ON THE CONTINUATION OF HEARING DESPITE THE ABSENCE OF PUBLIC

PROSECUTOR IN THE TRIAL COURT

Four Judges and seventy court employees charged Judge A with multiple counts of
Gross Ignorance of the Law for allowing the hearing of the cases without a public
prosecutor in certain trial days. Judge A authorized the prosecution of a criminal case
docketed as M-PSY- 12-3456789-CR as well as archived a criminal case docketed as
M-PSY-23-45678901-CR without the presence of the Public Prosecutor. The private
prosecutor, Atty. B proceeded to prosecute the case without the public prosecutor.
The Office of the City Prosecutor has direct control and supervision in the prosecution of
criminal cases. Deliberate disobedience to this fundamental rule amounts to gross
ignorance of the law. Also, the seventy four complainants alleged that in criminal case
no. M-PSY-09-87654321-CR, Judge A authorized the change of plea of an accused
from not guilty to guilty in the absence of a public prosecutor thus in violation of the
following rules, to wit:

Section 5, Rule 110 of the Revised Rules of Criminal Procedure:

Sec. 5. Who must prosecute criminal actions. All criminal actions commenced by a
complaint or information shall be prosecuted under the direction and control of the
prosecutor. However, in Municipal Trial Courts or Municipal Circuit Trial Courts when
the prosecutor assigned thereto or to the case is not available, the offended party, any
peace officer, or public officer charged with the enforcement of the law violated may
prosecute the case. This authority shall cease upon actual intervention of the prosecutor
or upon elevation of the case to the Regional Trial Court.

Did Judge A commit multiple counts of Gross Ignorance of the Law? The answer is in
the negative.

There was no Gross Ignorance of the Law committed when Judge A allowed the trial
to proceed in the absence of public a prosecutor. The presence of a public prosecutor
can be waived. Trial can proceed without a public prosecutor as held in People vs.
Arcilla, GR No. 116237, May 15, 1996; Bravo vs. CA, GR No. L-48772, May 8, 1992;
and People vs. Malinao et al., GR No. L-63735, April 5, 1990.

Anent to the issue of the waiver of the presence of a public prosecutor in a trial, it was
held in People vs. Malinao et al., GR No. L-63735, April 5, 1990, the Supreme Court
through its ponente , Justice Carolina Grino- Aquino held, Neither was the absence of
the fiscal at the trial on February 27, 1980, prejudicial to the accused for only Dr.
Nicanor L. Tansingco was presented to testify on his autopsy report on the deceased
Manang. Since no objection was interposed by appellants counsel, Atty. Paulino
Cabello, either to Dr. Tansingcos competency or his post mortem findings (Exh. A), the
doctors testimony was dispensed with (p. 3, tsn, February 27, 1980). The defense
likewise waived the fiscals presence on that date.

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In Bravo vs. CA, GR No. L-48772, May 8, 1992: Finally, petitioner contends that there
was no fiscal who was physically present during the proceedings of the libel cases since
the entire evidence for the prosecution was presented by a private prosecutor who had
no express authority from the fiscal to represent the State, thereby rendering the entire
trial invalid as enunciated in the case of People vs. Beriales, 70 SCRA 361 (1976).
Petitioner is in error.

In People vs. Arcilla, GR No. 116237, May 15, 1996: To be sure, appellant
misappreciates the reason requiring the public prosecutor to be present in the trial of
criminal cases. A crime is an offense against the State, and hence is prosecuted in the
name of the People of the Philippines. For this reason, Section 5 of Rule 110 provides
that "all criminal actions either commenced by complaint or by information shall be
prosecuted under the direction and control of the fiscal x x x." Only private crimes like
adultery, concubinage, seduction, abduction, rape or acts of lasciviousness can be
prosecuted at the instance of the offended party. The presence of a public prosecutor in
the trial of criminal cases is necessary to protect vital state interests at stake in the
prosecution of crimes, foremost of which is its interest to vindicate the rule of law, the
bedrock of peace of the people. As the representative of the State, the public prosecutor
has the right and the duty to take all steps to protect the rights of the People in the trial
of an accused. It ought to be self-evident that the right belongs to the public prosecutor
and not to the accused. The absence of a prosecutor cannot therefore be raised by
an accused to invalidate the testimony of a state witness if he cannot prove
personal prejudice as in the case at bar.

