown that the period is
manifestly short or insufficient that the rule becomes a denial of
justice.12
In criminal litigations concerning constitutional issue claims, the
Court, in the interest of justice, may make the rule prospective where
the exigencies of the situation make the rule prospective. The
retroactivity or non-retroactivity of a rule is not automatically
determined by the provision of the Constitution on which the dictate
is based. Each constitutional rule of criminal procedure has its own
distinct functions, its own background or precedent, and its own
impact on the administration of justice, and the way in which these
factors combine must inevitably vary with the dictate involved.13
Matters of procedure are not necessarily retrospective in operation
as a statute.14 To paraphrase the United States Supreme Court per
Justice Benjamin Cardozo, the Court in defining the limits of
adherence may make a choice for itself between the principle of
forward operation and that of relating forward.15
The Court approved Section 8 pursuant to its power under Article VIII,
Section 5, paragraph 5 of the Constitution. This constitutional grant
to promulgate rules carries with it the power, inter alia, to determine
whether to give the said rules prospective or retroactive effect.
Moreover, under Rule 144 of the Rules of Court, the Court may not
apply the rules to actions pending before it if in its opinion their
application would not be feasible or would work injustice, in which
event, the former procedure shall apply.16
The absence of a provision in Section 8 giving it prospective
application only does not proscribe the prospective application
thereof; nor does it imply that the Court intended the new rule to be
given retroactive and prospective effect. If the statutory purpose is
clear, the provisions of the law should be construed as is conducive
to fairness and justice, and in harmony with the general spirit and
policy of the rule. It should be construed so as not to defeat but to
carry out such end or purpose.17 A statute derives its vitality from
the purpose for which it is approved. To construe it in a manner that
disregards or defeats such purpose is to nullify or destroy the law.18
In Cometa v. Court of Appeals,19 this Court ruled that "the spirit
rather than the letter of the statute determines its construction;
hence, a statute must be read according to its spirit or intent."20
While we may not read into the law a purpose that is not there, we
nevertheless have the right to read out of it the reason for its
enactment. In doing so, we defer not to the "letter that killeth" but
to the "spirit that vivifieth, to give effect to the lawmaker’s will."21
In this case, when the Court approved Section 8, it intended the new
rule to be applied prospectively and not retroactively, for if the
intention of the Court were otherwise, it would defeat the very
purpose for which it was intended, namely, to give the State a period
of two years from notice of the provisional dismissal of criminal cases
with the express consent of the accused. It would be a denial of the
State’s right to due process and a travesty of justice for the Court to
apply the new rule retroactively in the present case as the
respondent insists, considering that the criminal cases were
provisionally dismissed by Judge Agnir, Jr. on March 29, 1999 before
the new rule took effect on December 1, 2000. A retroactive
application of the time-bar will result in absurd, unjust and
oppressive consequences to the State and to the victims of crimes
and their heirs.
Consider this scenario: the trial court (RTC) provisionally dismissed a
criminal case with the express consent of the accused in 1997. The
prosecution had the right to revive the case within the prescriptive
period, under Article 90 of the Revised Penal Code, as amended. On
December 1, 2000, the time-bar rule under Section 8 took effect, the
prosecution was unable to revive the criminal case before then.
If the time-bar fixed in Section 8 were to be applied retroactively, this
would mean that the State would be barred from reviving the case
for failure to comply with the said time-bar, which was yet to be
approved by the Court three years after the provisional dismissal of
the criminal case. In contrast, if the same case was dismissed
provisionally in December 2000, the State had the right to revive the
same within the time-bar. In fine, to so hold would imply that the
State was presumed to foresee and anticipate that three years after
1997, the Court would approve and amend the RRCP. The State
would thus be sanctioned for its failure to comply with a rule yet to
be approved by the Court. It must be stressed that the institution and
prosecution of criminal cases are governed by existing rules and not
by rules yet to exist. It would be the apex of injustice to hold that
Section 8 had a platonic or ideal existence before it was approved by
the Court. The past cannot be erased by a capricious retroactive
application of the new rule.
In holding that the petitioners had until December 1, 2002 within
which to revive the criminal cases provisionally dismissed by Judge
Agnir, Jr. on March 29, 1999, this Court explained, thus:
The Court agrees with the petitioners that to apply the time-bar
retroactively so that the two-year period commenced to run on
March 31, 1999 when the public prosecutor received his copy of the
resolution of Judge Agnir, Jr. dismissing the criminal cases is
inconsistent with the intendment of the new rule. Instead of giving
the State two years to revive provisionally dismissed cases, the State
had considerably less than two years to do so. Thus, Judge Agnir, Jr.
dismissed Criminal Cases Nos. Q-99-81679 to Q-99-81689 on March
29, 1999. The new rule took effect on December 1, 2000. If the Court
applied the new time-bar retroactively, the State would have only
one year and three months or until March 31, 2001 within which to
revive these criminal cases. The period is short of the two-year period
fixed under the new rule. On the other hand, if the time limit is
applied prospectively, the State would have two years from
December 1, 2000 or until December 1, 2002 within which to revive
the cases. This is in consonance with the intendment of the new rule
in fixing the time-bar and thus prevent injustice to the State and avoid
absurd, unreasonable, oppressive, injurious, and wrongful results in
the administration of justice.
The period from April 1, 1999 to November 30, 199922 should be
excluded in the computation of the two-year period because the rule
prescribing it was not yet in effect at the time and the State could not
be expected to comply with the time-bar. It cannot even be argued
that the State waived its right to revive the criminal cases against
respondent or that it was negligent for not reviving them within the
two-year period under the new rule.1a\^/phi1.net As the United
States Supreme Court said, per Justice Felix Frankfurter, in Griffin v.
People, 351 US 12 (1956):
We should not indulge in the fiction that the law now announced has
always been the law and, therefore, that those who did not avail
themselves of it waived their rights …
The two-year period fixed in the new rule is for the benefit of both
the State and the accused. It should not be emasculated and reduced
by an inordinate retroactive application of the time-bar therein
provided merely to benefit the accused. For to do so would cause an
"injustice of hardship" to the State and adversely affect the
administration of justice in general and of criminal laws in
particular.23
Further quoting Justice Felix Frankfurter’s opinion in Griffin v.
People,24 he said, "it is much more conducive to law’s self-respect to
recognize candidly the considerations that give prospective content
to a new pronouncement of law. That this is consonant with the spirit
of our law and justified by those considerations of reason which
should dominate the law has been luminously expounded by Mr.
Justice Cardozo shortly before he came here and in an opinion which
he wrote for the Court."
Parenthetically, the respondent himself admitted in his motion for
reconsideration that Judge Agnir, Jr. could not have been expected
to comply with the notice requirement under the new rule when it
yet had to exist:
99. Respondent submits that the records are still in the same state of
inadequacy and incompletion. This however is not strange
considering that Section 8, Rule 117 had not existed on March 29,
1999, when the criminal cases were dismissed, and then Judge Agnir
did not have its text to guide his actions. How could the good judge
have complied with the mandate of Section 8, Rule 117 when it yet
had to exist?25
Statutes regulating the procedure of the courts will be construed as
applicable to actions pending and undetermined at the time of their
passage. In that sense and to that extent, procedural laws are
retroactive.26 Criminal Cases Nos. Q-99-81679 to Q-99-81689 had
long been dismissed by Judge Agnir, Jr. before the new rule took
effect on December 1, 2000. When the petitioners filed the
Informations in Criminal Cases Nos. 01-101102 to 01-101112 on June
6, 2001, Criminal Cases Nos. Q-99-81679 and Q-99-81689 had long
since been terminated. The two-year bar in the new rule should not
be reckoned from the March 29, 1999 dismissal of Criminal Cases
Nos. Q-99-81679 to Q-99-81689 but from December 1, 2000 when
the new rule took effect. While it is true that the Court applied
Section 8 of Rule 11027 of the RRCP retroactively, it did so only to
cases still pending with this Court and not to cases already
terminated with finality.
The records show that after the requisite preliminary investigation
conducted by the petitioners in accordance with existing rules,
eleven Informations in Criminal Cases Nos. 01-101102 to 01-101112
were filed with the RTC on June 6, 2001, very well within the time-
bar therefor. The respondent cannot argue that his right to due
process and to a speedy disposition of the cases as enshrined in the
Constitution had been violated.28
The respondent’s plaint that he was being singled out by the
prospective application of the new rule simply because before the
Court issued its April 1, 2003 Resolution, he announced his candidacy
for the presidency of the Republic for the 2004 elections has no
factual basis whatsoever.29 The bare and irrefutable fact is that it
was in this case where the issue of the retroactive/prospective
application of the new rule was first raised before the Court. The
ruling of the Court in its April 1, 2003 Resolution and its ruling today
would be the same, regardless of who the party or parties involved
are, whether a senator of the Republic or an ordinary citizen.
The respondent’s contention that the prospective application of the
new rule would deny him due process and would violate the equal
protection of laws is barren of merit. It proceeds from an erroneous
assumption that the new rule was approved by the Court solely for
his benefit, in derogation of the right of the State to due process. The
new rule was approved by the Court to enhance the right of due
process of both the State and the accused. The State is entitled to
due process in criminal cases as much as the accused.
Due process has never been and perhaps can never be precisely
defined.1a\^/phi1.net It is not a technical conception with a fixed
content unrelated to time, place and circumstances. The phrase
expresses the requirement of fundamental fairness, a requisite
whose meaning can be as opaque as its importance is lofty.30 In
determining what fundamental fairness consists of in a particular
situation, relevant precedents must be considered and the interests
that are at stake; private interests, as well as the interests of the
government must be assessed. In this case, in holding that the new
rule has prospective and not retroactive application, the Court took
into consideration not only the interests of the respondent but all
other accused, whatever their station in life may be. The interest of
the State in the speedy, impartial and inexpensive disposition of
criminal cases was likewise considered.
