Pilipinas Shell v. Romars International, G.R. No.

189669, February 16, 2015

The antecedent facts are as follow:

Petitioners received information that respondent was selling, offering for sale, or distributing liquefied
petroleum gas (LPG) by illegally refilling the steel cylinders manufactured by and bearing the duly
registered trademark and device of respondent Petron. Petron then obtained the services of a paralegal
investigation team who sent their people to investigate. The investigators went to respondent's
premises located in San Juan, Baao, Camarines Sur, bringing along four empty cylinders of Shellane,
Gasul, Total and Superkalan and asked that the same be refilled. Respondent's employees then refilled
said empty cylinders at respondent's refilling station. The refilled cylinders were brought to the
Marketing Coordinator of Petron Gasul who verified that respondent was not authorized to distribute
and/or sell, or otherwise deal with Petron LPG products, and/or use or imitate any Petron trademarks.
Petitioners then requested the National Bureau of Investigation (NBI) to investigate said activities of
respondent for the purpose of apprehending and prosecuting establishments conducting illegal refilling,
distribution and/or sale of LPG products using the same containers of Petron and Shell, which acts
constitute a violation of Section 168,[3] in relation to Section 170[4] of Republic Act (R.A.) No. 8293,
otherwise known as the Intellectual Property Code of the Philippines, and/or Section 2[5] of R.A. No.
623, otherwise known as An Act To Regulate the Use of Duly Stamped or Marked Bottles, Boxes, Casks,
Kegs, Barrels and Other Similar Containers.

The NBI proceeded with their investigation and reportedly found commercial quantities of Petron Gasul
and Shellane cylinders stockpiled at respondent's warehouse. They also witnessed trucks coming from
respondent's refilling facility loaded with Gasul, Shellane and Marsflame cylinders, which then deposit
said cylinders in different places, one of them a store called "Edrich Enterprises" located at 272 National
Highway, San Nicolas, Iriga City. The investigators then bought Shellane and Gasul cylinders from
Edrich Enterprises, for which they were issued an official receipt.

Thus, the NBI, in behalf of Petron and Shell, filed with the Regional Trial Court of Naga City (RTC-Naga),
two separate Applications for Search Warrant for Violation of Section 155.1,[6] in relation to Section
170[7] of R.A. No. 8293 against respondent and/or its occupants. On October 23, 2002, the RTC-Naga
City issued an Order granting said Applications and Search Warrant Nos. 2002-27 and 2002-28 were
issued. On the same day, the NBI served the warrants at the respondent's premises in an orderly and
peaceful manner, and articles or items described in the warrants were seized.

On November 4, 2002, respondent filed a Motion to Quash Search Warrant Nos. 2002-27 and 2002-28,
where the only grounds cited were: (a) there was no probable cause; (b) there had been a lapse of four
weeks from the date of the test-buy to the date of the search and seizure operations; (c) most of the
cylinders seized were not owned by respondent but by a third person; and (d) Edrich Enterprises is an
authorized outlet of Gasul and Marsflame. In an Order dated February 21, 2003, the RTC-Naga denied
the Motion to Quash.

However, on March 27, 2003, respondent's new counsel filed an Appearance with Motion for
Reconsideration. It was only in said motion where respondent raised for the first time, the issue of the
impropriety of filing the Application for Search Warrant at the RTC-Naga City when the alleged crime
was committed in a place within the territorial jurisdiction of the RTC-Iriga City. Respondent pointed out
that the application filed with the RTC-Naga failed to state any compelling reason to justify the filing of
the same in a court which does not have territorial jurisdiction over the place of the commission of the
crime, as required by Section 2 (b), Rule 126 of the Revised Rules of Criminal Procedure. Petitioner
opposed the Motion for Reconsideration, arguing that it was already too late for respondent to raise the
issue regarding the venue of the filing of the application for search warrant, as this would be in violation
of the Omnibus Motion Rule.

In an Order dated July 28, 2003, the RTC-Naga issued an Order granting respondent's Motion for
Reconsideration, thereby quashing Search Warrant Nos. 2002-27 and 2002-28.

Petitioner then appealed to the CA, but the appellate court, in its Decision dated March 13, 2009,
affirmed the RTC Order quashing the search warrants. Petitioner's motion for reconsideration of the CA
Decision was denied per Resolution dated September 14, 2009.

Elevating the matter to this Court via a petition for review on certiorari, petitioner presents herein the
following issues:

A.THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT VENUE IN AN APPLICATION FOR SEARCH
WARRANT IS JURISDICTIONAL. THIS IS BECAUSE A SEARCH WARRANT CASE IS NOT A CRIMINAL CASE.

B.THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT RESPONDENT'S MOTION TO QUASH IS NOT
SUBJECT TO THE OMNIBUS MOTION RULE AND THAT THE ISSUE OF LACK OF JURISDICTION MAY NOT BE
WAIVED AND MAY EVEN BE RAISED FOR THE FIRST TIME ON APPEAL.[8]

Petitioner's arguments deserve closer examination.

Section 2, Rule 126 of the Revised Rules of Criminal Procedure provides thus:

SEC. 2. Court where applications for search warrant shall be filed. - An application for search warrant
shall be filed with the following:

(a) Any court within whose territorial jurisdiction a crime was committed.

(b) For compelling reasons stated in the application, any court within the judicial region where the crime
was committed if the place of the commission of the crime is known, or any court within the judicial
region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court
where the criminal action is pending. (Emphasis supplied)

The above provision is clear enough. Under paragraph (b) thereof, the application for search warrant in
this case should have stated compelling reasons why the same was being filed with the RTC-Naga
instead of the RTC-Iriga City, considering that it is the latter court that has territorial jurisdiction over the
place where the alleged crime was committed and also the place where the search warrant was
enforced. The wordings of the provision is of a mandatory nature, requiring a statement of compelling
reasons if the application is filed in a court which does not have territorial jurisdiction over the place of
commission of the crime. Since Section 2, Article III of the 1987 Constitution guarantees the right of
persons to be free from unreasonable searches and seizures, and search warrants constitute a limitation
on this right, then Section 2, Rule 126 of the Revised Rules of Criminal Procedure should be construed
strictly against state authorities who would be enforcing the search warrants. On this point, then,
petitioner's application for a search warrant was indeed insufficient for failing to comply with the
requirement to state therein the compelling reasons why they had to file the application in a court that
did not have territorial jurisdiction over the place where the alleged crime was committed.

Notwithstanding said failure to state the compelling reasons in the application, the more pressing
question that would determine the outcome of the case is, did the RTC-Naga act properly in taking into
consideration the issue of said defect in resolving respondent's motion for reconsideration where the
issue was raised for the very first time? The record bears out that, indeed, respondent failed to include
said issue at the first instance in its motion to quash. Does the omnibus motion rule cover a motion to
quash search warrants?

The omnibus motion rule embodied in Section 8, Rule 15, in relation to Section 1, Rule 9, demands that
all available objections be included in a party's motion, otherwise, said objections shall be deemed
waived; and, the only grounds the court could take cognizance of, even if not pleaded in said motion
are: (a) lack of jurisdiction over the subject matter; (b) existence of another action pending between the
same parties for the same cause; and (c) bar by prior judgment or by statute of limitations.[9] It should
be stressed here that the Court has ruled in a number of cases that the omnibus motion rule is
applicable to motions to quash search warrants.[10] Furthermore, the Court distinctly stated in Abuan
v. People,[11] that "the motion to quash the search warrant which the accused may file shall be
governed by the omnibus motion rule, provided, however, that objections not available, existent or
known during the proceedings for the quashal of the warrant may be raised in the hearing of the motion
to suppress x x x."[12]

In accordance with the omnibus motion rule, therefore, the trial court could only take cognizance of an
issue that was not raised in the motion to quash if, (1) said issue was not available or existent when they
filed the motion to quash the search warrant; or (2) the issue was one involving jurisdiction over the
subject matter. Obviously, the issue of the defect in the application was available and existent at the
time of filing of the motion to quash. What remains to be answered then is, if the newly raised issue of
the defect in the application is an issue of jurisdiction.

In resolving whether the issue raised for the first time in respondent's motion for reconsideration was an
issue of jurisdiction, the CA rationcinated, thus:

It is jurisprudentially settled that the concept of venue of actions in criminal cases, unlike in civil cases, is
jurisdictional. The place where the crime was committed determines not only the venue of the action
but is an essential element of jurisdiction. It is a fundamental rule that for jurisdiction to be acquired by
courts in criminal cases, the offense should have been committed or any one of its essential ingredients
should have taken place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal
cases is the territory where the court has jurisdiction to take cognizance or to try the offense allegedly
committed therein by the accused. Thus, it cannot take jurisdiction over a person charged with an
offense allegedly committed outside of that limited territory.[13]

Unfortunately, the foregoing reasoning of the CA, is inceptionally flawed, because as pronounced by the
Court in Malaloan v. Court of Appeals,[14] and reiterated in the more recent Worldwide Web
Corporation v. People of the Philippines,[15] to wit:

x x x as we held in Malaloan v. Court of Appeals, an application for a search warrant is a "special

criminal process," rather than a criminal action:

The basic flaw in this reasoning is in erroneously equating the application for and the obtention of a
search warrant with the institution and prosecution of a criminal action in a trial court. It would thus
categorize what is only a special criminal process, the power to issue which is inherent in all courts, as
equivalent to a criminal action, jurisdiction over which is reposed in specific courts of indicated
competence. It ignores the fact that the requisites, procedure and purpose for the issuance of a search
warrant are completely different from those for the institution of a criminal action.

For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely constitutes process. A
search warrant is defined in our jurisdiction as an order in writing issued in the name of the People of
the Philippines signed by a judge and directed to a peace officer, commanding him to search for
personal property and bring it before the court. A search warrant is in the nature of a criminal process
akin to a writ of discovery. It is a special and peculiar remedy, drastic in its nature, and made necessary
because of a public necessity.

In American jurisdictions, from which we have taken our jural concept and provisions on search
warrants, such warrant is definitively considered merely as a process, generally issued by a court in the
exercise of its ancillary jurisdiction, and not a criminal action to be entertained by a court pursuant to its
original jurisdiction. x x x. (Emphasis supplied)

Clearly then, an application for a search warrant is not a criminal action. x x x[16] (Emphasis supplied)

The foregoing explanation shows why the CA arrived at the wrong conclusion. It gravely erred in
equating the proceedings for applications for search warrants with criminal actions themselves. As
elucidated by the Court, proceedings for said applications are not criminal in nature and, thus, the rule
that venue is jurisdictional does not apply thereto. Evidently, the issue of whether the application should
have been filed in RTC-Iriga City or RTC-Naga, is not one involving jurisdiction because, as stated in the
afore-quoted case, the power to issue a special criminal process is inherent in all courts.

Inferring from the foregoing, the Court deems it improper for the RTC-Naga to have even taken into
consideration an issue which respondent failed to raise in its motion to quash, as it did not involve a
question of jurisdiction over the subject matter. It is quite clear that the RTC-Naga had jurisdiction to
issue criminal processes such as a search warrant.
Moreover, the Court must again emphasize its previous admonition in Spouses Anunciacion v.
Bocanegra,[17] that:

We likewise cannot approve the trial court's act of entertaining supplemental motions x x x which raise
grounds that are already deemed waived. To do so would encourage lawyers and litigants to file
piecemeal objections to a complaint in order to delay or frustrate the prosecution of the plaintiff's cause
of action.[18]

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated March 13, 2009, and
the Resolution dated September 14, 2009 in CA-G.R. CV No. 80643 are REVERSED. The Order dated
February 21, 2003 issued by the Regional Trial Court of Naga, Camarines Sur, Branch 24, denying
respondent's motion to quash, is REINSTATED.

People v. Taroy, G.R. No. 192466, September 7, 2011

Hector Trenas v. People, G.R. No. 195002, January 25, 2012

Facts:

December 1999, Margarita Alocilja (Margarita) wanted to buy a house-and-lot in Iloilo City... mortgaged
with Maybank... bank manager Joselito Palma recommended the appellant Hector Treñas (Hector) to
private... complainant Elizabeth

Hector informed Elizabeth that for the titling of the property in the name of her aunt Margarita, the
following expenses

Elizabeth gave P150,000.00 to Hector who issued a corresponding receipt dated December 22, 1999 and
prepared [a] Deed of Sale with Assumption of Mortgage.

Hector gave Elizabeth Revenue Official Receipt Nos. 00084370 for P96,000.00 and 00084369 for

P24,000.00.BIR, she was informed that the receipts were fake. Elizabeth demanded the return of the
money. Hector issued in favor of Elizabeth a Bank of Commerce check No. 0042856 When the check was
deposited with the PCIBank, Makati Branch, the same was dishonored for the reason that the account
was closed. case of Estafa was filed against him. On 29 October 2001, an Information was filed by the
Office of the City Prosecutor before the Regional Trial Court (RTC), both of Makati City. petitioner asserts
that nowhere in the evidence presented by the prosecution does it show that P150,000 was given to and
received by petitioner in Makati City. the evidence shows that the Receipt issued by petitioner for the
money was dated 22 December 1999, without any indication of the place where it was issued.
Meanwhile, the Deed of Sale with Assumption of Mortgage prepared by petitioner was signed and
notarized in Iloilo City

The only time Makati City was mentioned was with respect to the time when the check provided by
petitioner was dishonored by Equitable-PCI Bank in its De la Rosa-Rada Branch in Makati. Petitioner
asserts that the prosecution witness... failed to allege that any of the acts material to the crime of estafa
had occurred in Makati City. Thus, the trial court failed to acquire jurisdiction over the case.

Petitioner thus argues that an accused is not required to present evidence to prove lack of jurisdiction,
when such lack is already indicated in the prosecution evidence.

Issues:

THE COURT OF APPEALS ERRED IN RULING THAT AN ACCUSED HAS TO PRESENT EVIDENCE IN SUPPORT
OF THE DEFENSE OF LACK OF JURISDICTION EVEN IF SUCH LACK OF JURISDICTION APPEARS IN THE
EVIDENCE OF THE PROSECUTION;

Ruling:

the findings of fact of the trial court and the CA on the issue of the place of commission of the offense
are conclusions without any citation of the specific evidence on which they are based; they are
grounded on conclusions and conjectures.

In Fukuzume v. People,[19] this Court dismissed a Complaint for estafa, wherein the prosecution failed
to prove that the essential elements of the offense took place within the trial court's jurisdiction.

In this case, the prosecution failed to show that the offense of estafa under Section 1, paragraph (b) of
Article 315 of the RPC was committed within the jurisdiction of the RTC of Makati City.

That the offense was committed in Makati City was alleged in the information... would have been
sufficient to vest jurisdiction in the RTC of Makati. However, the Affidavit of Complaint executed by
Elizabeth does not contain any allegation as to where the offense was committed.

Aside from the lone allegation in the Information, no other evidence was presented by the prosecution
to prove that the offense or any of its elements was committed in Makati City.

Although the prosecution alleged that the check issued by petitioner was dishonored in a bank in
Makati, such dishonor is not an element of the offense of estafa under Article 315, par. 1 (b) of the RPC.

It has been consistently held by this Court that it is unfair to require a defendant or accused to undergo
the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense or it is
not the court of proper venue.

This principle echoes more strongly in this case, where, due to distance constraints, coupled with his
advanced age and failing health, petitioner was unable to present his defense in the charges against him.

There being no showing that the offense was committed within Makati, the RTC of that city has no
jurisdiction over the case.

this Court sees it fit to note that the Code of Professional Responsibility strongly militates against the
petitioner's conduct in handling the funds of his client.
In Cuizon v. Macalino,[35] this Court ruled that the issuance of checks which were later dishonored for
having been drawn against a closed account indicates a lawyer's unfitness for the trust and confidence
reposed on him, shows lack of personal... honesty and good moral character as to render him unworthy
of public confidence, and constitutes a ground for disciplinary action.

This case is thus referred to the Integrated Bar of the Philippines (IBP) for the initiation of disciplinary
proceedings against petitioner. the Petition is GRANTED

The Decision... issued by the Court of Appeals... are SET ASIDE on the ground of lack of jurisdiction on
the part of the Regional Trial Court, Branch 137, Makati City.

DISMISSED without prejudice. This case is REFERRED to the IBP Board of Governors for investigation and
recommendation pursuant to Section 1 of Rule 139-B of the Rules of Court.

Principles:

in criminal cases, venue is jurisdictional. A court cannot exercise jurisdiction over a person charged with
an offense committed outside its limited territory

In Isip v. People,[18]... this Court explained:

The place where the crime was committed determines not only the venue of the action but is an
essential element of jurisdiction.

It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases, the offense should
have been committed... or any one of its essential ingredients should have taken place within the
territorial jurisdiction of the court.

the territory where the court has jurisdiction to take cognizance or to try the offense allegedly
committed therein by... the accused

Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in the
complaint or information.

And once it is so shown, the court may validly take cognizance of the case. However, if the evidence
adduced during the trial shows that the offense was committed somewhere else, the court should
dismiss the action for want of jurisdiction.

G. Jurisdiction to Issue Hold Departure Orders (Regular Courts Distinguished with the Sandiganbayan)

CASES:

Father Reyes v. Court of Appeals, G.R. No. 182161, December 3, 2009

Facts:
Petitioner was among those arrested in the Manila Peninsula Hotel siege... petitioner together with fifty
(50) others, were brought to Camp Crame to await inquest proceedings... conducted inquest
proceedings to ascertain whether or not there was probable cause to hold petitioner and the others for
trial on charges of Rebellion... and/or Inciting to Rebellion. include in the Hold Departure List of the
Bureau of Immigration and Deportation (BID) the name of petitioner and 49 others relative to the
aforementioned case in the interest of national security and public safety.

after finding probable cause against petitioner and 36 others for the crime of Rebellion under Article 134
of the Revised Penal Code, the DOJ Panel of Prosecutors filed an Information docketed as I.S. No. 2007-
1045 before the Regional Trial Court, Branch 150... of Makati City.

petitioner filed a Motion for Judicial Determination of Probable Cause and Release of the Accused Fr.
Reyes

DOJ panel failed to produce any evidence indicating his specific participation in the crime charged;

RTC issued an Order dismissing the charge for Rebellion against petitioner and 17 others for lack of
probable cause.

failed to show that petitioner... and the other accused-civilians conspired and confederated with the
accused-soldiers in taking arms against the government; that petitioner and other accused-civilians were
arrested because they ignored the call of the police despite the deadline given to them to come out
from... the 2nd Floo... petitioner filed the instant petition claiming that despite the dismissal of the
rebellion case against petitioner, HDO No. 45 still subsists; that on December 19, 2007, petitioner was
held by BID officials at the NAIA as his name is included in the Hold

Departure List;... ime... petitioner would present himself at the NAIA for his flights abroad, he stands to
be detained and interrogated by BID officers because of the continued inclusion of his name in the Hold
Departure List

Secretary of Justice has not acted on his request for the... lifting of HDO No. 45. Petitioner further
maintained that immediate recourse to the Supreme Court for the availment of the writ is exigent as the
continued restraint on petitioner's right to travel is illegal.

lifting of HDO No. 45 is premature in view of public respondent's pending Motion for Reconsideration...
petitioner failed to exhaust administrative remedies by filing a motion to lift HDO No. 45 before the DOJ;

Secretary of the DOJ's power to issue HDO springs from its mandate under the Administrative Code to
investigate and prosecute offenders as the principal law agency of the government; that in its... ten-year
existence, the constitutionality of DOJ Circular No. 17 has not been challenged except now

DOJ Panel of Investigating Prosecutors had filed a Motion for Reconsideration of the Order of Dismissal
of the trial court.
petitioner filed a Manifestation attaching thereto a copy of the Order dated January 31, 2008 of the trial
court denying respondent DOJ's Motion for Reconsideration for utter lack of merit. The trial court also
observed that the said Motion should be... dismissed outright for being filed out of time.

