estrada vs. bersamin.docx

8/15/2019 estrada vs. bersamin.docx

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SENATOR JINGGOY EJERCITO ESTRADA, Petitioner , v. BERSAMIN, OFFICE OF THE OMBUDSMAN, FIELDINVESTIGATION OFFICE, OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION AND ATTY.

LEVITO D. BALIGOD, Respondents.

D E C I S I O N

CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the witnesseswhich the complainant may present. Section , R!"e ##$ o% t&e R!"e' o% Co!(t e)*(e''"+ *(oi-e' t&t t&e (e'*on-ent'&"" on"+ &e t&e (i/&t to submit a counter-affidavit, to e)0ine "" ot&e( ei-ence '!10itte- 1+ t&eco0*"innt and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to beafforded an opportunity to be present but without the right to examine or cross-examine.

- Paderanga v. Drilon1

This case is a Petition for ertiorari! with prayer for "1# the issuance of a temporary restraining order and$or %rit ofPreliminary In&unction en&oining respondents 'ffice of the 'mbudsman "'mbudsman#, (ield Investigation 'ffice "(I'# of the'mbudsman, )ational *ureau of Investigation ")*I#, and +tty. evito . *aligod "+tty. *aligod# "collectively, respondents#,from conducting further proceedings in '*---1/-0/01/ and '*---1/-0/2 until the present Petition has beenresolved with finality3 and "!# this ourt4s declaration that petitioner 5enator 6inggoy 7&ercito 7strada "5en. 7strada# was

denied due process of law, and that the 'rder of the 'mbudsman dated !2 arch !018 and the proceedings in '*---1/-0/01/ and '*---1/-0/2 subsequent to and affected by the issuance of the challenged !2 arch !018 'rder arevoid.

'*---1/-0/1/,/ entitled National Bureau of Investigation and Atty. Levito D. Baligod v. Jose “Jinggoy” P. EjeritoEstrada! et al., refers to the complaint for Plunder as defined under 9epublic +ct "9+# )o. 20:0, while '*---1/-0/2,8 entitled "ield Investigation #ffie! #ffie of t$e #%&uds%an v. Jose “Jinggoy” P. Ejerito'Estrada! et al., refers to thecomplaint for Plunder as defined under 9+ )o. 20:0 and for violation of 5ection /"e# of 9+ )o. /01 "+nti-;raft and orruptPractices +ct#.cralawred

T&e Fct'

'n !< )ovember !01/, the 'mbudsman served upon 5en. 7strada a copy of the complaint in '*---1/-0/1/, filed bythe )*I and +tty. *aligod, which prayed, among others, that criminal proceedings for Plunder as defined in 9+ )o. 20:0 beconducted against 5en. 7strada. 5en. 7strada filed his counter-affidavit in '*---1/-0/1/ on 6anuary !018.

'n / ecember !01/, the 'mbudsman served upon 5en. 7strada a copy of the complaint in '*---1/-0/2, filed by the(I' of the 'mbudsman, which prayed, among others, that criminal proceedings for Plunder, as defined in 9+ )o. 20:0, andfor violation of 5ection /"e# of 9+ )o. /01, be conducted against 5en. 7strada. 5en. 7strada filed his counter-affidavit in'*---1/-0/2 on 1= 6anuary !018.

7ighteen of 5en. 7strada4s co-respondents in the two complaints filed their counter-affidavits between ecember !01/ and18 arch !018.


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'n !2 arch !018, the 'mbudsman issued the assailed 'rder in '*---1/-0/1/. The pertinent portions of the assailed'rder read?han9oblesEirtual awlibraryThis 'ffice finds however finds @sicA that the foregoing provisions @pertaining to 5ection /@bA, 9ule 11! of the 9ules of ourtand 5ection 8@cA, 9ule II of the 9ules of Procedure of the 'ffice of the 'mbudsmanA do not entitle respondent @5en. 7stradaAto befurnished all the filings of the respondents.

