Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
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.

through deceit, received and encashed two checks issued in the

name of respondent without respondents 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.

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.

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.

Respondent alleged in the complaints-affidavits that petitioner,

After conducting the reinvestigation, the Office of the City

CRIMINAL PROCEDURE

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
CRIMINAL PROCEDURE

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 petitioners "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 petitioners 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
respondents 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
2

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 courts 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 prosecutors averment that the Secretary of Justice had
recommended the dismissal of the case.

4. that the trial courts 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 courts 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.)

2. that the contemporaneous construction by the Secretary of

Justice should be given great weight and respect;

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.

3. that Section 7 of the Circular applies only to resolutions rendered

pursuant to a preliminary investigation, not on a reinvestigation;

On the other hand, reading Section 12 of the same circular which

reads:

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;

CRIMINAL PROCEDURE

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 petitioners 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 petitioners protestation that her arraignment was
CRIMINAL PROCEDURE

forced upon her since she failed to present any evidence to

substantiate the same.
It is petitioners contention that despite her being arraigned, the
supposed waiver of her right to preliminary investigation has been
nullified by virtue of the trial courts 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
4

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.)
7

Petitioner likewise invokes Marcelo v. Court of Appeals 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
CRIMINAL PROCEDURE

do with the filing of a motion to dismiss and the courts 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, petitioners reliance on the said case is misplaced.
Also unavailing is petitioners 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
Agpalos Statutory Construction8 where the word "shall" had been
construed as a permissive, and not a mandatory language.
5

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.
Petitioners 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;
CRIMINAL PROCEDURE

(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
6

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, petitioners 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
CRIMINAL PROCEDURE

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 latters 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
Petitioners posture on a supposed exception to the mandatory
import of the word "shall" is misplaced. It is petitioners 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 Agpalos 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
7

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

CRIMINAL PROCEDURE

same was improvidently conducted. Again, this contention is

without merit. Records reveal that petitioners 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.

MINITA V. CHICO-NAZARIO
Associate Justice

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
CRIMINAL PROCEDURE

then and there willfully, unlawfully and feloniously have carnal

knowledge with his daughter AAA, a minor, 16 years of age,
against her will and consent.
Republic of the Philippines
SUPREME COURT
Manila

CONTRARY TO LAW: (Art. 335 of the Revised Penal Code in

relation to R.A. 7659).
CRIMINAL CASE NO. 6900

THIRD DIVISION
G.R. No. 188706

That sometime on October 15, 1995 at Barangay Antongalon,

Butuan City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused with the use of force
and intimidation, did then and there willfully, unlawfully and
feloniously have carnal knowledge with his daughter AAA, a
minor, 16 years of age, against her will and consent.

March 17, 2010

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
OSCAR M. DOCUMENTO, Appellant.

CONTRARY TO LAW: (Art. 335 of the Revised Penal Code in

relation to R.A. 7659).4

RESOLUTION
NACHURA, J.:
1

On appeal is the Court of Appeals (CA) Decision dated August 13,

2008, affirming the Regional Trial Court2(RTC) Decision3 dated
June 9, 2003, finding appellant Oscar Documento guilty beyond
reasonable doubt of two (2) counts of Rape.
Documento was charged before the RTC with two (2) counts of
Rape, as defined and punished under Article 335 of the Revised
Penal Code, in separate Informations, which read:
CRIMINAL CASE NO. 6899
That sometime on April 22, 1996 at Ochoa Avenue, Butuan City,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused with the use of force and intimidation, did
CRIMINAL PROCEDURE

Upon arraignment, Documento pled not guilty. Subsequently,

however, he changed his earlier plea to one of guilt. As such, the
RTC ordered a re-arraignment and entered appellants plea of guilt
to the charges.
Thereafter, the prosecution presented evidence consisting of the
testimonies of private complainant herself, AAA, her mother, BBB,
and Dr. Johann A. Hugo. Their testimonies established the
following:
1. Documento started sexually molesting his daughter, AAA, in
1989 when she was ten (10) years old. Eventually, AAA became
pregnant and gave birth in 1993.
2. Documento raped AAA on a number of occasions in the houses
10

of Barsilisa Morada, Documentos relative, and Aida Documento,

both located in Butuan City. During each incident, Documento hit
and hurt AAA physically. He likewise threatened to kill her if she
told anyone of the rape.
3. AAAs mother, BBB, who was working in Manila from 1994 to
1996, went to Barsilisa and asked for help in locating Oscar and
AAA. BBB testified that she had not seen nor heard from the two
since April 7, 1994, when Documento brought their daughters AAA
and CCC to Tubod, Lanao del Norte, for a vacation. Thereafter,
Documento left CCC in Tubod and brought AAA with him to
Santiago, Agusan del Norte.
4. When BBB found out from their relatives that AAA got pregnant
and gave birth, she suspected that Documento was the culprit. Upon
learning that Documento and AAA were in Butuan City, she went
to the Butuan Police Station and requested assistance in securing
custody of AAA. As soon as Documento was arrested, AAA
informed the police that Documento raped her.
5. Dr. Hugo testified on the genital examination he conducted on
AAA, and affirmed the medical certificate he issued with the
following findings:
Physical exam: HEENT with in normal limits.
C/L with in normal limits.
CVB with in normal limits.
ABD Soft; NABS
GU (-) KPS
CRIMINAL PROCEDURE

Genitalia - Parrous
- Healed vaginal laceration
- Vaginal introitus; admits 2 finger[s]
with ease
- Hymen with pemnants "caruncula
multiforma"
Labs; Vaginal Smear; Negative for Spermatozoa.5
Documento testified as the sole witness for the defense. He
asseverated that he pled guilty to the crime of Rape only because
Prosecutor Hector B. Salise convinced him to do so. Documento
contended that he did not rape AAA, and that, to the contrary, they
had a consensual, sexual relationship. He further alleged that the
incident did not happen in Butuan City, but in Clarin, Misamis
Occidental. Finally, on cross-examination, Documento disowned
the handwritten letters he had supposedly written to his wife and to
AAA, asking for their forgiveness.
The RTC rendered judgment convicting Documento of both counts
of Rape, to wit:
WHEREFORE, as a consequence of the foregoing, this Court finds
accused Oscar M. Documento GUILTY beyond reasonable doubt of
the two (2) counts of rape and correspondingly sentences him:
1. To suffer the penalty of DEATH in each of the two (2) rape cases
filed against him - Criminal Case No. 6899 and Criminal Case No.
6900;
11

2. To indemnify the victim, AAA, in the amount of P75,000.00 as

civil indemnity, P50,000.00 as moral damages and P25,000.00 as
exemplary damages, respectively, for each count of rape in
accordance with recent jurisprudence.
Let a Commitment Order be issued for the transfer of accused
Oscar M. Documento from Butuan City Jail to the Bureau of
Corrections, Muntinlupa, Metro Manila.
Let the records of these cases be forwarded immediately to the
Supreme Court for mandatory review.
SO ORDERED.6
Consistent with our ruling in People v. Mateo,7 Documentos appeal
was remanded to the CA.
Ruling on the appeal, the CA affirmed the RTCs conviction, but
changed the penalty imposed on Documento from death penalty to
reclusion perpetua, and increased the award of moral damages from
P50,000.00 toP75,000.00 for each count of Rape. The fallo of the
Decision reads:
WHEREFORE, the assailed Decision finding appellant Oscar
Documento guilty beyond reasonable doubt of two counts of the
crime of rape and ordering him to indemnify the victim for each
count of rape the amounts ofP75,000.00 as civil indemnity and
P25,000.00 as exemplary damages, is AFFIRMED with the
MODIFICATION that the award of moral damages is increased to
P75,000.00 for each count of rape and that in lieu of the death
penalty, appellant Oscar Documento is hereby sentenced to suffer
the penalty of reclusion perpetua for each count of rape without
possibility of parole.

SO ORDERED.8
Hence, this appeal, assigning the following errors:
I
THE TRIAL COURT GRAVELY ERRED IN DECIDING THE
CASE WITHOUT FIRST RESOLVING ITS TERRITORIAL
JURISDICTION OVER THE CRIME CHARGED AS THE
PROSECUTION FAILED TO ESTABLISH THAT THE TWO (2)
COUNTS OF RAPE WERE PERPETRATED IN BUTUAN CITY.
II.
THE TRIAL COURT GRAVELY ERRED IN FAILING TO
CONDUCT A SEARCHING
INQUIRY INTO
THE
VOLUNTARINESS AND FULL COMPREHENSION BY
ACCUSED-APPELLANT OF THE CONSEQUENCES OF HIS
PLEA.9
We find no cogent reason to disturb Documentos conviction. We
affirm the CA, but with modification.
On the issue of the trial courts territorial jurisdiction over the
crime, we completely agree with the appellate courts ruling
thereon. Contrary to the insistence of Documento that the
prosecution failed to establish that the two (2) counts of Rape were
perpetrated in Butuan City, the CA pointed to specific parts of the
records which show that, although AAA did not specifically
mention "Butuan City" in her testimony, the incidents in the present
cases transpired in Barangay Antongalon and on Ochoa Avenue,
both in Butuan City.
First. AAA in her Sworn Statement dated April 24, 1996 answered

CRIMINAL PROCEDURE

12

the prosecutors question in this wise:

15. Q : Right after you arrived [in] Butuan City, did your father
molest you or rape you?
A : Yes, sir.
Q : When was that?
A : From the month of October 15, 1995 when we stayed [in]
Barangay Antongalon, Butuan City, and the last happened in the
evening of April 22, 1996 [on] Ochoa Avenue, Butuan City.
Second. The Resolution dated May 3, 1996 of Hector B. Salise,
Second Assistant City Prosecutor, states that:
There were many places they stayed and several sexual intercourse
that took place which this office has no jurisdiction to conduct
preliminary investigation but only on the incidents of rape that took
place [in] Antongalon, Butuan City on October 15, 1995 and [on]
Ochoa Avenue, Butuan City on April 22, 1996.
Third. The two (2) Informations dated May 8, 1996, clearly state
that the crimes charged against appellant were perpetrated in
Barangay Antongalon and Ochoa Avenue, Butuan City on October
15, 1995 and April 22, 1996, respectively.
Fourth. The inclusion of the two Barangays in the City of Butuan is
a matter of mandatory judicial notice by the trial court. Section 1 of
Rule 129 of the Revised Rules on Evidence provides
SECTION 1. Judicial notice, when mandatory. A court shall take
judicial notice, without the introduction of evidence, of the
existence and territorial extent of states, their political history,
CRIMINAL PROCEDURE

forms of government and symbols of nationality, the law of nations,

the admiralty and maritime courts of the world and their seals, the
political constitution and history of the Philippines, the official acts
of the legislative, executive and judicial departments of the
Philippines, the laws of nature, the measure of time, and the
geographical divisions.10
Documento avers that his conviction for Rape must be reversed
because the trial court did not properly conduct a searching inquiry
on the voluntariness and full comprehension of his plea of guilt.
We disagree.
It is true that the appellate court noted the trial courts failure to
conduct the prescribed "searching inquiry" into the matter of
whether or not Documentos plea of guilt was improvidently made.
Nonetheless, it still found the conviction of appellant proper. Its
disquisition on Documentos plea of guilt is in point.
Nothing in the records of the case at bench shows that the trial court
complied with the guidelines [set forth by the Supreme Court in a
number of cases] after appellants re-arraignment and guilty plea.
The questions propounded to appellant during the direct and crossexamination likewise fall short of these requirements. x x x.
xxxx
The questions propounded were clearly not compliant with the
guidelines set forth by the High Court. The appellant was not fully
apprised of the consequences of his guilty plea. In fact, as argued
by appellant, "the trial court should have informed him that his plea
of guilt would not affect or reduce the imposable penalty, which is
death as he might have erroneously believed that under Article 63,
the death penalty, being a single indivisible penalty, shall be applied
by the court regardless of any mitigating circumstances that might
13

have attended the commission of the deed." Moreover, the trial

court judge failed to inform appellant of his right to adduce
evidence despite the guilty plea.1avvphi1

P30,000.00. The Decision is affirmed in all other respects.

With the trial courts failure to comply with the guidelines,

appellants guilty plea is deemed improvidently made and thus
rendered inefficacious.

ANTONIO EDUARDO B. NACHURA

Associate Justice

SO ORDERED.

This does not mean, however, that the case should be remanded to
the trial court. This course of action is appropriate only when the
appellants guilty plea was the sole basis for his conviction. As held
in People v. Mira, Notwithstanding the incautiousness that attended appellants guilty
plea, we are not inclined to remand the case to the trial court as
suggested by appellant. Convictions based on an improvident plea
of guilt are set aside only if such plea is the sole basis of the
judgment. If the trial court relied on sufficient and credible
evidence in finding the accused guilty, the judgment must be
sustained, because then it is predicated not merely on the guilty
plea of the accused but also on evidence proving his commission of
the offense charged.11
On the whole, we find that the appellate court committed no
reversible error in affirming the trial courts ruling convicting
Documento.
Lastly, on the matter of the appellate courts award of exemplary
damages, we increase the award fromP25,000.00 to P30,000.00 in
line with prevailing jurisprudence.
WHEREFORE, premises considered, the Court of Appeals
Decision dated August 13, 2008 in CA-G.R. CRHC No. 00285 is
AFFIRMED with the MODIFICATION that the award of
exemplary damages is hereby increased from P25,000.00 to
CRIMINAL PROCEDURE

14

TORRES, JR., J.:

In times past, when due process was more of a myth empty
accusations have had its day. In a more enlightened age, a sage was
heard to say "Strike me if you must, but hear me first!" We have
come a long way, indeed, for in our time one who is required to
answer for an alleged wrong must at least know what is it all about.
This is the case before Us.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 114331 May 27, 1997

CESAR E. A. VIRATA, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN and THE
REPUBLIC OF THE PHILIPPINES, respondents.
CRIMINAL PROCEDURE

In this case, petitioner Cesar E. A. Virata (Virata, for brevity) is one

of the defendants in Civil Case No. 0035, entitled Republic of the
Philippines versus Benjamin (Kokoy) Romualdez, et. al.. The case,
which was filed by the Presidential Commission on Good
Government in behalf of the Republic of the Philippines (Republic,
for brevity) against fifty three persons (53) 1 including Virata,
involves the recovery of ill-gotten wealth amassed by the
defendants during the twenty year reign of former President
Ferdinand Marcos.
The complaint against the defendants was amended three times.
The last amended complaint filed with the Sandiganbayan,
hereafter known as the expanded Second Amended Complaint,
states, inter alia, the following relevant allegations against
petitioner Virata:
V. SPECIFIC AVERMENTS OF DEFENDANTS' ILLEGAL ACTS
xxx xxx xxx
14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez
Romualdez, acting by themselves and/or in unlawful concert with
15

Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking

undue advantage of their relationship, influence and connection
with the latter Defendant spouses, engaged in devises, schemes and
strategems to unjustly enrich themselves at the expense of plaintiff
and the Filipino people, among others:
xxx xxx xxx
(b) gave MERALCO undue advantage (i) by effecting the increase
of power rates with automatic authority to tack into the consumers'
electric bills the so-called purchase and currency adjustment, and.
(ii) with the active collaboration of Defendant Cesar E. A. Virata,
by reducing the electric franchise tax from 5% to 2% of gross
receipts and the tariff duty on fuel oil imports by public utilities
from 20% to 10%, resulting in substantial savings for MERALCO
but without any significant benefit to the consumers of electric
power and loss of millions of pesos in much needed revenues to the
government;
xxx xxx xxx
(g) secured, in a veiled attempt to justify MERALCO's anomalous
acquisition of the electric cooperatives, with the active
collaborations of Defendants Cesar E. A. Virata, Juanito R.
Remulla, Isidro Rodriguez, Jose C. Hernandez, Pedro Dumol,
Ricardo C. Galing, Francisco C. Gatmaitan, Mario D. Camacho and
the rest of the Defendants, the approval by Defendant Ferdinand E.
Marcos and his cabinet of the so-called "Three-Year Program for
the Extension of MERALCO's Services to Areas Within the 60Kilometer Radius of Manila," which required government capital
investment amounting to millions of pesos;