The petition for a writ of amparo is anchored on the ground that respondents violated petitioner's
constitutional right to travel. Petitioner argues that the DOJ Secretary has no power to issue a Hold
Departure Order (HDO) and the subject HDO No. 45 has no legal basis... since Criminal Case No. 07-3126
has already been dismissed.

CA rendered the assailed Decision dismissing the petition and denying the privilege of the writ of
amparo.

present petition which... whether or not petitioner's right to liberty has been violated or threatened
with violation by the issuance of the subject HDO, which would entitle him to the privilege of the writ of
amparo.

Issues:

whether or not petitioner's right to liberty has been violated or threatened with violation by the
issuance of the subject HDO, which would entitle him to the privilege of the writ of amparo.

Ruling:

The petition must fail.

He insists that he is entitled to the protection covered by the Rule on the Writ of Amparo because the
HDO is a continuing actual restraint on his... right to travel. The Court is thus called upon to rule whether
or not the right to travel is covered by the Rule on the Writ of Amparo.

The right to travel refers to the right to move from one place to another.

restriction on petitioner's right to travel as a consequence of the pendency of the criminal case filed
against him was not unlawful. Petitioner has also failed to establish that his right to travel was impaired
in the manner and to the extent that it amounted to a... serious violation of his right to life, liberty and
security, for which there exists no readily available legal recourse or remedy.

Court will also not waste its precious time and effort on matters not covered by the writ.

petitioner should have filed with the RTC-Makati a motion to lift HDO No. 45 in Criminal Case No. 07-
3126. Petitioner, however, did not file in the RTC-Makati a motion to lift the DOJ's HDO, as his co-
accused did in the same criminal... case.

he has failed to show any clear threat... to his right to liberty actionable through a petition for a writ of
amparo. The absence of an actual controversy also renders it unnecessary for us on this occasion to pass
upon the constitutionality of DOJ Circular No. 17, Series of 1998... petition is DISMISSED. The assailed
Decision of the CA dated February 4, 2008 in CA-G.R. No. 00011 is hereby AFFIRMED.
Principles:

categorical pronouncement that the Amparo Rule in its present form is confined to these two instances
of "extralegal killings" and "enforced disappearances," or to... threats thereof,... As the Amparo Rule was
intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its
coverage, in its present form, is confined... rule on the writ of amparo

It is intended to address violations of or threats to the rights to life, liberty or security, as an

extraordinary and independent remedy beyond those available under the prevailing Rules, or as a
remedy supplemental to these Rules. What it is not, is a writ to... protect concerns that are purely
property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds.

supported by justifying allegations of fact, to wit:

"(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat, act or omission,
or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by
an unlawful act or omission of the respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of
the investigating authority or individuals, as well as the manner and conduct of the investigation,
together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for.rights that fall within the protective mantle of the Writ of Amparo under Section
1 of the Rules thereon are the following: (1) right to life; (2) right to liberty; and (3) right to security.

Mondejar v. Buban, A.M. No. MTJ-01-1349, July 12, 2001

Complainant Bernadette Mondejar charged Judge Marino S. Buban, MTCC, Tacloban City, with
grossignorance of the law, partiality, serious irregularity and grave misconduct relative to Criminal Case
No. 98-07-CR-133 entitled

"People of the Philippines v. Bernadette Mondejar and Arlette Mondejar" for violation of Batas
Pambansa Blg. 22 .She alleged that respondent judge issued a "hold departure order" against her on
October 23, 1998 inviolation of Supreme Court Circular No. 39-97 which provides that

"hold departure orders" shall beissued ONLY in CRIMINAL CASES within the exclusive jurisdiction of the
Regional Trial Courts.
 She further alleged that respondent judge did not give her an opportunity to be heard before issuing
thequestioned order. When required to comment on the matter, respondent judge admitted having
issued saidorder because he was not aware of the Supreme Court Circular No. 39-97. He alleged that he
was notfurnished a copy of the circular and managed to secure a copy only after he instructed his legal
researcher toget one from the Executive Judge of the Regional Trial Court of Tacloban City. Accordingly,
on April 14, 1997,he issued an order lifting and setting aside the hold departure order dated October 23,
1998. As regards theissue of denial of due process, respondent judge averred that complainant and her
counsel were duly notifiedof the scheduled hearing but neither appeared on said date

ISSUES:

Whether or not respondent judge erred in issuing the assailed “hold departure order”

HELD:

YES, the respondent judge erred. It was not within his jurisdiction to issue a hold departure order as an
MtCC judge because the RTC has exclusive jurisdiction of issuing hold departure orders for criminal
cases.

Mupas v. Espanol, A.M. No. RTJ-04-1850, July 14, 2004

H. Precautionary Hold Departure Order-A.M. No. 07-05-5C

I. Jurisdiction is conferred by law and determined by the allegations of the Complaint

CASES:

Dazon v. yap, G.R. No. 157095, January 15, 2010

Facts:

Respondent Kenneth Y. Yap was the president of Primetown Property Group, Inc.,... the developer of
Kiener Hills Mactan Condominium, a low-rise condominium project.

petitioner Ma. Luisa G. Dazon entered into a contract... with

Primetown for the purchase of Unit No. C-108 of the said condominium project.

Petitioner made a downpayment and several installment payments, totaling P1,114,274.30.

Primetown, however, failed to finish the condominium project. Thus,... petitioner demanded for the
refund of her payments from Primetown, pursuant to Section 23... of Presidential Decree (PD) No. 957
(1976), otherwise known as "The Subdivision and Condominium Buyers' Protective Decree". Primetown
failed to refund petitioner's... payments.

petitioner filed a criminal complaint with the Office of the City Prosecutor of Lapu-Lapu City against
respondent as president of Primetown
Subsequently... an Information... was filed with the RTC of Lapu-Lapu City... respondent, in connection
with the resolution finding probable cause filed a Petition for Review with the Department of Justice
(DOJ).

DOJ rendered a Resolution... ordering the trial prosecutor to cause the withdrawal... of the Information.
Hence, the prosecutor filed a Motion to Withdraw Information

RTC... granted

DOJ Resolution... was, not... that there was lack of probable cause but, the finding that it is the HLURB
that has jurisdiction over Hie case.

Issues:

Whether or not a regional trial court has jurisdiction over a criminal action arising from violation of PD
957

Ruling:

As early as in the case of Solid Homes, Inc. vs. Payawal, 177 SCRA 72, the Supreme Court had ruled that
the Housing and Land Use Regulatory Board (HLURB) has exclusive jurisdiction over cases involving real
estate business and practices under PD 957.

Jurisdiction is" conferred by law and determined by the material averments in the complaint as well as
the character of the relief sought.

The scope and limitation of the jurisdiction of the HLURB are well-defined.

Its precusor, the National Housing Authority (NHA)... was... vested under PD 957 with exclusive
jurisdiction to regulate the real estate trade and business

Its jurisdiction was later expanded under PD 1344 (1978) to include adjudication of certain cases, to wit:

Sec. 1. In the exercise of its functions to regulate the real estate trade and business and in addition to its
powers provided for in Presidential Decree No. 957, the National Housing Authority shall have the
exclusive jurisdiction to hear and decide cases of... the following nature:... a) Unsound real estate
business practices;... b) Claims involving refund and any other claims filed by subdivision lot or
condominium unit buyer against the project owner, developer, dealer, broker or salesman; and... c)
Cases involving specific performance of contractual and statutory obligations filed by buyers of
subdivision lot or condominium unit against the owner, developer, dealer, broker or salesman. (Italics
supplied)

Noticeably, cases that are criminal in nature are not mentioned in the enumeration quoted... above.
The primordial function of the HLURB, after all, is the regulation of the real estate trade and business
and not the conviction and punishment of criminals.
Administrative agencies being tribunals of limited jurisdiction can only wield such powers as are
specifically granted to them by their enabling statutes. PD 957 makes the following specific grant of
powers to the NHA (now HLURB) for the imposition of administrative... fines, and it also mentions
penalties for criminal cases

Having limited, under Section 38 of PD 957, the grant of power to the former NHA, now HLURB, over the
imposition of fines to those which do not exceed ten thousand pesos, it is clear that the power in
relation to criminal liability mentioned in the immediately succeeding... provision, to impose, upon
conviction, fines above ten thousand pesos and/or imprisonment, was not conferred on it.

Not having been specifically conferred with power to hear and decide cases which are criminal in nature,
as well as to impose penalties therefor, we find that the HLURB has no jurisdiction over criminal actions
arising from violations of PD 957.

On the other hand, BP Big. 129 states: Sec. 20. Jurisdiction in Criminal Cases. - Regional Trial Courts shall
exercise exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any
court, tribunal or body, except those now falling under the exclusive and concurrent... jurisdiction of the
Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter.

Based on the above-quoted provision, it is the RTC that has jurisdiction over criminal cases arising from
violations of PD 957.

WHEREFORE, the petition is GRANTED

The said Court is DIRECTED to proceed with the arraignment... of the respondent and to hear the case
with dispatch.

Foz v. People, October 9, 2009, G.R. No. 167764

Buaya v. Polo, (“Rule on Precautionary Hold Departure Order), G.R. No. 75079, January 26,
1989
Facts: 
Buaya was an insurance agent of Country Bankers Insurance Corporation (CBIC) and was
authorized to collect premiums for and in behalf of CBIC then make a report and accounting of
the transactions and remit the same to the principal office of CBIC in Manila. However, an audit
of Buaya‟s account showed that there was a shortage in the amount of P358,850. As a result,
she was charged with estafa before the RTC of Manila. Buaya filed a Motion to Dismiss, claiming
that the RTC of Manila has no jurisdiction because she is based in Cebu City and necessarily the
funds she allegedly misappropriated were collected in Cebu City. She also contends that the
subject matter of this case is purely civil in nature. Judge Polo, however denied the motion to
dismiss.
Issue:
Does the RTC of Manila have jurisdiction to try the criminal case against Buaya?

Held:
Yes. The jurisdiction of courts in criminal cases is determined by the allegations of the
complaint or information, and not by the findings the court may make after the trial. Section
14(a), Rule 110 of the Revised Rules of Court provides: "In all criminal — prosecutions the
action shall be instituted and tried in the court of the municipality or province wherein the
offense was committed or any of the essential elements thereof took place."

The subject information charges petitioner with estafa committed "during the period 1980 to
June 15, 1982 inclusive in the City of Manila, Philippines . . . ." Clearly then, from the very
allegation of the information the Regional Trial Court of Manila has jurisdiction.

Besides, the crime of estafa is a continuing or transitory offense which may be prosecuted at
the place where any of the essential elements of the crime took place. One of the essential
elements of estafa is damage or prejudice to the offended party. The private respondent has its
principal place of business and office at Manila. The failure of the petitioner to remit the
insurance premiums she collected allegedly caused damage and prejudice to private
respondent in Manila.

Anent petitioners other contention that the subject matter is purely civil in nature, suffice it to
state that evidentiary facts on this point have still to be proved. 

U.S. v. Gallejos, G.R. No. 12739, December 8, 1917

The complaint charges the defendant with the crime of seduction (estupro) of a woman over 12 and
under 23 years of age, as denned and penalized in article 443 of the Penal Code, which is as follows:

"The seduction of a virgin over 12 and under 23 years of age, committed by any public authority, priest,
servant, domestic, guardian, teacher, or by any person in charge of her education or guardianship, under
any name whatsoever, shall be punished with the penalty of prision correctional in its minimum and
medium degrees.

"Whosoever shall commit incest with his sister or descendant, even though she were older than 23
years of age, shall incur the same penalty.

"Seduction, when committed with fraud by any other person on a woman over 12 years of age, but
under 23, shall be punished with the penalty of arresto mayor.

"Any other unchaste abuse committed by the same persons and under similar circumstances shall be
punished with the same penalty."
It is alleged that the defendant seduced Teofila Sevilla under promise of marriage early in the year 1902,
at which time she was less than 21 years of age. The complaint was not filed until February, 1906, when
she was more than 24 though less than 25 years of age, and was signed, sworn, and submitted by one
Esteban Sevilla, at whose "instance" these proceedings were had, he appearing as the private
prosecutor and alleging that he is the father of the said Teofila Sevilla.

The facts as to the age of the woman were developed at the trial of the case and are not controverted.

We think that since the complaint was not filed until after the offended party had attained her majority,
criminal proceedings based on the alleged seduction could only be instituted and maintained at her
"instance," and she, and she alone, could file a complaint which would give the trial court jurisdiction
over the offense charged. The complaint having been filed by her father, at whose instance the
proceedings in this case were had, the trial court had no jurisdiction over the offense charged, and its
judgment of conviction should be reversed and the complaint upon which it was based dismissed.
Article 448 of the Penal Code is as follows:

"Criminal proceedings for seduction can only be instituted on the complaint of the offended person or
her parents, grandparents, or guardian.

"In order to proceed in cases of rape, and in those of abduction committed with unchaste design, the
denunciation of the. interested party, her parents, grandparents, or guardians, shall suffice even though
they do not present a formal petition to the judge.

"If the person injured should, by reason of her age or mental condition, lack the requisite personality to
appear in court, and should, besides, be wholly unprotected, not having parents, grandparents,
brothers, or guardian of person or property to denounce the crime, the procurador sindico or the public
prosecutor may do so, acting on the strength of public rumor.

"In all the cases of this article the express or implied pardon of the offended party shall extinguish penal
action or the penalty, if it should have been already imposed on the culprit.

"The pardon shall never be presumed, except by the marriage of the offended party with the offender."

It is contended that these provisions authorize the institution of criminal proceedings by the father in all
cases of seduction because the offense can only be committed upon a woman under age and legally
incapacitated to institute criminal proceedings on her own behalf. But if the father does not institute
such proceedings until after his daughter has attained full age, we are of opinion that he loses the right
so to do, and that this right vests exclusively in the offended party, unless, of course, there is some legal
impediment, not arising out of nonage, which prevents her from maintaining such criminal action.

The right to institute criminal proceedings in cases of seduction could not be reposed in the offended
person, her parents, grandparents, and guardian, at one and the same time, without occasioning grave
difficulties in the administration of justice, resulting from the attempts of some of these persons to
institute criminal proceedings contrary to the wish and desire of the others; and that this was not the
intention of the lawmaker becomes manifest in the light of the peculiar provisions of the above-cited
article of the Penal Code, whereby the offended party is given the right to pardon the offender and thus
extinguish and destroy the cause of the criminal action, or remit the penalty prescribed by law, where
judgment of conviction has been actually pronounced and sentence imposed.

Hence, although these persons are mentioned disjunctively, the above provision of the Penal Code must
be construed as meaning that the right to institute criminal proceedings in cases of seduction is
exclusively and successively reposed in these persons in the order in which they are named, so that no
one of them has authority to proceed if there is any other person previously mentioned therein with
legal capacity to appear and institute the action.

This construction of the law imposes upon the woman the obligation and the right to determine
whether criminal proceedings shall be instituted for seduction, if it appears that she is of age? and is not
otherwise legally incapacitated from appearing in court to maintain the action at the time when it is
proposed to institute such proceedings.

Under the provisions of the Civil Code, a woman 23 years old is of age. From that period she is in the full
possession of her civil rights, save only in certain exceptional cases expressly prescribed in the code. The
right to appear and prosecute or defend an action in the courts is not one of these exceptions and,
indeed, it is inherent to the full exercise of civil rights. (For the purpose of this decision it is not
necessary to consider the effect of American legislation as modifying this provision by reducing the
number of years at which a woman becomes of age.)

Since the offended party in this case was over 23 but less than 25 years of age at the time when the
complaint was filed, it may be well to add that article 321 of the Civil Code, which is as follows

"* * * Daughters of the family who are of full age but less than 25 years old can not abandon the
paternal roof without permission of the father or of the mother in whose company they live, unless it be
to marry, or when the father or mother have contracted another marriage" does not imply a limitation
to the right of a woman of full age to appear and defend an action, nor confer authority upon the father
to appear for and instead of his daughter in legal proceedings, for this article, since it confers
exceptional authority on the father, must be construed strictly and should not be extended beyond its
own proper terms and the object and purposes indicated therein. (Decision of the supreme court of
Spain, October 13,1890.) Counsel for the prosecution insists that since no objection was made to the
complaint in the court below, the appellant is not entitled to raise an objection thereto for the first time
in this court, and should be held to have waived such objection by his failure to urge it in the trial court.
In support of this contention, he cites the case of the United States vs. Sarabia (4 Phil. Rep., 566),
wherein this court, adopting the general rule in the United States, that an objection to the complaint to
be available in the appellate court must have been raised below, held "that no objection to a complaint
based upon a defective statement,.either in the matter of form or substance of

It is to be observed, however, that under the provisions of the above-cited article 448 of the Penal Code,
jurisdiction over the crime of seduction is expressly denied the trial court unless such jurisdiction be
conferred by one of certain persons specified in the law; in this case, as we have seen, by the offended
person herself. The objection in this case is not, strictly speaking, to the sufficiency of the complaint, but
goes directly to the jurisdiction of the court over the crime with which the accused was charged. It has
been frequently held that a lack of jurisdiction over the subject-matter is fatal, and subject to objection
at any stage of the proceedings, either in the court below or on appeal (Ency. of PI. & Pr., vol. 12, p. 189,
and large array of cases there cited), and, indeed, where the subject-matter is not within the jurisdiction,
the court may dismiss the proceeding ex mero motu, (4 I11., 133;[1] 190 Ind., 79; Chipman vs.
Waterbury, 59 Conn., 496.)