The Respondent Failed to Comply with the Essential Prerequisites of
Section 8, Rule 117 of the Revised Rules of Criminal Procedure
The respondent argues that the issue involved in the Court of Appeals
is entirely different from the issue involved in the present recourse;
hence, any admissions he made in the court below are not judicial
admissions in this case. He asserts that the issue involved in the CA
was whether or not he was placed in double jeopardy when he was
charged with murder in Criminal Cases Nos. 01-101102 to 01-101112
despite the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-
81689; whereas the issue in this Court is whether the prosecution of
Criminal Cases Nos. 01-101102 to 01-101112 was barred by Section
8, Rule 117 of the RRCP. The respondent avers that the proceedings
in the appellate court are different from those in this Court.
The respondent posits that this Court erred in giving considerable
weight to the admissions he made in his pleadings and during the
proceedings in the CA. He stresses that judicial admissions may only
be used against a party if such admissions are (a) made in the course
of the proceedings in the same case; and (b) made regarding a
relevant fact, pursuant to Section 4, Rule 129 and Section 26, Rule
130 of the Rules of Evidence. He contends that contrary to the ruling
of the Court, when he filed his motion for the judicial determination
of probable cause in Criminal Cases Nos. Q-99-81679 to Q-99-81689,
he thereby prayed for the dismissal of the said cases. His motion
carried with it, at the very least, the prayer for the dismissal of the
criminal cases. Absent a finding of probable cause, Judge Agnir, Jr.
had no recourse but to dismiss the criminal cases. Moreover, the
respondent avers that his motion included the general prayer "for
such other reliefs as may be equitable in the premises." The
respondent also points out that the public prosecutor agreed to the
averments in his motion as the latter did not even file any motion for
the reconsideration of Judge Agnir, Jr.’s order dismissing the cases.
The respondent further contends that the Court is not a trier of facts.
It has no means to ascertain or verify as true the contrasting claims
of the parties on the factual issues, a function best left to the trial
court as the trier of facts. He posits that there is a need for the case
to be remanded to the RTC to enable him to present evidence on
whether or not Judge Agnir, Jr. complied with the notice
requirements of Section 8. Echoing the May 28, 2002 ruling of this
Court, the respondent contends that it is not fair to expect the
element of notice under Section 8 to be litigated before Judge Agnir,
Jr., for the said rule was not yet in existence at the time he filed his
motion for a determination of probable cause.
The respondent avers that the requirement for notices to the
offended parties under Section 8 is a formal and not an essential
requisite. In criminal cases, the offended party is the State and the
role of the private complainant is limited to the determination of the
civil liability of the accused. According to the respondent, notice to
the prosecution provides sufficient safeguard for the private
complainant to recover on the civil liability of the accused based on
the delicts; after all, the prosecution of the offense is under the
control and direction of the public prosecutor.
The contentions of the respondent have no merit.
First. The issue posed by the respondent in the CA and in this Court
are the same. To recall, in Civil Case No. 01-100933,31 the
respondent32 sought injunctive relief from the RTC of Manila on his
claim that in conducting a preliminary investigation in Criminal Cases
Nos. 01-101102 to 01-101112, the petitioners thereby placed him in
double jeopardy under Section 7, Rule 117 of the RRCP.33 When the
RTC denied his plea for injunctive relief, the respondent filed his
petition for certiorari in the CA, again invoking his right against
double jeopardy, praying that:
13. Inasmuch as the case subject of the "preliminary investigation"
was dismissed for the reasons mentioned, there currently exists no
complaint upon which a valid investigation can be had in light of the
clear provisions of Rule 110 which requires the existence of a "sworn
written statement charging a person with an offense" as basis for the
commencement of a preliminary investigation under Rule
112.1awphi1.nét
For petitioner, the investigation covers exactly the same offenses
over which he had been duly arraigned and a plea validly entered
before the Sandiganbayan (in Criminal Cases Nos. 23047 to 57)
before its remand to the QC RTC. Hence, to proceed therewith on
similar charges will put him in jeopardy of being twice punished
therefor (Article III, §21, Constitution).34
The respondent (petitioner therein) contended that the dismissal of
Criminal Cases Nos. Q-99-81679 to Q-99-81689 by Judge Agnir, Jr.
amounted to a judgment of acquittal; hence, he could no longer be
charged and prosecuted anew for the same offense without violating
his right against double jeopardy. However, the respondent filed a
second amended petition wherein he invoked for the first time
Section 8 of Rule 117 of the RRCP:
(e) the new criminal cases for Murder filed by respondents against
petitioner and the other accused on June 6, 2001 (docketed as
Criminal Cases Nos. 01-101102 to 01-101112) and pending before
respondent Judge Yadao (Annex B) is dismissible on its face as they
involve exactly the same accused, facts, and offenses which had
previously been dismissed by the QC RTC in Criminal Cases Nos. Q-
99-81679 to 89 on March 29, 1999, hence, can no longer be revived
two (2) years after such dismissal in accordance with the clear
provisions of Section 8, Rule 117.35
Indeed, the CA granted the respondent’s petition based on Section 8,
Rule 117 of the RRCP. In this case, the respondent invoked the same
rule and the Constitution. Thus, during the oral arguments in this
Court, the respondent, through counsel, admitted that he was indeed
invoking Section 8 anew and the provisions of the Constitution on
double jeopardy:
In his memorandum, in lieu of the oral argument filed with the Court
of Appeals, the respondent declared in no uncertain terms that:
Soon thereafter, the SC in early 1999 rendered a decision declaring
the Sandiganbayan without jurisdiction over the cases. The records
were remanded to the QC RTC. Upon raffle, the case was assigned to
Branch 91. Petitioner and the others promptly filed a motion for
judicial determination of probable cause (Annex B). He asked that
warrants for his arrest not be issued. He did not move for the
dismissal of the Informations, contrary to respondent OSG’s claim.42
Section 4, Rule 129 of the Revised Rules of Court reads:
Sec. 4. Judicial admissions. – An admission, verbal or written, made
by a party in the course of the proceedings in the same case, does
not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such
admission was made.
A judicial admission is a formal statement made either by a party or
his or her attorney, in the course of judicial proceeding which
removes an admitted fact from the field of controversy. It is a
voluntary concession of fact by a party or a party’s attorney during
such judicial proceedings, including admissions in pleadings made by
a party.43 It may occur at any point during the litigation process. An
admission in open court is a judicial admission.44 A judicial admission
binds the client even if made by his counsel.45 As declared by this
Court:
... [I]n fact, "judicial admissions are frequently those of counsel or of
attorney of record, who is, for the purpose of the trial, the agent of
his client. When such admissions are made ... for the purpose of
dispensing with proof of some fact, ... they bind the client, whether
made during, or even after the trial."46
When the respondent admitted that he did not move for the
dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 in his
motion for a judicial determination of probable cause, and that he
did not give his express consent to the provisional dismissal of the
said cases, he in fact admitted that one of the essential requisites of
Section 8, Rule 117 was absent.
The respondent’s contention that his admissions made in his
pleadings and during the hearing in the CA cannot be used in the
present case as they were made in the course of a different
proceeding does not hold water. It should be borne in mind that the
proceedings before the Court was by way of an appeal under Rule 45
of the Rules of Court, as amended, from the proceedings in the CA;
as such, the present recourse is but a mere continuation of the
proceedings in the appellate court. This is not a new trial, but a
review of proceedings which commenced from the trial court, which
later passed through the CA. The respondent is bound by the judicial
admissions he made in the CA, and such admissions so hold him in
the proceedings before this Court. As categorically stated in Habecker
v. Clark Equipment Company:47
... [J]udicial admissions on issues of fact, including those made by
counsel on behalf of a client during a trial, are binding "for the
purpose of the case ... including appeals."
While it may be true that the trial court may provisionally dismiss a
criminal case if it finds no probable cause, absent the express consent
of the accused to such provisional dismissal, the latter cannot
thereafter invoke Section 8 to bar a revival thereof. Neither may the
accused do so simply because the public prosecutor did not object to
a motion of the accused for a judicial determination of probable
cause or file a motion for the reconsideration of the order of dismissal
of the case. Even a cursory reading of the respondent’s motion for a
judicial determination of probable cause will show that it contained
no allegation that there was no probable cause for the issuance of a
warrant for the respondent’s arrest as a prayer for the dismissal of
the cases. The respondent was only asking the court to determine
whether or not there was probable cause for the issuance of a
warrant for his arrest and in the meantime, to hold in abeyance the
issuance of the said warrant. Case law has it that a prayer for
equitable relief is of no avail, unless the petition states facts which
will authorize the court to grant such relief.48 A court cannot set
itself in motion, nor has it power to decide questions except as
presented by the parties in their pleadings. Anything that is resolved
or decided beyond them is coram non judice and void.49
Third. There is no need for the Court to remand the instant case to
the trial court to enable the respondent to adduce post facto
evidence that the requisite notices under Section 8 had been
complied with by Judge Agnir, Jr. The Court has thoroughly examined
the voluminous records from the Sandiganbayan and the RTC50 and
found no proof that the requisite notices were even served on all the
heirs of the victims. The respondent himself admitted that, as held by
this Court, in its May 28, 2002 Resolution, "Judge Agnir, Jr. could not
have complied with the mandate under Section 8 because said rule
had yet to exist."51
One final matter. The records show that Criminal Cases Nos. 01-
101102 to 01-101112 were assigned, through the customary raffle of
cases, to Branch 81 of the RTC of Quezon City, the same branch which
dismissed Criminal Cases Nos. 99-81679 to 99-81689.52 In the April
1, 2003 Resolution of the Court, the Presiding Judge of Branch 81 of
the RTC of Quezon City was directed to try and decide Criminal Cases
Nos. 01-101102 to 01-101112 with reasonable dispatch. The Court
notes, however, that in Administrative Order No. 104-96, it
designated six branches of the RTC of Quezon City53 as special
courts, exclusively to try and decide heinous crimes under Rep. Act
No. 7659. Since the accused in the said cases are charged with
murder, which under Rep. Act No. 7659, is classified as a heinous
crime, the above cases should be consolidated and re-raffled by the
Executive Judge of the RTC of Quezon City to a branch thereof
designated as a special court, exclusively to try and decide heinous
crimes.