Philguarantee officials led by Chairman Cesar E. A. Virata and the

senior managers of FMMC/PNI Holdings Incorporated led by Jose
S. Sandejas, Jr., Jose M. Mantecon and Kurt S. Bachman, Jr.,
among others, the formation of Erecton Holdings, Inc. without
infusing additional capital solely for the purpose of making it
assume the obligation of Erectors Incorporated with Philguarantee
in the amount of P527,387,440.71 with insufficient
Securities/collaterals just to enable Erectors Inc. to appear viable
and to borrow more capitals, so much so that its obligation with
Philguarantee has reached a total of more than P2 Billion as of June
30, 1987.
xxx xxx xxx
17. The following Defendants acted as dummies, nominees and/or
agents by allowing themselves (i) to be used as instruments in
accumulating ill-gotten wealth through government concessions,
orders and/or policies prejudicial to plaintiff, or (ii) to be
incorporators, directors or members of corporations beneficially
held and/or controlled by Defendants Ferdinand E. Marcos, Imelda
R. Marcos, Benjamin (Kokoy) T. Romualdez and Julliette Gomez
Ramualdez in order (to) conceal and prevent recovery of assets
illegally obtained: . . . Cesar E. A. Virata . . . .
xxx xxx xxx

xxx xxx xxx

18. The acts of Defendants, singly or collectively, and/or in

unlawful concern with one another, constitute gross abuse of
official position and authority, flagrant breach of public trust and
fiduciary obligations, acquisition of unexplained wealth, brazen
abuse of right and power, unjust enrichment, violation of the
Constitution and laws of the Republic of the Philippines, to the
grave and irreparable damage of Plaintiff and the Filipino people. 2

(m) manipulated, with the support, assistance and collaboration of

Asserting that the foregoing allegations are vague and are not

CRIMINAL PROCEDURE

16

averred with sufficient definiteness as to enable him to effectively

prepare his responsive pleading, petitioner Virata filed a motion for
a bill of particulars on January 31, 1992.
In a Resolution promulgated on 4 August 1992, the Sandiganbayan
partially granted the said motion by requiring the Republic to
submit a bill of particulars concerning the charges against petitioner
Virata stated only in paragraph 17 (acting as dummy, nominee
and/or agent) and paragraph 18 (gross abuse of authority and
violation of laws and the Constitution) of the expanded Second
Amended Complaint. However, as to the other charges, namely: 1)
Virata's alleged active collaboration in the reduction of electric
franchise tax and the tariff duty on fuel oil imports, as stated in
paragraph 14 b (ii), 2) his active collaboration in securing the
approval by Ferdinand Marcos of the "Three Year Program for the
Extension of MERALCO's Services to Areas within the 60
Kilometer Radius of Manila," mentioned in paragraph 14 g, and 3)
his support, assistance and collaboration in the formation of
Erectors Holdings Incorporated as reflected in paragraph 14 m of
the expanded Second Amended Complaint, the Sandiganbayan
declared that these accusations are clear and specific enough to
allow Virata to submit an intelligent responsive pleading, hence, the
motion for a bill of particulars respecting the foregoing three
charges was denied.
In view of the Sandiganbayan's order of August 4, 1992 requiring
the Republic to amplify the charges in paragraphs 17 and 18 of the
expanded Second Amended Complaint, the Republic through the
Office of the Solicitor General submitted the bill of particulars
dated October 22, 1992, hereafter called as the Limited Bill of
Particulars, which was signed by a certain Ramon A. Felipe IV,
who was designated in the bill of particulars as "private counsel",
the relevant portion of which provides that:
xxx xxx xxx
CRIMINAL PROCEDURE

1. Defendant Virata, while being one of the members of the Central

Bank's Monetary Board, approved Resolution No. 2320 dated
December 14, 1973, allowing the Benpres Corporation, Meralco
Securities Corporation (MSC) and Manila Electric Company
(MERALCO) to refinance/restructure their outstanding loan
obligations, a "sweetheart" or "behest" accommodation which
enabled Meralco Foundation, Inc. to acquire ownership and control
of Manila Electric Company. Meralco Foundation, Inc. was then
controlled by the Marcos-Romualdez Group with Benjamin
(Kokoy) Romualdez being the beneficial owner and, thereby,
expanding the said group's accumulation of ill-gotten wealth.
2. On July 11, 1973 defendant Virata representing the Republic of
the Philippines as Finance Minister, executed an Agreement with
the Manila Electric Company (MERALCO) whereby the
government agreed to buy the parcels of land, improvements and
facilities known as Gardner Station Unit No. 1, Gardner Station
Unit No. 2, Snyder Station Unit No. 1, Snyder Station Unit No. 2
and Malaya Station Unit No. 1 for One Billion One Hundred
Million Pesos (P1,100,000,000.00), a transaction which was so
disadvantageous to the government and most favorable to
MERALCO which gained a total of P206.2 million. As a result of
this transaction, MERALCO is relieved of its heavy burden in
servicing its foreign loans which were assumed by the government.
Furthermore, the agreement clearly showed the "sweetheart" deal
and favors being given by the government to MERALCO which
was then owned/and or controlled by Benjamin Romualdez
representing the Marcos-Romualdez group, when it provided that
the "sale is subject to the reservation of rights, leases and easements
in favor of Philippine Petroleum Corp., First Philippine Industrial
Corp. (formerly MERALCO Securities Industrial Corp.) and
Pilipinas Shell Petroleum Corp. insofar as the same are presently in
force and applicable." This enabled the Marcos-Romualdez Group
to further accumulate and expand the ill-gotten wealth and plunder
the nation.
17

3. At the meeting of the Board of Directors of the Philippine Export

and Foreign Loan Guarantee Corp. held on September 16, 1983
defendant Virata acting as Chairman, together with the other
members of the board, approved the request of Erectors, Inc., a
Benjamin Romualdez owned and/or controlled corporation, for a
guarantee to cover 100% of its proposed behest loan of US $33.5
Million under the Central Bank Consolidated Foreign Borrowing
Program with the Philippine National Bank, Development Bank of
the Philippines, Interbank, Philippine Commercial International
Bank and Associated Bank as conduit banks, to refinance Erectors,
Inc.'s short term loans guaranteed by Philguarantee, which at
present forms part of the government's huge foreign debt. Such act
of defendant Virata was a flagrant breach of public trust as well as a
violation of his duty to protect the financial condition and economy
of the country against, among others, abuses and corruption. 3
On 3 December 1992, a motion to strike out the Limited Bill of
Particulars and to defer the filing of the answer was filed by Virata
on the grounds that the Limited Bill of Particulars avers for the first
time new actionable wrongs allegedly committed by him in various
official capacities and that the allegations therein do not indicate
that Virata acted as dummy, nominee or agent but rather as a
government officer, acting as such in his own name. This motion
was not acted upon by the Sandiganbayan.
Way back on September 1, 1992, Virata, who was dissatisfied with
the Sandiganbayan Resolution of August 4, 1992, filed a petition
for certiorari (G.R. No. 106527) with this Court questioning the
Sandiganbayan's denial of his motion for a bill of particulars as
regards the first three charges stated in paragraph 14 b(ii),
paragraph 14g and paragraph 14m of the expanded Second
Amended Complaint. The petition was granted by this Court in our
decision promulgated on April 6, 1993. Accordingly, the
Sandiganbayan Resolution of August 4, 1992 to the extent that it
denied the motion for a bill of particulars with respect to the first
CRIMINAL PROCEDURE

three (3) charges was set aside and the Republic was required by
this Court to submit to Virata a bill of particulars containing the
facts prayed for by the latter insofar as to these first three (3)
'actionable wrongs' are concerned. 4
On August 20, 1993, the Office of the Solicitor General (OSG) filed
a manifestation and motion dated August 18, 1993 alleging, inter
alia, that the OSG and PCGG agreed that the required bill of
particulars would be filed by the PCGG since the latter is the
investigating body which has the complete records of the case,
hence, in a better position to supply the required pleading. The
Sandiganbayan took note of this manifestation in a Resolution
dated August 26, 1993. On the basis of this arrangement, the PCGG
submitted the bill of particulars dated November 3, 1993, which
was apparently signed by a certain Reynaldo G. Ros, who was
named in the bill of particulars as "deputized prosecutor" of the
PCGG. This bill of particulars, which incorporates by reference the
Limited Bill of Particulars of October 22, 1992, states, inter alia:
xxx xxx xxx
1. On the "Specific Averments of Defendant's Illegal Acts a (i)"
[paragraph 14 b (ii) of the expanded Second Amended Complaint]
Immediately after defendants Ferdinand E. Marcos and Benjamin
"Kokoy" Romualdez took complete control of Meralco and its
subsidiaries, defendant Ferdinand E. Marcos issued Presidential
Decree No. 551 on September 11, 1974 which effected the
reduction of electric franchise tax being paid by Meralco from 5%
to 2% as well as lowered tariff duty of fuel oil imports from 20% to
10 % and allowed Meralco to retain 3% reduction in franchise tax
rates thereby allowing it to save as much as P258 million as of
December 31, 1992.
Defendant Cesar Virata then Minister of Finance, supported PD 551
18

and in fact issued the guidelines on its implementation which were

heavily relied upon by the Board of Energy in its questioned ruling
dated 25 November 1982 by allowing Meralco to continue charging
higher electric consumption rates despite their savings from the
aforesaid reduction of franchise tax without any significant benefit
to the consumers of electric power and resulting in the loss of
millions of pesos in much needed revenues to the government.
2. On the "Specific Averments of Defendant's Illegal Acts a (ii)"
[par. 14g of the expended Second Amended Complaint].
Defendant Cesar E.A. Virata, then Prime Minester [sic], caused the
issuance of a confidential memorandum dated October 12, 1982 to
then President Ferdinand E. Marcos informing the latter of the
recommendation of the cabinet of the so called Three Year Program
for the Extension of Meralco Services of Areas within the 60
Kilometer Radius of Manila in order to justify Meralco's anomalous
acquisition of electric cooperatives and which later required the
Monetary Board and Philguarantee then headed by defendant Virata
to recommend the restructuring of Meralco's foreign and local
obligation which led to the extending of loan accommodations by
the Development Bank of the Philippines and Philippine National
Bank in favor of Meralco.
3. On the "Specific Averments of Defendant's Illegal Acts a (iii)"
[par. 14m of the expanded Second Amended Complaint].
Defendant Cesar Virata, as Chairman of Philguarantee and the
Senior Managers of FMMC/PNI Holdings Inc. led by Jose S.
Sandejas, J. Jose N. Mantecon and Kurt S. Bachmann, Jr.,
supported and assisted the formation of Erectors Holdings, Inc. for
the purpose of making it assume the obligation of Erectors Inc. with
Philguarantee in the amount of P527,387,440.71 without sufficient
securities/collateral and despite this outstanding obligation,
defendant Virata, as Chairman of Philguarantee, approved the
CRIMINAL PROCEDURE

Erectors Inc. Applications for loan guarantees that reached more

than P2 Billion as of June 30, 1987.
4. On the "Specific Averments of Defendant's Illegal Acts a (iv)
[par. 17 of the expanded Second Amended Complaint]
Plaintiff, hereby incorporates by reference plaintiff's Limited Bill of
Particulars previously submitted to this Honorable Court with the
qualification that defendant Cesar Virata merely acted as agent. 5
Consequently, Virata filed on November 23, 1993 his comment on
the bill of particulars with motion to dismiss the expanded Second
Amended Complaint. He alleges that both the bills of particulars
dated October 22, 1992 and November 3, 1993 are pro forma and
should be stricken off the records. According to him, the bill of
particulars dated November 3, 1993 is merely a rehash of the
assertions made in the expanded Second Amended Complaint,
hence, it is not the bill of particulars that is required by this Court in
the previous case of Virata vs.Sandiganbayan, et. al. (G.R. No.
106527). Furthermore, a reading of the Limited Bill of Particulars
dated October 22, 1992 shows that it alleges new imputations
which are immaterial to the charge of being a dummy, nominee or
agent, and that Virata acted, not as a dummy, nominee or agent of
his co-defendants as what is charged in the complaint, but as a
government officer of the Republic. Virata also questions the
authority of PCGG ad its deputized prosecutor to file the bill of
particulars in behalf of the Republic. He asserts that the legal
representation of the Republic by the OSG is mandated by law and
that the Sandiganbayan, through its Resolution dated August 26,
1993, should not have allowed the OSG to abdicate its duty as the
counsel of record for the Republic.
The Republic filed its Opposition to Virata's Comment to Bill of
Particulars on December 17, 1993. Subsequently, Virata filed his
Reply to Opposition on January 18, 1994.
19

After considering the relevant pleadings and motions submitted by

the parties, the Sandiganbayan, in a Resolution of February 16,
1994, admitted the bill of particulars submitted by the Republic and
ordered Virata to file his responsive pleading to the expanded
Second Amended Complaint. The relevant portion of the
Resolution states as follows:

The issues to be resolved in the instant case are as follows:

In the resolution of this incident, We find that the bill of particulars,

filed by the plaintiff on November 3, 1993 in compliance with the
Supreme Court's directive, appears to have substantially set out
additional averments and particulars which were not previously
alleged in the Expanded Amended Complaint. We likewise consider
these additional averments and particulars to be sufficient enough
to enable defendant Virata to frame his responsive pleading or
answer and that what he feels are still necessary in preparing for
trial should be obtained by various modes of discovery, such as
interrogatories, depositions, etc. A bill of particulars is sufficient if
matters constituting the causes of action have already been
specified with sufficient particularity and which matters are within
the moving party's knowledge. It cannot be utilized to challenge the
sufficiency of the claim asserted.

2. WHETHER OR NOT THE OFFICE OF THE SOLICITOR

GENERAL AND THE PCGG ARE AUTHORIZED BY LAW TO
DEPUTIZE A COUNSEL TO FILE THE BILL OF
PARTICULARS IN BEHALF OF THE REPUBLIC.

Simplicity of pleading is the idea of modern procedure, hence,

evidentiary facts and details should not be allowed to clutter a
complaint as much as possible, consistent with the right of the
moving party to compel disclosure in instances where it is beyond
cavil that He cannot adequately frame a responsive pleading. In the
instant case, the bill of particulars submitted by the plaintiff, in Our
considered opinion, is sufficient and adequate enough to fulfill its
mission. 6
Dissatisfied, Virata filed this instant petition for certiorari under
Rule 65 of the Rules of Court to challenge the foregoing Resolution
of the Sandiganbayan.
CRIMINAL PROCEDURE

1. WHETHER OR NOT THE SANDIGANBAYAN COMMITTED

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN ADMITTING THE BILL OF
PARTICULARS SUBMITTED BY THE REPUBLIC.