Jurisdiction over the subject-matter in a judicial proceeding is conferred by the sovereign authority
which organizes the court; it is given only by law and in the manner prescribed by law and an objection
based on the lack of such jurisdiction can not be waived by the parties. Hence, the accused in a criminal
case can not, by express waiver or otherwise, confer jurisdiction on a court over an offense as to which
such jurisdiction has not been conferred upon such court by law. (Harkness vs. Hyde, 98 U. S., 476;
Nazos vs. Cragin, 3 Dill (U. S.), 474; 3 Tex., 157;[1] 5 Mich., 331;[2] Ohio St., 223;[3] 82 Wis., 644; 91 111.,
311.[4])

Counsel further contends that since the offended party appeared in court and testified, she may be said
to have instituted the proceedings, as provided in article 448, although the complaint is signed and
sworn to by her father. It may be sufficient answer to this contention to point out that there is nothing
in the record to indicate that the proceedings were, in fact, had at the instance of the daughter rather
than the father, the fact that she appeared and gave testimony not justifying such conclusion because,
being duly subpoenaed, she would have been compelled so to do whether she appeared voluntarily or
otherwise; but, as has been shown before, the provisions of article 448 are so explicit and so positive
that even though it appears that she had, in fact, taken an active part in all the proceedings, this would
not be sufficient unless the complaint was submitted and the action formally maintained by her. That
this is the meaning of the provisions of the said article becomes clear upon a comparison of the
language used as to proceedings for seduction and proceedings in a case of rape. In proceedings for
seduction the language used expressly provides that they can only be instituted and maintained on the
complaint (a instancia) of the persons therein mentioned; while in cases of rape and those of abduction
committed with dishonest designs, the denunciation (la denuncia) of the interested party, or her
parents, grandparents, or guardian, shall suffice, "though they do not present a formal complaint to the
judge" (aunque no formalicen instancias). (U. S. vs. Santos, 4 Phil. Rep., 527.)

The judgment of conviction of the trial court should be, and is hereby, reversed and the complaint
instituted in these proceedings should be, and is hereby, dismissed, with the costs de oficio. So ordered.

Arellano, C. J., Torres, Johnson, Willard and Tracey, JJ., concur.

U.S. v Reyes, G.R. No. 472, April 28, 1902 (Juris not conferred by consent)

Republic v. Asuncion 23, SCRA 211, March 11, 1994

J. Jurisdiction over continuing crimes

K. Jurisdiction of the Ombudsman

CASES:

Department of Justice v. Liwag, February 11, 2005, G.R. No. 149311

Lazatin v. Desierto, June 5, 2009, G.R. no. 147097

The antecedent facts are as follows.

On July 22, 1998, the Fact-Finding and Intelligence Bureau of the Office of the Ombudsman filed a
Complaint-Affidavit docketed as OMB-0-98-1500, charging herein petitioners with Illegal Use of Public
Funds as defined and penalized under Article 220 of the Revised Penal Code and violation of Section 3,
paragraphs (a) and (e) of Republic Act (R.A.) No. 3019, as amended.

The complaint alleged that there were irregularities in the use by then Congressman Carmello F. Lazatin
of his Countrywide Development Fund (CDF) for the calendar year 1996, i.e., he was both proponent and
implementer of the projects funded from his CDF; he signed vouchers and supporting papers pertinent
to the disbursement as Disbursing Officer; and he received, as claimant, eighteen (18) checks amounting
to P4,868,277.08. Thus, petitioner Lazatin, with the help of petitioners Marino A. Morales, Angelito A.
Pelayo and Teodoro L. David, was allegedly able to convert his CDF into cash.

A preliminary investigation was conducted and, thereafter, the Evaluation and Preliminary Investigation
Bureau (EPIB) issued a Resolution[2] dated May 29, 2000 recommending the filing against herein
petitioners of fourteen (14) counts each of Malversation of Public Funds and violation of Section 3 (e) of
R.A. No. 3019. Said Resolution was approved by the Ombudsman; hence, twenty-eight (28)
Informations docketed as Criminal Case Nos. 26087 to 26114 were filed against herein petitioners
before the Sandiganbayan.

Petitioner Lazatin and his co-petitioners then filed their respective Motions for
Reconsideration/Reinvestigation, which motions were granted by the Sandiganbayan (Third Division).
The Sandiganbayan also ordered the prosecution to re-evaluate the cases against petitioners.

Subsequently, the OSP submitted to the Ombudsman its Resolution[3] dated September 18, 2000. It
recommended the dismissal of the cases against petitioners for lack or insufficiency of evidence.

The Ombudsman, however, ordered the Office of the Legal Affairs (OLA) to review the OSP Resolution.
In a Memorandum[4] dated October 24, 2000, the OLA recommended that the OSP Resolution be
disapproved and the OSP be directed to proceed with the trial of the cases against petitioners. On
October 27, 2000, the Ombudsman adopted the OLA Memorandum, thereby disapproving the OSP
Resolution dated September 18, 2000 and ordering the aggressive prosecution of the subject cases. The
cases were then returned to the Sandiganbayan for continuation of criminal proceedings.

Thus, petitioners filed the instant petition.

Petitioners allege that:

I.THE OMBUDSMAN ACTED WITH GRAVE ABUSE OF DISCRETION OR ACTED WITHOUT OR IN EXCESS OF
HIS JURISDICTION.

II.THE QUESTIONED RESOLUTION WAS BASED ON MISAPPREHENSION OF FACTS, SPECULATIONS,

SURMISES AND CONJECTURES.[5]

Amplifying their arguments, petitioners asseverate that the Ombudsman had no authority to overturn
the OSP's Resolution dismissing the cases against petitioners because, under Section 13, Article XI of the
1987 Constitution, the Ombudsman is clothed only with the power to watch, investigate and
recommend the filing of proper cases against erring officials, but it was not granted the power to
prosecute. They point out that under the Constitution, the power to prosecute belongs to the OSP
(formerly the Tanodbayan), which was intended by the framers to be a separate and distinct entity from
the Office of the Ombudsman. Petitioners conclude that, as provided by the Constitution, the OSP being
a separate and distinct entity, the Ombudsman should have no power and authority over the OSP. Thus,
petitioners maintain that R.A. No. 6770 (The Ombudsman Act of 1989), which made the OSP an organic
component of the Office of the Ombudsman, should be struck down for being unconstitutional.

Next, petitioners insist that they should be absolved from any liability because the checks were issued to
petitioner Lazatin allegedly as reimbursement for the advances he made from his personal funds for
expenses incurred to ensure the immediate implementation of projects that are badly needed by the
Pinatubo victims.

The Court finds the petition unmeritorious.

Petitioners' attack against the constitutionality of R.A. No. 6770 is stale. It has long been settled that
the provisions of R.A. No. 6770 granting the Office of the Ombudsman prosecutorial powers and placing
the OSP under said office have no constitutional infirmity. The issue of whether said provisions of R.A.
No. 6770 violated the Constitution had been fully dissected as far back as 1995 in Acop v. Office of the
Ombudsman.[6]

Therein, the Court held that giving prosecutorial powers to the Ombudsman is in accordance with the
Constitution as paragraph 8, Section 13, Article XI provides that the Ombudsman shall "exercise such
other functions or duties as may be provided by law." Elucidating on this matter, the Court stated:

x x x While the intention to withhold prosecutorial powers from the Ombudsman was indeed present,
the Commission [referring to the Constitutional Commission of 1986] did not hesitate to recommend
that the Legislature could, through statute, prescribe such other powers, functions, and duties to the
Ombudsman. x x x As finally approved by the Commission after several amendments, this is now
embodied in paragraph 8, Section 13, Article XI (Accountability of Public Officers) of the Constitution,
which provides:

Sec.13. The Office of the Ombudsman shall have the following powers, functions, and duties:

x x x x
Promulgate its rules and procedure and exercise such other functions or duties as may be provided by
law.

Expounding on this power of Congress to prescribe other powers, functions, and duties to the
Ombudsman, we quote Commissioners Colayco and Monsod during interpellation by Commissioner
Rodrigo:

x x x x

MR. RODRIGO:

Precisely, I am coming to that. The last of the enumerated functions of the Ombudsman is: "to exercise
such powers or perform such functions or duties as may be provided by law." So, the legislature may
vest him with powers taken away from the Tanodbayan, may it not?

MR. COLAYCO:

Yes.

MR. MONSOD:

Yes.

x x x x

MR. RODRIGO:

Madam President. Section 5 reads: "The Tanodbayan shall continue to function and exercise its powers
as provided by law."

MR. COLAYCO:

That is correct, because it is under P.D. No. 1630.

MR. RODRIGO:

So, if it is provided by law, it can be taken away by law, I suppose.

MR. COLAYCO:

That is correct.

MR. RODRIGO:

And precisely, Section 12(6) says that among the functions that can be performed by the Ombudsman
are "such functions or duties as may be provided by law." The sponsors admitted that the legislature
later on might remove some powers from the Tanodbayan and transfer these to the Ombudsman.

MR. COLAYCO:
Madam President, that is correct.

x x x x

MR. RODRIGO:

Madam President, what I am worried about is, if we create a constitutional body which has neither
punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our
people too much and then disappoint them.

MR. MONSOD:

I agree with the Commissioner.

MR. RODRIGO:

Anyway, since we state that the powers of the Ombudsman can later on be implemented by the
legislature, why not leave this to the legislature?

xx x x

MR. MONSOD: (reacting to statements of Commissioner Blas Ople):

xx x x

With respect to the argument that he is a toothless animal, we would like to say that we are promoting
the concept in its form at the present, but we are also saying that he can exercise such powers and
functions as may be provided by law in accordance with the direction of the thinking of Commissioner
Rodrigo. We do not think that at this time we should prescribe this, but we leave it up to Congress at
some future time if it feels that it may need to designate what powers the Ombudsman need in order
that he be more effective. This is not foreclosed.

So, this is a reversible disability, unlike that of a eunuch; it is not an irreversible disability.[7]

The constitutionality of Section 3 of R.A. No. 6770, which subsumed the OSP under the Office of the
Ombudsman, was likewise upheld by the Court in Acop. It was explained, thus:

x x x the petitioners conclude that the inclusion of the Office of the Special Prosecutor as among the
offices under the Office of the Ombudsman in Section 3 of R.A. No. 6770 ("An Act Providing for the
Functional and Structural Organization of the Office of the Ombudsman and for Other Purposes") is
unconstitutional and void.

The contention is not impressed with merit. x x x

x xx x

x x x Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be henceforth
known as the Office of the Special Prosecutor, "shall continue to function and exercise its powers as now
or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created
under this Constitution." The underscored phrase evidently refers to the Tanodbayan's powers under
P.D. No. 1630 or subsequent amendatory legislation. It follows then that Congress may remove any of
the Tanodbayan's/Special Prosecutor's powers under P.D. No. 1630 or grant it other powers, except
those powers conferred by the Constitution on the Office of the Ombudsman.

Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8,
Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or perform
functions or duties as may be provided by law," it is indubitable then that Congress has the power to
place the Office of the Special Prosecutor under the Office of the Ombudsman. In the same vein,
Congress may remove some of the powers granted to the Tanodbayan by P.D. No. 1630 and transfer
them to the Ombudsman; or grant the Office of the Special Prosecutor such other powers and functions
and duties as Congress may deem fit and wise. This Congress did through the passage of R.A. No. 6770.
[8]

The foregoing ruling of the Court has been reiterated in Camanag v. Guerrero.[9] More recently, in
Office of the Ombudsman v. Valera,[10] the Court, basing its ratio decidendi on its ruling in Acop and
Camanag, declared that the OSP is "merely a component of the Office of the Ombudsman and may only
act under the supervision and control, and upon authority of the Ombudsman" and ruled that under
R.A. No. 6770, the power to preventively suspend is lodged only with the Ombudsman and Deputy
Ombudsman.[11] The Court's ruling in Acop that the authority of the Ombudsman to prosecute based
on R.A. No. 6770 was authorized by the Constitution was also made the foundation for the decision in
Perez v. Sandiganbayan,[12] where it was held that the power to prosecute carries with it the power to
authorize the filing of informations, which power had not been delegated to the OSP. It is, therefore,
beyond cavil that under the Constitution, Congress was not proscribed from legislating the grant of
additional powers to the Ombudsman or placing the OSP under the Office of the Ombudsman.

Petitioners now assert that the Court's ruling on the constitutionality of the provisions of R.A. No. 6770
should be revisited and the principle of stare decisis set aside. Again, this contention deserves scant
consideration.

The doctrine of stare decisiset non quieta movere (to adhere to precedents and not to unsettle things
which are established) is embodied in Article 8 of the Civil Code of the Philippines which provides, thus:

ART. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the
legal system of the Philippines.

It was further explained in Fermin v. People[13] as follows:

The doctrine of stare decisis enjoins adherence to judicial precedents. It requires courts in a country to
follow the rule established in a decision of the Supreme Court thereof. That decision becomes a judicial
precedent to be followed in subsequent cases by all courts in the land. The doctrine of stare decisis is
based on the principle that once a question of law has been examined and decided, it should be deemed
settled and closed to further argument.[14]
In Chinese Young Men's Christian Association of the Philippine Islands v. Remington Steel Corporation,
[15] the Court expounded on the importance of the foregoing doctrine, stating that:

The doctrine of stare decisis is one of policy grounded on the necessity for securing certainty and
stability of judicial decisions, thus:

Time and again, the court has held that it is a very desirable and necessary judicial practice that when a
court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that
principle and apply it to all future cases in which the facts are substantially the same. Stare decisis et
non quieta movere. Stand by the decisions and disturb not what is settled. Stare decisis simply means
that for the sake of certainty, a conclusion reached in one case should be applied to those that follow if
the facts are substantially the same, even though the parties may be different. It proceeds from the
first principle of justice that, absent any powerful countervailing considerations, like cases ought to be
decided alike. Thus, where the same questions relating to the same event have been put forward by the
parties similarly situated as in a previous case litigated and decided by a competent court, the rule of
stare decisis is a bar to any attempt to relitigate the same issue.[16]

The doctrine has assumed such value in our judicial system that the Court has ruled that
"[a]bandonment thereof must be based only on strong and compelling reasons, otherwise, the
becoming virtue of predictability which is expected from this Court would be immeasurably affected and
the public's confidence in the stability of the solemn pronouncements diminished."[17] Verily, only
upon showing that circumstances attendant in a particular case override the great benefits derived by
our judicial system from the doctrine of stare decisis, can the courts be justified in setting aside the
same.

In this case, petitioners have not shown any strong, compelling reason to convince the Court that the
doctrine of stare decisis should not be applied to this case. They have not successfully demonstrated
how or why it would be grave abuse of discretion for the Ombudsman, who has been validly conferred
by law with the power of control and supervision over the OSP, to disapprove or overturn any
resolution issued by the latter.

The second issue advanced by petitioners is that the Ombudsman's disapproval of the OSP Resolution
recommending dismissal of the cases is based on misapprehension of facts, speculations, surmises and
conjectures. The question is really whether the Ombudsman correctly ruled that there was enough
evidence to support a finding of probable cause. That issue, however, pertains to a mere error of
judgment. It must be stressed that certiorari is a remedy meant to correct only errors of jurisdiction, not
errors of judgment. This has been emphasized in First Corporation v. Former Sixth Division of the Court
of Appeals,[18] to wit:

It is a fundamental aphorism in law that a review of facts and evidence is not the province of the
extraordinary remedy of certiorari, which is extra ordinem - beyond the ambit of appeal. In certiorari
proceedings, judicial review does not go as far as to examine and assess the evidence of the parties and
to weigh the probative value thereof. It does not include an inquiry as to the correctness of the
evaluation of evidence. Any error committed in the evaluation of evidence is merely an error of
judgment that cannot be remedied by certiorari. An error of judgment is one which the court may
commit in the exercise of its jurisdiction. An error of jurisdiction is one where the act complained of was
issued by the court without or in excess of jurisdiction, or with grave abuse of discretion, which is
tantamount to lack or in excess of jurisdiction and which error is correctible only by the extraordinary
writ of certiorari. Certiorari will not be issued to cure errors of the trial court in its appreciation of the
evidence of the parties, or its conclusions anchored on the said findings and its conclusions of law. It is
not for this Court to re-examine conflicting evidence, re-evaluate the credibility of the witnesses or
substitute the findings of fact of the court a quo.[19]

Evidently, the issue of whether the evidence indeed supports a finding of probable cause would
necessitate an examination and re-evaluation of the evidence upon which the Ombudsman based its
disapproval of the OSP Resolution. Hence, the Petition for Certiorari should not be given due course.

Likewise noteworthy is the holding of the Court in Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Desierto,[20] imparting the value of the Ombudsman's independence, stating thus:

Under Sections 12 and 13, Article XI of the 1987 Constitution and RA 6770 (The Ombudsman Act of
1989), the Ombudsman has the power to investigate and prosecute any act or omission of a public
officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. It
has been the consistent ruling of the Court not to interfere with the Ombudsman's exercise of his
investigatory and prosecutory powers as long as his rulings are supported by substantial evidence.
Envisioned as the champion of the people and preserver of the integrity of public service, he has wide
latitude in exercising his powers and is free from intervention from the three branches of government.
This is to ensure that his Office is insulated from any outside pressure and improper influence.[21]

Indeed, for the Court to overturn the Ombudsman's finding of probable cause, it is imperative for
petitioners to clearly prove that said public official acted with grave abuse of discretion. In Presidential
Commission on Good Government v. Desierto,[22] the Court elaborated on what constitutes such
abuse, to wit:

Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of
jurisdiction. The Ombudsman's exercise of power must have been done in an arbitrary or despotic
manner which must be so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law. x x x[23]

In this case, petitioners failed to demonstrate that the Ombudsman acted in a manner described above.
Clearly, the Ombudsman was acting in accordance with R.A. No. 6770 and properly exercised its power
of control and supervision over the OSP when it disapproved the Resolution dated September 18, 2000.

It should also be noted that the petition does not question any order or action of the Sandiganbayan
Third Division; hence, it should not have been included as a respondent in this petition.
IN VIEW OF THE FOREGOING, the petition is DISMISSED for lack of merit. No costs.