IN LIGHT OF ALL THE FOREGOING, respondent Panfilo M. Lacson’s

Omnibus Motion and Motion to Set for Oral Arguments are DENIED.
The respondent’s Motion for Reconsideration and its Supplement are
DENIED WITH FINALITY. The Executive Judge of the Regional Trial
Court of Quezon City is hereby DIRECTED to CONSOLIDATE Criminal
Cases Nos. 01-101102 to 01-101112 and to RE-RAFFLE the same with
dispatch to one of the branches of the Regional Trial Court of Quezon
City designated as a special court, exclusively to try and decide
heinous crimes.

SO ORDERED.
G.R. No. 166199 April 24, 2009
THE SECRETARY OF JUSTICE, THE EXECUTIVE SECRETARY and THE
BOARD OF COMMISSIONERS OF THE BUREAU OF IMMIGRATION,
Petitioners,
vs.
CHRISTOPHER KORUGA, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45
of the Rules of Court assailing the Decision1 dated September 14,
2004 and the Resolution2 dated November 24, 2004 of the Court of
Appeals (CA) in CA-G.R. SP No. 76578. The assailed Decision set aside
the Resolution dated April 1, 2003 of the Secretary of the Department
of Justice (DOJ) and the Judgment dated February 11, 2002 of the
Board of Commissioners (BOC) of the Bureau of Immigration (BI), and
dismissed the deportation case filed against Christopher Koruga
(respondent), an American national, for violation of Section 37(a)(4)
of Commonwealth Act No. 613, as amended, otherwise known as the
Philippine Immigration Act of 1940; while the assailed Resolution
denied petitioners' Motion for Reconsideration.
The factual background of the case is as follows:
Sometime in August 2001, then BI Commissioner Andrea Domingo
received an anonymous letter3 requesting the deportation of
respondent as an undesirable alien for having been found guilty of
Violation of the Uniform Controlled Substances Act in the State of
Washington, United States of America (USA) for attempted
possession of cocaine sometime in 1983.
On the basis of a Summary of Information,4 the Commissioner issued
Mission Order No. ADD-01-1625 on September 13, 2001 directing
Police Superintendent (P/Supt.) Lino G. Caligasan, Chief of the
Intelligence Mission and any available BI Special Operations Team
Member to conduct verification/ validation of the admission status
and activities of respondent and effect his immediate arrest if he is
found to have violated the Philippine Immigration Act of 1940, as
amended.
On September 17, 2001, respondent was arrested and charged
before the Board of Special Inquiry (BSI) for violation of Section
37(a)(4) of the Philippine Immigration Act of 1940, as amended. The
case was docketed as BSI-D.C. No. ADD-01-126. The Charge Sheet
reads:
On September 17, 2001, at about 10:00 A.M., respondent was
arrested by Intelligence operatives at his residence, located at 1001
MARBELLA CONDOMINIUM II, Roxas Boulevard, Malate, Manila,
pursuant to Mission Order No. ADD-01-162;
That respondent was convicted and/or sentenced for Uniform
Controlled Substance Act in connection with his being Drug Trafficker
and/or Courier of prohibited drugs in the State of Washington, United
States of America, thus, making him an undesirable alien and/or a
public burden in violation of Sec. 37(4) [sic] of the Philippine
Immigration Act of 1940, as amended.
CONTRARY TO LAW.6
On September 28, 2001, after filing a Petition for Bail7 and
Supplemental Petition for Bail,8 respondent was granted bail and
provisionally released from the custody of the BI.9
Following the submission of respondent's Memorandum10 and the
BI Special Prosecutor's Memorandum,11 the BOC rendered a
Judgment12 dated February 11, 2002 ordering the deportation of
respondent under Section 37(a)(4) of the Philippine Immigration Act
of 1940, as amended.
On February 26, 2002, respondent filed a Motion for
Reconsideration,13 but it was denied by the BOC in a Resolution
dated March 19, 2002.
Unaware that the BOC already rendered its Resolution dated March
19, 2002, respondent filed on April 2, 2002, a Manifestation and
Notice of Appeal Ex Abundanti Cautelam14 with the Office of the
President, which referred15 the appeal to the DOJ.
On April 1, 2003, then DOJ Secretary Simeon A. Datumanong
rendered a Resolution16 dismissing the appeal. On April 15, 2003,
respondent filed a Motion for Reconsideration17 which he
subsequently withdrew18 on April 23, 2003.
On April 24, 2003, respondent filed a Petition for Certiorari and
Prohibition19
with the CA, docketed as CA-G.R. SP No. 76578, seeking to set aside
the Resolution dated April 1, 2003 of the DOJ Secretary and the
Judgment dated February 11, 2002 of the BOC.
On September 14, 2004, the CA rendered a Decision20 setting aside
the Resolution dated April 1, 2003 of the DOJ Secretary and the
Judgment dated February 11, 2002 of the BOC and dismissing the
deportation case filed against respondent. The CA held that there
was no valid and legal ground for the deportation of respondent since
there was no violation of Section 37(a)(4) of the Philippine
Immigration Act of 1940, as amended, because respondent was not
convicted or sentenced for a violation of the law on prohibited drugs
since the U.S. Court dismissed the case for violation of the Uniform
Controlled Substances Act in the State of Washington, USA filed
against respondent; that petitioners further failed to present or
attach to their pleadings any document which would support their
allegations that respondent entered into a plea bargain with the U.S.
Prosecutor for deferred sentence nor did they attach to the record
the alleged order or judgment of the U.S. Court which would show
the conviction of respondent for violation of the prohibited drugs law
in the USA; that even if respondent was convicted and sentenced for
the alleged offense, his deportation under Section 37(a)(4) is
improper, since the prohibited drugs law referred to therein refers
not to a foreign drugs law but to the Philippine drugs law, then
Republic Act No. 6425 or the "Dangerous Drugs Act of 1972"; that
although the BOC is clothed with exclusive authority to decide as to
the right of a foreigner to enter the country, still, such executive
officers must act within the scope of their authority or their decision
is a nullity.
Petitioners' Motion for Reconsideration21 was denied by the CA in
its presently assailed Resolution22 dated November 24, 2004.
Hence, the present petition on the following grounds:
I. THE COURT OF APPEALS GRAVELY ERRED IN TAKING COGNIZANCE
OF THE SUBJECT CASE WHICH FALLS UNDER THE EXCLUSIVE
PREROGATIVE OF THE EXECUTIVE BRANCH OF THE GOVERNMENT.
II. ASSUMING ARGUENDO THAT IT COULD TAKE COGNIZANCE OVER
THE CASE, THE COURT OF APPEALS GRAVELY ERRED IN FINDING AN
ABUSE OF DISCRETION ON THE PART OF HEREIN PETITIONERS.
III. THE COURT OF APPEALS ERRED IN FINDING THAT THE CHARGES
AGAINST THE HEREIN RESPONDENT WERE DROPPED.