Petitioner maintains the view that the allegations in the bill of

particulars of November 3, 1993 remain vague, general and
ambiguous, and the purported illegal acts imputed to Virata have
not been averred with sufficient definiteness so as to inform Virata
of the factual and legal basis thereof.
Respecting the Limited Bill of Particulars dated October 22, 1992,
which amplifies paragraphs 17 and 18 of the expanded Second
Amended Complaint, Virata reiterates his basic arguments that the
Limited Bill of Particulars fails to provide the relevant and material
averments sought to be clarified by him and that it asserts for the
first time new matters allegedly committed by him in different
official capacities, to wit: a) as a member of the Central Bank
Monetary Board, he, with the other Monetary Board members,
approved Resolution No. 2320 dated December 14, 1973 regarding
the restructuring of the loans of Benpres Corporation, Meralco
Securities Corporation, and the Manila Electric Company, b) as
Finance Minister, he executed an agreement with Manila Electric
Company in connection with the sale of lands and facilities of the
Gardner Station Unit No. 1, Gardner Station Unit No. 2, Snyder
Station Unit No. 1, Snyder Station Unit No. 2, and Malaya Station
Unit No. 1, and, c) as Chairman of the Board of Directors of the
Philippine Export and Foreign Loan Guarantee Corporation,
20

approved the request of Erector, Incorporated, for a guarantee to

cover 100 % of its proposed behest loan of US $ 33.5 Million under
the Central Bank Consolidated Foreign Borrowing Program. He
argues that the thrust of paragraphs 17 and 18 of the expanded
Second Amended Complaint is the charge that Virata acted as
"dummy, nominee and/or agent," however, the foregoing
allegations in the Limited Bill of Particulars do not indicate that he
acted as dummy, nominee or agent, but rather, as a government
officer.
Invoking Section 3, Rule 17 of the Rules of Court, Virata argued
that both the bills of particulars submitted by the Republic did not
follow the Rules of Court and the orders of the Sandiganbayan and
this Honorable Court, as such, the failure to comply with these legal
orders is a ground for dismissal of the action. Additionally, it is
asserted that under Rule 12, Section 1(c) of the Rules of Court, if an
order of the court for a bill of particulars is not obeyed, it may order
the striking out of the pleading to which the motion was directed.
Accordingly, Virata prayed for the striking out of the bills of
particulars dated October 22, 1992 and November 3, 1993 and the
dismissal of the expanded Second Amended Complaint in so far as
he is concerned.
We find the instant petition meritorious.
The rule is that a complaint must contain the ultimate facts
constituting plaintiff's cause of action. A cause of action has the
following elements, to wit: (1) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is created; (2)
an obligation on the part of the named defendant to respect or not to
violate such right; and (3) an act or omission on the part of such
defendant violative of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the plaintiff for which
the latter may maintain an action for recovery of damages. 7 As
long as the complaint contains these three elements, a cause of
CRIMINAL PROCEDURE

action exists even though the allegations therein are vague, and
dismissal of the action is not the proper remedy when the pleading
is ambiguous because the defendant may ask for more particulars.
As such, Section 1, Rule 12 of the Rules of Court, provides, inter
alia, that a party may move for more definite statement or for a bill
of particulars of any matter which is not averred with sufficient
definiteness or particularity to enable him properly to prepare his
responsive pleading or to prepare for trial. Such motion shall point
out the defects complained of and the details desired. Under this
Rule, the remedy available to a party who seeks clarification of any
issue or matter vaguely or obscurely pleaded by the other party, is
to file a motion, either for a more definite statement or for a bill of
particulars. 8 An order directing the submission of such statement or
bill, further, is proper where it enables the party movant
intelligently to prepare a responsive pleading, or adequately to
prepare for trial. 9
A bill of particulars is a complementary procedural document
consisting of an amplification or more particularized outline of a
pleading, and being in the nature of a more specific allegation of
the facts recited in the pleading. 10 It is the office of the bill of
particulars to inform the opposite party and the court of the precise
nature and character of the cause of action or defense which the
pleader has attempted to set forth and thereby to guide his
adversary in his preparations for trial, and reasonably to protect him
against surprise at the trial. 11 It gives information of the specific
proposition for which the pleader contends, in respect to any
material and issuable fact in the case, and it becomes a part of the
pleading which it supplements. 12 It has been held that a bill of
particulars must inform the opposite party of the nature of the
pleader's cause of action or defense, and it must furnish the required
items of the claim with reasonable fullness and precision. 13
Generally, it will be held sufficient if it fairly and substantially
gives the opposite party the information to which he is entitled, as
required by the terms of the application and of the order therefor. It
21

should be definite and specific and not contain general allegations

and conclusions. It should be reasonably certain and as specific as
the circumstances will allow. 14
Guided by the foregoing rules and principles, we are convinced that
both the bill of particulars dated November 3, 1993 and the Limited
Bill of Particulars of October 22, 1992 are couched in such general
and uncertain terms as would make it difficult for petitioner to
submit an intelligent responsive pleading to the complaint and to
adequately prepare for trial.
Let us examine the bill of particulars dated November 3, 1993:
1. The first paragraph of the foregoing bill of particulars provides
that "(I)mmediately after defendants Ferdinand E. Marcos and
Benjamin 'Kokoy' Romualdez took control of Meralco and its
subsidiaries, defendant Ferdinand E. Marcos issued Presidential
Decree No. 551 on September 11, 1974 which effected the
reduction of electric franchise tax being paid by Meralco from 5%
to 2% as well as lowered tariff duty of fuel oil imports from 20% to
10% and allowed Meralco to retain the 3% reduction in franchise
tax rates thereby allowing it to save as much as P258 million as of
December 31, 1992." Further, it is stated that "(D)efendant Cesar
Virata then Minister of Finance, supported PD 551 and in fact
issued the guidelines on its implementation which were heavily
relied upon by the Board of Energy in its questioned ruling dated
25 November 1982 by allowing Meralco to continue charging
higher electric consumption rates despite their savings from the
aforesaid reduction of franchise tax without any significant benefit
to the consumers of electric power and resulting in the loss of
millions of pesos in much needed revenues to the government."
The abovequoted paragraph of the said bill of particulars is
supposed to be the amplification of the charge against Virata stated
in paragraph 14(b) of the expanded Second Amended ComplaintCRIMINAL PROCEDURE

which is his alleged active collaboration in the reduction of electric

franchise tax and tariff duty of fuel oil imports. Yet, a careful
perusal of the said paragraph shows that nothing is said about his
alleged active collaboration in reducing the taxes. Aside from the
bare assertion that he "supported PD 551" and "issued the
guidelines on its implementation," the bill of particulars is
disturbingly silent as to what are the particular acts of Virata that
establish his active collaboration in the reduction of taxes. The
allegation that he supported PD 551 and issued its implementing
guidelines is an insufficient amplification of the charge because the
same is but a general statement bereft of any particulars. It may be
queried-how did Virata support PD 551? What were the specific
acts indicating his support? What were these implementing
guidelines issued by him and when were they issued? In supporting
PD 551 and in issuing its implementing guidelines, what law or
right, if there is any, is violated by Virata? It is worthy to note that,
until now, PD 551 has not been declared unconstitutional. In fact,
this Court upheld its validity in the case of Philippine Consumer
Foundation, Inc. vs. Board of Energy and Meralco. 15
2. In the second paragraph of the said bill of particulars, it is alleged
that "(D)efendant Cesar E.A. Virata, then Prime Minester [sic],
caused the issuance of a confidential memorandum dated October
12, 1982 to then President Ferdinand E. Marcos informing the latter
of the recommendation of the cabinet of the so called Three Year
Program for the Extension of Meralco Services of Areas within the
60 Kilometer Radius of Manila in order to justify Meralco's
anomalous acquisition of electric cooperatives and which later
required the Monetary Board and Philguarantee then headed by
defendant Virata to recommend the restructuring of Meralco's
foreign and local obligation which led to the extending of loan
accommodation by the Development Bank of the Philippines and
Philippine National Bank in favor of Meralco."
The foregoing allegation purportedly amplifies the charge stated in
22

paragraph 14 (g) of the expanded Second Amended Complaint, that

is-Virata's active collaboration in securing the approval by
Ferdinand Marcos and his cabinet of the Three Year Program for
the Extension of Meralco's Services within the Manila Area.
However, just like the first paragraph of the said bill of particulars,
this Court finds that the second paragraph failed to set forth
particularly or specifically the charge against Virata. It is an
incomplete or floating disclosure of material facts replete with
generalizations and indefinite statements which seemingly ends to
nowhere. There are certain matters alleged that need to be clarified
and filled up with details so that Virata can intelligently and fairly
contest them and raise them as cogent issues, to wit: a) In causing
the issuance of the said memorandum, what law, duty or right, if
there is any, is violated by Virata?; b) What was the
recommendation of the cabinet regarding the Three Year Program?
The Republic should have at least furnish the substantial or
important features of the recommendation; c) What were these
electric cooperatives? Were these cooperatives the same as those
enumerated in paragraph 14(e) of the expanded Second Amended
Complaint? 16 Why was the acquisition of these cooperatives
anomalous?; and d) What were Virata's specific acts as the head of
Philguarantee which led to the restructuring of Meralco's
obligation? What was his participation in recommending the
restructuring of Meralco's obligation? What were these foreign and
local obligations? How much of the obligation was recommended
for restructuring? What were the loan accommodations given in
favor of Meralco? When were they given and how much were
involved in the transaction?
3. Regarding the third paragraph of the said bill of particulars, We
find the same as a mere recast or restatement of the charge set forth
in paragraph 14 (m) of the expanded Second Amended Complaint,
which is Virata's alleged support, assistance and collaboration in the
formation of Erectors Holding, Incorporated. The said paragraph of
the bill of particulars states that "(D)efendant Cesar Virata, as
CRIMINAL PROCEDURE

Chairman of Philguarantee and the Senior Managers of FMMC/PNI

Holdings Inc. led by Jose S. Sandejas, J. Jose N. Mantecon and
Kurt S. Bachmann, Jr. supported and assisted the formation of
Erectors Holdings, Inc. for the purpose of making it assume the
obligation of Erectors Inc. with Philguarantee in the amount of
P527,387,440.71 without sufficient securities/collateral and despite
this outstanding obligation, defendant Virata, as Chairman of
Philguarantee, approved the Erectors Inc. Applications for loan
guarantees that reached more than P2 Billion as of June 30, 1987."
Clearly from the foregoing allegation, the Republic failed miserably
to amplify the charge against Virata because, instead of supplying
the pertinent facts and specific matters that form the basis of the
charge, it only made repetitive allegations in the bill of particulars
that Virata supported and assisted the formation of the corporation
concerned, which is the very same charge or allegation in paragraph
14 (m) of the expanded Second Amended Complaint which requires
specifications and unfailing certainty. As such, the important
question as to what particular acts of Virata that constitute support
and assistance in the formation of Erectors Holding, Incorporated is
still left unanswered, a product of uncertainty.
We now take a closer look at the Limited Bill of Particulars dated
October 22, 1992.
The said bill of particulars was filed by the Republic to amplify the
charge of Virata's being a dummy, nominee or agent stated in
paragraphs 17 and 18 of the expanded Second Amended Complaint.
In the subsequent bill of particulars dated November 3, 1993 the
said charge was qualified by the Republic in the sense that Virata
allegedly acted only as an agent. Let us consider each paragraph of
the said bill of particulars:
1. The first paragraph of the Limited Bill of Particulars states that
"(D)efendant Virata, while being one of the members of the Central
23

Bank's Monetary Board, approved Resolution No. 2320 dated

December 14, 1973, allowing the Benpres Corporation, Meralco
Securities Corp. (MSG) and Manila Electric Company
(MERALCO) to refinance/restructure their outstanding loan
obligations, a 'sweetheart' or 'behest' accommodation which enabled
Meralco Foundation, Inc. to acquire ownership and control of
Manila Electric Company." It is stated further that "Meralco
Foundation, Inc. was then controlled by the Marcos-Romualdez
Group with Benjamin (Kokoy) Romualdez being the beneficial
owner and, thereby, expanding the said group's accumulation of ill
gotten wealth."
It is apparent from the foregoing allegations that the Republic did
not furnish Virata the following material matters which are
indispensable for him to be placed in such a situation wherein he
can properly be informed of the charges against him: a) Did Virata,
who was only one of the members of the Board, act alone in
approving the Resolution? Who really approved the Resolution,
Virata or the Monetary Board?; b) What were these outstanding
loan obligations of the three corporations concerned? Who were the
creditors and debtors of these loan obligations? How much were
involved in the restructuring of the loan obligations? What made
the transaction a 'sweetheart' or 'behest' accommodation?; and c)
How was the acquisition of MERALCO by Meralco Foundation,
Inc. related to the Resolution restructuring the loan obligations of
the three corporations?
2 The second paragraph provides that "(O)n July 11, 1978
defendant Virata representing the Republic of the Philippines as
Finance Minister, executed an Agreement with the Manila Electric
Co. (MERALCO) whereby the government agreed to buy the
parcels of land, improvements and facilities known as Gardner
Station Unit No. 1, Gardner Station Unit No. 2, Snyder Station Unit
No. 1, Snyder Station Unit No. 2 and Malaya Station Unit No. 1 for
One Billion One Hundred Million Pesos (P1,100,000,000.00), a
CRIMINAL PROCEDURE

transaction which was so disadvantageous to the government and

most favorable to MERALCO which gained a total of P206.2
million;" that "(A)s a result of this transaction, MERALCO was
relieved of its heavy burden in servicing its foreign loans which
were assumed by the government;" that ". . ., the agreement clearly
showed the 'sweetheart' deal and favors being given by the
government to MERALCO which was then owned and/or
controlled by Benjamin Romualdez representing the MarcosRomualdez group, when it provided that the 'sale is subject to the
reservation of rights, leases and easements in favor of Philippine
Petroleum Corp., First Philippine Industrial Corp. (formerly
MERALCO Securities Industrial Corp.) and Pilipinas Shell
Petroleum Corp. insofar as the same are presently in force and
applicable'."
There are certain matters in the foregoing allegations which lack in
substantial particularity. They are broad and definitely vague which
require specifications in order that Virata can properly define the
issues and formulate his defenses. The following are the specific
matters which the Republic failed to provide, to wit: a) What made
the transaction 'disadvantageous' to the government? The allegation
that it was disadvantageous is a conclusion of law that lacks factual
basis. How did MERALCO gain the P206.2 million? The Republic
should have provided for more specifics how was the transaction
favorable to MERALCO?; b) What were these foreign obligations
of MERALCO which were assumed by the government? Who were
the creditors in these obligations? When were these obligations
contracted? How much were involved in the assumption of foreign
obligations by the government?; and c) By the presence of the
provision of the contract quoted by the Republic, what made the
agreement a 'sweetheart' deal? The allegation that the agreement is
a 'sweetheart deal' is a general statement that needs further
amplification.
3. The third paragraph states that "(A)t the meeting of the Board of
24

Directors of the Philippine Export and Foreign Loan Guarantee

Corp. held on September 16, 1983 defendant Virata acting as
Chairman, together with the other members of the board, approved
the request of Erectors Inc., a Benjamin Romualdez owned and/or
controlled corporation, for a guarantee to cover 100% of its
proposed behest loan of US$ 33.5 Million under the Central Bank
Consolidated Foreign Borrowing Program with the Philippine
National Bank, Development Bank of the Philippines, Interbank,
Philippine Commercial International Bank and Associated Bank as
conduit banks, to refinance Erectors, Inc.'s short term loans
guaranteed by Philguarantee, which at present forms part of the
government's huge foreign debt; that "(S)uch act of defendant
Virata was a flagrant breach of public trust as well as a violation of
his duty to protect the financial condition and economy of the
country against, among others, abuses and corruption".
In like manner, the foregoing paragraph contains incomplete and
indefinite statement of facts because it fails to provide the
following relevant matters: a) What was this $33.5 million
proposed behest loan? What were its terms? Who was supposed to
be the grantor of this loan?; b) What were these short term loans?
Who were the parties to these transactions? When were these
transacted? How was this $ 33.5 million behest loan related to the
short term loans?
Furthermore, as correctly asserted by petitioner Virata, the Limited
Bill of Particulars contains new matters which are not covered by
the charge that Virata acted as agent of his co-defendants in the
expanded Second Amended Complaint. Apparently, as may be
examined from the three paragraphs of the Limited Bill of
Particulars, Virata, in so doing the acts; can not be considered as an
agent of any of his co-defendants, on the contrary, the factual
circumstances stated in the said bill of particulars indicate that
Virata acted on behalf of the government, in his official capacity as
a government officer. This observation is established by the
CRIMINAL PROCEDURE

allegations that Virata acted as a member of the Central Bank

Monetary Board, as chairman of the Board of Directors of the
Philippine Export and Foreign Loan Guarantee Corporation, and,
when he executed the Agreement with Meralco on July 7, 1978
concerning the sale of certain properties, he acted as the Finance
Minister of the government and as a representative of the Republic
in the contract. In performing the said acts, he, therefore, acted as
an agent of the government, not as an agent of his co-defendants,
which is the charge against him in the expanded Second Amended
Complaint. Accordingly, the allegations in the Limited Bill of
Particulars are irrelevant and immaterial to the charge that Virata
acted as an agent of his co-defendants.
As clearly established by the foregoing discussion, the two bills of
particulars filed by the Republic failed to properly amplify the
charges leveled against Virata because, not only are they mere
reiteration or repetition of the allegations set forth in the expanded
Second Amended Complaint, but, to the large extent, they contain
vague, immaterial and generalized assertions which are
inadmissible under our procedural rules.
It must be remembered that in our decision promulgated on April 6,
1993 (G.R. No. 106527), We required the Republic to submit a bill
of particulars concerning the first three charges against Virata
averred in paragraphs 14 b(ii), 14g, and 14m of the expanded
Second Amended Complaint, on the other hand, as regards the
charges stated in paragraphs 17 and 18 of the said complaint, the
Republic was ordered to file the required bill of particulars by the
Sandiganbayan through its Resolution dated August 4, 1992. The
Republic purportedly complied with these orders by filing the
questioned bill of particulars dated November 3, 1993 and the
Limited Bill of Particulars of October 22, 1992. However, as shown
by the above discussion, the two bills of particulars were not the
bills of particulars which fully complied with the Rules of Court
and with the orders of the Sandiganbayan and this Court.
25

As such, in view of the Republic's failure to obey this Court's

directive of April 6, 1993 (G.R. No. 106527) and the
Sandiganbayan's order of August 4, 1992 to file the proper bill of
particulars which would completely amplify the charges against
Virata, this Court deems it just and proper to order the dismissal of
the expanded Second Amended Complaint, in so far as the charges
against Virata are concerned. This action is justified by Section 3,
Rule 17 of the Rules of Court, which provides that:
Sec. 3. Failure to prosecute. If plaintiff fails to appear at the time
of the trial, or to prosecute his action for an unreasonable length of
time, or to comply with these rules or any order of the court, the
action may be dismissed upon motion of the defendant or upon the
court's own motion. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise provided by court.
(emphasis ours)
Regarding the second issue of the instant case, Virata contends that
the Presidential Commission on Good Government is not
authorized by law to deputize a counsel to prepare and file
pleadings in behalf of the Republic. Neither can the Office of the
Solicitor General validly deputize an outside counsel to completely
take over the case for the Republic. According to petitioner, only
the Office of the Solicitor General is mandated by law to act
counsel for the Republic. Thus, the bill of particulars filed for the
Republic by "private counsel" or "deputized prosecutor" of the
PCGG is unauthorized.