Angeles v. Merceditas Gutierrez, G.R. Nos. 189161 & 189173, March 21, 2012

Facts:
This is a special civil action for certiorari under Rule 65 of the 1997 Rules of Court.
Judge Angeles filed a criminal Complaint against respondent Velasco with the Ombudsman... for the
following acts allegedly committed in his capacity as a prosecutor:
1. Giving an unwarranted benefit, advantage or preference to the accused in a criminal case for
smuggling by failing to present a material witness;
2. Engaging in private practice by insisting on the reopening of child abuse cases against petitioner;
3. Falsifying a public document to make it appear that a clarificatory hearing on the child abuse
Complaint was conducted.
According to the Complaint, respondent Velasco, who was the trial prosecutor in a criminal case
involving the smuggling of jewelry,[4] failed to present a material witness in the aforesaid case.
considering the materiality of the gemmologist's testimony, which respondent must have known of,
since he was the handling trial prosecutor of the case, his failure to offer the said testimony in court
shows that he tried to suppress the evidence in... favor of the accused in the said case. This act was
alleged to be in violation of Section 3(e) of the Anti Graft and Corrupt Practices Act,... which considers as
a corrupt practice the acts of public officers that give unwarranted benefits to any private... party
through either manifest partiality, evident bad faith, or gross inexcusable negligence in the discharge of
their official functions.
Velasco's filing of two Petitions to reopen the child abuse cases filed against petitioner Judge Angeles.
Respondent was the one who conducted the preliminary investigation of the Complaint for child abuse
and later indicted petitioner for 21 counts thereof.
DOJ later on reversed respondent
Velasco's recommendation[12] upon a Petition for Review filed by respondent.
According to petitioner, the move of respondent to reopen the child abuse cases was allegedly meant to
exact vengeance for petitioner's filing of the above-mentioned administrative Complaint.
the two Petitions to reopen the child abuse cases,... which were filed by respondent in the DOJ and the
Office of the President, were denied for having been filed in the wrong venues
Petitioner alleges in her Complaint that since respondent Velasco was not the trial prosecutor in the said
case, his unauthorized act of filing two Petitions to reopen the child abuse cases constituted a violation
of Section 7(b)(2) of the Code of Conduct and Ethical Standards... for Public Officials and Employees.
The alleged falsification of public document arose from the same preliminary investigation conducted by
respondent in the child abuse cases mentioned above.
respondent Velasco made it appear that he had conducted a clarificatory hearing
Petitioner alleges that Leonila Vistan, the witness who supposedly attended the hearing, was seriously
sick and could not have appeared... at the alleged clarificatory hearing... the latter alleges, the Minutes
of the hearing on 22 June
1999 must have been falsified by respondent by making it appear that Leonila Vistan had participated in
an inexistent proceeding.
he Ombudsman dismissed the charges against respondent Velasco. It found that after evaluation of the
facts and evidence presented by complainant, there was no cause to conduct a preliminary investigation
or an administrative adjudication with... regard to the charges.
On the first charge of suppression of testimonial evidence in connection with the smuggling case, the
Ombudsman dismissed the charge on the ground that petitioner had no sufficient personal interest in
the subject matter of the grievance.
The Ombudsman... explained that petitioner was neither one of the parties nor the presiding judge in
the said criminal case and, therefore, had no personal interest in it.
respondent Velasco acted based on his discretion as prosecutor and his appreciation of the evidence in
the case, and any lapse in his judgment cannot be a source of criminal liability.
Ombudsman... said that it had no authority to investigate the prosecutor's exercise of discretion, unless
there was sufficient evidence that the exercise was tainted with malice and bad faith.
The Ombudsman likewise dismissed the second charge of private practice of profession on the ground
of failure to exhaust administrative remedies.
petitioner should have first elevated her concern to the DOJ, which had primary... jurisdiction over
respondent's actions and conduct as public prosecutor.
Finally, on the falsification of a public document, which was also dismissed, the Ombudsman said that
the issue should have been raised earlier, when petitioner Judge Angeles filed her Petition for Review of
the Resolution of respondent Velasco. Moreover, petitioner should have... substantiated the allegation
of falsification, because the mere presentation of the alleged falsified document did not in itself
establish falsification.
The Ombudsman also ruled that with the belated filing of the charge and the reversal by the DOJ of
respondent
Velasco's Resolution indicting petitioner, the materiality of the alleged falsified document is no longer in
issue.
Petitioner filed a Motion for Reconsideration... which was denied by the Ombudsman for lack of merit.

Issues:
determine whether the Office of the Ombudsman (Ombudsman) committed grave abuse of discretion in
the exercise of its discretionary powers to investigate and... prosecute criminal complaints.
Whether the Ombudsman committed grave abuse of discretion amounting to lack or excess of
jurisdiction in dismissing the Complaint against respondent Velasco.

Ruling:
We dismiss the Petition.
the Court does not interfere with the Ombudsman's exercise of its investigative and prosecutorial
powers without good and compelling reasons.
the Court does not interfere with the Ombudsman's exercise of its investigative and prosecutorial
powers without good and compelling reasons.  Such reasons are clearly absent in the instant Petition.
certiorari is an extraordinary prerogative writ that is never demandable as a matter of right.   Also, it is
meant to correct only errors of jurisdiction and not errors of judgment committed in the exercise of the
discretion of a... tribunal or an officer.
this Court has consistently maintained its well-entrenched policy of non-interference in the
Ombudsman's exercise of its... investigatory and prosecutorial powers.
the plenary powers of the Ombudsman, which is virtually free from legislative, executive or judicial
intervention. Its plenary powers... were constitutionally designed to insulate it from outside pressure
and improper influence. Accordingly, the Court has consistently respected and recognized, as we do now
in this case, the  independence and competence of the Ombudsman, as it acts as "the champion of the...
people and the preserver of the integrity of public service."
The determination by the Ombudsman of probable cause or of whether there exists a reasonable
ground to believe that a crime has been committed, and that the accused is probably guilty thereof, is
usually done after the conduct of a preliminary investigation. However, a... preliminary investigation is
by no means mandatory.
the Ombudsman need not conduct a preliminary investigation upon receipt of a complaint.
it is also within their discretion to determine whether or not preliminary investigation should be...
conducted.
The Court has undoubtedly acknowledged the powers of the Ombudsman to dismiss a complaint
outright without a preliminary investigation
We reiterate that the Ombudsman has full discretion to determine whether a criminal case should be
filed, including whether a preliminary investigation is warranted.
he Court therefore gives due deference to the Ombudsman's decision to no longer conduct a
preliminary... investigation in this case on the criminal charges levelled against respondent Velasco.
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction; or the exercise of power in an arbitrary or despotic manner by reason of passion,
prejudice, or personal hostility. The abuse must be in a manner so... patent and so gross as to amount to
an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.
In this Petition, we do not find any grave abuse of discretion that calls for the Court's exceptional
divergence from the general rule.
Notably, the burden of proof to show grave abuse of discretion is on petitioner, and she has failed to
discharge this burden. She  merely states why she does not agree with the findings of the Ombudsman,
instead of demonstrating and proving grave abuse of discretion.
Even if we were to extend liberally the exception to the general rule against the review of the findings of
the Ombudsman, an examination of the records would show that no grave abuse of discretion was
demonstrated to warrant a reversal of the Joint Order dismissing the
Complaint against respondent Velasco.
The Ombudsman also found that there was no sufficient evidence that the failure of respondent to
present the witness was tainted with malice; or that the failure of respondent to do so... gave any
private party unwarranted benefit, advantage or preference in the discharge of the former's official
administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable
negligence.
Thus, we find no grave abuse of discretion in the Ombudsman's dismissal of the first charge.
It is clear that, in relation to Section 19, Section 20 of the Ombudsman Act applies only to administrative
cases. As for
Section 19, its subject heading is "Administrative Complaints."
It should not have been used by the Ombudsman as a ground to dismiss the first charge, since the
Complaint filed by petitioner before the Ombudsman was criminal in nature. The criminal nature of
petitioner's Complaint is clear from its prayer seeking... the indictment of respondent before the
Ombudsman.
This lapse notwithstanding, we do not find any arbitrariness or whim in the manner that the
Ombudsman disposed of the charge. If there was any abuse of discretion at all, it was not grave.
The Ombudsman found that respondent Velasco was not engaged in private practice when he filed two
Petitions for the reopening of the child abuse cases against petitioner on the ground that respondent
was acting in his capacity as the investigating prosecutor of the said cases.
Clearly, by no stretch of the imagination can the act of respondent Velasco be considered private
practice, since he was not customarily or habitually holding himself out to the public as a lawyer and
demanding payment for those services.
we do not share the Ombudsman's finding that the charge is dismissible on the ground of failure to
exhaust administrative remedies pursuant to paragraph 1, Section 20 of the Ombudsman Act. As already
explained earlier, the said provision... applies only to administrative cases, while the Complaint before
the Ombudsman was not administrative, but criminal, in nature.  Still, we do not find any abuse of
discretion when the Ombudsman proffered this ground for dismissing the second charge.
Finally, the Ombudsman correctly found that the charge of falsification had not been substantiated, and
that the mere presentation of the alleged manufactured document alone would not in itself establish
falsification.
However, the Court differs with the Ombudsman on the latter's pronouncement that the issue of
falsification of public document should have been raised by petitioner earlier, when she filed her
Petition for Review of the Resolution of respondent Velasco; and that, consequently,... the charge of
falsification of a public document was no longer in issue because of its belated filing. We draw attention
to the fact that the Petition for Review of respondent's Resolution indicting petitioner Judge Angeles
was under an entirely different proceeding. The purpose... of the Petition was to reverse the aforesaid
Resolution, and not to exact criminal liability on respondent for the crime of falsification of a public
document, as in the Complaint before the Ombudsman. Thus, it cannot be said that the issue of
falsification of a public document... in the criminal Complaint was raised belatedly, because the
Complaint was not a continuation of the previous Petition for Review of respondent's Resolution. The
two proceedings were completely independent of each other. This lapse, however, did not constitute
grave abuse of... discretion.
In sum, this Court finds no compelling reason to depart from its long-standing policy of non-interference
in the exercise by the Ombudsman of its investigatory and prosecutorial powers which, as we have
emphasized, are plenary.
Although the Court diverges from some of the conclusions reached by the Ombudsman, we find that its
dismissal of the charges against respondent Velasco was arrived at after a rational deliberation.  Such
deliberation was shown by its reasoned disposition of the case in the... exercise of its constitutionally
mandated discretionary powers.
Absent a clear showing of grave abuse of discretion, we uphold the findings of the Ombudsman.
Judging from the number of cases and the vengeful tone of the charges that the parties have hurled
against each other... in their pleadings, they seem more bent on settling what has become a personal
score between them, rather than on achieving the ends of justice.

Principles:
the Court does not interfere with the Ombudsman's exercise of its investigative and prosecutorial
powers without good and compelling reasons.
c... ertiorari is an extraordinary prerogative writ that is never demandable as a matter of right.   Also, it is
meant to correct only errors of jurisdiction and not errors of judgment committed in the exercise of the
discretion of a... tribunal or an officer.
The determination by the Ombudsman of probable cause or of whether there exists a reasonable
ground to believe that a crime has been committed, and that the accused is probably guilty thereof, is
usually done after the conduct of a preliminary investigation. However, a... preliminary investigation is
by no means mandatory.
the Ombudsman need not conduct a preliminary investigation upon receipt of a complaint.
it is also within their discretion to determine whether or not preliminary investigation should be...
conducted.
We reiterate that the Ombudsman has full discretion to determine whether a criminal case should be
filed, including whether a preliminary investigation is warranted.
Canon 12 of the Code of
Professional Responsibility enjoins a lawyer from filing multiple actions arising from the same cause and
from misusing court process.

Gonzales v. Office of the President, G.R. No. 196231, January 28, 2014

Facts:
In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and
ruled that the President has disciplinary jurisdiction over a Deputy Ombudsman and a Special
Prosecutor.  The Court, however, reversed the OP ruling that: (i)... found Gonzales guilty of Gross
Neglect of Duty and Grave Misconduct constituting betrayal of public trust; and (ii) imposed on him the
penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to restrain the disciplinary proceedings
against her, solely questioned the jurisdiction of the OP to subject her to disciplinary proceedings.  The
Court affirmed the continuation of the proceedings against her... after upholding the constitutionality of
Section 8(2) of RA No. 6770.
In view of the Court's ruling, the OP filed the present motion for reconsideration through the Office of
the Solicitor General (OSG).
In April 2005, the Office of the Ombudsman charged Major General Carlos F. Garcia and several others,
before the Sandiganbayan, with plunder and money laundering.  On May 7, 2007, Garcia filed an Urgent
Petition for Bail which the prosecution opposed.  The
Sandiganbayan denied Garcia's urgent petition for bail on January 7, 2010, in view of the strength of the
prosecution's evidence against Garcia.

Issues:
Gonzales posited in his petition that the OP has no administrative disciplinary jurisdiction over a Deputy
Ombudsman.  Under Section 21 of RA No. 6770, it is the Ombudsman who exercises administrative
disciplinary jurisdiction over the Deputy Ombudsman.
On the merits, Gonzales argued that his office received the draft order from GIPO Garcia on April 27,
2010.  On May 6, 2010, he completed his review of the draft, approved it, and transmitted it to the
Office of the Ombudsman for final approval.   Since the draft... order on Mendoza's motion for
reconsideration had to undergo different levels of preparation, review and approval, the period it took
to resolve the motion could not be unjustified, since he himself acted on the draft order only within nine
(9) calendars days from his receipt of... the order.

Ruling:
On motion for reconsideration and further reflection, the Court votes to grant Gonzales' petition and to
declare Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the Ombudsman.
a. The Philippine Ombudsman
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be
the "protector of the people" against the inept, abusive, and corrupt in the Government, to function
essentially as a complaints and action bureau.[36]  This constitutional vision of a Philippine Ombudsman
practically intends to make the Ombudsman an authority to directly check and guard against the ills,
abuses and excesses of the bureaucracy.  Pursuant to Section 13(8), Article XI of the 1987
Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of the Constitution.
Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. The Office of the Ombudsman shall
have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by impeachment or over Members of
Congress, and the Judiciary.
The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key Executive
officers, during their tenure.
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies."[39]  It has powers, both constitutional... and statutory, that are commensurate
with its daunting task of enforcing accountability of public officers.[40]... b. "Independence" of
constitutional bodies... vis-a-vis the Ombudsman's independence
Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics they do not owe their existence to any act of Congress, but
are created by the Constitution itself; additionally, they all enjoy fiscal... autonomy.   In general terms,
the framers of the Constitution intended that these "independent" bodies be insulated from political
pressure to the extent that the absence of "independence" would result in the impairment of their core
functions.
the deliberations of the 1987 Constitution on the Commission on Audit highlighted the... developments
in the past Constitutions geared towards insulating the Commission on Audit from political pressure.
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior but is
similar in degree and kind to the  independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political... interstices of a republican democracy
that are crucial to its existence and proper functioning.
c. Section 8(2) of RA No. 6770 vesting... disciplinary authority in the President... over the Deputy
Ombudsman violates... the independence of the Office of the
Ombudsman and is thus... unconstitutional... we rule that subjecting the Deputy Ombudsman to
discipline and removal by the President, whose own alter egos and officials in the Executive Department
are subject to the Ombudsman's disciplinary authority, cannot but seriously place at risk the...
independence of the Office of the Ombudsman itself.  The Office of the Ombudsman, by express
constitutional mandate, includes its key officials, all of them tasked to support the Ombudsman in
carrying out her mandate. Unfortunately, intrusion upon the... constitutionally-granted independence is
what Section 8(2) of RA No. 6770 exactly did.  By so doing, the law directly collided not only with the
independence that the Constitution guarantees to the Office of the Ombudsman, but inevitably with the
principle of checks and... balances that the creation of an Ombudsman office seeks to revitalize
What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as
agents of the Ombudsman in the performance of their duties.  The Ombudsman can hardly be expected
to place her complete trust in her subordinate officials who are not as... independent as she is, if only
because they are subject to pressures and controls external to her Office.  This need for complete trust
is true in an ideal setting and truer still in a young democracy like the Philippines where graft and
corruption is still a major problem... for the government.  For these reasons, Section 8(2) of RA No. 6770
(providing that the President may remove a Deputy Ombudsman) should be declared void.
he statements made by Commissioner Monsod emphasized a very logical principle: the Executive power
to remove and discipline key officials of the Office of the Ombudsman, or to exercise any power over
them, would result in an absurd situation wherein the Office of the
Ombudsman is given the duty to adjudicate on the integrity and competence of the very persons who
can remove or suspend its members.
e. Congress' power determines the... manner and causes for the removal... of non-impeachable officers
is not... a carte blanch authority
Under Section 2, Article XI of the 1987 Constitution,[53] Congress is empowered to determine the
modes of removal from office of all public officers and employees except the President, the Vice-
President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman, who are all impeachable officials.
he intent of the framers of the Constitution in providing that "[a]ll other public officers and employees
may be removed from office as provided by law, but not by impeachment" in the second sentence of
Section 2, Article XI is to prevent Congress from extending the more... stringent rule of "removal only by
impeachment" to favored public officers
While the manner and cause of removal are left to congressional determination, this must still be
consistent with constitutional guarantees and principles, namely: the right to procedural and
substantive due process; the constitutional guarantee of security... of tenure; the principle of separation
of powers; and the principle of checks and balances.
a. The Office of the President's... finding of gross negligence has... no legal and factual leg to... stand
on... b. No gross neglect of duty or inefficiency
Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the case were
already pending before Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the want of even the slightest care, acting or
omitting to act in a situation where there is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to consequences insofar as other... persons may be affected.
In the case of public officials, there is gross negligence when a breach of duty is flagrant and palpable.
[71]
Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case
forwarded to him within nine days.  In finding Gonzales guilty, the OP[72] relied on Section 8, Rule III of
Administrative Order No. 7 (or the
Rules of Procedure of the Office of the Ombudsman, series of 1990, as amended) in ruling that Gonzales
should have acted on Mendoza's Motion for Reconsideration within five days:
Section 8.  Motion for reconsideration or reinvestigation: Grounds Whenever allowable, a motion for
reconsideration or reinvestigation may only be entertained if filed within ten (10) days from receipt of
the decision or order by the party on the basis of any of... the following grounds:
Only one motion for reconsideration or reinvestigation shall be allowed, and the Hearing Officer shall
resolve the same within five (5) days from the date of submission for resolution.  [emphasis and
underscore ours]
Even if we consider this provision to be mandatory, the period it requires cannot apply to Gonzales since
he is a Deputy Ombudsman whose obligation is to review the case; he is not simply a Hearing Officer
tasked with the initial resolution of the motion.
c. No actionable failure to supervise subordinates
The facts do not show that Gonzales' subordinates had in any way been grossly negligent in their work.
While GIPO Garcia reviewed the case and drafted the order for more than three months, it is
noteworthy that he had not drafted the initial decision and, therefore, had to... review the case for the
first time.[77]  Even the Ombudsman herself could not be faulted for acting on a case within four
months, given the amount of cases that her office handles.
The point is that these are not inordinately long periods for the work involved: examination of the
records, research on the pertinent laws and jurisprudence, and exercise of legal judgment and
discretion.
d. No undue interest... he fact that Gonzales had Mendoza's case endorsed to his office lies within his
mandate, even if it were based merely on the request of the alleged victim's father.  The Constitution
empowers the Ombudsman and her Deputies to act promptly on complaints filed in any form or...
manner against any public official or employee of the government.[78]  This provision is echoed by
Section 13 of RA No. 6770,[79] and by Section 3, Rule III of Administrative Order No. 7, series of 1990, as
amended.[80]
Moreover, Gonzales and his subordinates did not resolve the complaint only on the basis of the
unverified affidavit of Kalaw.
we cannot deduce undue interest simply because Gonzales' decision differs from the decision of the
PNP-IAS (which dismissed the complaint against Mendoza).
Basic strictures of fair play dictate that we can only be held liable for our own misdeeds; we can be
made to account only... for lapses in our responsibilities.  It is notable that of all the officers, it was
Gonzales who took the least time nine days followed by Cecilio, who took 21 days; Garcia the writer of
the draft took less than four months, and the Ombudsman, less than four months... until the kidnapping
incident rendered Mendoza's motion moot.
D. The Special Prosecutor: The Constitutional Issue
Thus, by constitutional design, the Special
Prosecutor is by no means an ordinary subordinate but one who effectively and directly aids the
Ombudsman in the exercise of his/her duties, which include investigation and prosecution of officials in
the Executive Department.
Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of the
Office of the Ombudsman, the role it performs as an organic component of that Office militates against a
differential treatment between the Ombudsman's Deputies, on one... hand, and the Special Prosecutor
himself, on the other.   What is true for the Ombudsman must be equally true, not only for her Deputies
but, also for other lesser officials of that Office who act directly as agents of the Ombudsman herself in
the performance of... her duties.
Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at par
with the Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is concerned,
and must  also enjoy the same grant of independence under the
Constitution.
n the voting held on January 28, 2014, by a vote of 8-7,[108] the Court resolved to reverse its September
4, 2012 Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231).  We declared Section
8(2) of RA
No. 6770 unconstitutional by granting disciplinary jurisdiction to the President over a Deputy
Ombudsman, in violation of the independence of the Office of the Ombudsman.
However, by another vote of 8-7,[109] the Court resolved to maintain the validity of Section 8(2) of RA
No. 6770 insofar as Sulit is concerned. The Court did not consider the Office of the Special Prosecutor to
be constitutionally within the
Office of the Ombudsman and is, hence, not entitled to the independence the latter enjoys under the
Constitution.
WHEREFORE, premises considered, the Court resolves to declare Section 8(2) UNCONSTITUTIONAL.  This
ruling renders any further ruling on the dismissal of Deputy Ombudsman Emilio Gonzales III
unnecessary, but is without prejudice to the power of the Ombudsman to... conduct an administrative
investigation, if warranted, into the possible administrative liability of Deputy Ombudsman Emilio
Gonzales III under pertinent Civil Service laws, rules and regulations.
L. Review of Decision of the Ombudsman

Cases:

Antonino v. Desierto, December 18, 200, G.R. No. 144492

Enemecio v. office of the Ombudsman, G.R. No. 146731, January 13, 2004

The Case

Before us is a petition for review on certiorari[1] assailing the Resolution[2] dated 31 May 2000 of the
Court of Appeals in CA-G.R. SP No. 58875. The Court of Appeals dismissed for being an inappropriate
remedy the petition for certiorari filed by petitioner Agustina M. Enemecio against respondents Office of
the Ombudsman and Servando Bernante. The present petition also assails the Court of Appeals'
Resolution dated 7 December 2000 denying petitioner's motion for reconsideration.