IV. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIOR
CONVICTION IS REQUIRED BEFORE RESPONDENT COULD BE
DEPORTED.23
Petitioners contend that the BI has exclusive authority in deportation
proceedings and no other tribunal is at liberty to reexamine or to
controvert the sufficiency of the evidence presented therein; that
there was no grave abuse of discretion on the part of petitioners
when they sought the deportation of respondent since he was
convicted by the Supreme Court of the State of Washington for
attempted Violation of the Uniform Controlled Substances Act and
underwent probation in lieu of the imposition of sentence; that the
dismissal of the charge against respondent was only with respect to
penalties and liabilities, obtained after fulfilling the conditions for his
probation, and was not an acquittal from the criminal case charged
against him; that there is a valid basis to declare respondent's
undesirability and effect his deportation since respondent has
admitted guilt of his involvement in a drug-related case.
On the other hand, respondent submits that the proceedings against
him reek of persecution; that the CA did not commit any error of law;
that all the arguments raised in the present petition are mere
rehashes of arguments raised before and ruled upon by the CA; and
that, even assuming that Section 37(a)(4) of the Philippine
Immigration Act of 1940 does not apply, there is no reason, whether
compelling or slight, to deport respondent.
There are two issues for resolution: (1) whether the exclusive
authority of the BOC over deportation proceedings bars judicial
review, and (2) whether there is a valid and legal ground for the
deportation of respondent.
The Court resolves the first issue in the negative.
It is beyond cavil that the BI has the exclusive authority and
jurisdiction to try and hear cases against an alleged alien, and that
the BOC has jurisdiction over deportation proceedings.24
Nonetheless, Article VIII, Section 125 of the Constitution has vested
power of judicial review in the Supreme Court and the lower courts
such as the CA, as established by law. Although the courts are without
power to directly decide matters over which full discretionary
authority has been delegated to the legislative or executive branch
of the government and are not empowered to execute absolutely
their own judgment from that of Congress or of the President,26 the
Court may look into and resolve questions of whether or not such
judgment has been made with grave abuse of discretion, when the
act of the legislative or executive department is contrary to the
Constitution, the law or jurisprudence, or when executed
whimsically, capriciously or arbitrarily out of malice, ill will or
personal bias.27
In Domingo v. Scheer,28 the Court set aside the Summary
Deportation Order of the BOC over an alien for having been issued
with grave abuse of discretion in violation of the alien's constitutional
and statutory rights to due process, since the BOC ordered the
deportation of the alien without conducting summary deportation
proceedings and without affording the alien the right to be heard on
his motion for reconsideration and adduce evidence thereon.
In House of Sara Lee v. Rey,29 the Court held that while, as a general
rule, the factual findings of administrative agencies are not subject to
review, it is equally established that the Court will not uphold
erroneous conclusions which are contrary to evidence, because the
agency a quo, for that reason, would be guilty of a grave abuse of
discretion.
When acts or omissions of a quasi-judicial agency are involved, a
petition for certiorari or prohibition may be filed in the CA as
provided by law or by the Rules of Court, as amended.30 Clearly, the
filing by respondent of a petition for certiorari and prohibition before
the CA to assail the order of deportation on the ground of grave
abuse of discretion is permitted.
This brings us to the second issue.
The settled rule is that the entry or stay of aliens in the Philippines is
merely a privilege and a matter of grace; such privilege is not absolute
or permanent and may be revoked. However, aliens may be expelled
or deported from the Philippines only on grounds and in the manner
provided for by the Constitution, the Philippine Immigration Act of
1940, as amended, and administrative issuances pursuant thereto.31
Respondent was charged with violation of Section 37(a)(4) of the
Philippine Immigration Act of 1940, as amended, which provides:
Sec. 37. (a) The following aliens shall be arrested upon the warrant of
the Commissioner of Immigration or of any other officer designated
by him for the purpose and deported upon the warrant of the
Commissioner of Immigration after a determination by the Board of
Commissioners of the existence of the ground for deportation as
charged against the alien.
xxxx
(4) Any alien who is convicted and sentenced for a violation of the
law governing prohibited drugs;
x x x x (Emphasis supplied)
Respondent contends that the use of the definite article "the"
immediately preceding the phrase "law on prohibited drugs"
emphasizes not just any prohibited drugs law but the law applicable
in this jurisdiction, at that time, the Dangerous Drugs Act of 1972.32
The Court disagrees.
The general rule in construing words and phrases used in a statute is
that in the absence of legislative intent to the contrary, they should
be given their plain, ordinary, and common usage meaning.33
However, a literal interpretation of a statute is to be rejected if it will
operate unjustly, lead to absurd results, or contract the evident
meaning of the statute taken as a whole.34 After all, statutes should
receive a sensible construction, such as will give effect to the
legislative intention and so as to avoid an unjust or an absurd
conclusion.35 Indeed, courts are not to give
words meanings that would lead to absurd or unreasonable
consequences.36
Were the Court to follow the letter of Section 37(a)(4) and make it
applicable only to convictions under the Philippine prohibited drugs
law, the Court will in effect be paving the way to an absurd situation
whereby aliens convicted of foreign prohibited drugs laws may be
allowed to enter the country to the detriment of the public health
and safety of its citizens. It suggests a double standard of treatment
where only aliens convicted of Philippine prohibited drugs law would
be deported, while aliens convicted of foreign prohibited drugs laws
would be allowed entry in the country. The Court must emphatically
reject such interpretation of the law. Certainly, such a situation was
not envisioned by the framers of the law, for to do so would be
contrary to reason and therefore, absurd. Over time, courts have
recognized with almost pedantic adherence that what is contrary to
reason is not allowed in law.