Office of the Solicitor General and the Presidential Commission on

Good Government to sign and file the bills of particulars
concerned.
Realizing that it can not adequately respond to this Court's order of
April 6, 1993 (G.R. No. 106527) requiring the Republic to submit
the bill of particulars concerning the first three charges against
Virata, the Office of the Solicitor deemed it better to seek the help
of the Presidential Commission on Good Government by availing
the services of the latter's lawyer who would directly file the
required bill of particulars in behalf of the Republic. This
circumstance prompted the Office of the Solicitor General to
manifest before the Sandiganbayan on August 20, 1993 that it
would be the PCGG which would file the required bill of
particulars and move that it be excused from doing so as the PCGG,
being in-charge of investigating the case, was in a better position
than the OSG. Armed with this authority given by the OSG, the
PCGG, through one of its deputized prosecutors, Reynaldo Ros,
filed the bill of particulars dated November 3, 1993 to amplify the
first three charges against Virata stated in paragraphs 14 b(ii), 14g,
and 14m of the expanded Second Amended Complaint.
The action of the OSG in seeking the assistance of the PCGG is not
without legal basis. The Administrative Code of 1987, which
virtually reproduces the powers and functions of the OSG
enumerated in P.D. No. 478 (The Law Defining the Powers and
Functions of the Office of the Solicitor General), provides, inter
alia, that:

This contention is devoid of merit.

Sec. 35. Powers and Functions, . . . .
We are of the opinion that the Limited Bill of Particulars dated
October 22, 1992 signed by Ramon Felipe IV and the Bill of
Particulars dated November 3, 1993 signed by Reynaldo Ros are
valid pleadings which are binding upon the Republic because the
two lawyer-signatories are legally deputized and authorized by the
CRIMINAL PROCEDURE

It (the OSG) shall have the following specific powers and

functions:
xxx xxx xxx
26

(8) Deputize legal officers of government departments, bureaus,

agencies and offices to assist the Solicitor General and appear or
represent the Government in cases involving their respective
offices, brought before the courts and exercise supervision and
control over such legal officers with respect to such cases.
(9) Call on any department, bureau, office, agency, or
instrumentality of the Government for such service assistance and
cooperation as may be necessary in fulfilling its functions and
responsibilities and for this purpose enlist the services of any
government official or employee in the pursuit of his task. . . . . 17
Contrary to Virata's contention, the Solicitor General did not
abdicate his function and turn over the handling of the instant case
to the PCGG. Nowhere in the manifestation and motion filed by the
OSG on August 20, 1993 is there an iota or indication that the OSG
is withdrawing from the case and that the PCGG is taking over its
prosecution. What the OSG did was merely to call the PCGG for
assistance and authorize it to respond to the motion for a bill of
particulars filed by Virata. The OSG was impelled to act this way
because of the existence of the special circumstance that the PCGG,
which has the complete records of the case and being in charge of
its investigation, was more knowledgeable and better informed of
the facts of the case than the OSG.
The authority, therefore, of Attorney Reynaldo Ros to sign and
submit in behalf of the Republic the bill of particulars dated
November 3, 1993 is beyond dispute because 1) he was duly
deputized by the PCGG in pursuance to its power to prosecute
cases of ill-gotten wealth under Executive Order No. 14 of May 14,
1986, 2) the OSG empowered the PCGG to file the bill of
particulars as evidenced by the OSG's manifestation and motion
filed on August 20, 1993, and 3) there was no abdication of OSG's
duty by giving the PCGG the authority to file the bill of particulars.
CRIMINAL PROCEDURE

On the other hand, the deputation of Ramon Felipe IV by the

Solicitor General to sign and file the Limited Bill of Particulars is
based on Section 3 of Presidential Decree No. 478, which provides
that:
Sec. 3. The Solicitor General may, when necessary and after
consultation with the Government entity concerned, employ, retain,
and compensate on a contractual basis, in the name of the
Government, such attorneys and experts or technical personnel as
he may deem necessary, to assist him in the discharge of his duties.
The compensation and expenses may be charged to the agency or
office in whose behalf the services have to be rendered. (emphasis
ours)
The Solicitor General is mandated by law to act as the counsel of
the Government and its agencies in any litigation and matter
requiring the services of a lawyer. In providing the legal
representation for the Government, he is provided with vast array of
powers, which includes the power to retain and compensate lawyers
on contractual basis, necessary to fulfill his sworn duty with the end
view of upholding the interest of the Government. Thus, the
Solicitor General acted within the legal bounds of its authority
when it deputized Attorney Felipe IV to file in behalf of the
Republic the bill of particulars concerning the charges stated in
paragraph 17 and 18 of the expanded Second Amended Complaint.
At any rate, whether or not the lawyer-signatories are duly
deputized would not be decisive in the resolution of this case
considering that the two bills of particulars filed by the Republic
are mere scraps of paper which miserably failed to amplify the
charges against Virata. For the Republic's failure to comply with the
court's order to file the required bill of particulars that would
completely and fully inform Virata of the charges against him, the
dismissal of the action against him is proper based on Section 3,
Rule 17 of the Revised Rules of Court and the relevant
27

jurisprudence thereon. 18 Simple justice demands that as stated

earlier, petitioner must know what the complaint is all about. The
law requires no less.

JOEL R. PEDRO, Respondent.

Although this Court is aware of the Government's laudable efforts

to recover ill-gotten wealth allegedly taken by the defendants, this
Court, however, cannot shrink from its duty of upholding the
supremacy of the law under the aegis of justice and fairness. This
Court in dismissing the action against the petitioner has rightfully
adhered in the unyielding tenet principia, non homines the
rule of law, not of men.

BRION, J.:

ACCORDINGLY, the instant petition is hereby GRANTED and the

expanded Second Amended Complaint, in so far as petitioner Virata
is concerned, is hereby ordered DISMISSED.
SO ORDERED.

EN BANC
April 22, 2009

ARIEL M. LOS BAOS, on behalf of P/Supt. Victor Arevalo,

SPO2 Marcial Olympia, SPO1 Rocky Mercene and PO1 Raul
Adlawan, and in his personal capacity, Petitioner,
vs.
CRIMINAL PROCEDURE

We review in this petition for review on certiorari 1 the September

19, 2005 decision2 and the July 6, 2006 resolution 3 of the Court of
Appeals (CA) in CA-G.R. SP No. 80223. The petition seeks to
revive the case against respondent Joel R. Pedro (Pedro) for
election gun ban violation after the CA declared the case
permanently dismissed pursuant to Section 8, Rule 117 of the Rules
of Court.
THE ANTECEDENTS
Pedro was charged in court for carrying a loaded firearm without
the required written authorization from the Commission on
Elections (Comelec) a day before the May 14, 2001 national and
local elections. The Information reads:

Republic of the Philippines

SUPREME COURT
Manila

G.R. No. 173588

DECISION

That on or about the 13th day of May 2001 at about 4:00 oclock in
the afternoon, in [S]itio Bantauyan, [B]arangay Bantad,
Municipality of Boac, Province of Marinduque, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused did then and there, willfully, unlawfully and feloniously
carry a Revolver Cal. 357, Magnum Ruger 100 loaded with six (6)
ammunitions, with Serial No. 173-56836 outside his residence
during the election period, without authorization in writing from the
Commission on Election[s].
CONTRARY TO LAW.4
The accusation was based on Batas Pambansa Bilang 881 or the
28

Omnibus Election Code (Code) after the Marinduque Philippine

National Police (PNP) caught Pedro illegally carrying his firearm at
a checkpoint at Boac, Marinduque. The Boac checkpoint team was
composed of Police Senior Inspector Victor V. Arevalo, SPO2
Marshal Olympia, SPO1 Rocky Mercene, and PO1 Raul Adlawan.
The team stopped a silver-gray Toyota Hi-Ace with plate number
WHT-371 on the national highway, coming from the Boac town
proper. When Pedro (who was seated at the rear portion) opened the
window, Arevalo saw a gun carry case beside him. Pedro could not
show any COMELEC authority to carry a firearm when the
checkpoint team asked for one, but he opened the case when asked
to do so. The checkpoint team saw the following when the case was
opened: 1) one Revolver 357 Magnum Ruger GP100, serial number
173-56836, loaded with six ammunitions; 2) one ammunition box
containing 100 bullets; 3) two pieces speed loader with six
ammunitions each; and 4) one set ear protector. Pedro was with
three other men. The checkpoint team brought all of them to the
Boac police station for investigation.
The Boac election officer filed a criminal complaint against Pedro
for violating the election gun ban, i.e., for carrying a firearm
outside of his residence or place of business without any authority
from the Comelec. After an inquest, the Marinduque provincial
prosecutor filed the above Information against Pedro with the
Marinduque Regional Trial Court (RTC) for violation of the Codes
Article XXII, Section 261 (q),5 in relation to Section 264.6
Pedro filed a Motion for Preliminary Investigation, which the RTC
granted.7 The preliminary investigation, however, did not
materialize. Instead, Pedro filed with the RTC a Motion to Quash,
arguing that the Information "contains averments which, if true,
would constitute a legal excuse or justification 8 and/or that the facts
charged do not constitute an offense."9 Pedro attached to his motion
a Comelec Certification dated September 24, 2001 that he was
"exempted" from the gun ban. The provincial prosecutor opposed
CRIMINAL PROCEDURE

the motion.
The RTC quashed the Information and ordered the police and the
prosecutors to return the seized articles to Pedro.10
The petitioner, private prosecutor Ariel Los Baos (Los Baos),
representing the checkpoint team, moved to reopen the case, as
Pedros Comelec Certification was a "falsification," and the
prosecution was "deprived of due process" when the judge quashed
the information without a hearing. Attached to Los Baos motion
were two Comelec certifications stating that: (1) Pedro was not
exempted from the firearm ban; and (2) the signatures in the
Comelec Certification of September 24, 2001 were forged.
The RTC reopened the case for further proceedings, as Pedro did
not object to Los Baos motion. 11 Pedro moved for the
reconsideration of the RTCs order primarily based on Section 8 of
Rule 117,12 arguing that the dismissal had become permanent. He
likewise cited the public prosecutors lack of express approval of
the motion to reopen the case.
The public prosecutor, however, manifested his express conformity
with the motion to reopen the case. The trial court, for its part,
rejected the position that Section 8, Rule 117 applies, and explained
that this provision refers to situations where both the prosecution
and the accused mutually consented to the dismissal of the case, or
where the prosecution or the offended party failed to object to the
dismissal of the case, and not to a situation where the information
was quashed upon motion of the accused and over the objection of
the prosecution. The RTC, thus, set Pedros arraignment date.
Pedro filed with the CA a petition for certiorari and prohibition to
nullify the RTCs mandated reopening.13 He argued that the RTC
committed grave abuse of discretion amounting to lack or excess of
jurisdiction in ruling that the dismissal contemplated under Section
29

8, Rule 117 refers to situations where either the prosecution and the
accused mutually consented to, or where the prosecution alone
moved for, the provisional dismissal of the case; in rejecting his
argument that the prescriptive periods under Article 90 of the
Revised Penal Code14 or Act No. 332615 find no application to his
case as the filing of the Information against him stopped the
running of the prescriptive periods so that the prescription
mandated by these laws became irrelevant; and, in setting the case
for arraignment and pre-trial conference, despite being barred under
Section 8 of Rule 117.

1. the prosecution, with the express conformity of the accused or

the accused moves for a provisional (sin perjuicio) dismissal of the
case; or both the prosecution and the accused move for a
provisional dismissal of the case;

THE COURT OF APPEALS DECISION

4. the public prosecutor is served, with a copy of the order of

provisional dismissal of the case.

The CA initially denied Pedros petition. For accuracy, we quote the

material portions of its ruling:
The petition lacks merit.
The trial court erred in ruling that Section 8, Rule 117 does not
apply to provisional dismissals on motion of the accused. The Rule
merely provides that a case shall not be provisionally dismissed,
except with the express consent of the accused and with notice to
the offended party. Nothing in the said rule proscribes its
application to dismissal on motion of the accused.
Nevertheless, we find no basis for issuing the extraordinary writs of
certiorari and prohibition, as there is no showing that the error was
tainted with grave abuse of discretion. Grave abuse of discretion
implies capricious and whimsical exercise of judgment amounting
to lack of jurisdiction. The grave abuse of discretion must be so
patent and gross as to amount to an evasion or refusal to perform a
duty enjoined by law.
Before the petitioner may invoke the time-bar in Section 8, he must
establish the following:
CRIMINAL PROCEDURE

2. the offended party is notified of the motion for a provisional

dismissal of the case;
3. the court issues an order granting the motion and dismissing the
case provisionally;

Although the second paragraph of Section 8 states that the order of

dismissal shall become permanent one year after the issuance
thereof, without the case having been revived, such provision
should be construed to mean that the dismissal shall become
permanent one year after service of the order of dismissal on the
public prosecutor, as the public prosecutor cannot be expected to
comply with the timeliness requirement unless he is served with a
copy of the order of dismissal.
In the instant, case, the records are bereft of proof as to when the
public prosecutor was served the order of dismissal dated 22
November 2001. Absent such proof, we cannot declare that the
State is barred from reviving the case.
WHEREFORE, the petition is DENIED.
In his motion for reconsideration, Pedro manifested the exact date
and time of the Marinduque provincial prosecutors receipt of the
quashal order to be "2:35 p.m., December 10, 2001," and argued
that based on this date, the provisional dismissal of the case became
30

"permanent" on December 10, 2002. Based on this information, the

CA reversed itself, ruling as follows:
On 9 September 2005, we ruled that Section 8, Rule 117 is
applicable to a dismissal on motion of the accused. However, we
did not issue the writs of certiorari and prohibition, because it was
shown that the trial court committed grave abuse of discretion in
ordering the reopening of the case. Moreover, we stated that we
cannot rule on the issue of whether or not the State is barred from
reopening the case because it was not shown when the public
prosecutor was served the order of dismissal.
xxx
The arguments raised in the respondents motion for modification
were duly passed upon in arriving at the decision dated 9
September 2005, and no new matters were raised which would
warrant a reconsideration thereof.
On the other hand, the petitioner was able to prove that the motion
to reopen the case was filed after the lapse of more than one year
from the time the public prosecutor was served the notice of
dismissal. Therefore, the state is barred from reopening the case.
WHEREFORE, petitioner Joel Pedros motion for partial
reconsideration is hereby GRANTED, and respondent Ariel Los
Banos motion for modification of judgment is, accordingly,
DENIED.
To summarize this ruling, the appellate court, while initially saying
that there was an error of law but no grave abuse of discretion that
would call for the issuance of a writ, reversed itself on motion for
reconsideration; it then ruled that the RTC committed grave abuse
of discretion because it failed to apply Section 8, Rule 17 and the
time-bar under this provision.
CRIMINAL PROCEDURE