The Antecedents

Petitioner Agustina M. Enemecio ("Enemecio") is a utility worker at the Cebu State College of Science
and Technology, College of Fisheries Technology ("CSCST-CFT"), Carmen, Cebu. Private respondent
Servando Bernante ("Bernante") is an Assistant Professor IV of CSCST-CFT.

On 30 March 1998, Enemecio filed an administrative complaint for gross misconduct, falsification of
public documents, malversation, dishonesty and defamation against Bernante before the Office of the
Executive Dean of CSCST-CFT.[3] Dr. Severino R. Romano, CSCST-CFT Executive Dean, indorsed the
complaint to the Office of the Ombudsman for the Visayas ("Ombudsman").
Enemecio also filed with the Ombudsman a criminal complaint against Bernante for falsification of
public document.[4] The Ombudsman ordered Enemecio to submit her affidavit and the affidavits of her
witnesses. After Enemecio submitted the required affidavits, the Ombudsman ordered Bernante to
submit his counter-affidavit. The administrative complaint was docketed as OMB-VIS-ADM-98-0201,
while the criminal complaint was docketed as OMB-VIS-CRIM-98-0286. The Ombudsman jointly tried
the two cases.

Enemecio alleged that Bernante had caused the spray-painting of obscene and unprintable words
against her on the walls of the CSCST Carmen Campus. Enemecio claimed that Bernante also shouted
defamatory words against her while she was inside the school premises. Enemecio further asserted that
Bernante made it appear in his leave application that he was on forced leave from 15 May 1996 to 21
May 1996 and on vacation leave from 22 May 1996 to 31 May 1996. In truth, Bernante was serving a
20-day prison term, from 14 May 1996 to 2 June 1996, because of his conviction of the crime of slight
physical injuries in Criminal Case No. NR-1678-CR. Bernante was able to receive his salary during his
incarceration since then CSCST-CFT Superintendent Andres T. Melencion approved Bernante's
application for leave. Enemecio contended that Bernante was not entitled to receive salary for that
period because of his "falsified leave applications."[5]

For his part, Bernante did not deny that he was in prison from 15 May 1996 to 31 May 1996. He
maintained that he received his salary for that period because of his duly approved leave applications.
Bernante also alleged that Enemecio filed the criminal and administrative complaints against him in
retaliation for the case he filed against Enemecio's friends, Dean Severino Romano and Bernadette
Mante. Bernante denied he was behind the spray-painting of obscenities against Enemecio on the walls
of the school campus.[6]

On 13 January 2000, the Ombudsman rendered a decision dismissing the administrative complaint
against Bernante in OMB-VIS-ADM-98-0201. The Ombudsman explained:

On the issue of the alleged falsification of respondent's application for leave by making it appear that he
was on vacation when in truth and in fact he was serving a sentence for a criminal conviction, we have
determined that there is no regulation restricting the purpose or use of an employee's earned leave
credits. Considering that the application for leave filed by the respondent was duly approved by the
appropriate official concerned, it matters not how he utilizes his leave for it is not a requirement that the
specifics or reasons for going on leave be spelled out in such application.

On the issue of the spray painting of obscenities on the walls of the school, the evidence is insufficient to
prove that respondent was the person responsible for such as there were no eye witnesses to such
activity. The testimony of Bernadette Mante merely identifies the respondent as allegedly having a
drinking session with security guard Estanislao Lavaria at around 11:00 on the night of March 29, 1998.
Furthermore, witness Mante states that there are about ten (10) to twelve (12) families living inside the
dormitory facing the school walls where the grafitti appeared. Despite this number, not one single
person appeared to have witnessed respondent spray painting the questioned grafitti on the walls of the
campus (TSN, April 19, 1999). While it may be probable that the only person or persons who could have
had the opportunity to spray paint the said grafitti on the night of March 29, 1998 or in the early
morning hours of March 30, 1998 were the respondent and security guard Lavaria, this is not sufficient
justification to directly blame them for such event.

Regarding the complainant's allegation that on March 10 and 25, 1998, the respondent defamed the
former by uttering slanderous words, it appears that only the incident occurring on March 10, 1998 was
corroborated by the testimony of witness Delfin Buot (TSN, April 7, 1998). Witness Buot testified that he
was about (3) meters from the respondent when the latter shouted the words 'buricat' (whore) 'putang
ina' and 'maot' (snob) to the complainant. However, the circumstances of the utterance, particularly the
time and the relation of the protagonists involved, leads us to conclude that the same is removed from
the official functions of the respondent as a professor of the school. Stated otherwise, the act of the
respondent was not in relation to his official functions. In the case of Palma vs. Fortich, et al., 147 SCRA
397, the Supreme Court ruled that:

In administrative actions against municipal officers, the Supreme Court in Festijo v. Crisologo, et al. (17
SCRA 868, 869 [1966]), classified the grounds for suspension under two categories, namely: (1) those
related to the discharge of the functions of the officer concerned (neglect of duty, oppression,
corruption or other forms of maladministration of office and (2) those not so connected with said
functions. Under the second category, when the crime involving moral turpitude is not linked with the
performance of official duties, conviction by final judgment is required as a condition precedent to
administrative action.

Therefore, inasmuch as the oral defamation charge is now pending before the Municipal Circuit Trial
Court in Catmon, Cebu under Criminal Case No. 30006-CR, the matter of respondent's administrative
culpability is still premature to be determined herein.[7]

On the same date, the Ombudsman dismissed the criminal complaint against Bernante in OMB-VIS-
CRIM-98-0286[8] finding no probable cause to indict Bernante for falsification of public document. The
Ombudsman explained thus:

It is well established by documentary evidence that the applications for leave filed by the respondent for
the period from May 15 to 31, 1996 were duly approved by the head of office, which in this case is Mr.
Andres T. Melencion, Vocational School Superintendent. All these leaves were with pay indicating that
the respondent availed of his leave credits which are undeniably due to him by law. It matters not how
the respondent utilizes the days where he is on leave, be they enjoyed as a vacation or, in this case,
incarceration for a crime. There appears to be no regulation or law against the utilization of leave
credits for purposes other than recreation. As such, there could be no falsification where nothing is
being misrepresented in the official leave forms which the respondent prepared and submitted.[9]

The Ombudsman denied Enemecio's motion to reconsider the dismissal of the criminal complaint in its
Order of 28 February 2000. In denying the motion, the Ombudsman stated:

We find the complainant's arguments untenable. There is no dispute that the leave forms are public
documents. What is in dispute is whether or not the failure of the respondent to indicate therein the
reasons for his leave amounts to a crime of falsification. It is submitted that it does not, for the simple
reason that the form itself does not require stating the reasons for going on leave. An employee simply
indicates through check marks the nature of the leave he is availing of, which in the case at bar,
respondent chose to avail of his forced and vacation leave credits. Nevertheless, the omission does not
affect the validity of its approval. What is indicated in the leave forms is only the need to specify the
whereabouts of the employee who goes on leave. However, it is not a requirement that specifics must
be provided. In any case the omission to state the location of a vacationing employee is not a condition
sine-qua-non for its approval.

To sum it up, there is no falsification of leave forms where there is no requirement for the indication of
reasons for going on leave. Regardless of such a requirement, the need to indicate the whereabouts of
a vacationing employee is not a necessity for its approval.[10]

Enemecio filed a special civil action for certiorari before the Court of Appeals, assailing the resolutions
which dismissed the criminal complaint and denied the motion for reconsideration in OMB-VIS-CRIM-98-
0286. Applying the ruling in Fabian v. Desierto,[11] the appellate court dismissed Enemecio's petition
for having been filed out of time. The appellate court also stated that the proper remedy available to
Enemecio was a petition for review under Rule 43 and not a petition for certiorari under Rule 65.

In her motion for reconsideration, Enemecio argued that the appellate court should not have relied on
Fabian. Enemecio contended that Fabian declared void only Section 27 of Republic Act No. 6770 ("RA
6770") and Section 7, Rule III of Administrative Order No. 07 ("AO No. 07") insofar as they provide for
appeals in administrative disciplinary cases from the Ombudsman to the Supreme Court. Enemecio
asserted that the other provisions of Section 27 of RA 6770 and Section 7 of AO No. 07, including the
"final and unappealable character" of orders, resolutions or decisions exonerating a respondent from
any criminal liability, still stand. Enemecio stated that she filed the petition for certiorari under Rule 65
with the Court of Appeals because she considered Bernante's absolution from the administrative
complaint in OMB-VIS-ADM-98-0201 as already final and unappealable. As there was no adequate
remedy of appeal, Enemecio claimed that her only recourse was a petition for certiorari before the
appellate court under Rule 65.[12]

The Court of Appeals denied Enemecio's motion for reconsideration in its Order of 7 December 2000.

Hence, this petition for review.

The Ruling of the Court of Appeals

In dismissing the petition, the Court of Appeals stated that in Fabian, the Supreme Court held that
appeals in administrative disciplinary cases from the Ombudsman to the Court of Appeals must be
brought by petition for review under Rule 43. The appellate court stated that a petition for review must
be filed within 15 days from notice of the assailed final order or resolution. Since Enemecio received on
22 March 2000 a copy of the Ombudsman's Order denying her motion for reconsideration, the appellate
court ruled that Enemecio had only until 6 April 2000 to file a petition for review. Enemecio filed her
petition only on 8 May 2000. The appellate court further stated that Enemecio's allegation in the
petition that there is no appeal or other plain, speedy or adequate remedy in the ordinary course of law
is false. The proper remedy available to Enemecio is a petition for review.[13]

In denying Enemecio's motion for reconsideration, the Court of Appeals clarified that Fabian does not
apply to Enemecio's petition assailing the dismissal of the criminal complaint against Bernante. The
appellate court stated that what Fabian declared void was Section 27 of RA 6770, which authorized
appeals to the Supreme Court from decisions of the Ombudsman in administrative disciplinary cases.
Under the Fabian ruling, the appellant should take such appeal in administrative disciplinary cases to the
Court of Appeals under Rule 43. The Court of Appeals added that it follows that the power to review
decisions of the Ombudsman in criminal cases is retained by the Supreme Court under Section 14 of RA
6770. Thus, the appellate court dismissed the petition for lack of jurisdiction.[14]

The Issues

Enemecio contends that:

The Court of Appeals gravely abused its discretion in refusing to assume jurisdiction over the petition.

The Court of Appeals gravely erred in failing to appreciate that a petition for certiorari under Rule 65
was the appropriate course of action considering the circumstances obtaining.

The Court of Appeals gravely erred in dismissing the petition for certiorari under Rule 65 filed by
petitioner by misinterpreting the ruling of the Supreme Court in Fabian vs. Desierto.[15]

The issues boil down to whether a petition for certiorari under Rule 65 filed before the Court of Appeals
is the proper remedy to question the dismissal of a criminal complaint filed with the Ombudsman.

The Court's Ruling

We resolve to dismiss this petition.

Enemecio filed before the Court of Appeals a petition for certiorari under Rule 65[16] questioning the
Ombudsman's Resolution dated 13 January 2000 and Order dated 28 February 2000 dismissing the
criminal case against Bernante.[17] Thus, the Prefatory statement of Enemecio's Petition in the Court of
Appeals states:

This is a Petition for Certiorari under Rule 65 of the Rules of Court seeking to nullify the Resolution dated
13 January 2000 and the Order dated 28 February 2000 both issued by the Public Respondent in the
Ombudsman Case docketed as OMB-VIS-CRIM-98-0201 and entitled, "Agustina Enemecio vs. Servando
Bernante, Asst. Professor IV, CSCST- College of Fisheries Technology, Carmen, Cebu", for being a
manifest and grave abuse of discretion amounting to excess of jurisdiction. The Resolution dated 13
January 2000 dismissed the criminal complaint for malversation and falsification of public documents
filed against herein Private Respondent while the Order dated 28 February 2000 denied herein
Petitioner's Motion for Reconsideration. Certified machine copies of the aforesaid Resolution and Order
are hereto appended as Annexes "A" and "B" respectively. (Emphasis supplied)
The appellate court dismissed Enemecio's petition and denied her motion for reconsideration.
Enemecio now comes to this Court via this petition for review, claiming that "what was involved in the
petition before the appellate court was the administrative, not the criminal case."[18] Enemecio thus
stresses that "there is no reason for the Court of Appeals to say that the petition concerned the criminal
case."[19]

We cannot countenance the sudden and complete turnabout of Enemecio and her counsel, Atty.
Terence L. Fernandez. Atty. Fernandez's conduct has fallen far too short of the honesty required of
every member of the Bar.

It is clear from the records that Atty. Fernandez filed with the Court of Appeals a certiorari petition
assailing the Ombudsman's Resolution and Order dismissing the criminal case, not the administrative
case against Bernante. For this reason, the appellate court in its 7 December 2000 Resolution rectified
itself and stated that Fabian does not apply to Enemecio's petition as the Fabian ruling applies only to
administrative disciplinary actions. Atty. Fernandez's attempt to mislead this Court in a last ditch effort
to secure a decision favorable to his client's cause does not escape our attention. As an officer of the
court, Atty. Fernandez is duty bound to uphold the dignity and authority of the court to which he owes
fidelity according to the oath he has taken as attorney, and not to promote distrust in the administration
of justice. He must always bear in mind that good faith and honorable dealings with judicial tribunals
are primary obligations of an attorney. He must always remember to deal with courts with truthfulness
and not to trifle with court proceedings.[20] For this, Atty. Fernandez should be admonished not to
commit similar acts again.

Even if we consider Enemecio's petition before the Court of Appeals as questioning the dismissal of the
administrative case against Bernante, the action must also fail. Appeals from decisions of the
Ombudsman in administrative disciplinary actions should be brought to the Court of Appeals under Rule
43.[21] The only provision affected by the Fabian ruling is the designation of the Court of Appeals as the
proper forum and of Rule 43 as the proper mode of appeal. All other matters in Section 27 of RA 6770,
including the finality or non-finality of decisions of the Ombudsman, remain valid.[22]

In any event, jurisprudence now holds that where the findings of the Ombudsman on the existence of
probable cause in criminal cases is tainted with grave abuse of discretion amounting to lack or excess of
jurisdiction, the aggrieved party may file a petition for certiorari with the Supreme Court under Rule 65.
[23] Since Enemecio filed a certiorari petition before the Court of Appeals, instead of the Supreme
Court, she availed of a wrong remedy in the wrong forum. Hence, the instant petition should be
dismissed outright.

Even if we consider the substance of the case, we find no grave abuse of discretion in the Ombudsman's
determination of whether there exists a prima facie case against Bernante.

Enemecio assails the dismissal of the criminal charges against Bernante for two reasons: (1) that she was
able to prove before the Ombudsman the charge for malversation against Bernante; and (2) that
Bernante himself admitted that he signed and filed the subject leave applications.
Enemecio asserts that she was able to present before the Ombudsman the payroll of the CSCST-CFT
employees covering the period from 16 May 1996 to 31 May 1996 signed by Bernante. Enemecio
asserts that this document proved that Bernante "actually received and was paid the amount of
P3,185.08 as a result of his falsified letter-requests and leave applications." According to Enemecio,
these constituted acts of malversation.

Enemecio's contentions do not deserve serious consideration.

Under Article 171, paragraph 4 of the Revised Penal Code, the elements of falsification of public
documents through an untruthful narration of facts are: (a) the offender makes in a document
untruthful statements in a narration of facts; (b) the offender has a legal obligation to disclose the truth
of the facts narrated; (c) the facts narrated by the offender are absolutely false; and (d) the perversion
of truth in the narration of facts was made with the wrongful intent to injure a third person.[24]

As the Ombudsman correctly pointed out, Enemecio failed to point to any law imposing upon Bernante
the legal obligation to disclose where he was going to spend his leave of absence. "Legal obligation"
means that there is a law requiring the disclosure of the truth of the facts narrated.[25] Bernante may
not be convicted of the crime of falsification of public document by making false statements in a
narration of facts absent any legal obligation to disclose where he would spend his vacation leave and
forced leave.

In PCGG v. Desierto,[26] the Court ruled that the Ombudsman has the discretion to determine whether
a criminal case, given the facts and circumstances, should be filed or not. The Ombudsman may dismiss
the complaint forthwith if he finds it insufficient in form or substance. On the other hand, he may
continue with the inquiry if he finds otherwise. If, in the Ombudsman's view, the complaint is sufficient
in form and substance, he may proceed with the investigation. In fact, the Ombudsman has the power
to dismiss a complaint outright without going through a preliminary investigation.[27]

Our evaluation of the records leads us to the conclusion that the Ombudsman has carefully studied the
merits of the criminal complaint. Where the Ombudsman has thoroughly examined the merits of the
complaint, it would not be right to subject the private respondent to an unnecessary and prolonged
anguish.[28]

WHEREFORE, the petition is DENIED for lack of merit. No costs.