Indubitably, Section 37(a)(4) should be given a reasonable
interpretation, not one which defeats the very purpose for which the
law was passed. This Court has, in many cases involving the
construction of statutes, always cautioned against narrowly
interpreting a statute as to defeat the purpose of the legislator and
stressed that it is of the essence of judicial duty to construe statutes
so as to avoid such a deplorable result of injustice or absurdity, and
that therefore a literal interpretation is to be rejected if it would be
unjust or lead to absurd results.37
Moreover, since Section 37(a)(4) makes no distinction between a
foreign prohibited drugs law and the Philippine prohibited drugs law,
neither should this Court. Ubi lex non distinguit nec nos distinguere
debemos.38 Thus, Section 37(a)(4) should apply to those convicted
of all prohibited drugs laws, whether local or foreign.lavvphi1.zw+
There is no dispute that respondent was convicted of Violation of the
Uniform Controlled Substances Act in the State of Washington, USA
for attempted possession of cocaine, as shown by the Order
Deferring Imposition of Sentence (Probation).39 While he may have
pleaded guilty to a lesser offense, and was not imprisoned but
applied for and underwent a one-year probation, still, there is no
escaping the fact that he was convicted under a prohibited drugs law,
even though it may simply be called a "misdemeanor drug
offense."40 The BOC did not commit grave abuse of discretion in
ordering the deportation of respondent.
The Court quotes with approval the following acute pronouncements
of the BOC:
x x x We note that the respondent admitted in his Memorandum
dated 8 October 2001 that he pleaded guilty to the amended
information where he allegedly attempted to have in his possession
a certain controlled substance, and a narcotic drug. Further, he filed
a "Petition for Leave to Withdraw Plea of Guilty and Enter Plea of Not
Guilty" to obtain a favorable release from all penalties and disabilities
resulting from the filing of the said charge.
Evidently, the U.S. Court issued the Order of Dismissal in exchange
for the respondent's plea of guilty to the lesser offense. Though
legally allowed in the U.S. Law, We perceive that this strategy
afforded the respondent with a convenient vehicle to avoid
conviction and sentencing. Moreover, the plea of guilty is by itself
crystal clear acknowledgment of his involvement in a drug-related
offense. Hence, respondent's discharge from conviction and
sentencing cannot hide the fact that he has a prior history of drug-
related charge.
This country cannot countenance another alien with a history of a
drug-related offense. The crime may have been committed two
decades ago but it cannot erase the fact that the incident actually
happened. This is the very core of his inadmissibility into the
Philippines. Apparently, respondent would like Us to believe that his
involvement in this drug case is a petty offense or a mere
misdemeanor. However, the Philippine Government views all drug-
related cases with grave concern; hence, the enactment of Republic
Act No. 6425, otherwise known as "The Dangerous Drugs Act of
1972" and the creation of various drug-enforcement agencies. While
We empathize with the innocent portrayal of the respondent as a
man of irreproachable conduct, not to mention the numerous
written testimonies of good character submitted in his behalf, this
incomplete and sanitized representation cannot, however, outweigh
our commitment and sworn duty to safeguard public health and
public safety. Moreover, while the U.S. Government may not have
any law enforcement interest on respondent, Philippine immigration
authorities certainly do in the able and competent exercise of its
police powers. Thus, this case of the respondent is no different from
a convicted felon abroad, who argues that he cannot be removed
from the Philippines on the ground that the crime was committed
abroad. Otherwise, it would open the floodgates to other similarly
situated aliens demanding their admission into the country. Indeed,
respondent may not be a menace to the U.S. as a result of his being
discharged from criminal liability, but that does not ipso facto mean
that the immigration authorities should unquestionably admit him
into the country.

x x x x41 (Emphasis supplied)

It must be remembered that aliens seeking entry in the Philippines

do not acquire the right to be admitted into the country by the simple
passage of time. When an alien, such as respondent, has already
physically gained entry in the country, but such entry is later found
unlawful or devoid of legal basis, the alien can be excluded anytime
after it is found that he was not lawfully admissible at the time of his
entry.42 Every sovereign power has the inherent power to exclude
aliens from its territory upon such grounds as it may deem proper for
its self-preservation or public interest.43 The power to deport aliens
is an act of State, an act done by or under the authority of the
sovereign power.44 It is a police measure against undesirable aliens
whose continued presence in the country is found to be injurious to
the public good and the domestic tranquility of the people.45

WHEREFORE, the petition is GRANTED. The assailed Decision and

Resolution of the Court of Appeals in CA-G.R. SP No. 76578 are
REVERSED and SET ASIDE. The Judgment dated February 11, 2002 of
the Board of Commissioners of the Bureau of Immigration ordering
the deportation of respondent Christopher Koruga under Section
37(a)(4) of the Philippine Immigration Act of 1940, as amended, is
REINSTATED.