9ule 11! "/# "a# F "c# of the 9ules of ourt provides @sicA? han9oblesEirtual awlibrary"a# The co0*"int shall state the address of the respondent and shall becco0*nie- 1+ t&e %%i-it' o% t&e

co0*"innt n- &i' 2itne''e', as well as other supporting documents to establish probable cause G

xxx xxx xxx

"c# %ithin ten "10# days from receipt of the subpoena with the complaint and supporting affidavits and documents,the (e'*on-ent '&"" '!10it &i' co!nte(3%%i-it and that of his witnesses and other supporting documents relied uponfor his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph "a# of thissection, with co*ie' t&e(eo% %!(ni'&e- 1+ &i0 to t&e co0*"innt .(urther to quote the rule in furnishing copies of affidavits to parties under the 9ules of Procedure of the 'ffice of the'mbudsman @5ection 8 of 9ule II of +dministrative 'rder )o. 02 issued on +pril 10, 10A?han9oblesEirtual awlibrarya# If the complaint is not under oath or is based only on official reports, the investigating officer shall requirethe co0*"innt o( '!**o(tin/ 2itne''e' to e)ec!te %%i-it' to substantiate the complaints.

b# +fter such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a co*+ o% t&e%%i-it' n- ot&e( '!**o(tin/ -oc!0ent', directing the respondents to submit, within ten "10# days from receipt thereof,

his counter-affidavits and controverting evidence with *(oo% o% 'e(ice t&e(eo% on t&e co0*"innt . The complainant mayfile reply affidavits within ten "10# days after service of the counter-affidavits.It can be gleaned from these aforecited provisions that this 'ffice is required to furnish @5en. 7stradaA a copy of theomplaint and its supporting affidavits and documents3 and this 'ffice complied with this requirement when it furnished@5en. 7stradaA with the foregoing documents attached to the 'rders to (ile ounter-+ffidavit dated 1 )ovember !01/ and!< )ovember !01/.

It is to be noted that there is no provision under this 'ffice4s 9ules of Procedure which entitles respondent to be furnished allthe filings &y t$e ot$er parties, e.g. the respondents. 9uby Tuason, ennis unanan, ;ondelina ;. +mata and ario .9elampagos themselves are all respondents in these cases. Hnder the 9ules of ourt as well as the 9ules of Procedure ofthe 'ffice of the 'mbudsman, the respondents areon"+ (e4!i(e- to %!(ni'& their counter-affidavits and controvertingevidence to t&eco0*"innt, and not to the other respondents.

To reiterate, the rights of respondent @5en.A 7strada in the conduct of the preliminary investigation depend on the rightsgranted to him by law and these cannot be based on whatever rights he believes @thatA he is entitled to or those that may bederived from the phrase Bdue process of law.D

Thus, this 'ffice cannot grant his motion to be furnished with copies of all the filings by the other parties. )evertheless, heshould be furnished a copy of the 9eply of complainant )*I as he is entitled thereto under the rules3 however, as of thisdate, no 9eply has been filed by complainant )*I.

5HEREFORE, respondent @5en.A 7strada4s Re(uest to &e "urnis$ed )it$ *opies of *ounter'Affidavits of t$e #t$erRespondents! Affidavits of Ne) +itnesses and #t$er "ilings is DENIED. e is nevertheless entitled to be furnished a copyof the 9eply if complainant opts to file such pleading.: "7mphases in the original#'n !: arch !018, the 'mbudsman issued in '*---1/-0/1/ and '*---1/-0/2 a 6oint 9esolution which foundprobable cause to indict 5en. 7strada and his co-respondents with one count of plunder and 11 counts of violation of 5ection/"e# of 9+ )o. /01. 5en. 7strada filed a otion for 9econsideration "of the 6oint 9esolution dated !: arch !018# dated 2 +pril !018. 5en. 7strada prayed for the issuance of a new resolution dismissing the charges against him.