THE PETITION
Los Baos prays in his petition that the case be remanded to the
RTC for arraignment and trial, or that a new charge sheet be filed
against Pedro, or that the old information be re-filed with the RTC.
He contends that under Section 6 of Rule 117, an order sustaining a
motion to quash does not bar another prosecution for the same
offense, unless the motion was based on the grounds specified in
Section 3(g)16 and (i)17 of Rule 117. Los Baos argues that the
dismissal under Section 8 of Rule 117 covers only situations where
both the prosecution and the accused either mutually consented or
agreed to, or where the prosecution alone moved for the provisional
dismissal of the case; it can also apply to instances of failure on the
part of the prosecution or the offended party to object, after having
been forewarned or cautioned that its case will be dismissed. It does
not apply where the information was quashed. He adds that
although the trial court granted the motion to quash, it did not
categorically dismiss the case, either provisionally or permanently,
as the judge simply ordered the return of the confiscated arms and
ammunition to Pedro. The order was "open-ended," and did not
have the effect of provisionally dismissing the case under Section 8
of Rule 117.
Los Baos also contends that the CA gravely erred when: (1) it
ruled in effect that the Order dated November 22, 2001 granting the
motion to quash is considered a provisional dismissal, which
became permanent one year from the prosecutors receipt of the
order; the order to quash the Information was based on Section 3 of
Rule 117, not on Section 8 of this Rule; (2) it granted Pedros
motion for reconsideration and denied Los Baos motion for
modification of judgment, when Section 6 of Rule 117 clearly
provides that an order granting a motion to quash is not a bar to
another prosecution for the same offense.
He notes that the grounds Pedro relied upon in his motion to quash
31

are not subsections (g) or (i) of Rule 117, but its subsections (a)
that the facts charged do not constitute an offense, and (h) that it
contains averments which if true would constitute a legal
justification. Pedros cited grounds are not the exceptions that
would bar another prosecution for the same offense. 18 The dismissal
of a criminal case upon the express application of the accused
(under subsections [a] and [h]) is not a bar to another prosecution
for the same offense, because his application is a waiver of his
constitutional prerogative against double jeopardy.
In response to all these, respondent Pedro insists and fully relies on
the application of Section 8 of Rule 117 to support his position that
the RTC should not have granted Los Banos motion to reopen the
case.
THE ISSUES
The issue is ultimately reduced to whether Section 8, Rule 117 is
applicable to the case, as the CA found. If it applies, then the CA
ruling effectively lays the matter to rest. If it does not, then the
revised RTC decision reopening the case should prevail.
OUR RULING
We find the petition meritorious and hold that the case should be
remanded to the trial court for arraignment and trial.
Quashal v. Provisional Dismissal
a. Motion to Quash
A motion to quash is the mode by which an accused assails, before
entering his plea, the validity of the criminal complaint or the
criminal information filed against him for insufficiency on its face
CRIMINAL PROCEDURE

in point of law, or for defect apparent on the face of the

Information.19 The motion, as a rule, hypothetically admits the truth
of the facts spelled out in the complaint or information. The rules
governing a motion to quash are found under Rule 117 of the
Revised Rules of Court. Section 3 of this Rule enumerates the
grounds for the quashal of a complaint or information, as follows:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the
offense charged;
(c) That the court trying the case has no jurisdiction over the person
of the accused;
(d) That the officer who filed the information had no authority to do
so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single
punishment for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a
legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted of
the offense charged, or the case against him was dismissed or
otherwise terminated without his express consent.
b. Provisional Dismissal
32

On the other hand, Section 8, Rule 117 that is at the center of the
dispute states that:
SEC.8. Provisional dismissal. A case shall not be provisionally
dismissed except with the express consent of the accused and with
notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment
not exceeding six (6) years or a fine of any amount, or both, shall
become permanent one (1) year after issuance of the order without
the case having been revived. With respect to offenses punishable
by imprisonment of more than six (6) years, their provisional
dismissal shall become permanent two (2) years after issuance of
the order without the case having been revived.
A case is provisionally dismissed if the following requirements
concur:
1) the prosecution with the express conformity of the accused, or
the accused, moves for a provisional dismissal (sin perjuicio) of his
case; or both the prosecution and the accused move for its
provisional dismissal;
2) the offended party is notified of the motion for a provisional
dismissal of the case;
3) the court issues an order granting the motion and dismissing the
case provisionally; and
4) the public prosecutor is served with a copy of the order of
provisional dismissal of the case.20
In People v. Lacson,21 we ruled that there are sine quanon
requirements in the application of the time-bar rule stated in the
CRIMINAL PROCEDURE

second paragraph of Section 8 of Rule 117. We also ruled that the

time-bar under the foregoing provision is a special procedural
limitation qualifying the right of the State to prosecute, making the
time-bar an essence of the given right or as an inherent part thereof,
so that the lapse of the time-bar operates to extinguish the right of
the State to prosecute the accused.
c. Their Comparison
An examination of the whole Rule tells us that a dismissal based on
a motion to quash and a provisional dismissal are far different from
one another as concepts, in their features, and legal consequences.
While the provision on provisional dismissal is found within Rule
117 (entitled Motion to Quash), it does not follow that a motion to
quash results in a provisional dismissal to which Section 8, Rule
117 applies.
A first notable feature of Section 8, Rule 117 is that it does not
exactly state what a provisional dismissal is. The modifier
"provisional" directly suggests that the dismissals which Section 8
essentially refers to are those that are temporary in character (i.e., to
dismissals that are without prejudice to the re-filing of the case),
and not the dismissals that are permanent (i.e., those that bar the refiling of the case). Based on the law, rules, and jurisprudence,
permanent dismissals are those barred by the principle of double
jeopardy,22 by the previous extinction of criminal liability,23 by the
rule on speedy trial,24 and the dismissals after plea without the
express consent of the accused.25 Section 8, by its own terms,
cannot cover these dismissals because they are not provisional.
A second feature is that Section 8 does not state the grounds that
lead to a provisional dismissal. This is in marked contrast with a
motion to quash whose grounds are specified under Section 3. The
delimitation of the grounds available in a motion to quash suggests
that a motion to quash is a class in itself, with specific and closely33

defined characteristics under the Rules of Court. A necessary

consequence is that where the grounds cited are those listed under
Section 3, then the appropriate remedy is to file a motion to quash,
not any other remedy. Conversely, where a ground does not appear
under Section 3, then a motion to quash is not a proper remedy. A
motion for provisional dismissal may then apply if the conditions
required by Section 8 obtain.
A third feature, closely related to the second, focuses on the
consequences of a meritorious motion to quash. This feature also
answers the question of whether the quashal of an information can
be treated as a provisional dismissal. Sections 4, 5, 6, and 7 of Rule
117 unmistakably provide for the consequences of a meritorious
motion to quash. Section 4 speaks of an amendment of the
complaint or information, if the motion to quash relates to a defect
curable by amendment. Section 5 dwells on the effect of sustaining
the motion to quash - the complaint or information may be re-filed,
except for the instances mentioned under Section 6. The latter
section, on the other hand, specifies the limit of the re-filing that
Section 5 allows it cannot be done where the dismissal is based
on extinction of criminal liability or double jeopardy. Section 7
defines double jeopardy and complements the ground provided
under Section 3(i) and the exception stated in Section 6.1awwphi1
Rather than going into specifics, Section 8 simply states when a
provisional dismissal can be made, i.e., when the accused expressly
consents and the offended party is given notice. The consent of the
accused to a dismissal relates directly to what Section 3(i) and
Section 7 provide, i.e., the conditions for dismissals that lead to
double jeopardy. This immediately suggests that a dismissal under
Section 8 i.e., one with the express consent of the accused is not
intended to lead to double jeopardy as provided under Section 7,
but nevertheless creates a bar to further prosecution under the
special terms of Section 8.
CRIMINAL PROCEDURE

This feature must be read with Section 6 which provides for the
effects of sustaining a motion to quash the dismissal is not a bar
to another prosecution for the same offense unless the basis for
the dismissal is the extinction of criminal liability and double
jeopardy. These unique terms, read in relation with Sections 3(i)
and 7 and compared with the consequences of Section 8, carry
unavoidable implications that cannot but lead to distinctions
between a quashal and a provisional dismissal under Section 8.
They stress in no uncertain terms that, save only for what has been
provided under Sections 4 and 5, the governing rule when a motion
to quash is meritorious are the terms of Section 6. The failure of the
Rules to state under Section 6 that a Section 8 provisional dismissal
is a bar to further prosecution shows that the framers did not intend
a dismissal based on a motion to quash and a provisional dismissal
to be confused with one another; Section 8 operates in a world of its
own separate from motion to quash, and merely provides a time-bar
that uniquely applies to dismissals other than those grounded on
Section 3. Conversely, when a dismissal is pursuant to a motion to
quash under Section 3, Section 8 and its time-bar does not apply.
Other than the above, we note also the following differences
stressing that a motion to quash and its resulting dismissal is a
unique class that should not be confused with other dismissals:
First, a motion to quash is invariably filed by the accused to
question the efficacy of the complaint or information filed against
him or her (Sections 1 and 2, Rule 117); in contrast, a case may be
provisionally dismissed at the instance of either the prosecution or
the accused, or both, subject to the conditions enumerated under
Section 8, Rule 117.26
Second, the form and content of a motion to quash are as stated
under Section 2 of Rule 117; these requirements do not apply to a
provisional dismissal.
34

Third, a motion to quash assails the validity of the criminal

complaint or the criminal information for defects or defenses
apparent on face of the information; a provisional dismissal may be
grounded on reasons other than the defects found in the
information.
Fourth, a motion to quash is allowed before the arraignment
(Section 1, Rule 117); there may be a provisional dismissal of the
case even when the trial proper of the case is already underway
provided that the required consents are present.27
Fifth, a provisional dismissal is, by its own terms, impermanent
until the time-bar applies, at which time it becomes a permanent
dismissal. In contrast, an information that is quashed stays quashed
until revived; the grant of a motion to quash does not per se carry
any connotation of impermanence, and becomes so only as
provided by law or by the Rules. In re-filing the case, what is
important is the question of whether the action can still be brought,
i.e., whether the prescription of action or of the offense has set in.
In a provisional dismissal, there can be no re-filing after the timebar, and prescription is not an immediate consideration.
To recapitulate, quashal and provisional dismissal are different
concepts whose respective rules refer to different situations that
should not be confused with one another. If the problem relates to
an intrinsic or extrinsic deficiency of the complaint or information,
as shown on its face, the remedy is a motion to quash under the
terms of Section 3, Rule 117. All other reasons for seeking the
dismissal of the complaint or information, before arraignment and
under the circumstances outlined in Section 8, fall under
provisional dismissal.
Thus, we conclude that Section 8, Rule 117 does not apply to the
reopening of the case that the RTC ordered and which the CA
reversed; the reversal of the CAs order is legally proper.
CRIMINAL PROCEDURE

Pedros Motion to Quash

The merits of the grant of the motion to quash that the RTC initially
ordered is not a matter that has been ruled upon in the subsequent
proceedings in the courts below, including the CA. We feel obliged
to refer back to this ruling, however, to determine the exact terms of
the remand of the case to the RTC that we shall order.
The grounds Pedro cited in his motion to quash are that the
Information contains averments which, if true, would constitute a
legal excuse or justification [Section 3(h), Rule 117], and that the
facts charged do not constitute an offense [Section 3(a), Rule 117].
We find from our examination of the records that the Information
duly charged a specific offense and provides the details on how the
offense was committed.28 Thus, the cited Section 3(a) ground has
no merit. On the other hand, we do not see on the face or from the
averments of the Information any legal excuse or justification. The
cited basis, in fact, for Pedros motion to quash was a Comelec
Certification (dated September 24, 2001, issued by Director Jose P.
Balbuena, Sr. of the Law Department, Committee on Firearms and
Security Personnel of the Comelec, granting him an exemption
from the ban and a permit to carry firearms during the election
period)29 that Pedro attached to his motion to quash. This
COMELEC Certification is a matter aliunde that is not an
appropriate motion to raise in, and cannot support, a motion to
quash grounded on legal excuse or justification found on the face of
the Information. Significantly, no hearing was ever called to allow
the prosecution to contest the genuineness of the COMELEC
certification.30
Thus, the RTC grossly erred in its initial ruling that a quashal of the
Information was in order. Pedro, on the other hand, also
misappreciated the true nature, function, and utility of a motion to
quash. As a consequence, a valid Information still stands, on the
basis of which Pedro should now be arraigned and stand trial.
35

One final observation: the Information was not rendered defective

by the fact that Pedro was charged of violating Section 261(q) of
the Code, instead of Section 32 of R.A. No. 7166, which amended
Section 261(q); these two sections aim to penalize among others,
the carrying of firearms (or other deadly weapons) in public places
during the election period without the authority of the Comelec.
The established rule is that the character of the crime is not
determined by the caption or preamble of the information or from
the specification of the provision of law alleged to have been
violated; the crime committed is determined by the recital of the
ultimate facts and circumstances in the complaint or information 31
Further, in Abenes v. Court of Appeals,32 we specifically recognized
that the amendment under Section 32 of R.A. No. 7166 does not
affect the prosecution of the accused who was charged under
Section 261(q) of the Code.
WHEREFORE, we hereby GRANT the petition and accordingly
declare the assailed September 19, 2005 decision and the July 6,
2006 resolution of the Court of Appeals in CA-G.R. SP No. 80223
respectively MODIFIED and REVERSED. The case is remanded to
the Regional Trial Court of Boac, Marinduque for the arraignment
and trial of respondent Joel R. Pedro, after reflecting in the
Information the amendment introduced on Section 261(q) of the
Code by Section 32 of Republic Act No. 7166.
SO ORDERED.
ARTURO D. BRION
Associate Justice

CRIMINAL PROCEDURE

36

denied petitioner Felicisimo F. Lazarte, Jr.s Motion to Quash. The

Resolution3 dated 18 October 2007 of said court denying
petitioners motion for reconsideration is likewise challenged in this
petition.
The antecedents follow.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 180122

March 13, 2009

FELICISIMO F. LAZARTE, JR., Petitioner,

vs.
SANDIGANBAYAN (First Division) and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
TINGA, J.:
This is a Petition for Certiorari1 under Rule 65 of the 1997 Rules of
Civil Procedure assailing the Resolution2dated 2 March 2007 of the
First Division of the Sandiganbayan in Criminal Case No. 26583
entitled, "People of the Philippines v. Robert P. Balao, et al.," which
CRIMINAL PROCEDURE

In June 1990, the National Housing Authority (NHA) awarded the

original contract for the infrastructure works on the Pahanocoy
Sites and Services Project, Phase 1 in Bacolod City to A.C. Cruz
Construction. The project, with a contract cost of P7,666,507.55,
was funded by the World Bank under the Project Loan Agreement
forged on 10 June 1983 between the Philippine Government and
the IBRD-World Bank.4
A.C. Cruz Construction commenced the infrastructure works on 1
August 1990.5 In April 1991, the complainant Candido M. Fajutag,
Jr.(Fajutag, Jr.) was designated Project Engineer of the project.
A Variation/Extra Work Order No. 1 was approved for the
excavation of unsuitable materials and road filling works. As a
consequence, Arceo Cruz of A.C. Cruz Construction submitted the
fourth billing and Report of Physical Accomplishments on 6 May
1991. Fajutag, Jr., however, discovered certain deficiencies. As a
result, he issued Work Instruction No. 1 requiring some supporting
documents, such as: (1) copy of approved concrete pouring; (2)
survey results of original ground and finished leaks; (3) volume
calculation of earth fill actually rendered on site; (4) test results as
to the quality of materials and compaction; and (5) copy of work
instructions
attesting
to
the
demolished
concrete
structures.61avvphi1.zw+
The contractor failed to comply with the work instruction. Upon
Fajutag, Jr.s further verification, it was established that there was
no actual excavation and road filling works undertaken by A.C.
37

Cruz Construction. Fajutag, Jr.s findings are summarized as

follows:
1. No topographic map was appended, even if the same is necessary
in land development works; a discarded drawing sheet: "Spot
Elevations and Existing Gradelines" of the project site was found,
but this contrasted significantly with the alleged joint-survey results
in support of the Variation/Extra Work Order No. 1;
2. No laboratory tests were conducted to ascertain unsuitability of
materials, even if the same should have been required as essential
basis thereof;
3. There were no records of the excavation and disposal of
unsuitable materials and of road filling works having been made by
the previous engineers, Rodolfo de los Santos and Noel Lobrido at
the time said activities were allegedly executed;
4. The excavation of unsuitable materials and road filling works
were overestimated to the prejudice of the government:
a. in a 10.00 meter right-of-way (ROW) road, the entire width of
10.00 meters was used in calculating the volume of cut of
unsuitable materials when the undisturbed natural grounds on both
sides of the road was only 6.00 meters;
b. the mathematical calculation in determining the volume of cut of
unsuitable materials are contrary to the contracts technical
specifications which provides for cut measurements, i.e.[,] by endarea method;
c. in a 10.00 ROW road, an effective width of 8.70 meters was used
in calculating the volume of road fill when the undisturbed natural
grounds on both sides of the road was only 6.00 meters apart;
CRIMINAL PROCEDURE

d. the mathematical calculations in determining the volume of

roadfill are contrary to the contracts technical specifications,
specifically Section 3.11 thereof, i.e., by end-area method.
5. No laboratory test was made to ascertain the quality of imported
road fill materials.7
In a Memorandum dated 27 June 1991, the Project Office
recommended the termination of the infrastructure contract with
A.C. Construction.8
In its Report dated 12 August 1991, the Inventory and Acceptance
Committee determined the total accomplishment of the contractor
at 40.89%, representing P3,433,713.10 out of the total revised
contract amount of P8,397,225.09 inclusive of Variation Order No.
1 in the amount of P710,717.54. Thereafter, said Committee
recommended that the temporary project suspension imposed by
the contractor, which incurred delays in the project completion, be
referred to the Legal Department for appropriate action.9
On 19 August 1991, the Manager of the Legal Department issued a
Memorandum addressed to the General Manager of NHA endorsing
approval of the Regional Projects Departments (RPDs)
recommendation. The NHA General Manager through a letter dated
29 August 1991 informed the contractor of the rescission of his
contract for the development of the said project upon his receipt
thereof without prejudice to NHAs enforcing its right under the
contract in view of the contractors unilateral and unauthorized
suspension of the contract works amounting to abandonment of the
project. Despite the rescission notice issued by the NHA per letter
dated 29 August 1991, the contractor continued working
intermittently with very minimal workforce until such time as the
award of remaining infrastructure works is effected by NHA to
another contractor.10
38

In March 1992, the NHA Board of Directors, per Resolution No.