SO ORDERED.
G.R. No. 168617 February 19, 2007
BERNADETTE L. ADASA, petitioner,
vs.
CECILLE S. ABALOS, Respondent.
DECISION
CHICO-NAZARIO, J.:
This Petition for Review under Rule 45 of the Rules of Court, filed by
petitioner Bernadette L. Adasa, seeks to nullify and set aside the 21
July 2004 Decision1 and 10 June 2005 Resolution2 of the Court of
Appeals in CA-G.R. SP No. 76396 which nullified the Resolutions of
the Department of Justice (DOJ). The Resolutions of the DOJ reversed
and set aside the Resolution of the Office of the City Prosecutor of
Iligan City, which found on reinvestigation probable cause against
petitioner, and directed the Office of the City Prosecutor of Iligan City
to withdraw the information for Estafa against petitioner.
The instant case emanated from the two complaints-affidavits filed
by respondent Cecille S. Abalos on 18 January 2001 before the Office
of the City Prosecutor of Iligan City, against petitioner for Estafa.
Respondent alleged in the complaints-affidavits that petitioner,
through deceit, received and encashed two checks issued in the
name of respondent without respondent’s knowledge and consent
and that despite repeated demands by the latter, petitioner failed
and refused to pay the proceeds of the checks.
On 23 March 2001, petitioner filed a counter-affidavit admitting that
she received and encashed the two checks issued in favor of
respondent.
In her Supplemental Affidavit filed on 29 March 2001, petitioner,
however, recanted and alleged instead that it was a certain Bebie
Correa who received the two checks which are the subject matter of
the complaints and encashed the same; and that said Bebie Correa
left the country after misappropriating the proceeds of the checks.
On 25 April 2001, a resolution was issued by the Office of the City
Prosecutor of Iligan City finding probable cause against petitioner and
ordering the filing of two separate Informations for Estafa Thru
Falsification of Commercial Document by a Private Individual, under
Article 315 in relation to Articles 171 and 172 of the Revised Penal
Code, as amended.
Consequently, two separate criminal cases were filed against
petitioner docketed as Criminal Cases No. 8781 and No. 8782, raffled
to Branches 4 and 5, Regional Trial Court of Iligan City, respectively.
This instant petition pertains only to Criminal Case No. 8782.
On 8 June 2001, upon motion of the petitioner, the trial court in
Criminal Case No. 8782 issued an order directing the Office of the City
Prosecutor of Iligan City to conduct a reinvestigation.
After conducting the reinvestigation, the Office of the City Prosecutor
of Iligan City issued a resolution dated 30 August 2001, affirming the
finding of probable cause against petitioner.
Meanwhile, during her arraignment on 1 October 2001 in Criminal
Case No. 8782, petitioner entered an unconditional plea of not
guilty.3
Dissatisfied with the finding of the Office of the City Prosecutor of
Iligan City, petitioner filed a Petition for Review before the DOJ on 15
October 2001.
In a Resolution dated 11 July 2002, the DOJ reversed and set aside
the 30 August 2001 resolution of the Office of the City Prosecutor of
Iligan City and directed the said office to withdraw the Information
for Estafa against petitioner.
The said DOJ resolution prompted the Office of the City Prosecutor
of Iligan City to file a "Motion to Withdraw Information" on 25 July
2002.
On 26 July 2002, respondent filed a motion for reconsideration of
said resolution of the DOJ arguing that the DOJ should have dismissed
outright the petition for review since Section 7 of DOJ Circular No. 70
mandates that when an accused has already been arraigned and the
aggrieved party files a petition for review before the DOJ, the
Secretary of Justice cannot, and should not take cognizance of the
petition, or even give due course thereto, but instead deny it
outright. Respondent claimed Section 12 thereof mentions
arraignment as one of the grounds for the dismissal of the petition
for review before the DOJ.
In a resolution dated 30 January 2003, the DOJ denied the Motion for
Reconsideration opining that under Section 12, in relation to Section
7, of DOJ Circular No. 70, the Secretary of Justice is not precluded
from entertaining any appeal taken to him even where the accused
has already been arraigned in court. This is due to the permissive
language "may" utilized in Section 12 whereby the Secretary has the
discretion to entertain an appealed resolution notwithstanding the
fact that the accused has been arraigned.
Meanwhile, on 27 February 2003, the trial court issued an order
granting petitioner’s "Motion to Withdraw Information" and
dismissing Criminal Case No. 8782. No action was taken by
respondent or any party of the case from the said order of dismissal.
Aggrieved by the resolution of the DOJ, respondent filed a Petition
for Certiorari before the Court of Appeals. Respondent raised the
following issues before the appellate court:
1. Whether or not the Department of Justice gravely abused its
discretion in giving due course to petitioner’s petition for review
despite its having been filed after the latter had already been
arraigned;
2. Whether or not there is probable cause that the crime of estafa
has been committed and that petitioner is probably guilty thereof;
3. Whether or not the petition before the Court of Appeals has been
rendered moot and academic by the order of the Regional Trial Court
dismissing Criminal Case No. 8782.
The Court of Appeals in a Decision dated 21 July 2004 granted
respondent’s petition and reversed the Resolutions of the DOJ dated
11 July 2002 and 30 January 2003.
In resolving the first issue, the Court of Appeals, relying heavily on
Section 7 of DOJ Circular No. 70 which states "[i]f an information has
been filed in court pursuant to the appealed resolution, the petition
shall not be given due course if the accused had already been
arraigned," ruled that since petitioner was arraigned before she filed
the petition for review with the DOJ, it was imperative for the DOJ to
dismiss such petition. It added that when petitioner pleaded to the
charge, she was deemed to have waived her right to reinvestigation
and right to question any irregularity that surrounds it.
Anent the second issue, the Court of Appeals declared that the
existence of probable cause or the lack of it, cannot be dealt with by
it since factual issues are not proper subjects of a Petition for
Certiorari.
In disposing of the last issue, the Court of Appeals held that the order
of the trial court dismissing the subject criminal case pursuant to the
assailed resolutions of the DOJ did not render the petition moot and
academic. It said that since the trial court’s order relied solely on the
resolutions of the DOJ, said order is void as it violated the rule which
enjoins the trial court to assess the evidence presented before it in a
motion to dismiss and not to rely solely on the prosecutor’s averment
that the Secretary of Justice had recommended the dismissal of the
case.
Dissatisfied by the Court of Appeals’ ruling, petitioner filed a Motion
for Reconsideration setting forth the following grounds:
1. that the over-all language of Sections 7 and 12 of Department
Circular No. 70 is permissive and directory such that the Secretary of
Justice may entertain an appeal despite the fact that the accused had
been arraigned;
2. that the contemporaneous construction by the Secretary of Justice
should be given great weight and respect;
3. that Section 7 of the Circular applies only to resolutions rendered
pursuant to a preliminary investigation, not on a reinvestigation;
4. that the trial court’s order of dismissal of the criminal case has
rendered the instant petition moot and academic;
5. that her arraignment was null and void it being conducted despite
her protestations; and
6. that despite her being arraigned, the supposed waiver of her right
to preliminary investigation has been nullified or recalled by virtue of
the trial court’s order of reinvestigation.4
The Court of Appeals stood firm by its decision. This time, however,
it tried to construe Section 7 side by side with Section 12 of DOJ
Circular No. 70 and attempted to reconcile these two provisions.
According to the appellate court, the phrase "shall not" in paragraph
two, first sentence of Section 7 of subject circular, to wit:
If an information has been filed in court pursuant to the appealed
resolution, the petition shall not be given due course if the accused
had already been arraigned. x x x. (Emphasis supplied.)
employed in the circular denotes a positive prohibition. Applying the
principle in statutory construction - that when a statute or provision
contains words of positive prohibition, such as "shall not," "cannot,"
or "ought not" or which is couched in negative terms importing that
the act shall not be done otherwise than designated, that statute or
provision is mandatory, thus rendering the provision mandatory – it
opined that the subject provision simply means that the Secretary of
Justice has no other course of action but to deny or dismiss a petition
before him when arraignment of an accused had already taken place
prior to the filing of the petition for review.
On the other hand, reading Section 12 of the same circular which
reads:
The Secretary may reverse, affirm or modify the appealed resolution.
He may, motu proprio or upon motion, dismiss the petition for review
on any of the following grounds:
xxxx
(e) That the accused had already been arraigned when the appeal
was taken; x x x.
the Court of Appeals opined that the permissive word "may" in
Section 12 would seem to imply that the Secretary of Justice has
discretion to entertain an appeal notwithstanding the fact that the
accused has been arraigned. This provision should not be treated
separately, but should be read in relation to Section 7. The two
provisions, taken together, simply meant that when an accused was
already arraigned when the aggrieved party files a petition for
review, the Secretary of Justice cannot, and should not take
cognizance of the petition, or even give due course thereto, but
instead dismiss or deny it outright. The appellate court added that
the word "may" in Section 12 should be read as "shall" or "must"
since such construction is absolutely necessary to give effect to the
apparent intention of the rule as gathered from the context.
As to the contemporaneous construction of the Secretary of Justice,
the Court of Appeals stated that the same should not be given weight
since it was erroneous.
Anent petitioner’s argument that Section 7 of the questioned circular
applies only to original resolutions that brought about the filing of
the corresponding informations in court, but not to resolutions
rendered pursuant to a motion for reinvestigation, the appellate
court simply brushed aside such contention as having no basis in the
circular questioned.
It also rejected petitioner’s protestation that her arraignment was
forced upon her since she failed to present any evidence to
substantiate the same.
It is petitioner’s contention that despite her being arraigned, the
supposed waiver of her right to preliminary investigation has been
nullified by virtue of the trial court’s order or reinvestigation. On this
score, the Court of Appeals rebuffed such argument stating that
there was no "supposed waiver of preliminary investigation" to speak
of for the reason that petitioner had actually undergone preliminary
investigation.
Petitioner remained unconvinced with the explanations of the Court
of Appeals.
Hence, the instant petition.
Again, petitioner contends that the DOJ can give due course to an
appeal or petition for review despite its having been filed after the
accused had already been arraigned. It asserts that the fact of
arraignment of an accused before the filing of an appeal or petition
for review before the DOJ "is not at all relevant" as the DOJ can still
take cognizance of the appeal or Petition for Review before it. In
support of this contention, petitioner set her sights on the ruling of
this Court in Crespo v. Mogul,5 to wit:
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as to its
dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while
the case is already in Court he cannot impose his opinion on the trial
court. The Court is the best and sole judge on what to do with the
case before it. The determination of the case is within its exclusive
jurisdiction and competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has the option to
grant or deny the same. It does not matter if this is done before or
after the arraignment of the accused or that the motion was filed
after a reinvestigation or upon instructions of the Secretary of Justice
who reviewed the records of the investigation. (Emphasis supplied.)