Baviera v. Zoleta, G.R. No. 169098, October 12, 2006

The Antecedents
Manuel V. Baviera filed several complaints [2] against officers or directors of the Standard Chartered Bank
(SCB), Philippine Branch, including Sridhar Raman, an Indian national who was the Chief Finance Officer
of the bank, as respondents with the Securities and Exchange Commission (SEC), Bangko Sentral ng
Pilipinas (BSP), Anti-Money Laundering Council (AMLC), National Labor Relations Commission (NLRC),
and the Department of Justice (DOJ), to wit:

CASE FILED DOCKET NUMBER LAW AND/OR RULES V

BANGKO SENTRAL NG Administrative Received by Supervision and Violations of General
PILIPINAS Examination Sector, SED Dept. II various BSP-Circular le
SECURITIES AND EXCHANGE Administrative CED Case No. 03-2763 Securities Regulation
COMMISSION Various Rules and Reg
ANTI-MONEY LAUNDERING Money Laundering Received by Office of the Executive Violation of Anti-Mon
COUNCIL Director
NATIONAL LABOR RELATIONS Illegal Dismissal NLRC-NCR Case No. 006-06-07434-2003 Labor Code of the Phi
COMMISSION
DEPARTMENT OF JUSTICE Syndicated Estafa I.S. No. 2003-1059 P.D. 1689 in connectio
BUREAU OF INTERNAL Tax Fraud and Non- Received by Commissioner's Office National Internal Reve
REVENUE declaration of Income
Baviera claimed that he was a former employee of the bank, and at the same time, an investor who was
victimized by the officers or directors of SCB, all of whom conspired with one another in defrauding him
as well as the investing public by soliciting funds in unregistered and unauthorized foreign stocks and
securities.

On September 18, 2003, Baviera, through counsel, requested the Secretary of Justice for the issuance of
a Hold Departure Order (HDO) against some of the officers and directors of SCB, including Raman. [3]

On September 26, 2003, then Secretary of Justice Simeon Datumanong issued an Order [4] granting the
request of Baviera. He issued HDO No. 0193. A copy of the order was served on the Bureau of
Immigration (BI) for implementation. On the same day, the BI issued an Order [5] implementing that of
the Secretary of Justice.

Meanwhile, Secretary Datumanong went to Vienna, Austria, to attend a conference. Undersecretary

Merceditas Navarro-Gutierrez was designated as Acting Secretary of the DOJ. [6]

On September 28, 2003, a Sunday, Raman arrived at the Ninoy Aquino International Airport (NAIA) for
his trip to Singapore but was apprehended by BI agents and NAIA officials based on the HDO of the
Secretary of Justice. However, the next day, September 29, 2003, Raman was able to leave the country
via Singapore Airlines-SQ-71 at an 8:15 a.m. flight. He was to attend a conference in Singapore and to
return to the Philippines on October 2, 2003.

It turned out that Acting Secretary of Justice Merceditas N. Gutierrez had verbally allowed the departure
of Raman. On the same day, Raman, through counsel, wrote Secretary Datumanong for the lifting of the
HDO insofar as his client was concerned. [7] Acting Secretary Gutierrez issued an Order [8] allowing Raman
to leave the country. In said Order, she stated that the Chief State Prosecutor had indicated that he
interposed no objection to the travel of Raman to Singapore.

On October 3, 2003, Baviera filed a Complaint-Affidavit with the Office of the Ombudsman charging
Undersecretary Ma. Merceditas N. Gutierrez for violation of Section 3(a), (e), and (j) of Republic Act (RA)
No. 3019, as amended.

The complainant alleged, inter alia, in his complaint that upon verbal instruction of respondent
Gutierrez to the BI agents and NAIA officials, Raman was allowed to leave the country despite the HDO
issued by Secretary Simeon Datumanong. He averred that the actuations of respondent Gutierrez were
illegal, highly irregular and questionable for the following reasons:
a) DOJ Sec. Datumanong issued a Hold Departure Order (HDO) against three foreign nationals, including Raman, on Septem
b)Also on September 26, 2003, BID Commissioner Danilo Cueto issued the necessary order and notification to all airport
of the aforesaid HDO;
c) Raman went to the NAIA for departure out of the Philippines on Sunday, September 28, 2003;
d)Raman was stopped by Immigration officials from leaving the country on Sunday on the strength of the HDO;
e)Usec. Gutierrez admitted having interceded on behalf of the Indian national, thus allowing him to leave the coun
September 29, 2003;
f) Obviously, the appeal of Raman to be allowed to leave the country was made verbally either by him or thru counsel;
g) There is no written application for temporary stay of the HDO in respect to Raman's departure;
h)There is likewise no written order by Usec. Gutierrez allowing Raman to leave;
i) Usec. Gutierrez claims that she cleared the matter with DOJ Sec. Datumanong who was in Vienna, Austria;
j) If she did so, then she could have made the consultation only either by telephone or e-mail
i) If she consult
have gone ou
a Sunday to u
ii) If she did no
used her ow
Sec. Datuma
the latter's co
iii) If she cleared
the burden is
k)It is obvious that Usec. Gutierrez went out of her way to accommodate an Indian national or the latter's
lawyer on a Sunday (verbally, secretly, and when nobody was looking) to allow the Indian national to
leave the country --despite an existing HDO- thus giving the Indian national unwarranted, undue
preference, benefit and advantage, to the damage and prejudice of complainant.
l) There are indications that Usec. Gutierrez will also allow the other Indian national (Ajay Kanwal) to leave
for permanent posting outside the Philippines despite the existing HDO. But that's another story. Surely,
another criminal charge.[9]
Baviera further alleged that the verbal special permission granted to Raman by respondent Gutierrez
was illegal as there is no specific law or DOJ rule allowing the grant of special permission or exception to
an HDO. Worse, the complainant alleged, respondent Gutierrez made her verbal order on a weekend,
on the basis of allegedly strong representations made by Raman. Respondent Gutierrez thus displayed
arrogance of power and insolence of office, thereby extending unwarranted preference, benefits and
advantage to Raman.

In her Counter-Affidavit, respondent Gutierrez denied the allegations against her. She averred that she
did not violate any law or rule, in allowing Raman to leave the country. She merely upheld his rights to
travel as guaranteed under the Constitution. Moreover, the DOJ may allow persons covered by HDOs to
travel abroad, for a specific purpose and for a specific period of time. She further averred that:

1. I allowed Mr. Raman to leave the Philippines on September 29, 2003 in my capacity as Acting
Secretary, not as Undersecretary as alleged in the Complaint-Affidavit. An Acting Secretary has
the power and authority to perform all official acts that a Department Secretary, if personally
present, could lawfully do and to exercise sound discretion under certain circumstances. In the
 case of an Acting Secretary of Justice, the authority extends to allowing the travel of a person
subject of an HDO, like Mr. Raman, whose attendance in an official business abroad was urgent
and necessary. Although I could have lifted the HDO on the ground that there was no ground for
its continued enforcement, I did not do so in deference to the Secretary who issued it but,
instead, allowed Mr. Raman to travel for a specific purpose and period. Secretary Datumanong
eventually lifted the HDO and, therefore, ratified my act.

2. An individual subject of an HDO issued by the Department may be allowed to travel abroad.
Even the court that issued an HDO may authorize the subject person to travel for a specific
purpose and for a certain period. If the person already charged in court may be authorized to
travel, there is more reason to allow the person, like Mr. Raman, who was still subject of a
preliminary investigation by a prosecutor, to travel abroad. He continues to enjoy the
constitutional presumption of innocence. Thus, his rights under the law should not be
unreasonably curtailed.

3. I allowed Mr. Raman to travel to Singapore because he, as Chief Finance Officer of Standard
Chartered Bank (an international bank with good reputation), was invited and required to attend
the Wholesale Bank International Accounting Standards Conference from September 29 to
October 2, 2003. The travel was not meant to have him transferred to another branch of the
bank abroad and frustrate the results of the investigations, which were the cited reasons for the
HDO application. Indeed, he returned to the Philippines on October 2, 2003.

4. Allowing Mr. Raman to travel abroad under the circumstances would send a positive message to
foreigners engaged in banking and business activities in the Philippines that the Government
consistently upholds the rule of law and respects human rights, thereby boosting investors'
confidence in the Philippines.

5. In allowing Mr. Raman to travel abroad, I relied on my oath as a lawyer and as a government
official to support and defend the Constitution. I also relied on the first Whereas Clause of the
above-mentioned Department Circular No. 17 dated March 19, 1998, which cites Section 6,
Article III of the present Constitution that, in part, reads: "xxx Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law." Relevantly, in  Kant Kwong v. Presidential Commission on Good Government,
the Supreme Court  En Banc  held:

xxx. The right to travel and to freedom of movement is a fundamental right guaranteed by the
1987 Constitution and the Universal Declaration of Human Rights to which the Philippines is a
signatory.  The right extends to all residents regardless of nationality.  And "everyone has the
right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the Constitution or by law." (Emphasis ours) [10]

Respondent Gutierrez requested the Office of the Ombudsman to dismiss the complaint against her,
thus:
(a) There is no basis for the complaint for violation of Section 3(a) of RA No. 3019, as amended, because I
never persuaded, induced nor influence any public officer to violate the rules and regulations duly
promulgated by competent authority. When I allowed Mr. Raman to travel, I relied on Department
Circular No. 17 (1998), particularly the first Whereas Clause thereof, recognizing every person's right to
travel, absent the grounds for impairment of the right under the Constitution.

(b) The complaint for violation of Section 3(e) of RA No. 3019 is baseless. The complainant has not
sustained any injury by reason of the travel order, as Mr. Raman immediately returned to the Philippines
after his official business. I authorized Mr. Raman to travel in recognition of his right thereto under the
Constitution and existing international human rights law instruments. In so doing, I did not give him
unwarranted benefit, advantage or preference in the discharge of my official functions through manifest
partiality, evident bad faith or gross inexcusable negligence. Indeed, had I denied him the right, I would
be held liable under such provision, in addition to other liabilities under the Civil Code.

(c) Neither is there any basis for the complaint for violation of Section 3(j) of RA No. 3019, as amended. I
permitted Mr. Raman to leave the country on September 29, 2003 because he had an important official
business abroad and he was legally entitled to the right to travel and the grounds mentioned in the
Constitution for the impairment of the right did not exist.

1. The propriety of the travel authority has become moot and academic with the return of Mr.
Raman to the Philippines on October 2, 2003 and the issuance of the Order dated October 17,
2003 by Justice Secretary Datumanong, lifting the HDO on the ground that "there is no ground
for the continued enforcement of the HDO."

2. I am executing this Counter-Affidavit to attest to the truth of the foregoing facts and to belie the
incriminating allegations against me in the Complaint-Affidavit. [11]

In his Reply-Affidavit, Baviera alleged that:

1. Although it is admitted that the Constitution guarantees the right to travel of any individual and
the DOJ has wide and discretionary powers in allowing individuals subject of an HDO to travel on
certain occasions, still this does not in any way help in her defense.   The main issue against her is
NOT an individual's constitutional right to travel nor the wide discretionary powers of the DOJ to
grant special permits to travel to individuals subject of HDO BUT her abuse of such discretionary
powers.

2. When she allowed the Indian National to leave the country on a mere verbal plea by Raman or
his well-connected lawyer on a Sunday and without a proper Motion for Reconsideration yet
being filed by Raman or his lawyer, she undoubtedly gave the latter unwarranted benefit,
advantage or preference in the discharge of her official duty as Acting Secretary. The
undisputable fact, which respondent herself admitted proudly, was both plea and the Order
were done verbally.

3. It was only much later that her Order dated 29 September 2003 was belatedly released long
after Raman had left the country on an early morning flight to Singapore. It is unmistakable then
that her decision to allow Raman to travel was verbally transacted with Raman's well-connected
lawyer on a Sunday, 28 September 2003 when Raman was supposed to leave for Singapore but
was denied by Immigration and NAIA officials due to the standing HDO against him. In short,
respondent went out of her way to accommodate a foreign national by hurriedly allowing the
latter to leave without going through proper procedures. Paragraph V of DOJ Circular No. 17
provides the following procedure in appealing or lifting an HDO, to wit:
"A copy of the HDO implemented by the Commissioner shall be sent to the person subject of the order, if
his postal address is known, so that he may, if he so desires, file a MOTION FOR RECONSIDERATION with
the Secretary. (Underscoring supplied).

The Rules cited by respondent herself provide proper procedures and avenues for the lifting, temporary
or otherwise, of an HDO. Obviously, by swiftly allowing Raman to leave the country on a mere verbal
appeal by his well-connected counsel, respondent  disregarded  proper procedures and betrayed her
intentions of giving special treatment to the Indian national.

Respondent tried to justify her indiscretion by attaching as Annex "4" of her Counter-Affidavit a letter
from Raman's lawyer dated 29 September 2003 requesting that Raman be allowed to travel.
Conspicuously, the letter was stamped received by respondent's office and allegedly signed and received
by her staff on Monday, 29 September 2003 at  6:15 a.m.  Obviously, respondent is trying to cover up her
actions, albeit to no avail.  Who could possibly believe that respondent's office would be open at 6:15 in
the morning of a Monday when the normal office hours is at 8 a.m.?  Worse, assuming  arguendo  that
the letter-request was received at 6 a.m.,  how come Raman was able to board Singapore Airlines Flight
No. SQ-71 which left at about 8:15 a.m. or barely two (2) hours upon the receipt of the request?

Res Ipsa Loquitor. It is either respondent Gutierrez, Secretary Datumanong or the Chief State Prosecutor
(whom she claimed to have consulted before giving the order) reports to their offices at 6 a.m. and
buckle down to work immediately or that respondent Gutierrez's allegations in her defense are all
concocted lies. "For evidence to be believed, it must not only proceed from the mouth of a credible
witness but must be credible in itself such as the common experience and observation of mankind can
approve as probable under the circumstances."  (Cosep vs. People, 290 SCRA 378).

The belated documentation of respondent's action was further proven by records showing that the
Motion for Reconsideration and the Supplement thereof were dated 5 October and 7 October 2003,
respectively, or  six (6) days after Raman was allowed by respondent to leave the country.

Even absent any evidence of belated documentation, still, respondent cannot deny the fact that she
admitted in a hurriedly-called press conference later on 29 September 2003 before the DOJ press that
she was the one who verbally gave instructions to immigration and NAIA officials to allow Raman to
leave the country. In her own words, she proudly admitted that she based her order on "strong
representations" made by Raman's counsel. By such admission, respondent unwittingly admitted having
violated the provisions of the Anti-Graft and Corrupt Practices Act.

By persuading or influencing Immigration Officials to allow Raman to leave the country without any
motion for reconsideration or any written motion to that effect as required by DOJ Circular No. 17,
respondent committed Section 3 (a) of RA 3019. And further by doing such act, respondent acted with
manifest partiality, evident bad faith or gross inexcusable negligence in giving Raman unwarranted
benefit, advantage or preference in the discharge of her official function as Acting Secretary of the DOJ in
violation of Section 3 (e) of RA 3019.

Even her claims that she has not benefited from her actions cannot be made as a defense because the
provisions of the Anti-Graft law charged against her do not require as a pre-condition that the public
officer receive (sic) any gift, present, or benefit.

Her decision to grant special permission to Raman (which she proudly admits) is irregular and illegal
because there is no specific law or rules of the DOJ granting special permission or exception to the HDO.
[12]

On October 5, 2003, the officers and officials of SCB, including Raman, through counsel, filed a motion
for the reconsideration of HDO No. 0193 and filed a Supplemental to the said motion dated October 5,
2003 praying that the HDO be lifted. On October 17, 2003, Justice Secretary Simeon Datumanong issued
an Order lifting the HDO and ordered the BI to delete the names of the officials of the bank, including
Raman, from its Watchlist.[13]

On June 22, 2004, Graft Investigation and Prosecutor Officer Rolando Zoleta signed a Resolution
recommending that the criminal complaint against respondent Gutierrez for violation of RA No. 3019 be
dismissed for insufficiency of evidence. Zoleta's findings are as follows:
After a careful evaluation of the facts and pieces of evidence on record, this Office resolves that:
a) With respect to the charge of violation of Section 3(a) of Republic Act 3019, there is no evidence,
documentary or testimonial, to show that respondent GUTIERREZhas received material remuneration as
a consideration for her alleged use of influence on her decision to allow Mr. RAMAN to travel abroad.
It is worthy to note the following Senate deliberations on the aforementioned provision of Republic Act
3019, to wit:
"Senate deliberations (July 13, 1960)

Senator MARCOS. I see. Now, I come to the second most important point. Is it true as charged that this
bill does not punish influence peddling which does not result in remuneration, or rather in which
remuneration cannot be proved? I refer to Section 3, subsection (a), lines 10 to 13 on page 2 of the bill. It
is to be noted that this section reads, as the first corrupt practice or act of a public official:

xxxx xxxxx xxxxx

Now, suppose the influence that is extended to influence another public official is for the performance of
an act that is not a crime like the issuance of license by the Monetary Board (p. 226)

Senator TOLENTINO. I see. (p. 226)

Senator MARCOS. It is claimed and charged by observers that this bill is deliberately watered down in
order to save influence peddlers who peddle their influence in the Monetary Board, in the Reparations
Commission, in government banks and the like. I would like the author to explain the situation. (p. 226)

Senator TELENTINO (SIC). In the first place, I cannot conceive of an influence peddler who acts gratis. The
very term "influence peddler" implies that there is something being sold, that is, the influence. So that
when we say influence peddler who does not receive any advantage, that is inconsistency in terms
because that would apply to any congressman, for instance, and precisely it was made clear during the
debates that if a congressman or senator tries to use influence in the act of another by, let us say, trying
to obtain a license for his constituent, if he does not get paid for that he does not use any influence. (p.
226)

xxxxx xxxxx xxxxx

Senator MARCOS. So, it is admitted by the author that the lending or utilization of influence x x x
provided that there is no proof that he has been given material remuneration is not punished by this Act.
(pp. 226-227)
Senator TOLENTINO. No, the mere fact of having used one's influence so long as it is not to induce the
commission of a criminal act would not be punished if there is no consideration. It would not be graft. (p.
227)

Senator MARCOS. There is no proof of consideration because that is one thing difficult to prove. (p. 227)

Senator TOLENTINO. If you say there is no proof of consideration, as far as the bill is concerned, there is
no offense. So, so long as there is no proof of the consideration in the use of the influence, the offense is
not committed under the bill because that would not be graft.

Senator MARCOS. But we all admit that it is an immoral act for a public official like the President, the
Vice-President, members of the Senate to unduly influence the members of the Monetary Board even
without remuneration and say, "You better approve this license, this application of a million dollars of my
good friend and compadre Mr. Cheng Cheng Po" or whatever he may be. But he does not receive any
reward, payment or remuneration for it. Under the bill, he can get away with this act.

Senator TOLENTINO. If Your Honor considers it in that light, I don't think that would constitute graft and I
don't think that would be included.