2453, approved the mutual termination of the A.C. Cruz
Construction contract and awarded the remaining work to Triad
Construction and Development Corporation (Triad). The contract
amount for the remaining work was P9,554,837.32.11 Thereafter,
representatives from A.C. Cruz Construction, Triad and NHABacolod conducted a joint measurement at the site to determine the
total accomplishment of A.C. Cruz Construction inclusive of
accomplishments after NHA inventory.
The Project Office was subsequently informed by the Central
Office that the accomplishments made by A.C. Cruz Construction
after the NHA inventory would be paid directly to said contractor
by Triad. As of 27 March 1992, Triad had issued checks in favor of
A.C. Cruz Construction amounting to One Million Pesos
(P1,000,000.00) which were received by Arceo M. Cruz per
Official Receipt No. 3003.12
In its Memorandum dated 22 June 1992, the Regional Projects
Department recommended to the General Manager that the fund
settlement to A.C. Cruz Construction be effected.13
Thereafter, Triad discovered that certain work items that had been
in under the inventory report as accomplished and acceptable were
in fact non-existent. Fajutag, Jr. brought these irregularities to the
attention of the Commission on Audit (COA).
After its special audit investigation, the COA uncovered some
anomalies, among which, are ghost activities, specifically the
excavation of unsuitable materials and road filling works and
substandard, defective workmanship. Laboratory tests confirmed
the irregularities.14
Further, according to the COA, while it is true that the fourth billing
of A.C. Cruz Construction had not been paid its accomplishments
CRIMINAL PROCEDURE

after the August 1991 inventory found acceptable by NHA

amounting to P896,177.08 were paid directly by Triad. Effectively,
A.C. Cruz Construction had been overpaid by as much as
P232,628.35, which amount is more than the net payment due per
the computation of the unpaid fourth billing.15
Consequently, petitioner, as manager of the Regional Projects
Department and Chairman of the Inventory and Acceptance
Committee, and other NHA officials were charged in an
Information16 dated 5 March 2001, worded as follows:
INFORMATION
The undersigned Ombudsman Prosecutor II of the Office of the
Ombudsman-Visayas, accuses ROBERT P. BALAO, FELICISIMO
F. LAZARTE, JR., VIRGILIO V. DACALOS, JOSEPHINE O.
ANGSICO, JOSEPHINE T. ESPINOSA, NOEL H. LOBRIDO
AND ARCEO C. CRUZ for VIOLATION OF SECTION 3 (e) of
REPUBLIC ACT No. 3019, AS AMENDED (THE ANTI-GRAFT
AND CORRUPT PRACTICES ACT), committed as follows:
That in or about the month of March, 1992 at Bacolod City,
Province of Negros Occidental, Philippines and within the
jurisdiction of this Honorable Court, above-named accused,
ROBERT P. BALAO, JOSEPHINE C. ANGSICO, VIRGILIO V.
DACALOS, FELICISIMO F. LAZARTE, JR., JOSEPHINE T.
ESPINOSA, and NOEL H. LOBRIDO, Public Officers, being the
General Manager, Team Head, Visayas Mgt. Office, Division
Manager (Visayas), Manager, RPD, Project Mgt. Officer A and
Supervising Engineer, Diliman, Quezon City, in such capacity and
committing the offense in relation to office and while in the
performance of their official functions, conniving, confederating
and mutually helping with each other and with accused ARCEO C.
CRUZ, a private individual and General Manager of A.C. Cruz
39

Construction with address at 7486 Bagtikan Street, Makati City

with deliberate intent, with manifest partiality and evident bad faith,
did then and there willfully, unlawfully and feloniously cause to be
paid to A.C. Construction public funds in the amount of TWO
HUNDRED THIRTY TWO THOUSAND SIX HUNDRED
TWENTY EIGHT PESOS and THIRTY FIVE CENTAVOS
(P232,628.35) PHILIPPINE CURRENCY, supposedly for the
excavation and roadfilling works on the Pahanocoy Sites and
Services Project in Bacolod City despite the fact no such works
were undertaken by A.C. Construction as revealed by the Special
Audit conducted by the Commission on Audit, thus accused public
officials in the performance of their official functions had given
unwarranted benefits, advantage and preference to accused Arceo
C. Cruz and A.C. Construction and themselves to the damage and
prejudice of the government.

Memorandum is accused Felicisimo Lazarte, Jr., the Chairman of

the Inventory and Acceptance Committee (IAC), which undertook
the inventory and final quantification of the accomplishment of
A.C. Cruz Construction. The allegations of Lazarte that the IAC,
due to certain constraints, allegedly had to rely on the reports of the
field engineers and/or the Project Office as to which materials were
actually installed; and that he supposedly affixed his signature to
the IAC Physical Inventory Report and Memoranda dated August
12, 1991 despite his not being able to attend the actual inspection
because he allegedly saw that all the members of the Committee
had already signed are matters of defense which he can address in
the course of the trial. Hence, the quashal of the information with
respect to accused Lazarte is denied for lack of merit.
WHEREFORE, in view of the foregoing, the Court hereby resolves
as follows:

CONTRARY TO LAW.17
On 2 October 2006, petitioner filed a motion to quash the
Information raising the following grounds: (1) the facts charged in
the information do not constitute an offense; (2) the information
does not conform substantially to the prescribed form; (3) the
constitutional rights of the accused to be informed of the nature and
cause of the accusations against them have been violated by the
inadequacy of the information; and (4) the prosecution failed to
determine the individual participation of all the accused in the
information in disobedience with the Resolution dated 27 March
2005.18
On 2 March 2007, the Sandiganbayan issued the first assailed
resolution denying petitioners motion to quash. We quote the said
resolution in part:
Among the accused-movants, the public officer whose participation
in the alleged offense is specifically mentioned in the May 30, 2006
CRIMINAL PROCEDURE

(1) Accused Robert Balao, Josephine Angsico and Virgilio Dacalos

Motion to Admit Motion to Quash dated October 4, 2006 is
GRANTED; the Motion to Quash dated October 4, 2006 attached
thereto, is GRANTED. Accordingly, the case is hereby
DISMISSED insofar as the said accused-movants are concerned.
(2) The Motion to Quash dated October 2, 2006 of accused
Engr. Felicisimo F. Lazarte, Jr. is hereby DENIED for lack of merit.
Let the arraignment of the accused proceed as scheduled on March
13, 2007.
SO ORDERED.19
Subsequently, the Sandiganbayan issued the second assailed
resolution denying petitioners motion for reconsideration.
Pertinently, it held:
40

The Motion for Reconsideration of accused Lazarte, Jr. merely

reiterated the grounds and arguments which had been duly
considered and passed upon in the assailed Resolution.
Nonetheless, after a careful review of the same, the Court still finds
no cogent reason to disturb the finding of probable cause of the
Office of the Ombudsman to indict accused Lazarte, Jr., Espinosa,
Lobrido and Cruz of the offense charged. In its Memorandum dated
July 27, 2004 and May 30, 2006, the prosecution was able to show
with sufficient particularity the respective participation of the
aforementioned accused in the commission of the offense charged.
The rest of the factual issues by accused Lazarte, Jr. would require
the presentation of evidence in the course of the trial of this case.
The Court also maintains the validity and sufficiency of the
information against accused Lazarte, Jr., Espinosa, Lobrido and
Cruz. The information has particularly alleged the ultimate facts
constituting the essential elements of the offense charged which are
as follows:
1. that accused Lazarte, Jr., Espinosa, and Lobrido are public
officers being the Department Manager, Project Management
Officer A, and Supervising Engineer of the NHA during the time
material in the criminal information; and
2. that the said accused, in their respective official capacities and in
conspiracy with accused Cruz, a private individual and the General
manager of A.C. Cruz Construction, have acted with manifest
partiality or evident bad faith and have given unwarranted benefits,
preference, and advantage to Arceo C. Cruz and A.C. Cruz
Construction or have caused damage and prejudice to the
government, by "[causing] to be paid A.C. Cruz Construction
public funds in the amount of Two Hundred Thirty Two Thousand
Six Hundred Twenty Eight Pesos and Thirty Five Centavos
(P232,628.35) supposedly for the excavation and roadfilling works
on the Pahanocoy Sites and Services Project in Bacolod City
CRIMINAL PROCEDURE

despite the fact that no such works were undertaken by A.C. Cruz
Construction as revealed by the Special Audit conducted by the
Commission on Audit."
The other factual details which accused Lazarte, Jr. cited are
matters of evidence best threshed out in the course of the trial.20
Hence, the instant petition which is a reiteration of petitioners
submissions. Petitioner ascribes grave abuse of discretion
amounting to lack or excess of jurisdiction to the Sandiganbayan in:
(1) upholding the validity and sufficiency of the Information
despite its failure to make out an offense and conform to the
prescribed form; (2) denying his motion to quash considering that
the remaining averments in the Information have been rendered
unintelligible by the dismissal of the charges against some of his
co-accused; and (3) using as bases the Prosecutions Memoranda
dated 27 July 2004 and 30 May 2006 to supplement the
inadequacies of the Information. In addition, petitioner avers that
his constitutional right to be informed of the nature and cause of the
accusation against him had been violated for failure of the
Information to specify his participation in the commission of the
offense. Petitioner also argues that the facts charged in the
Information do not constitute an offense as no damage or injury had
been made or caused to any party or to the government. Finally,
petitioner maintains that the Sandiganbayan lost its jurisdiction
over him upon the dismissal of the charges against his co-accused
as the remaining accused are public officers whose salary grade is
below 27.
In its Comment21 dated 21 December 2007, the Office of the
Ombudsman, through the Office of the Special Prosecutor, counters
that separate allegations of individual acts perpetrated by the
conspirators are not required in an Information and neither should
they be covered by evidence submitted to establish the existence of
probable cause. Allegations regarding the nature and extent of
41

petitioners participation and justification for his acts which

constitute the offense charged are evidentiary matters which are
more properly addressed during trial. The Ombudsman reiterates
our ruling in Ingco v. Sandiganbayan22 that the fundamental test in
reflecting on the viability of a motion to quash is the sufficiency of
the averments in the information that is, whether the facts
asseverated, if hypothetically admitted, would establish the
essential elements of the crime defined by law. And relying on the
case of Domingo v. Sandiganbayan,23 the Ombudsman states that
informations need only state the ultimate facts; the reasons therefor
are to be proved during the trial.24 The Ombudsman moreover
maintains that the Sandiganbayan has jurisdiction over petitioner.
The Ombudsman argues that it is of no moment that petitioners
position is classified as
salary grade 26 as he is a manager within the legal contemplation of
paragraph 1(g), Section 4(a) of Republic Act No. 8249.25
In his Reply26 dated 9 October 2008, petitioner strongly asseverates
that, according to the Constitution, in a conspiracy indictment the
participation of each accused in the so-called conspiracy theory
should be detailed in order to apprise the accused of the nature of
the accusation against them in relation to the participation of the
other accused. A general statement that all the accused conspired
with each other without stating the participation of each runs afoul
of the Constitution.27 Petitioner adds that the ultimate facts intended
by law refer to determinate facts and circumstances which should
become the basis of the cause of action; statement of facts which
would be in complete accord with the constitutional requirement of
giving the accused sufficient information about the nature and the
cause of the accusation against him.28 Petitioner also avers that the
Ombudsmans reliance on and citation of the cases of Ingco v.
Sandiganbayan29 and Domingo v. Sandiganbayan 30 is misplaced and
misleading.
CRIMINAL PROCEDURE

Petitioners main argument is that the Information filed before the

Sandiganbayan insufficiently averred the essential elements of the
crime charged as it failed to specify the individual participation of
all the accused.
The Court is not persuaded. The Court affirms the resolutions of the
Sandiganbayan.
At the outset, it should be stressed that the denial of a motion to
quash is not correctible by certiorari. Well-established is the rule
that when a motion to quash in a criminal case is denied, the
remedy is not a petition for certiorari but for petitioners to go to
trial without prejudice to reiterating the special defenses invoked in
their motion to quash. Remedial measures as regards interlocutory
orders, such as a motion to quash, are frowned upon and often
dismissed. The evident reason for this rule is to avoid multiplicity
of appeals in a single court.31
This general rule, however, is subject to certain exceptions. If the
court, in denying the motion to dismiss or motion to quash acts
without or in excess of jurisdiction or with grave abuse of
discretion, then certiorari or prohibition lies. 32 And in the case at
bar, the Court does not find the Sandiganbayan to have committed
grave abuse of discretion.
The fundamental test in reflecting on the viability of a motion to
quash on the ground that the facts charged do not constitute an
offense is whether or not the facts asseverated, if hypothetically
admitted, would establish the essential elements of the crime
defined in law.33 Matters aliunde will not be considered.34
Corollarily, Section 6 of Rule 110 of the Rules of Court states that:
SEC. 6. Sufficiency of complaint or information.A complaint or
information is sufficient if it states the name of the accused, the
42

designation of the offense by the statute, the acts or omissions

complained of as constituting the offense; the name of the offended
party; the approximate time of the commission of the offense, and
the place wherein the offense was committed.
When an offense is committed by more than one person, all of them
shall be included in the complaint or information.
The acts or omissions complained of must be alleged in such form
as is sufficient to enable a person of common understanding to
know what offense is intended to be charged and enable the court to
know the proper judgment. The Information must allege clearly and
accurately the elements of the crime charged. What facts and
circumstances are necessary to be included therein must be
determined by reference to the definition and elements of the
specific crimes.35
The test is whether the crime is described in intelligible terms with
such particularity as to apprise the accused, with reasonable
certainty, of the offense charged. The raison detre of the rule is to
enable the accused to suitably prepare his defense.36 Another
purpose is to enable accused, if found guilty, to plead his conviction
in a subsequent prosecution for the same offense. The use of
derivatives or synonyms or allegations of basic facts constituting
the offense charged is sufficient.37
Pertinently, Section 3(e) of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, reads:
SEC. 3. Corrupt practices of public officers.In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful:
xxx
CRIMINAL PROCEDURE

(e) Causing any undue injury to any party, including the

Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.38
The essential elements for violation of Section 3(e) of R.A. No.
3019 are as follows:
1. The accused is a public officer or private person charged in
conspiracy with him;
2. Said public officer commits the prohibited acts during the
performance of his official duties or in relation to his public
position;
3. He causes undue injury to any party, whether the government or
private party;
4. Such undue injury is caused by giving unwarranted benefits,
advantage or preference to such parties; and
5. The public officer has acted with manifest partiality, evident bad
faith or gross inexcusable negligence.39
The Court finds that the Information in this case alleges the
essential elements of violation of Section 3(e) of R.A. No. 3019.
The Information specifically alleges that petitioner, Espinosa and
Lobrido are public officers being then the Department Manager,
Project Management Officer A and Supervising Engineer of the
NHA respectively; in such capacity and committing the offense in
43

relation to the office and while in the performance of their official

functions, connived, confederated and mutually helped each other
and with accused Arceo C. Cruz, with deliberate intent through
manifest partiality and evident bad faith gave unwarranted benefits
to the latter, A.C. Cruz Construction and to themselves, to the
damage and prejudice of the government. The felonious act
consisted of causing to be paid to A.C. Cruz Construction public
funds in the amount of P232,628.35 supposedly for excavation and
road filling works on the Pahanocoy Sites and Services Project in
Bacolod City despite the fact that no such works were undertaken
by said construction company as revealed by the Special Audit
conducted by COA.
On the contention that the Information did not detail the individual
participation of the accused in the allegation of conspiracy in the
Information, the Court underscores the fact that under Philippine
law, conspiracy should be understood on two levels. Conspiracy
can be a mode of committing a crime or it may be constitutive of
the crime itself. Generally, conspiracy is not a crime in our
jurisdiction. It is punished as a crime only when the law fixes a
penalty for its commission such as in conspiracy to commit treason,
rebellion and sedition.40
When conspiracy is charged as a crime, the act of conspiring and all
the elements of said crime must be set forth in the complaint or
information. But when conspiracy is not charged as a crime in itself
but only as the mode of committing the crime as in the case at bar,
there is less necessity of reciting its particularities in the
Information because conspiracy is not the gravamen of the offense
charged. The conspiracy is significant only because it changes the
criminal liability of all the accused in the conspiracy and makes
them answerable as co-principals regardless of the degree of their
participation in the crime. The liability of the conspirators is
collective and each participant will be equally responsible for the
acts of others, for the act of one is the act of all.41
CRIMINAL PROCEDURE