5it&o!t %i"in/ Motion %o( Recon'i-e(tion o% t&e O01!-'0n6' $7 M(c& $8#9 O(-e( -en+in/ &i' Re4!e't, 5en.7strada filed the present Petition for ertiorari under 9ule =< and sought to annul and set aside the !2 arch !018 'rder. cralawred

THE ARGUMENTS

5en. 7strada raised the following grounds in his Petition? han9oblesEirtualawl ibraryT7 '((I7 '( T7 '*H5+), I) I55HI); T7 +7);7 #RDER +T7 !2 +9 !018, +T7%IT'HT '9 I) 7J755 '( IT5 6H9I5ITI') '9 %IT ;9+E7 +*H57 '( I597TI') +'H)TI); T' +K'9 7J755 '( 6H9I5ITI') +) EI'+T7 57). 75T9++L5 ')5TITHTI')+ 9I;T T' H7 P9'755 '(+%.10

5en. 7strada also claimed that under the circumstances, he has Bno appeal or any other plain, speedy, and adequateremedy in the ordinary course of law, except through this Petition.D11 5en. 7strada applied for the issuance of a temporaryrestraining order and$or writ of preliminary in&unction to restrain public respondents from conducting further proceedings in'*---1/-0/1/ and '*---1/-0/2. (inally, 5en. 7strada as>ed for a &udgment declaring that "a# he has been


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denied due process of law, and as a consequence thereof, "b# the 'rder dated !2 arch !018, as well as the proceedings in'*---1/-0/1/ and '*---1/-0/2 subsequent to and affected by the issuance of the !2 arch !018 'rder, arevoid.1!chan9oblesvirtualawlibrary

On t&e '0e -te, 7 M+ $8#9, t&e O01!-'0n i''!e- in OMB3C3C3#38# n- OMB3C3C3#387 Joint O(-e(%!(ni'&in/ Sen. E't(- 2it& t&e co!nte(3%%i-it' o% T!'on, C!nnn, A0t, Re"0*/o', F(nci'co Fi/!(,G(e/o(i B!enent!(, n- A"e)i' Sei-", n- -i(ectin/ &i0 to co00ent t&e(eon 2it&in non3e)ten-i1"e *e(io-o% %ie -+' %(o0 (ecei*t o% t&e o(-e(.

'n 1! ay !018, 5en. 7strada filed before the 'mbudsman a motion to suspend proceedings in '*---1/-0/1/ and'*---1/-0/2 because the denial of his 9equest to be furnished copies of counter-affidavits of his co-respondentsdeprived him of his right to procedural due process, and he has filed the present Petition before this ourt. The 'mbudsmandenied 5en. 7strada4s motion to suspend in an 'rder dated 1< ay !018. 5en. 7strada filed a motion for reconsideration ofthe 'rder dated 1< ay !018 but his motion was denied in an 'rder dated / 6une !018.

A' o% $ J!ne $8#9, t&e -te o% %i"in/ o% t&e O01!-'0n6' Co00ent to t&e *(e'ent Petition, Sen. E't(- &- not%i"e- co00ent on t&e co!nte(3%%i-it' %!(ni'&e- to &i0. 'n 8 6une !018, the 'mbudsman issued a 6oint 'rder in'*---1/-0/1/ and '*---1/-0/2 denying, among other motions filed by the other respondents, 5en. 7strada4smotion for reconsideration dated 2 +pril !018. The pertinent portion of the 8 6une !018 6oint 'rder stated? han9oblesEirtual awlibrary%hile it is true that 5enator 7strada4s request for copies of Tuason, unanan, +mata, 9elampagos, (igura, *uenaventuraand 5evidal4s affidavits was denied by 'rder dated !2 arch !018 and &efore the promulgation of the assailed 6oint9esolution, this 'ffice thereafter re-evaluated the request and granted it by 'rder dated 2 ay !018 granting his request.opies of the requested counter-affidavits were appended to the copy of the 'rder dated 2 ay !018 transmitted to 5enator

7strada through counsel.