Senator MARCOS. But it is immoral.

Senator TOLENTINO. It may be so, but it depends on the circumstances. But our idea, the main idea of
the bill is to punish graft and corrupt practices. Not every act maybe, that is improper would fall under
the provision of the bill. (p. 227)
Henceforth, following the logic and intention of the sponsor (Senator TOLENTINO) of the aforecited
provision, respondent GUTIERREZ did not commit a violation of the same as there is no proof that she
received consideration in exchange for her decision to allow Mr. Raman to travel abroad.

b)As to the charge of violation of Section 3(e) of Republic Act 3019, no actual or real damage was suffered by an
immediately returned to the Philippines, the truth of which was not rebutted by the herein complainant in his Reply-A
suffer undue injury as an element required by the law. By the same token, the essential ingredient of manifest partiality
required for the commission of such offense has not been proven in the instant case. The respondent has satisfactorily
has the power and authority to perform such act. In fact, she could have even lifted the Hold Departure Order since th
did not do so in deference to Secretary DATUMANONG who consequently lifted such order. As correctly pointed out b
her act of allowing Mr. RAMAN to travel abroad despite the Hold Departure Order against the latter and there is no q
the Acting Secretary at that time.

At any rate, it can not be denied that even the court (or the Sandiganbayan in the case of IMELDA
MARCOS) that requested or issued a Hold Departure Order on a person already charged in court allows
under certain conditions the accused to travel for a specific purpose and for a certain period. There is no
reason why Mr. RAMAN, who is just a subject of a preliminary investigation by a prosecutor, should not
be granted the same benefit as he continues to enjoy not only the constitutional presumption of
innocence but the constitutional right to travel or liberty of abode; and,

c) With regard to the charge of Violation of Section 3(j) of Republic Act 3019, as above discussed, the
respondent, as Acting Secretary of Justice, is authorized or empowered not only to allow the travel
abroad of Mr. RAMAN under specific conditions but also to order the lifting of such Hold Departure
Order. In the same way, respondent GUTIERREZ has not granted any privilege or benefit in favor of any
person (or Mr. RAMAN for that matter) not qualified or not legally entitled to such privilege or benefit
when she allowed the former to travel abroad under specific condition and for certain period of time as
Mr. RAMAN still enjoys the constitutionally guaranteed right to travel or liberty of abode even if a
preliminary investigation involving him is still pending at the office of the concerned DOJ Prosecutor. [14]
The Assistant Ombudsman recommended that the resolution be approved. The Deputy Ombudsman for
the Military, Orlando C. Casimiro, who was authorized by the Ombudsman to act on the
recommendation, approved the same.[15]

Baviera received a copy of the Resolution on July 26, 2004 and filed a motion for reconsideration of the
resolution on August 2, 2004 (July 31, 2004 was a Saturday). [16] Acting on the motion, Zoleta issued a
Resolution on August 10, 2003, recommending its denial for lack of merit. Deputy Ombudsman Orlando
Casimiro again approved the recommendation. [17] Baviera received a copy of the resolution on
September 14, 2004.

On November 16, 2004, Baviera filed a petition for certiorari under Rule 65 of the Rules of Civil
Procedure in the CA, assailing the resolutions of the Ombudsman. He relied on the following arguments:
i

THE OFFICE OF THE OMBUDSMAN CLEARLY ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT RESPONDENT GUTIERREZ CANNOT BE HELD
LIABLE UNDER SECTION 3(a) OF RA 3019 ALLEGEDLY BECAUSE THERE WAS NO EVIDENCE,
DOCUMENTARY OR TESTIMONIAL, TO SHOW THAT SHE HAS RECEIVED MATERIAL REMUNERATION AS A
CONSIDERATION FOR HER USE OF INFLUENCE ON HER DECISION TO ALLOW MR. RAMAN TO TRAVEL
ABROAD.

ii

THE OFFICE OF THE OMBUDSMAN CLEARLY ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT RESPONDENT GUTIERREZ CANNOT BE HELD
LIABLE UNDER SECTIONS 3(e) AND 3(j) OF RA 3019 ALLEGEDLY BECAUSE THERE WAS NO ACTUAL OR
REAL DAMAGE SUFFERED BY ANY PARTY INCLUDING THE GOVERNMENT AND THAT RESPONDENT DID
NOT GRANT ANY PRIVILEGE OR BENEFIT IN FAVOR OF ANY PERSON.

iii

THE OFFICE OF THE OMBUDSMAN CLEARLY ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT DISMISSED THE INSTANT CRIMINAL COMPLAINT FOR
VIOLATION OF THE ANTI-GRAFT AND CORRUPT PRACTICES ACT (RA 3019) ALLEGEDLY ON THE GROUND
OF INSUFFICIENCY OF EVIDENCE.[18]
However, on January 7, 2005, the CA issued a Resolution dismissing the petition on the ground that the
proper remedy was to file a petition for certiorari with the Supreme Court under Rule 65 of the Rules of
Court, conformably with the ruling of this Court in Enemecio v. Office of the Ombudsman.[19] Petitioner
filed a motion for reconsideration, insisting that his petition for certiorari in the CA under Rule 65 was in
accordance with the ruling in Fabian v. Desierto.[20] He insisted that the Office of the Ombudsman is a
quasi-judicial agency of the government, and under Batas Pambansa Bilang 129, the CA has concurrent
jurisdiction with the Supreme Court over a petition for certiorari under Rule 65 of the Rules of Court. He
asserted that the filing of his petition for certiorari with the CA conformed to the established judicial
policy of hierarchy of courts as explained by this Court in People v. Cuaresma.[21]

On July 20, 2005, CA issued a Resolution denying the motion, holding that the ruling in Fabian v.
Desierto[22] is not applicable, as it applies only in appeals from resolutions of the Ombudsman in
administrative disciplinary cases. The remedy of the aggrieved party from resolutions of the
Ombudsman in criminal cases is to file a petition for certiorari in this Court, and not in the CA. The
applicable rule is that enunciated in Enemecio v. Ombudsman,[23] later reiterated in Perez v. Office of the
Ombudsman[24] and Estrada v. Desierto.[25]

On August 18, 2005, Baviera filed with this Court the instant petition for review on certiorari under Rule
45, assailing the CA resolutions on the following grounds:
I.

THE COURT OF APPEALS SERIOUSLY ERRED IN REFUSING TO TAKE COGNIZANCE OF THE INSTANT
PETITION FOR CERTIORARI DESPITE THE CLEAR RULING OF THE SUPREME COURT IN THE CASE
OF  FABIAN VS. DESIERTO, 295 SCRA 470  (SEPTEMBER 16, 1998).

II.

THE COURT OF APPEALS SERIOUSLY ERRED IN REFUSING TO RESOLVE THE INSTANT PETITION ON THE
MERITS AND TO FIND THE OFFICE OF THE OMBUDSMAN TO HAVE GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT RESPONDENT GUTIERREZ
CAN NOT BE HELD LIABLE UNDER SECTION 3(a) OF RA 3019 ALLEGEDLY BECAUSE THERE WAS NO
EVIDENCE, DOCUMENTARY OR TESTIMONIAL, TO SHOW THAT SHE HAS RECEIVED MATERIAL
REMUNERATION AS A CONSIDERATION FOR HER USE OF INFLUENCE ON HER DECISION TO ALLOW MR.
RAMAN TO TRAVEL.

III.

THE COURT OF APPEALS SERIOUSLY ERRED IN REFUSING TO RESOLVE THE INSTANT PETITION ON THE
MERITS AND TO FIND THE OFFICE OF THE OMBUDSMAN TO HAVE GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT RESPONDENT GUTIERREZ
CANNOT BE HELD LIABLE UNDER SECTIONS 3(e) AND 3(j) OF RA 3019 ALLEGEDLY BECAUSE THERE WAS
NO ACTUAL OR REAL DAMAGE SUFFERED BY ANY PARTY INCLUDING THE GOVERNMENT AND THAT
RESPONDENT DID NOT GRANT ANY PRIVILEGE OR BENEFIT IN FAVOR OF ANY PERSON.

IV.

THE COURT OF APPEALS SERIOUSLY ERRED IN REFUSING TO RESOLVE THE INSTANT PETITION ON THE
MERITS AND TO FIND THE OFFICE OF THE OMBUDSMAN TO HAVE GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DISMISSED THE CRIMINAL COMPLAINT
FOR VIOLATION OF THE ANTI-GRAFT AND CORRUPT PRACTICES ACT (RA 3019) ALLEGEDLY ON THE
GROUND OF INSUFFICIENCY OF EVIDENCE.[26]
Petitioner insists that his petition for certiorari in the CA assailing the resolutions of the Ombudsman
under Rule 65 of the Rules of Court is proper, in the light of Fabian v. Desierto.[27] Under B.P. No. 129, the
CA and the Supreme Court have concurrent jurisdiction to issue writs of certiorari under from
resolutions of the Ombudsman in his investigation of criminal cases.
In her comment on the petition, respondent Gutierrez maintained that instead of filing his petition in
the CA, petitioner should have filed his petition for certiorari under Rule 65 with this Court alleging grave
abuse of discretion amounting to lack of jurisdiction committed by the respondents Office of the
Ombudsman officials.

The other respondents, for their part, insist that the ruling of this Court in  Fabian applies only to
resolutions of the Office of the Ombudsman in administrative cases and not in criminal cases.

The threshold issues in this case are (1) whether the petition for certiorari filed by petitioner in the CA
was the proper remedy to assail the resolution of the Office of the Ombudsman; and (2) whether
respondent officials committed grave abuse of discretion amounting to excess or lack of jurisdiction in
dismissing the criminal complaint of petitioner against respondent Acting Secretary of Justice Gutierrez
for lack of probable cause.

On the first issue, respondent Gutierrez contends that the proper remedy of petitioner to assail the
Resolutions of the Ombudsman finding no probable cause for violation of R.A. No. 3019, Section 3(a), (e)
and (j) was to file a petition for certiorari with this Court, not with the CA. In 1999, this Court ruled
in Tirol, Jr. v. Del Rosario[28] that the remedy of the aggrieved party from a resolution of the Office of the
Ombudsman finding the presence or absence of probable cause in criminal cases was to file a petition
for certiorari under Rule 65 in this Court. The Court reiterated its ruling in Kuizon v. Desierto[29] and Tirol,
Jr. v. Del Rosario.[30] And on February 22, 2006, in Pontejos v. Office of the Ombudsman,[31] the Court
ruled that the remedy to challenge the Resolution of the Ombudsman at the conclusion of a preliminary
investigation was to file a petition for certiorari in this Court under Rule 65.

In Estrada v. Desierto,[32] this Court rejected the contention of petitioner therein that petition
for certiorari under Rule 65 assailing the Order/Resolution of the OMB in criminal cases should be filed
in the CA, conformably with the principle of hierarchy of courts. In that case, the Court explained:
Petitioner contends that  certiorari  under Rule 65 should first be filed with the Court of Appeals as the
doctrine of hierarchy of courts precludes the immediate invocation of this Court's jurisdiction.
Unfortunately for petitioner, he is flogging a dead horse as this argument has already been shot down
in  Kuizon v. Ombudsman  where we decreed -

In dismissing petitioners' petition for lack of jurisdiction, the Court of Appeals cited the case of  Fabian vs.
Desierto. The appellate court correctly ruled that its jurisdiction extends only to decisions of the Office of
the Ombudsman in administrative cases. In the  Fabian  case, we ruled that appeals from decisions of the
Office of the Ombudsman in  administrative disciplinary  cases should be taken to the Court of Appeals
under Rule 43 of the 1997 Rules of Civil Procedure. It bears stressing that when we declared Section 27 of
Republic Act No. 6770 as unconstitutional, we categorically stated that said provision is involved only
whenever an appeal by  certiorari  under Rule 45 is taken from a decision in an administrative disciplinary
action. It cannot be taken into account where an original action for  certiorari  under Rule 65 is resorted
to as a remedy for judicial review, such as from an incident in a criminal action. In fine, we hold that the
present petition should have been filed with this Court.
Kuizon and the subsequent case of  Mendoza-Arce v. Office of the Ombudsman (Visayas)  drove home the
point that the remedy of aggrieved parties from resolutions of the Office of the Ombudsman finding
probable cause in criminal cases or non-administrative cases, when tainted with grave abuse of
discretion, is to file an original action for  certiorari  with this Court and not with the Court of Appeals. In
cases when the aggrieved party is questioning the Office of the Ombudsman's finding of   lack  of probable
cause, as in this case, there is likewise the remedy of  certiorari  under Rule 65 to be filed with this Court
and not with the Court of Appeals following our ruling in  Perez v. Office of the Ombudsman.

As this Court had already resolved said issue of jurisdiction in the above-cited cases, it is a salutary and
necessary judicial practice to apply the rulings therein to the subject petition.  Stare decisis et non quieta
movere. Stand by the decisions and disturb not what is settled. Undaunted, petitioner now harps on the
validity of Section 14 of Rep. Act No. 6770 claiming it to be unconstitutional. The Court of Appeals, it
must be recalled, relied quite heavily on Section 14 of Rep. Act No. 6770 in relation to   Fabian v.
Desierto  in ruling that it had no jurisdiction to entertain the petition filed thereat. [33]
On the merits of the petition, the Court finds that petitioner failed to establish that the respondent
officials committed grave abuse of discretion amounting to excess or lack of jurisdiction. Grave abuse of
discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction.
The Ombudsman's exercise of power must have been done in an arbitrary or despotic manner which
must be so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform
the duty enjoined or to act at all in contemplation of law. [34]

The Court has reviewed the assailed resolutions of the Office of the Ombudsman, and finds that
petitioner likewise failed to establish probable cause for violation of Sections 3(a), (e) and (j) of RA No.
3019. Indeed, in the absence of a clear case of abuse of discretion, this Court will not interfere with the
exercise of the Ombudsman's discretion, who, based on his own findings and deliberate consideration of
the case, either dismisses a complaint or proceeds with it. [35]

WHEREFORE, premises considered, the instant petition is hereby DENIED for lack of merit. The assailed
Resolutions of the Court of Appeals are hereby AFFIRMED. Costs against the petitioner.

M. Procedure before the Ombudsman

Sesbreno v. Aglugub, February 28, 2005, A.M. No. MTJ 05-1581

Facts

Peter L. Sesbreo filed a Verified Complaint[1] dated March 2, 2004 against respondent judge,Hon. Gloria
B. Aglugub, charging the latter with Gross Ignorance of the Law, Neglect of Duty and ConductPrejudicial
to the Best Interest of the Service relative to Criminal Case No. 39806 entitled People v.Enrique
Marcelino, et al.In criminal cases PP vs Marcelino, et. al., the three accused were Enrique Marcellino,
SusanNuez and Edna Tabazon, all employees of Traffic Management Unit of San Pedro, Laguna. They
werecharged of Falsification, Grave Threats and Usurpation of Authority under the jurisdiction of
therespondent Judge. But upon arraignment, only the Usurpation of Authority pushed through and the
othertwo charges were dismissed. All accused, except Enrique Marcelino, were arraigned. A warrant of
arrestwas issued against Marcelino.Following the arraignment, the complainant filed a Private
Complainants Urgent Manifestationalleging violation of RA 10(4) and prayed that all three be issued
with warrants of arrest. The respondent judge issued an order statement that the violation of RA was
indeed alleged in the complaint ofUsurpation of Authority but was not resolved due to oversight.
However, finding no probable cause,respondent dismissed the prayer for warrants and ordered to
forward the records of the case back to theProvincial Prosecutor for review.The PPO affirmed
respondents order and remanded the case to the court for further proceedingson the charge of
Usurpation of Authority.During the hearing of the case on February 14, 2004, Tabazon,Carunungan and
Nuez did not appear. Atty. Sesbreo, however, did not move for the issuance of warrantsof arrest against
them. Neither did he object to the cancellation of the scheduled hearing.The foregoing circumstances
brought about the filing of the instant administrative complaint.

Issues:

In sum, complainant asserts that respondent judge erred in conducting a preliminary investigationfor
the charge of Usurpation of Authority; in not issuing warrants of arrest for failure of the accused
toappear during trial; in issuing her Order dated February 12, 2004 dismissing the complaint for violation
ofR.A. 10; and in transmitting the records of the case to the PPO instead of the Office of the
Ombudsman.

Held:

Respondent judge admitted that she overlooked the charge when she conducted the
preliminaryexamination of the complaints. Nonetheless, after reviewing the case, respondent Judge
found noprobable cause and ordered the dismissal of the case. Therefore, when respondent Judge motu
proprioordered the dismissal of the case for lack of probable cause, she was acting in accordance with
theprocedure on preliminary investigation laid down in Sec. 3, Rule 112 of the Rules on Criminal
Procedure.

Enriquez v. Caminade, A.M. No. RTJ-05-1966, March 21, 2006

Facts:

•Imelda Enriquez charged Judge Caminade with Gross Misconduct, Knowingly Rendering an
UnjustJudgment and Gross Ignorance of the Law relative to criminal case, People v. Sherwin Que @
Bungol,Anthony John Apura (case about murder and the petitioner is the mother of the victim)

•Respondent Judge:

•denied the motion for the issuance of the warrant of arrest against the accused

•set aside the assailed Resolution of the City Prosecutor on the bases of which the latest
amendedinformation was filed

•quashed the latest amended information

•remanded the case to the City Prosecutor for completion of the preliminary investigation
•Respondent ruled so because there was no preliminary investigation completed on accused Alvin
TaggartPimentel Alvez and Alvin John Apura as they were denied the opportunity to file a motion
forreconsideration or a petition for review before the information was filed in court

•Complainant claims that respondent was grossly mistaken when he ruled, in effect, that the
investigating prosecutor cannot file a criminal information before the expiration of the 15-day period
within which theaccused are allowed by the Revised Rules of Court to move for reconsideration or
petition for review ofan adverse ‘Resolution.’

•Respondent cited Sales v. Sandiganbayan

•‘the filing of motion for reconsideration is an integral part of the preliminary investigation proper’and
that an information ‘filed without first affording x x x accused his right to file motion forreconsideration’
is tantamount to a denial of the right itself to a preliminary investigation.

Issue:

Whether or not the the ruling in the case of Sales v. Sandiganbayan is applicable to the case at bar in
terms of procedure.

Held:

NO. A careful study of Sales reveals that it applies specifically to preliminary investigations conducted
before the Ombudsman. That case was decided in accordance with the Rules of Procedure of
theOmbudsman, granting the accused fifteen days to move for a reconsideration or a reinvestigation of
anadverse resolution in a preliminary investigation. The criminal case filed before respondent’s court
was notcovered by the Rules of Procedure of the Ombudsman but by the Rules of Court, which had
nocorresponding provision. The termination of a preliminary investigation upon the filing of an
information incourt is a well-established procedural rule under the Rules of Criminal Procedure.