Notably, in People v. Quitlong,42 as pointed out by respondent, the

Court ruled on how conspiracy as a mode of committing the offense
should be alleged in the Information, viz:
x x x Where conspiracy exists and can rightly be appreciated, the
individual acts done to perpetrate the felony becomes of secondary
importance, the act of one being imputable to all the others. Verily,
an accused must know from the information whether he faces a
criminal responsibility not only for his acts but also for the acts of
his co-accused as well.
A conspiracy indictment need not, of course, aver all the
components of conspiracy or allege all the details thereof, like the
part that each of the parties therein have performed, the evidence
proving the common design or the facts connecting all the accused
with one another in the web of the conspiracy. Neither is it
necessary to describe conspiracy with the same degree of
particularity required in describing a substantive offense. It is
enough that the indictment contains a statement of facts relied upon
to be constitutive of the offense in ordinary and concise language,
with as much certainty as the nature of the case will admit, in a
manner that can enable a person of common understanding to know
what is intended, and with such precision that the accused may
plead his acquittal or conviction to a subsequent indictment based
on the same facts. It is said, generally, that an indictment may be
held sufficient "if it follows the words of the statute and reasonably
informs the accused of the character of the offense he is charged
with conspiring to commit, or, following the language of the
statute, contains a sufficient statement of an overt act to effect the
object of the conspiracy, or alleges both the conspiracy and the
contemplated crime in the language of the respective statutes
defining them (15A C.J.S. 842-844).
x x x Conspiracy arises when two or more persons come to an
agreement concerning the commission of a felony and decide to
44

commit it. Conspiracy comes to life at the very instant the plotters
agree, expressly or impliedly, to commit the felony and forthwith to
actually pursue it. Verily, the information must state that the
accused have confederated to commit the crime or that there has
been a community of design, a unity of purpose or an agreement to
commit the felony among the accused. Such an allegation, in the
absence of the usual usage of the words "conspired" or
"confederated" or the phrase "acting in conspiracy," must aptly
appear in the information in the form of definitive acts constituting
conspiracy. In fine, the agreement to commit the crime, the unity of
purpose or the community of design among the accused must be
conveyed such as either by the use of the term "conspire" or its
derivatives and synonyms or by allegations of basic facts
constituting the conspiracy. Conspiracy must be alleged, not just
inferred, in the information on which basis an accused can aptly
enter his plea, a matter that is not to be confused with or likened to
the adequacy of evidence that may be required to prove it. In
establishing conspiracy when properly alleged, the evidence to
support it need not necessarily be shown by direct proof but may be
inferred from shown acts and conduct of the accused.43
In addition, the allegation of conspiracy in the Information should
not be confused with the adequacy of evidence that may be required
to prove it. A conspiracy is proved by evidence of actual
cooperation; of acts indicative of an agreement, a common purpose
or design, a concerted action or concurrence of sentiments to
commit the felony and actually pursue it. A statement of the
evidence on the conspiracy is not necessary in the Information.44
The other details cited by petitioner, such as the absence of any
damage or injury caused to any party or the government, likewise
are matters of evidence best raised during trial.
As to the contention that the residual averments in the Information
have been rendered unintelligible by the dismissal of the charges
CRIMINAL PROCEDURE

against some of his co-accused, the Court finds that the Information
sufficiently makes out a case against petitioner and the remaining
accused.
With regard to the alleged irregular use by the Sandiganbayan of
the Prosecutions Memoranda dated 27 July 2004 and 30 May 2006
to supplement the inadequacies of the Information, the Court finds
adequate its explanation in the first assailed resolution, to wit:
It may be recalled that a reinvestigation of the case was ordered by
this Court because the prosecution failed to satisfactorily comply
with an earlier directive of the former Chairperson and Members of
the First Division, after noting the inadequacy of the information, to
clarify the participation of each of the accused. In ordering the
reinvestigation, the Court noted that the prosecutions July 27, 2004
Memorandum did not address the apprehensions of the former
Chairperson and Members of the First Division as to the
inadequacy of the allegations in the information.
This time, despite a reinvestigation, the prosecutions Memorandum
dated May 30, 2006 still failed to specify the participation of
accused-movants Balao, Angsico and Dacalos. The most recent
findings of the prosecution still do not address the deficiency found
by the Court in the information. The prosecution avers that pursuant
to Section 3, Rule 117 of the Rules of Court, in determining the
viability of a motion to quash based on the ground of "facts charged
in the information do not constitute an offense," the test must be
whether or not the facts asseverated, if hypothetically admitted,
would establish the essential elements of the crime as defined by
law. The prosecution contends that matter aliunde should not be
considered. However, in the instant case, the Court has found the
information itself to be inadequate, as it does not satisfy the
requirements of particularly alleging the acts or omissions of the
said accused-movants, which served as the basis of the allegation of
conspiracy between the aforementioned accused-movants and the
45

other accused, in the commission of the offense charged in the

information.45
Finally, the Court sustains the Sandiganbayans jurisdiction to hear
the case. As correctly pointed out by the Sandiganbayan, it is of no
moment that petitioner does not occupy a position with Salary
Grade 27 as he was a department manager of the NHA, a
government-owned or controlled corporation, at the time of the
commission of the offense, which position falls within the ambit of
its jurisdiction. Apropos, the Court held in the case of Geduspan v.
People46 which involved a regional Manager/Director of Region VI
of the Philippine Health Insurance Corporation (Philhealth) with
salary grade 26, to wit:
It is of no moment that the position of petitioner is merely classified
as salary grade 26. While the first part of the abovequoted
provision covers only officials of the executive branch with the
salary grade 27 and higher, the second part thereof "specifically
includes" other executive officials whose positions may not be of
grade 27 and higher but who are by express provision of law placed
under the jurisdiction of the said court.
Hence, respondent court is vested with jurisdiction over petitioner
together with Farahmand, a private individual charged together
with her.

following requisites must concur: (1) the offense committed is a

violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt
Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c)
Chapter II, Section 2, Title VII, book II of the Revised Penal Code
(the law on bribery), (d) Executive Order Nos. 1,2, 14 and 14-A,
issued in 1986 (sequestration cases), or (e) other offenses or
felonies whether simple or complexed with other crimes; (2) the
offender committing the offenses in items (a), (b), (c) and (e) is a
public official or employee holding any of the positions enumerated
in paragraph a of section 4; and (3) the offense committed is in
relation to the office.
To recapitulate, petitioner is a public officer, being a department
manager of Philhealth, a government-owned and controlled
corporation. The position of manager is one of those mentioned in
paragraph a, Section 4 of RA 8249 and the offense for which she
was charged was committed in relation to her office as department
manager of Philhealth. Accordingly, the Sandiganbayan has
jurisdiction over her person as well as the subject matter of the
case.47
WHEREFORE, premises considered, the instant petition is
DISMISSED. The Resolutions dated 2 March 2007 and 18 October
2007 of the First Division of the Sandiganbayan are AFFIRMED.
SO ORDERED.

The position of manager in a government-owned or controlled

corporation, as in the case of Philhealth, is within the jurisdiction of
respondent court. It is the position that petitioner holds, not her
salary grade, that determines the jurisdiction of the Sandiganbayan.

DANTE O. TINGA
Associate Justice

This Court in Lacson v. Executive Secretary, et al. ruled:

A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to
fall under the exclusive jurisdiction of the Sandiganbayan, the
CRIMINAL PROCEDURE

46

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 149453

May 28, 2002

PEOPLE OF THE PHILIPPINES, ET AL.,

vs.
PANFILO M. LACSON
RESOLUTION
Before us is a petition for review on certiorari seeking to reverse
and set aside the Decision1 of the Court of Appeals dated August
24, 2001 in CA-G.R. SP No. 65034.2 The said Decision of the
appellate court granted respondent Lacson's Second Amended
Petition for Prohibition with application for the issuance of a
Temporary Restraining Order, (1) assailing the Order issued by
Judge Herminia Pasamba of the Regional Trial Court (RTC) of
Manila, Branch 40, that allowed the continuation of the reinvestigation of Criminal Cases Nos. Q-99-81679 to Q-99-81689 or
the Kuratong Baleleng cases; and (2) praying for the dismissal of
CRIMINAL PROCEDURE

47

Criminal Cases Nos. Q-01-101102 to Q-01-101112 entitled "People

of the Philippines v. Panfilo Lacson, et al." pending before Branch
81 of the RTC of Quezon City.
The following appear in the records of this case:
(1) On May 18, 1995, then PNP Director-General Recaredo
Sarmiento II announced, in a press conference, the killing of eleven
(11) members of the Kuratong Baleleng Gang (KBG) in a shootout
with police elements near the fly-over along Commonwealth
Avenue, Quezon City at about 4:00 A.M. that day.3
(2) On May 22, 1995, morning papers carried the news that SPO2
Eduardo delos Reyes had claimed that the killing of the eleven (11)
gang members was a "rub-out" or summary execution and not a
shootout.4
(3) In an affidavit he executed the following day, delos Reyes
stated, among others, that he was part of a composite police team
called the Anti-Bank Robbery and Intelligence Task Force Group
(ABRITFG) composed of elements of the National Capital Region
Command (NCRC) and headed by Chief Superintendent Jewel
Canson; Traffic Management Command, headed by Senior
Superintendent Francisco Subia, Jr.; Presidential Anti-Crime
Commission (PACC), headed by Chief Superintendent Panfilo M.
Lacson; Central Police District Command, headed by Chief
Superintendent Ricardo de Leon; and Criminal Investigation
Command (CIC), headed by Chief Superintendent Romeo Acop.
Delos Reyes claimed that the police team arrested the eleven (11)
gang members in early morning of May 18, 1995 at the gang's safe
house in Superville Subdivision, Paraaque; that after their arrest,
the gang members were made to board two vans, their hands tied
behind their backs, and brought initially to Camp Crame where a
decision to summarily execute them was made, and later to
Commonwealth Avenue where they were shot to death by elements
CRIMINAL PROCEDURE

of ABRITFG.5
(4) On May 26, 1995, SPO2 Corazon dela Cruz, another CIC
investigator, executed an affidavit corroborating the material
allegations of delos Reyes. Dela Cruz claimed that she was with
delos Reyes from the time the eleven (11) KBG members were
arrested up to the time they were killed in Commonwealth Avenue.6
(5) On May 31, 1995, Armando Capili, a reporter of Remate,
executed an affidavit stating that he was present when the KBG
members were arrested in Superville Subdivision.7
(6) On June 1, 1995, Chief Superintendent Job A. Mayo, PNP
Director for Investigation, filed murder charges with the Office of
the Ombudsman against ninety-seven (97) officers and personnel of
ABRITFG. The next-of-kin of the slain KBG members also filed
murder charges against the same officers and personnel.8
(7) Ombudsman Aniano Desierto then created a panel of
investigators to conduct a preliminary investigation of the murder
charges. The panel was headed by Deputy Ombudsman for Military
Affairs Bienvenido Blancaflor. On October 20, 1995, the panel
issued a resolution recommending the dismissal of the charges for
lack of probable cause.
(8) Ombudsman Desierto referred the resolution for review by a
panel composed of Over-all Deputy Ombudsman Francisco Villa as
head, and Special Prosecutor Leonardo Tamayo and Assistant
Ombudsman Abelardo Aportadera as members. On November 20,
1995, the review panel reversed the Blancaflor resolution and found
probable cause for the prosecution of multiple murder charges
against twenty-six (26) officers and personnel of ABRITFG.9
(9) On November 2, 1995, the Ombudsman filed before the
Sandiganbayan eleven (11) Informations for MURDER, docketed
48

as Criminal Cases Nos. 23047 to 23057, against respondent Panfilo

M. Lacson and twenty-five (25) other accused. All twenty-six (26)
of them were charged as principals.10 The following appear to be
the victims: Meleubren Sorronda in Crim. Case No. 23047; Welbor
Elcamel in Crim. Case No. 23048; Carlito Alap-ap in Crim. Case
No. 23049; Jevy Redillas in Crim. Case No. 23050; Ray Abalora in
Crim. Case No. 23051; Joel Amora in Crim. Case No. 23052; Alex
Neri in Crim. Case No. 23053; Rolando Siplon in Crim. Case No.
23054; Manuel Montero in Crim. Case No. 23055; Sherwin
Abalora in Crim. Case No. 23056; and Pacifico Montero in Crim.
Case No. 23057.
(10) Upon motion of the respondent, the criminal cases were
remanded to the Ombudsman for reinvestigation. On March 1,
1996, Amended Informations were filed against the same twentysix (26) suspects but the participation of respondent Lacson was
downgraded from principal to accessory. Arraignment then
followed and respondent entered a plea of not guilty.11
(11) With the downgrading of charges against him, respondent
Lacson questioned the jurisdiction of theSandiganbayan to hear the
criminal cases as none of the "principal" accused in the Amended
Informations was a government official with a Salary Grade (SG)
27 or higher, citing Section 2 of R. A. No. 7975 then prevailing.
Accordingly, the Sandiganbayan ordered the cases transferred to
the Regional Trial Court.12
(12) The Office of the Special Prosecutor filed a motion for
reconsideration of the transfer. Pending resolution of the motion, R.
A. No. 8249 took effect on February 23, 1997, amending R. A. No.
7975. In particular, the amendatory law deleted the word
"principal" in Section 2 of R. A. No. 7975, thereby expanding the
jurisdiction of the Sandiganbayan to include all cases where at least
one of the accused, whether principal, accomplice or accessory, is a
government official of Salary Grade (SG) 27 or higher. The
CRIMINAL PROCEDURE

amendment is made applicable to all cases pending in any court in

which trial has not yet begun as of the date of its approval.13
(13) In Lacson v. Executive Secretary,14 respondent Lacson
challenged the constitutionality of the amendment and contended
that the Sandiganbayan had no jurisdiction over the criminal cases.
This Court, while dismissing the constitutional challenge,
nonetheless ordered the transfer of the criminal cases to the
Regional Trial Court on the ground that the Amended Informations
for murder failed to indicate that the offenses charged therein were
committed in relation to, or in discharge of, the official functions of
the respondent, as required by R. A. No. 8249.
(14) Criminal Cases Nos. 23047 to 23057 were raffled off to
Branch 81 of the Regional Trial Court of Quezon City, then
presided by Judge, now Associate Justice of the Court of Appeals,
Wenceslao Agnir, Jr., and re-docketed as Criminal Cases Nos. Q99-81679 to Q-99-81689.
(15) Before the accused could be arraigned, prosecution witnesses
Eduardo de los Reyes, Corazon de la Cruz, Armando Capili and
Jane Gomez recanted their affidavits which implicated respondent
Lacson in the murder of the KBG members.
On the other hand, private complainants Myrna Abalora, 15 Leonora
Amora,16 Nenita Alap-ap,17 Imelda Montero,18 Margarita Redillas,19
Carmelita Elcamel20 and Rolando Siplon21 also executed their
respective affidavits of desistance declaring that they were no
longer interested to prosecute these cases.22
(16) Due to these developments, the twenty-six (26) accused,
including respondent Lacson, filed five separate but identical
motions to (1) make a judicial determination of the existence of
probable cause for the issuance of warrants of arrest; (2) hold in
abeyance the issuance of the warrants, and (3) dismiss the cases
49

should the trial court find lack of probable cause.