To bolster her position, petitioner cites Roberts v. Court of Appeals,6
which stated:
There is nothing in Crespo vs. Mogul which bars the DOJ from taking
cognizance of an appeal, by way of a petition for review, by an
accused in a criminal case from an unfavorable ruling of the
investigating prosecutor. It merely advised the DOJ to, "as far as
practicable, refrain from entertaining a petition for review or appeal
from the action of the fiscal, when the complaint or information has
already been filed in Court. x x x. (Emphasis supplied.)
Petitioner likewise invokes Marcelo v. Court of Appeals7 where this
Court declared:
Nothing in the said ruling forecloses the power or authority of the
Secretary of Justice to review resolutions of his subordinates in
criminal cases. The Secretary of Justice is only enjoined to refrain as
far as practicable from entertaining a petition for review or appeal
from the action of the prosecutor once a complaint or information is
filed in court. In any case, the grant of a motion to dismiss, which the
prosecution may file after the Secretary of Justice reverses an
appealed resolution, is subject to the discretion of the court.
The Court is unconvinced.
A cursory reading of Crespo v. Mogul reveals that the ruling therein
does not concern the issue of an appeal or petition for review before
the DOJ after arraignment. Verily, the pronouncement therein has to
do with the filing of a motion to dismiss and the court’s discretion to
deny or grant the same. As correctly pointed out by respondent, the
emphasized portion in the Crespo ruling is a parcel of the entire
paragraph which relates to the duty and jurisdiction of the trial court
to determine for itself whether or not to dismiss a case before it, and
which states that such duty comes into play regardless of whether
such motion is filed before or after arraignment and upon whose
instructions. The allusion to the Secretary of Justice as reviewing the
records of investigation and giving instructions for the filing of a
motion to dismiss in the cited ruling does not take into consideration
of whether the appeal or petition before the Secretary of Justice was
filed after arraignment. Significantly, in the Crespo case, the accused
had not yet been arraigned when the appeal or petition for review
was filed before the DOJ. Undoubtedly, petitioner’s reliance on the
said case is misplaced.
Also unavailing is petitioner’s invocation of the cases of Roberts v.
Court of Appeals and Marcelo v. Court of Appeals. As in Crespo v.
Mogul, neither Roberts v. Court of Appeals nor Marcelo v. Court of
Appeals took into account of whether the appeal or petition before
the Secretary of Justice was filed after arraignment. Just like in the
Crespo case, the accused in both Roberts v. Court of Appeals and
Marcelo v. Court of Appeals had not yet been arraigned when the
appeal or petition for review was filed before the DOJ.
Moreover, petitioner asserts that the Court of Appeals’
interpretation of the provisions of DOJ Circular No. 70 violated three
basic rules in statutory construction. First, the rule that the provision
that appears last in the order of position in the rule or regulation
must prevail. Second, the rule that the contemporaneous
construction of a statute or regulation by the officers who enforce it
should be given weight. Third, petitioner lifted a portion from
Agpalo’s Statutory Construction8 where the word "shall" had been
construed as a permissive, and not a mandatory language.
The all too-familiar rule in statutory construction, in this case, an
administrative rule9 of procedure, is that when a statute or rule is
clear and unambiguous, interpretation need not be resorted to.10
Since Section 7 of the subject circular clearly and categorically directs
the DOJ to dismiss outright an appeal or a petition for review filed
after arraignment, no resort to interpretation is necessary.
Petitioner’s reliance to the statutory principle that "the last in order
of position in the rule or regulation must prevail" is not applicable. In
addition to the fact that Section 7 of DOJ Circular No. 70 needs no
construction, the cited principle cannot apply because, as correctly
observed by the Court of Appeals, there is no irreconcilable conflict
between Section 7 and Section 12 of DOJ Circular No. 70. Section 7 of
the circular provides:
SECTION 7. Action on the petition. – The Secretary of Justice may
dismiss the petition outright if he finds the same to be patently
without merit or manifestly intended for delay, or when the issues
raised therein are too unsubstantial to require consideration. If an
information has been filed in court pursuant to the appealed
resolution, the petition shall not be given due course if the accused
had already been arraigned. Any arraignment made after the filing of
the petition shall not bar the Secretary of Justice from exercising his
power of review. (Italics supplied.)
On the other hand, Section 12 of the same circular states:
SECTION 12. Disposition of the Appeal. – The Secretary may reverse,
affirm or modify the appealed resolution. He may, motu proprio or
upon motion, dismiss the petition for review on any of the following
grounds:
(a) That the petition was filed beyond the period prescribed in
Section 3 hereof;
(b) That the procedure or any of the requirements herein provided
has not been complied with;
(c) That there is no showing of any reversible error;
(d) That the appealed resolution is interlocutory in nature, except
when it suspends the proceedings based on the alleged existence of
a prejudicial question;
(e) That the accused had already been arraigned when the appeal
was taken;
(f) That the offense has already prescribed; and
(g) That other legal or factual grounds exist to warrant a dismissal.
(Emphases supplied.)
It is noteworthy that the principle cited by petitioner reveals that, to
find application, the same presupposes that "one part of the statute
cannot be reconciled or harmonized with another part without
nullifying one in favor of the other." In the instant case, however,
Section 7 is neither contradictory nor irreconcilable with Section 12.
As can be seen above, Section 7 pertains to the action on the petition
that the DOJ must take, while Section 12 enumerates the options the
DOJ has with regard to the disposition of a petition for review or of
an appeal.
As aptly observed by respondent, Section 7 specifically applies to a
situation on what the DOJ must do when confronted with an appeal
or a petition for review that is either clearly without merit, manifestly
intended to delay, or filed after an accused has already been
arraigned, i.e., he may dismiss it outright if it is patently without merit
or manifestly intended to delay, or, if it was filed after the acccused
has already been arraigned, the Secretary shall not give it due course.
Section 12 applies generally to the disposition of an appeal. Under
said section, the DOJ may take any of four actions when disposing an
appeal, namely:
1. reverse the appealed resolution;
2. modify the appealed resolution;
3. affirm the appealed resolution;
4. dismiss the appeal altogether, depending on the circumstances
and incidents attendant thereto.
As to the dismissal of a petition for review or an appeal, the grounds
are provided for in Section 12 and, consequently, the DOJ must
evaluate the pertinent circumstances and the facts of the case in
order to determine which ground or grounds shall apply.
Thus, when an accused has already been arraigned, the DOJ must not
give the appeal or petition for review due course and must dismiss
the same. This is bolstered by the fact that arraignment of the
accused prior to the filing of the appeal or petition for review is set
forth as one of the grounds for its dismissal. Therefore, in such
instance, the DOJ, noting that the arraignment of an accused prior to
the filing of an appeal or petition for review is a ground for dismissal
under Section 12, must go back to Section 7 and act upon as
mandated therein. In other words, the DOJ must not give due course