T&i' O%%ice, in %ct, &e"- in 1e+nce t&e -i'*o'ition o% t&e 0otion' %o( (econ'i-e(tion in t&i' *(ocee-in/ in "i/&t o% it' /(nt to Sento( E't(- *e(io- o% %ie -+' %(o0 (ecei*t o% t&e 7 M+ $8#9 O(-e( to %o(0""+ (e'*on- to t&e1oe3n0e- co3(e'*on-ent'6 c"i0'.

In view of the foregoing, this 'ffice fails to see how 5enator 7strada was deprived of his right to procedural dueprocess.1/ "7mphasis supplied#'n ! 6une !018, the 'mbudsman, the (I', and the )*I "collectively, public respondents#, through the 'ffice of the 5olicitor;eneral, filed their omment to the present Petition. The public respondents argued that?han9oblesEirtuala wlibraryI. P7TITI')79 @57). 75T9++A %+5 )'T 7)I7 H7 P9'755 '( +%.

II. T7 P7TITI') ('9 *ER,I#RARI I5 P9'7H9+M I)(I9. +. LI,I- PENDEN,IA 7JI5T5 I) TI5 +57.

*. P7TITI')79 +5 + P+I), 5P77M +) +7NH+T7 977M I) T7 '9I)+9M 'H957 '( +%.

III. P7TITI')79 I5 )'T 7)TIT7 T' + %9IT '( P97II)+9M I)6H)TI') +)$'9 T7P'9+9M 975T9+I)I);'979.18

'n = 6une !018, +tty. *aligod filed his omment to the present Petition. +tty. *aligod stated that 5en. 7strada4s resort to aPetition for ertiorari under 9ule =< is improper. 5en. 7strada should have either filed a motion for reconsideration of the !2arch !018 'rder or incorporated the alleged irregularity in his motion for reconsideration of the !: arch !018 6oint9esolution. There was also no violation of 5en. 7strada4s right to due process because there is no rule which mandates thata respondent such as 5en. 7strada be furnished with copies of the submissions of his co-respondents.

'n 1= 6une !018, 5en. 7strada filed his 9eply to the public respondents4 omment. 5en. 7strada insisted that he wasdenied due process. +lthough 5en. 7strada received copies of the counter-affidavits of unanan, +mata, 9elampagos,*uenaventura, (igura, 5evidal, as well as one of Tuason4s counter-affidavits, he claimed that he was not given the followingdocuments?han9oblesEirtuala wlibrarya# 'ne other ounter-+ffidavit of 9uby Tuason dated !1 (ebruary !0183

b# ounter-+ffidavit of 5ofia . ruO dated /1 6anuary !0183

c# ounter-+ffidavit of 7velyn 5ugcang dated 11 (ebruary !0183

d# Two "!# ounter-+ffidavits of +lan +. 6avellana dated 0= (ebruary !0183

e# ounter-+ffidavit of Eictor 9oman o&amco acal dated 11 ecember !01/ "to the (I' omplaint#3

f# ounter-+ffidavit of Eictor 9oman o&amco acal dated !! 6anuary !018 "to the )*I omplaint#3

g# Two "!# counter-affidavits of a. 6ulie +. Eillaralvo-6ohnson both dated 18 arch !0183

h# ounter-affidavit of 9hodora *ulatad endoOa dated 0= arch !0183


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i# ounter-affidavit of aria )ineO P. ;uaiOo dated !: 6anuary !0183

Two "!# counter-affidavits of arivic E. 6over both dated 0 ecember !01/3 and

># ounter-affidavit of (rancisco *. (igura dated 0: 6anuary !018.5en. 7strada argues that the Petition is not rendered moot by the subsequent issuance of the 2 ay !018 6oint 'rderbecause there is a recurring violation of his right to due process. 5en. 7strada also insists that there is no forum shopping as

the present Petition arose from an incident in the main proceeding, and that he has no other plain, speedy, and adequateremedy in the ordinary course of law. (inally, 5en. 7strada reiterates his application for the issuance of a temporaryrestraining order and$or writ of preliminary in&unction to restrain public respondents from conducting further proceedings in'*---1/-0/1/ and '*---1/-0/2. cralawred

T&i' Co!(t6' R!"in/

onsidering the facts narrated above, the 'mbudsman4s denial in its !2 arch !018 'rder of 5en. 7strada4s 9equest didnot constitute grave abuse of discretion. Indeed, the denial did not violate 5en. 7strada4s constitutional right to due process.