(17) The records of the case before us are not clear whether the
private offended parties were notified of the hearing on March 22,
199923 held by Judge Agnir to resolve the motions filed by
respondent Lacson and the other accused.
(18) During the said hearing, the private offended parties who
desisted do not appear to have been presented on the witness stand.
In their stead, Atty. Godwin Valdez testified that he assisted them in
preparing their affidavits of desistance and that he signed said
affidavits as witness. On the other hand, Atty. Aurora Bautista of
the Philippine Lawyer's League presented the affidavits of
recantation of prosecution witnesses Eduardo de los Reyes,
Armando Capili and Jane Gomez. Only prosecution witness
Corazon de la Cruz testified to affirm her affidavit.24
(19) On March 29, 1999, Judge Agnir issued a Resolution 25
dismissing Criminal Cases Nos. Q-99-81679 to Q-99-81689, as
follows:
"As already seen, the documents attached to the Informations in
support thereof have been rendered meaningless, if not absurd, with
the recantation of the principal prosecution witnesses and the
desistance of the private complainants. There is no more evidence
to show that a crime has been committed and that the accused are
probably guilty thereof. Following the doctrine above-cited, there is
no more reason to hold the accused for trial and further expose
them to an open and public accusation. It is time to write finis to
these cases and lay to rest the ghost of the incident of May 18, 1995
so that all those involved--- the accused, the prosecution witnesses
and the private complainants alike--- may get on with their lives.
The Court is not unmindful of the admonition in the recent case of
People vs. Court of Appeals (G.R. No. 126005, January 21, 1999)
CRIMINAL PROCEDURE

where the Supreme Court said that the general rule is that 'if the
Information is valid on its face and there is no showing of manifest
error, grave abuse of discretion or prejudice on the part of the
public prosecutor, courts should not dismiss it for want of evidence,
because evidentiary matters should be presented and heard during
the trial', and that the ruling in Allado vs. Diokno 'is an exception to
the general rule and may be invoked only if similar circumstances
are clearly shown to exist.'
This Court holds that the circumstances in the case at bench clearly
make an exception to the general rule.
WHEREFORE, in view of the foregoing, the Court finds no
probable cause for the issuance of the warrants of arrest against the
accused or to hold them for trial. Accordingly, the Informations in
the above-numbered cases are hereby ordered dismissed."
SO ORDERED."26
(20) On March 27, 2001, PNP Director Leandro R. Mendoza
indorsed to the Department of Justice the new affidavits of P/Insp.
Ysmael S. Yu and P/S Insp. Abelardo Ramos regarding the
Kuratong Baleleng incident for preliminary investigation. On the
strength of this indorsement, Secretary of Justice Hernando B.
Perez formed a panel to investigate the matter. On April 17, 2001,
the respondent was subpoenaed to attend the investigation of
Criminal Cases Nos. Q-99-81679 to Q-99-81689.27
(21) On May 28, 2001, respondent Lacson, et al., invoking, among
others, their constitutional right against double jeopardy, filed a
petition for prohibition with application for temporary restraining
order and/or writ of preliminary injunction with the Regional Trial
Court of Manila, primarily to enjoin the State prosecutors from
conducting the preliminary investigation. The petition was docketed
as Civil Case No. 01-100933 and raffled to Branch 40, presided by
50

Judge Herminia V. Pasamba.28

(22) The plea for temporary restraining order was denied by Judge
Pasamba in an Order29 dated June 5, 2001,viz:
"After a study, this Court submits that the dismissal of Criminal
Cases Nos. Q-99-81679 to Q-99-81689 is not one on the merits and
without any recorded arraignment and entered plea on the part of
the herein petitioners. The dismissal was a direct consequence of
the finding of the Quezon City RTC that no probable cause exists
for the issuance of warrants of arrest against petitioners herein and
to hold them for trial. The arraignment had with the Sandiganbayan
does not put the case in a different perspective since
theSandiganbayan was adjudged to be without any jurisdiction to
try the cases. It is the People of the Philippines who is the
complainant in the Kuratong Baleleng case and remains to be the
complainant in the present investigation initiated thru a letter of
PNP Chief Mendoza dated March 27, 2001 (Exhibit "B") together
with the sworn statements of witnesses Ramos and Yu (Exhibits "2"
and "3" - supportive of the refiling of the case (Exhibit "9").
xxx

xxx

xxx

Above considered, this Court finds petitioners have not

preliminarily established that they have a right to be preserved
pending hearing on the injunctive relief.
WHEREFORE, the prayer for temporary restraining order is hereby
DENIED.
SO ORDERED."30
(23) On June 6, 2001, eleven (11) Informations for murder
involving the killing of the same members of theKuratong Baleleng
CRIMINAL PROCEDURE

gang were filed before the Regional Trial Court of Quezon City and
were docketed as Criminal Cases Nos. 01-101102 to 01-101112.
The new Informations charged as principals thirty-four (34) people,
including respondent Lacson and his twenty-five (25) other coaccused in Criminal Cases Nos. Q-99-81679 to Q-99-81689. The
criminal cases were assigned to Judge Ma. Theresa L. Yadao.
(24) On the same day, respondent Lacson filed before the Court of
Appeals a petition for certiorari31 against Judge Pasamba, the
Secretary of Justice, the PNP Chief, State Prosecutors Ong and
Zacarias, 2nd Assistant City Prosecutor Jamolin, and the People of
the Philippines. The said petition was amended to implead as
additional party-respondents State Prosecutor Claro Arellano and
the RTC, Quezon City, Branch 81 in which the Informations in
Criminal Cases Nos. 01-101102 to 01-101112 were filed.32
(25) The Second Amended Petition33 dated June 14, 2001 and
admitted by the Court of Appeals on June 26, 2001, alleged:
"The reliefs of certiorari, prohibition and injunction against the
questioned Order (Annex A) and the new Informations in Criminal
Cases Nos. 01-101102 to 01-101112 pending before respondent
Yadao (Annex B) are founded upon the grave abuse of discretion
by respondent Judge Pasamba of her discretion in its issuance, the
illegality of the proceedings of the respondent State Prosecutors as
they cannot revive complaints which had been dismissed over two
(2) years from the date the dismissal order was issued, and the
invalidity of the new Informations for Murder filed against
petitioners and others, all in defiance of law and jurisprudence as
shown by the following:
(a) Respondent judge had ruled on the merits of the main
prohibition action a quo rendering the same moot and academic by
concluding that the dismissal of Criminal Cases Nos. Q-99-81679Q-99-81689 by the QC RTC was not final and executory, hence [i]
51

the complaints therein can be reinvestigated, and [ii] petitioner's

arraignment while the case had not yet been remanded to the QC
RTC and while the Sandiganbayan had valid jurisdiction thereover
[Criminal Cases No. 23047-2048] was void, notwithstanding that
the only issue in the TRO application was the existence or lack of a
valid complaint as defined in S1 and S3, Rule 110.
(b) Respondent Judge ruled that respondent State Prosecutors could
proceed to re-investigate and thereafter file new Informations on
June 6, 2001 covering those offenses subject of Criminal Cases
Nos. Q-99-81679-Q-99-81689 on the basis of affidavits filed after
said cases were dismissed on March 29, 1999, despite the fact that
under Section 8, Rule 117, cases similar to those filed against the
petitioner and others (where the penalty imposable is imprisonment
of six (6) years or more) cannot be revived after two (2) years from
the date the dismissal order was issued.
(c) Respondent Judge held that the petitioner had not shown a right
to be preserved despite evidence showing the short cuts taken by
respondent State prosecutors in re-investigating a dismissed case, in
not complying with Rules in respect of its re-opening, and in
insisting that a valid complaint was filed in clear violation of the
Rules and case law thereon, and despite the fact that the petitioner
had shown that an inextendible deadline of June 5, 2001 was given
him to file his counter-affidavit without which his indictment for a
non-bailable offense is assured because of DOJ Secretary Hernando
Perez's political schemes."34
(26) In the meantime, on June 8, 2001, respondent Lacson also filed
with the RTC-QC Branch 81 (presided by Judge Ma. Theresa
Yadao), a Motion for Judicial Determination of Probable Cause and
in the absence thereof, to dismiss the cases outright. Respondent
Lacson, however, filed a Manifestation and Motion dated June 13,
2001 seeking the suspension of the proceedings before the trial
court.35
CRIMINAL PROCEDURE

(27) The Court of Appeals issued a temporary restraining order

enjoining Judge Yadao from issuing a warrant of arrest or
conducting any proceeding or hearing in Criminal Cases Nos. 01101102 to 01-101112.36
(28) On August 24, 2001, the Court of Appeals (Special Third
Division), rendered the now assailed Decision. It characterized the
termination of Criminal Cases Nos. Q-99-81679 to Q-99-81689 as
"provisional dismissal," and considered Criminal Cases Nos. 01101102 to 01-101112 as mere revivals of the same. Applying
Section 8, Rule 117 of the 2000 Revised Rules of Criminal
Procedure, it dismissed the criminal cases against the respondent,
viz:
"In sum, this Court is of the considered view that the subject
dismissal of [the] criminal cases was provisional in nature and that
the cases presently sought to be prosecuted by the respondents are
mere revival or re-opening of the dismissed cases. The present
controversy, being one involving "provisional dismissal" and
revival of criminal cases, falls within the purview of the
prescriptive period provided under Section 8, Rule 117 of the 2000
Revised Rules of Criminal Procedure. The second paragraph of the
said provision is couched in clear, simple and categorical words. It
mandates that for offenses punishable by imprisonment of more
than six (6) years, as the subject criminal cases, their provisional
dismissal shall become permanent two (2) years after the issuance
of the order without the case having been revived. It should be
noted that the revival of the subject criminal cases, even if reckoned
from the DOJ's issuance of subpoenas to petitioner, was
commenced only on April 19, 2001, that is, more than two (2) years
after the issuance, on March 29, 1999, of RTC-Quezon City's
Resolution, provisionally dismissing the criminal cases now sought
to be revived. Applying the clear and categorical mandate of
Section 8, Rule 117, supra, such efforts to revive the criminal cases
are now definitely barred by the two-year prescriptive period
52

provided therein.

the order without the case having been revived."

xxx

xxx

xxx

WHEREFORE, the petition is GRANTED. As prayed for, the

Temporary Restraining Order earlier issued against the conduct of
further proceedings in Criminal Cases Nos. 01-101102 to 01101112, including the issuance of warrants of arrest against the
petitioner, PANFILO M. LACSON, is hereby made PERMANENT.
Accordingly, with respect to said accused, the proceedings
conducted by respondent State Prosecutors in respect of the said
criminal cases are declared NULL AND VOID and the
corresponding Informations, docketed as Criminal Cases Nos. 01101102 to 01-101112, entitled 'People of the Philippines vs. Panfilo
M. Lacson, et al." and filed before respondent Judge Maria Theresa
L. Yadao of Branch 81 of the Regional Trial Court of Quezon City,
are hereby ordered DISMISSED.

Like any other favorable procedural rule, this new rule can be given
retroactive effect. However, this Court cannot rule on this jugular
issue due to the lack of sufficient factual bases. Thus, there is need
of proof of the following facts, viz: (1) whether the provisional
dismissal of the cases had the express consent of the accused; (2)
whether it was ordered by the court after notice to the offended
party, (3) whether the 2-year period to revive has already lapsed,
and (4) whether there is any justification for the filing of the cases
beyond the 2-year period.
There is no uncertainty with respect to the fact that the provisional
dismissal of the cases against respondent Lacson bears his express
consent. It was respondent Lacson himself who moved to dismiss
the subject cases for lack of probable cause before then Judge
Agnir, hence, it is beyond argument that their dismissal bears his
express consent.

SO ORDERED."37
The issue is whether Section 8, Rule 117 bars the filing of the
eleven (11) informations against the respondent Lacson involving
the killing of some members of the Kuratong Baleleng gang. This
rule which took effect on December 1, 2000 provides:
"SEC. 8. Provisional dismissal.- A case shall not be provisionally
dismissed except with the express consent of the accused and with
notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment
not exceeding six (6) years or a fine of any amount, or both, shall
become permanent one (1) year after issuance of the order without
the case having been revived. With respect to offenses punishable
by imprisonment of more than six (6) years, their provisional
dismissal shall become permanent two (2) years after issuance of
CRIMINAL PROCEDURE

The records of the case, however, do not reveal with equal clarity
and conclusiveness whether notices to the offended parties were
given before the cases against the respondent Lacson were
dismissed by then Judge Agnir. It appears from the resolution of
then Judge Agnir that the relatives of the victims who desisted did
not appear during the hearing to affirm their affidavits. Their
affidavits of desistance were only presented by Atty. Godwin
Valdez who testified that he assisted the private complainants in
preparing their affidavits and he signed them as a witness. It also
appears that only seven (7) persons submitted their affidavits of
desistance, namely:
a. Myrna Abalora, mother of the victims Sherwin Abalora and Rey
Abalora
b. Carmelita Elcamel, wife of Wilbur Elcamel;
53

c. Leonora Amora, mother of victim Joel Amora;

d. Nenita Alap-ap, wife of victim Carlito Alap-ap;
e. Imelda Montero, wife of victim Manuel Montero;
f. Margarita Redillas, mother of victim Hilario Jevy Redillas; and
g. Rolando Siplon.
From the records of the case before us, it cannot be determined
whether there were affidavits of desistance executed by the
relatives of the three (3)38 other victims, namely: Meleubren
Soronda, Pacifico Montero, Jr., and Alex Neri. The same records do
not show whether they were notified of the hearing or had
knowledge thereof. To be sure, it is not fair to expect the element of
notice to be litigated before then Judge Agnir for Section 8, Rule
117 was yet inexistent at that time.
The fact of notice to the offended parties was not raised either in
the petition for prohibition with application for temporary
restraining order or writ of preliminary injunction filed by
respondent Lacson in the RTC of Manila, presided by Judge
Pasamba, to enjoin the prosecutors from reinvestigating the said
cases against him. The only question raised in said petition is
whether the reinvestigation will violate the right of respondent
Lacson against double jeopardy. Thus, the issue of whether or not
the reinvestigation is barred by Section 8, Rule 117 was not tackled
by the litigants.
Nor was the fact of notice to the offended parties the subject of
proof after the eleven (11) informations for murder against
respondent Lacson and company were revived in the RTC of
Quezon City presided by Judge Yadao. There was hardly any
CRIMINAL PROCEDURE

proceeding conducted in the case for respondent Lacson

immediately filed a petition for certiorari in the appellate court
challenging, among others, the authority of Judge Yadao to
entertain the revived informations for multiple murder against him.
This is not to be wondered at. The applicability of Section 8, Rule
117 was never considered in the trial court. It was in the Court of
Appeals where respondent Lacson raised for the first time the
argument that Section 8, Rule 117 bars the revival of the multiple
murder cases against him. But even then, the appellate court did not
require the parties to elucidate the crucial issue of whether notices
were given to the offended parties before Judge Agnir ordered the
dismissal of the cases against respondent Lacson and company. To
be sure, there is a statement in the Decision of the appellate court to
the effect that "records show that the prosecution and the private
offended parties were notified of the hearing x x x." 39 It is doubtful
whether this finding is supported by the records of the case. It
appears to be contrary to Judge Agnir's finding that only seven (7)
of the complainants submitted affidavits of desistance.
Indeed, the records of this case are inconclusive on the factual issue
of whether the multiple murder cases against respondent Lacson are
being revived within or beyond the 2-year bar. The reckoning date
of the 2-year bar has to be first determined - - - whether it is from
the date of the Order of then Judge Agnir dismissing the cases or
from the dates the Order were received by the various offended
parties or from the date of the effectivity of the new rule.
If the cases were revived only after the 2-year bar, the State must be
given the opportunity to justify its failure to comply with said
timeline. The new rule fixes a timeline to penalize the State for its
inexcusable delay in prosecuting cases already filed in courts. It can
therefore present compelling reasons to justify the revival of cases
beyond the 2-year bar.
54

In light of the lack of or the conflicting evidence on the various

requirements to determine the applicability of Section 8, Rule 117,
this Court is not in a position to rule whether or not the re-filing of
the cases for multiple murder against respondent Lacson should be
enjoined. Fundamental fairness requires that both the prosecution
and the respondent Lacson should be afforded the opportunity to be
heard and to adduce evidence on the presence or absence of the
predicate facts upon which the application of the new rule depends.
They involve disputed facts and arguable questions of law. The
reception of evidence on these various issues cannot be done in this
Court but before the trial court.
IN VIEW OF THE FOREGOING, the case at bar is remanded to
the RTC - Quezon City, Branch 81 so that the State prosecutors and
the respondent Lacson can adduce evidence and be heard on
whether the requirements of Section 8, Rule 117 have been
complied with on the basis of the evidence of which the trial court
should make a ruling on whether the Informations in Criminal
Cases Nos. 01-101102 to 01-101112 should be dismissed or not.
Pending the ruling, the trial court is restrained from issuing any
warrant of arrest against the respondent Lacson. Melo and Carpio,
JJ., take no part.
SO ORDERED.

CRIMINAL PROCEDURE

55