N. Power of the Secretary of Justice over Prosecutors

Dino, et. al. v. Olivarez, G.R. No. 170447, December 04, 2009

O. Role of the Office of the Solicitor General in Criminal Cases

People v. Duca, October 9, 2009, G.R. No. 171175

The facts as found by the CA are quoted as follows:

It appears that Arturo Duca, together with his mother, Cecilia Duca, were charged of the crime of
Falsification of Official Document defined and penalized under Article 172, in relation to Article 171,
paragraph 2 of the Revised Penal Code in an Information which reads:

"That on or about December 10, 2001 in the Municipality of San Fabian, Province of Pangasinan,
Philippines, within the jurisdiction of this Honorable Court, the said accused confederating together and
mutually abiding each other, with intent to cause damage, did then and there, willfully, unlawfully and
feloniously cause the preparation of a Declaration of Real Property over a bungalow type residential
house covered by Property Index No. 013-32-027-01-116131 of the Municipal Assessor's Office of San
Fabian, Pangasinan by making it appear that the signature appearing on the sworn statement of owner
is that of Aldrin F. Duca when the truth of the matter is not because the latter was abroad at that time
having arrived in the Philippines only on December 12, 2001, and it was accused Arturo F. Duca who
affixed his own signature thereon to the damage and prejudice of the undersigned private complainant
Pedro Calanayan."

Upon being arraigned, both the accused pleaded `not guilty'. Then trial on the merits ensued.

The evidence for the prosecution shows that sometime in 1999, Pedro Calanayan (hereinafter
"Calanayan"), private complainant herein, filed an action for ejectment and damages against Cecilia F.
Duca, Ruel F. Duca, Arsenio F. Duca and Vangie F. Duca before the 4th Municipal Circuit Trial Court
(MCTC) of San Fabian-San Jacinto, Pangasinan, docketed as Civil Case No. 960 (SF-99). The case was
decided in favor of Calanayan. There being no appeal interposed by the aforesaid defendants, the said
decision became final and executory. On November 22, 1999, a writ of execution was issued by the
MCTC to enforce the decision. On February 29, 2000, the money judgment was likewise satisfied with
the public auction of the lot owned by Cecilia Duca covered by TCT No. 233647. On March 1, 2000, a
certificate of sale was issued in favor of Jocelyn Barque, the highest bidder in the auction sale.

On October 19, 2001, Cecilia Duca filed an action for the Declaration of Nullity of Execution and
Damages with prayer for Writ of Injunction and Temporary Restraining order against Sheriff IV Vinez
Hortaleza and Police Officers Roberto Vical, Alejandre Arevalo, Emilio Austria, Victor Quitales,
Crisostomo Bonavente and Calanayan. The case was docketed as Civil Case No. 2000-0304-D.

When the said case was heard, Cecilia Duca testified to the effect that the house erected on the lot
subject of the ejectment case is owned by her son Aldrin Duca. In support of such claim she presented
Property Index No. 013-32-027-01-116131 (Exhibit "B"). At the back of the said exhibit is a sworn
statement showing that the current and fair market value of the property, which is a bungalow, is
P70,000.00 with the signature affixed on top of the typewritten name Aldrin F. Duca and subscribed and
sworn to before Engr. Reynante Baltazar, the Municipal Assessor of San Fabian, Pangasinan, on
December 10, 2001. The signature on top of the typewritten name Aldrin F. Duca is that of Arturo Duca.
According to the prosecution, Arturo made it appear that the signature is that of his brother Aldrin who
was out of the country at that time. Aldrin arrived in the Philippines only on December 12, 2001, as
evidenced by a certification from the Bureau of Immigration, Manila. Arturo even made it appear that
his Community Tax Certificate (CTC) No. 03841661 issued on December 10, 2001 is that of his brother
Aldrin. That because of the misrepresentation, Cecilia and Arturo were able to mislead the RTC such that
they were able to get a TRO against Sheriff Hortaleza and the policemen ordering them to stop from
evicting the plaintiffs from the property in question.

Both accused denied that they falsified the signature of Aldrin Duca. Cecilia testified that she had no
participation in the execution as she was in Manila at that time.
On the other hand, Arturo testified that the signature atop the name Aldrin Duca was his. However, he
intersposed the defense that he was duly authorized by the latter to procure the said tax declaration.

On April 3, 2003, the MCTC of San Fabian-San Jacinto rendered a decision, dispositive portion of which
reads as follows:

"WHEREFORE, the Court finds the accused Arturo F. Duca guilty beyond reasonable doubt of the crime
of falsification defined and penalized under Article 171 of the Revised Penal Code and hereby imposes
upon said accused a prison term of two years, four months and one day to six (6) years of Prision
Correccional and a fine of P2,000.00. Accused Cecilia is acquitted for lack of evidence.

The accused Arturo F. Duca is hereby ordered to pay to the complaining witness actual damages in the
amount of P60,000.00 moral damages of P150,000.00 plus exemplary damages in the amount of
P100,000.00 plus cost.

SO ORDERED."

Dissatisfied with the decision, Arturo Duca appealed. On March 24, 2004, the RTC of Dagupan City,
Branch 44, rendered a decision, disposing the case as follows:

"WHEREFORE, the decision dated April 3, 2003 of the 4th Municipal Circuit Trial Court, San Fabian-San
Jacinto, Pangasinan convicting accused Arturo F. Duca of the crime of Falsification defined and penalized
under Article 171 of the Revised Penal Code and imposing upon said accused an imprisonment of two
years, four months and one day to six (6) years of Prision Correccional and a fine of P2,000.00, and
ordering him to pay to the complaining witness actual damages in the amount of P60,000.00, moral
damages in the amount of P150,000.00 plus exemplary damages in the amount of P100,000.00 plus
cost, is AFFIRMED.

x x x.

SO ORDERED."[5]

Aggrieved with the ruling of the RTC, Duca elevated the case to the CA via a petition for review. On
November 23, 2005, the CA promulgated its assailed decision acquitting Duca of the crime charged and
reversing the RTC decision. The CA held:

However, the prosecution failed to establish the fact that Arturo was not duly authorized by Aldrin in
procuring the tax declaration. On the contrary, the defense was able to establish that Arturo Duca was
duly authorized by his brother Aldrin to secure a tax declaration on the house erected on the land
registered under their mother's name.

xxx xxx xxx

From the foregoing testimony, it can be deduced that Arturo could not have falsified the Tax Declaration
of Real Property under Property Index No. 013-32-027-01-116B1 (Exhibit "B") by making it appear that
Aldrin Duca, his brother, participated in the accomplishment of the said document since he was actually
acting for and in behalf of the latter. It must be noted that as early as June 2001, Arturo has already
been authorized by Aldrin; albeit verbally, to register the house in the latter's name as he cannot do it
personally as he was abroad. This authority of Arturo was confirmed by the latter's execution of an
Affidavit dated January 19, 2002 confirming the procurement of the said tax declaration (Exhibit "6") as
well as a Special Power of attorney executed on June 17, 2002 (Exhibit "7"). Thus, what appeared to be
defective from the beginning had already been cured so much so that the said document became valid
and binding as an official act of Arturo.

If Arturo did not state in the Tax Declaration in what capacity he was signing, this deficiency was cured
by Aldrin's subsequent execution of Exhibits "6" and "7".

The RTC's conclusion that the special power of attorney executed by Aldrin was a mere afterthought
designed to extricate Arturo from any criminal liability has no basis since from the very start, it has been
duly established by the defense that Aldrin had verbally instructed Arturo to cause the execution of
Exhibit "B" for the purpose of registering his house constructed on his mother's lot for taxation
purposes.[6]

Hence, the instant petition anchored on this sole ground:

PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AND HAD ACTED WITHOUT
JURISDICTION WHEN IT RESOLVED PRIVATE RESPONDENT ARTURO F. DUCA'S APPEAL WITHOUT GIVING
THE PEOPLE OF THE PHILIPPINES THROUGH THE OFFICE OF THE SOLICITOR GENERAL THE OPPORTUNITY
TO BE HEARD THEREON.[7]

Petitioner argues that the prosecution was denied due process when the CA resolved the respondent's
appeal without notifying the People of the Philippines, through the Solicitor General, of the pendency of
the same and without requiring the Solicitor General to file his comment. Petitioner contends that once
the case is elevated to the CA or this Court, it is only the Solicitor General who is authorized to bring or
defend actions on behalf of the People. Thus, the CA gravely abused its discretion when it acted on
respondent's appeal without affording the prosecution the opportunity to be heard. Consequently, the
decision of the CA acquitting respondent should be considered void for being violative of due process.

In his Comment,[8] respondent argues that there was no denial of due process because the prosecution
was properly represented by the Office of the Provincial Prosecutor and a private prosecutor who
handled the presentation of evidence under the control and supervision of the Provincial Prosecutor.
Since the control and supervision conferred on the private prosecutor by the Provincial Prosecutor had
not been withdrawn, the Solicitor General could not claim that the prosecution was not afforded a
chance to be heard in the CA. According to the respondent, he should not be prejudiced by the
Provincial Prosecutor's failure to inform the Solicitor General of the pendency of the appeal.

The petition is impressed with merit.

The authority to represent the State in appeals of criminal cases before the CA and the Supreme Court is
solely vested in the Office of the Solicitor General (OSG). Section 35(1), Chapter 12, Title III of Book IV of
the 1987 Administrative Code explicitly provides, viz.:

SEC. 35. Powers and Functions. - The Office of the Solicitor General shall represent the Government of
the Philippines, its agencies and instrumentalities and its officials and agents in any litigation,
proceeding, investigation or matter requiring the services of lawyers. x x x It shall have the following
specific powers and functions:

(1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal
proceedings; represent the Government and its officers in the Supreme Court and Court of Appeals, and
all other courts or tribunals in all civil actions and special proceedings in which the Government or any
officer thereof in his official capacity is a party. (emphasis supplied)

Jurisprudence has been consistent on this point. In the recent case of Cariño v. De Castro,[9] it was held:

In criminal proceedings on appeal in the Court of Appeals or in the Supreme Court, the authority to
represent the People is vested solely in the Solicitor General. Under Presidential Decree No. 478, among
the specific powers and functions of the OSG was to "represent the government in the Supreme Court
and the Court of Appeals in all criminal proceedings." This provision has been carried over to the Revised
Administrative Code particularly in Book IV, Title III, Chapter 12 thereof. Without doubt, the OSG is the
appellate counsel of the People of the Philippines in all criminal cases.[10]

Likewise, in City Fiscal of Tacloban v. Espina,[11] the Court made the following pronouncement:

Under Section 5, Rule 110 of the Rules of Court all criminal actions commenced by complaint or
information shall be prosecuted under the direction and control of the fiscal. The fiscal represents the
People of the Philippines in the prosecution of offenses before the trial courts at the metropolitan trial
courts, municipal trial courts, municipal circuit trial courts and the regional trial courts. However, when
such criminal actions are brought to the Court of Appeals or this Court, it is the Solicitor General who
must represent the People of the Philippines not the fiscal.[12]

And in Labaro v. Panay,[13] the Court held:

The OSG is the law office of the Government authorized by law to represent the Government or the
People of the Philippines before us and before the Court of Appeals in all criminal proceedings, or before
any court, tribunal, body, or commission in any matter, action, or proceeding which, in the opinion of
the Solicitor General, affects the welfare of the people as the ends of justice may require.[14]

Indeed, in criminal cases, as in the instant case, the Solicitor General is regarded as the appellate counsel
of the People of the Philippines and as such, should have been given the opportunity to be heard on
behalf of the People. The records show that the CA failed to require the Solicitor General to file his
Comment on Duca's petition. A copy of the CA Resolution[15] dated May 26, 2004 which required the
filing of Comment was served upon Atty. Jaime Dojillo, Sr. (counsel for Duca), Atty. Villamor Tolete
(counsel for private complainant Calanayan) and RTC Judge Crispin Laron. Nowhere was it shown that
the Solicitor General had ever been furnished a copy of the said Resolution. The failure of the CA to
require the Solicitor General to file his Comment deprived the prosecution of a fair opportunity to
prosecute and prove its case.

Pertinently, Saldana v. Court of Appeals, et al.[16] ruled as follows:

When the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due
process is thereby violated (Uy vs. Genato, L-37399, 57 SCRA 123 [May 29, 1974]; Serino vs. Zoa, L-
33116, 40 SCRA 433 [Aug. 31, 1971]; People vs. Gomez, L-22345, 20 SCRA 293 [May 29, 1967]; People vs.
Balisacan, L-26376, 17 SCRA 1119 [Aug. 31, 1966]).

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of
their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdiction issue
(Gumabon vs. Director of the Bureau of Prisons, L-300026, 37 SCRA 420 [Jan. 30, 1971]) which cannot be
glossed over or disregarded at will. Where the denial of the fundamental right of due process is
apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs.
Flores, L-30370, [May 25, 1973] 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 [Feb. 27,
1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a
`lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its
head' (Aducayen vs. Flores, supra).[17]

The State, like the accused, is entitled to due process in criminal cases, that is, it must be given the
opportunity to present its evidence in support of the charge. The doctrine consistently adhered to by
this Court is that a decision rendered without due process is void Ab Initio and may be attacked directly
or collaterally. A decision is void for lack of due process if, as a result, a party is deprived of the
opportunity to be heard.[18]

The assailed decision of the CA acquitting the respondent without giving the Solicitor General the chance
to file his comment on the petition for review clearly deprived the State of its right to refute the material
allegations of the said petition filed before the CA. The said decision is, therefore, a nullity. In Dimatulac
v. Villon,[19] we held:

Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused
alone. The interests of society and the offended parties which have been wronged must be equally
considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not
necessarily a triumph of justice; for, to the society offended and the party wronged, it could also mean
injustice. Justice then must be rendered even-handedly to both the accused, on one hand, and the State
and offended party, on the other.[20]

Further, the CA should have been guided by the following provisions of Sections 1 and 3 of Rule 42 of
the 1997 Rules of Court:

Sec. 1. How appeal taken; time for filing. - A party desiring to appeal from a decision of the Regional Trial
Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the
Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other
lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the
adverse party with a copy of the petition. The petition shall be filed and served within fifteen (15) days
from notice of the decision sought to be reviewed or of the denial of petitioner's motion for new trial or
reconsideration filed in due time after judgment. Upon proper motion and the payment of the full
amount of the docket and other lawful fees and the deposit for costs before the expiration of the
reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only
within which to file the petition for review. No further extension shall be granted except for the most
compelling reason and in no case to extend fifteen (15) days.

Sec. 3. Effect of failure to comply with requirements. - The failure of the petitioner to comply with any of
the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for
costs, proof of service of the petition, and the contents of and the documents which should accompany
the petition shall be sufficient ground for the dismissal thereof. (emphasis supplied)

Respondent appealed to the CA from the decision of the RTC via a petition for review under Rule 42 of
the 1997 Rules of Court. The respondent was mandated under Section 1, Rule 42 of the Rules of Court to
serve copies of his petition for review upon the adverse party, in this case, the People of the Philippines
through the OSG. Respondent failed to serve a copy of his petition on the OSG and instead served a copy
upon the Assistant City Prosecutor of Dagupan City.[21] The service of a copy of the petition on the
People of the Philippines, through the Prosecutor would be inefficacious for the reason that the Solicitor
General is the sole representative of the People of the Philippines in appeals before the CA and the
Supreme Court. The respondent's failure to have a copy of his petition served on the People of the
Philippines, through the OSG, is a sufficient ground for the dismissal of the petition as provided in
Section 3, Rule 42 of the Rules of Court. Thus, the CA has no other recourse but to dismiss the petition.
However, the CA, instead of dismissing respondent's petition, proceeded to resolve the petition and
even acquitted respondent without the Solicitor General's comment. We, thus, find that the CA
committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering its assailed
decision.

On a procedural matter, the Court notes that petitioner filed the instant petition for certiorari under
Rule 65 without filing a motion for reconsideration with the CA. It is settled that the writ of certiorari lies
only when petitioner has no other plain, speedy, and adequate remedy in the ordinary course of law.
Thus, a motion for reconsideration, as a general rule, must be filed before the tribunal, board, or officer
against whom the writ of certiorari is sought. Ordinarily, certiorari as a special civil action will not lie
unless a motion for reconsideration is first filed before the respondent tribunal, to allow it an
opportunity to correct its assigned errors.[22] This rule, however, is not without exceptions. In National
Housing v. Court of Appeals,[23] we held:

However, in Progressive Development Corporation v. Court of Appeals, we held that while generally a
motion for reconsideration must first be filed before resorting to certiorari in order to give the lower
court an opportunity to rectify its errors, this rule admits of exceptions and is not intended to be applied
without considering the circumstances of the case. The filing of a motion for reconsideration is not a
condition sine qua non when the issue raised is purely one of law, or where the error is patent or the
disputed order is void, or the questions raised on certiorari are the same as those already squarely
presented to and passed upon by the lower court.[24] (emphasis supplied)

The CA decision being void for lack of due process, the filing of the instant petition for certiorari without
a motion for reconsideration is justified.

WHEREFORE, the petition for certiorari is hereby GRANTED. The assailed decision of the CA in CA-G.R.
CR No. 28312 is hereby SET ASIDE and the case is REMANDED to the CA for further proceedings. The CA
is ordered to decide the case with dispatch.

FACTS:

This is a petition for review on certiorari the decision of the Court of Appeals. CrasusIyoy was married to
FelyIyoy in 1961 and this marriage gave birth to five children. FelyIyoy eventually left for the States to
provide for their family in 1984 and in lessthan a year sent Crasus documents to sign with regard to a
divorce that she applied for. Crasus eventually found out that Fely married Stephen Micklus in 1985 and
their relationship has conceived of a child. Crasus eventually questioned the validity of Fely’s subsequent
marriage. The Court of Appeals in deciding this case sided with Fely.

ISSUE:

Whether or not a divorce decree acquired by a Filipino from the United States is valid and recognized in
the Philippines.

RULING:

The court decided in the negative and reversed the Appellate Court’s decision. Basing from the facts,
Fely only became a citizen in 1988 and acquired the divorce in 1984, marrying Micklus a year after. This
means that paragraph two of Article 26 cannot be applied in such a way that, Fely is not yet considered
an alien at the time the divorce was acquired and therefore she does not have the capacity to remarry
and the marriage is still considered as subsisting. The Civil Code also provides that Filipino Citizen, with
regard to family laws and status are governed by Philippine laws regardless of where they are. Fely,
being a Filipino Citizen then, is not permitted by our laws to acquire a divorce decree since such is not
recognized in the Philippines.

“Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

“WHERE A MARRIAGE BETWEEN A FILIPINO CITIZEN AND A FOREIGNER IS VALIDLY CELEBRATED AND A
DIVORCE IS THEREAFTER VALIDLY OBTAINED ABROAD BY THE ALIEN SPOUSE CAPACITATING HIM OR HER
TO REMARRY, THE FILIPINO SPOUSE SHALL LIKEWISE HAVE CAPACITY TO REMARRY UNDER PHILIPPINE
LAW.”
ART. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization.

Article 15.Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad. (9a)

ART. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent
collusion between the parties and to take care that the evidence is not fabricated or suppressed.