The public prosecutor received the trial courts orders, he or she did not file any motion
to question the waiver of his or her presence during the trial. Moreover, there was no
sufficient justification of his or her absence, his or her reason for not attending came late
to the attention of the trial court. His or her subsequent attendance to the hearing
removed any doubt as to the invalidity of the proceedings attended by the private
prosecutor who secured written authority to prosecute from the Office of the City
Prosecutor thereafter. The private prosecutor also made a meritorious explanation why
he obtained late the written authority to prosecute, it was not his fault. There was no
prejudice to the State, a requirement before a trial court will be held administratively
liable. More importantly, seventy- four (74) complainants failed to produce proof of bad
faith on Judge As part for allowing the continuation of hearing without a public
prosecutor for which notice was given to the Office of the City Prosecutor informing it
that the right to prosecute can be waived citing People vs. Arcilla, GR No. 116237,
May 15, 1996; Bravo vs. CA, GR No. L-48772, May 8, 1992; and People vs. Malinao
et al., GR No. L-63735, April 5, 1990.

Seventy-four complainants have no legal personalities to question the surreptitiously

taken, without permission at all, the order, minutes and transcript of stenographic notes
of a trial court as pieces of evidence for the charge of gross ignorance of the law and
procedure against it because the Supreme Court held that the filing of an administrative
complaint is not a proper remedy for the correction of actions of a judge perceived to
have gone beyond the norms of propriety, where a sufficient judicial remedy exists
(Fernandez vs. Versola AM No. CA -04-40, 13 August 2004; Cortes vs. Chico
Nazario Am no. SB 04-11-J, February 13, 2004). Now the established doctrine and

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policy is that disciplinary proceedings and criminal actions against Judges are not
complementary or suppletory of, nor a substitute for, these judicial remedies, whether
ordinary or extraordinary. Resort to exhaustion of these judicial remedies, as well as the
entry of judgment in the corresponding action or proceeding, are pre-requisites for the
taking of other measures against the persons of the judges concerned, whether of civil,
administrative or criminal nature. It is only after the available judicial remedies have
been exhausted and the appellate tribunals have spoken with finality, that the door to an
inquiry into his criminal, civil or administrative liability may said to have opened or
closed (Flores vs. Abesamis AM no. SC -96-1, July 10, 1997).

Moreover, the order, minutes and transcript of stenographic notes dated March 22,
2011 are the result of the act of this Court in its official capacity. The acts of a judge in
an official capacity are not subject to disciplinary action even though such acts may be
erroneous, provided he acts in good faith and without malice (Flores vs. Adefuin-De
La Cruz, AM no. CA-04-39, October 4, 2004).

The actual case is OCA IPI No. 11-2378-MTJ Judge Bibiano Colasito, Vice Executive
Judge Bonifacio Pascua, Judge Restituto Mangalindan Jr. , Judge Catherine Manodon,
Miguel Infante, Emma Annie Arafiles, Racquel Diano, Pedro Doctolero Jr., Lydia Casas,
Auxencio Clemente, Ma. Cecilia Gertrudes R. Salvador, Zenaida N. Geronimo, Virginia
D. Galang, Elsa Garnet, Amor Abad, Emelina J. San Miguel, Maxima C. Sayo, Romer
H. Aviles, Froilan Robert L. Tomas, Dennis M. Echegoyen, Norman Garcia, Noel Labid,
Eleanor N. Bayog, Leilani A. Tejero Lopez, Ana Maria V. Francisco, Soledad J.
Bassig, Marissa Mashhoor Rastgooy, Marie Luz M. Obida, Evelyn P. Depalobos,
Joseph B. Pamatmat, Zenaida N. Geronimo, Benjie V. Ore, Fortunato E. Diezmo,
Nomer B. Villanueva, Edwina A. Jurok, Fatima V. Rojas, Eduardo E. Ebreo, Ronalyn T.
Almarvez, Ma. Victoria C. Ocampo, Elizabeth Lipura, Mary Ann J. Cayanan, Manolo
Manuel E. Garcia, Petronilo C. Primacio Jr., Edward Eric Santos, Armina B. Almonte,
Elizabeth G. Villanueva, Erwin Russ B. Ragasa, Bien T. Camba, Marlon M. Suligan,
Chanda B. Tolentino, Ferdinand R. Molina, Lanie F. Aguinaldo, Jasmine L. Lindain,
Emilio P. Domine, Arnold P. Obial, Ricardo E. Lampitoc, Jerome H. Aviles, Ana Lea M.
Estacio, Cristina E. Lampitoc, Melanie DC Begasa, Evangeline M. Ching, Karla Mae
Pacunayen, Ronaldo S. Quijano, Domingo H. Hocosol, Edwin P. Ubana, Marvin O.
Balicuatro, Ma. Luz D. Dionisio, Maribel A. Molina, Sevilla B. Del Castillo, Aida Josefina
Ignacio, Benigno A. Marzan, Ignacio Gonzales, Lawrence D. Perez, and Edmundo
Vergara vs. Judge Eliza B. Yu
The Philippine Supreme Court sustained the legal arguments of Judge Eliza B. Yu.