to, and must necessarily dismiss, the appeal.
Likewise, petitioner’s reliance on the principle of contemporary
construction, i.e., the DOJ is not precluded from entertaining appeals
where the accused had already been arraigned, because it exercises
discretionary power, and because it promulgated itself the circular in
question, is unpersuasive. As aptly ratiocinated by the Court of
Appeals:
True indeed is the principle that a contemporaneous interpretation
or construction by the officers charged with the enforcement of the
rules and regulations it promulgated is entitled to great weight by the
court in the latter’s construction of such rules and regulations. That
does not, however, make such a construction necessarily controlling
or binding. For equally settled is the rule that courts may disregard
contemporaneous construction in instances where the law or rule
construed possesses no ambiguity, where the construction is clearly
erroneous, where strong reason to the contrary exists, and where the
court has previously given the statute a different interpretation.
If through misapprehension of law or a rule an executive or
administrative officer called upon to implement it has erroneously
applied or executed it, the error may be corrected when the true
construction is ascertained. If a contemporaneous construction is
found to be erroneous, the same must be declared null and void.
Such principle should be as it is applied in the case at bar.11
Petitioner’s posture on a supposed exception to the mandatory
import of the word "shall" is misplaced. It is petitioner’s view that the
language of Section 12 is permissive and therefore the mandate in
Section 7 has been transformed into a matter within the discretion of
the DOJ. To support this stance, petitioner cites a portion of Agpalo’s
Statutory Construction which reads:
For instance, the word "shall" in Section 2 of Republic Act 304 which
states that "banks or other financial institutions owned or controlled
by the Government shall, subject to availability of funds xxx, accept
at a discount at not more than two per centum for ten years such
(backpay) certificate" implies not a mandatory, but a discretionary,
meaning because of the phrase "subject to availability of funds."
Similarly, the word "shall" in the provision to the effect that a
corporation violating the corporation law "shall, upon such violation
being proved, be dissolved by quo warranto proceedings" has been
construed as "may."12
After a judicious scrutiny of the cited passage, it becomes apparent
that the same is not applicable to the provision in question. In the
cited passage, the word "shall" departed from its mandatory import
connotation because it was connected to certain
provisos/conditions: "subject to the availability of funds" and "upon
such violation being proved." No such proviso/condition, however,
can be found in Section 7 of the subject circular. Hence, the word
"shall" retains its mandatory import.
At this juncture, the Court of Appeals’ disquisition in this matter is
enlightening:
Indeed, if the intent of Department Circular No. 70 were to give the
Secretary of Justice a discretionary power to dismiss or to entertain
a petition for review despite its being outrightly dismissible, such as
when the accused has already been arraigned, or where the crime
the accused is being charged with has already prescribed, or there is
no reversible error that has been committed, or that there are legal
or factual grounds warranting dismissal, the result would not only be
incongruous but also irrational and even unjust. For then, the action
of the Secretary of Justice of giving due course to the petition would
serve no purpose and would only allow a great waste of time.
Moreover, to give the second sentence of Section 12 in relation to its
paragraph (e) a directory application would not only subvert the
avowed objectives of the Circular, that is, for the expeditious and
efficient administration of justice, but would also render its other
mandatory provisions - Sections 3, 5, 6 and 7, nugatory.13
In her steadfast effort to champion her case, petitioner contends that
the issue as to whether the DOJ rightfully entertained the instant
case, despite the arraignment of the accused prior to its filing, has
been rendered moot and academic with the order of dismissal by the
trial court dated 27 February 2003. Such contention deserves scant
consideration.
It must be stressed that the trial court dismissed the case precisely
because of the Resolutions of the DOJ after it had, in grave abuse of
its discretion, took cognizance of the petition for review filed by
petitioner. Having been rendered in grave abuse of its discretion, the
Resolutions of the DOJ are void. As the order of dismissal of the trial
court was made pursuant to the void Resolutions of the DOJ, said
order was likewise void. The rule in this jurisdiction is that a void
judgment is a complete nullity and without legal effect, and that all
proceedings or actions founded thereon are themselves regarded as
invalid and ineffective for any purpose.14 That respondent did not
file a motion for reconsideration or appeal from the dismissal order
of the trial court is of no moment. Since the dismissal was void, there
was nothing for respondent to oppose.
Petitioner further asserts that Section 7 of DOJ Circular No. 70 applies
only to appeals from original resolution of the City Prosecutor and
does not apply in the instant case where an appeal is interposed by
petitioner from the Resolution of the City Prosecutor denying her
motion for reinvestigation. This claim is baseless.1avvphi1.net
A reading of Section 7 discloses that there is no qualification given by
the same provision to limit its application to appeals from original
resolutions and not to resolutions on reinvestigation. Hence, the rule
stating that "when the law does not distinguish, we must not
distinguish"15 finds application in this regard.
Petitioner asserts that her arraignment was null and void as the same
was improvidently conducted. Again, this contention is without
merit. Records reveal that petitioner’s arraignment was without any
restriction, condition or reservation.16 In fact she was assisted by her
counsels Atty. Arthur Abudiente and Atty. Maglinao when she
pleaded to the charge.17
WHEREFORE, the petition is DENIED. The Decision of the Court of
Appeals dated 21 July 2004 and its Resolution dated 10 June 2005 in
CA-G.R. SP No. 76396 are AFFIRMED. Costs against petitioner.
SO ORDERED.

Moreover, the settled rule is that when an accused pleads to the

charge, he is deemed to have waived the right to preliminary
investigation and the right to question any irregularity that surrounds
it.18 This precept is also applicable in cases of reinvestigation as well
as in cases of review of such reinvestigation. In this case, when
petitioner unconditionally pleaded to the charge, she effectively
waived the reinvestigation of the case by the prosecutor as well as
the right to appeal the result thereof to the DOJ Secretary. Thus, with
the arraignment of the petitioner, the DOJ Secretary can no longer
entertain the appeal or petition for review because petitioner had
already waived or abandoned the same.

Lastly, while there is authority19 permitting the Court to make its

own determination of probable cause, such, however, cannot be
made applicable in the instant case. As earlier stated, the
arraignment of petitioner constitutes a waiver of her right to
preliminary investigation or reinvestigation. Such waiver is
tantamount to a finding of probable cause. For this reason, there is
no need for the Court to determine the existence or non-existence of
probable cause.

Besides, under Rule 45 of the Rules of Court, only questions of law

may be raised in, and be subject of, a petition for review on certiorari
since this Court is not a trier of facts. This being the case, this Court
cannot review the evidence adduced by the parties before the
prosecutor on the issue of the absence or presence of probable
cause.20