First. There is no law or rule which requires the 'mbudsman to furnish a respondent with copies of the counter-affidavits ofhis co-respondents.

%e reproduce below 5ections / and 8, 9ule 11! of the 9evised 9ules of riminal Procedure, as well as 9ule II of +dministrative 'rder )o. 2, 9ules of Procedure of the 'ffice of the 'mbudsman, for ready reference.

(rom the 9evised 9ules of riminal Procedure, 9ule 11!? Preliminary Investigation

5ection /. Proedure. Q The preliminary investigation shall be conducted in the following manner?

"a# The complaint shall state the address of the respondent and shall be accompanied by the affidavits of thecomplainant and his witnesses, as well as other supporting documents to establish probable cause . They shall be insuch number of copies as there are respondents, plus two "!# copies for the official file. The affidavits shall be subscribedand sworn to before any prosecutor or government official authoriOed to administer oath, or, in their absence orunavailability, before a notary public, each of who must certify that he personally examined the affiants and that he issatisfied that they voluntarily executed and understood their affidavits.

"b# %ithin ten "10# days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground tocontinue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and itssupporting affidavits and documents.

T&e (e'*on-ent '&"" &e t&e right to examine the evidence submitted by the complainant 2&ic& &e 0+ not &e

1een %!(ni'&e- n- to co*+ t&e0 t &i' e)*en'e. If the evidence is voluminous, the complainant may be required tospecify those which he intends to present against the respondent, and these shall be made available for examination orcopying by the respondent at his expense.

'b&ects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing atthe expense of the requesting party.

"c# %ithin ten "10# days from receipt of the subpoena with the complaint and supporting affidavits and documents, therespondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for hisdefense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph "a# of this section,with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss inlieu of a counter-affidavit.

"d# If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten "10# dayperiod, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

"e# The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. Theparties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to theinvestigating officer questions which may be as>ed to the party or witness concerned.

The hearing shall be held within ten "10# days from submission of the counter-affidavits and other documents or from theexpiration of the period for their submission. It shall be terminated within five "


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respondent for trial, he shall prepare the resolution and information. e shall certify under oath in the information that he, oras shown by the record, an authoriOed officer, has personally examined the complainant and his witnesses3 that there isreasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof3 t&t t&ecc!'e- 2' in%o(0e- o% t&e co0*"int n- o% t&e evidence submitted against him3 and that he was given anopportunity to submit controverting evidence. 'therwise, he shall recommend the dismissal of the complaint.

%ithin five "


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the affidavits and other supporting documents, -i(ectin/ t&e (e'*on-ent to '!10it, 2it&in ten ;#8< -+' %(o0 (ecei*tt&e(eo%, &i' co!nte(3%%i-it' n- cont(oe(tin/ ei-ence 2it& *(oo% o% 'e(ice t&e(eo% on t&e co0*"innt. Thecomplainant may file reply affidavits within ten "10# days after service of the counter-affidavits.

c# If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed by him, if any,as his answer to the complaint. In any event,the respondent shall have access to the evidence on record .

d# )o motion to dismiss shall be allowed except for lac> of &urisdiction. )either may a motion for a bill of particulars be

entertained. If respondent desires any matter in the complainant4s affidavit to be clarified, the particulariOation thereof maybe done at the time of clarificatory questioning in the manner provided in paragraph "f# of this section.

e# If the respondent cannot be served with the order mentioned in paragraph = hereof, or having been served, does notcomply therewith, the complaint shall be deemed submitted for resolution on the basis of the evidence on record.

f# If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which theinvestigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall beafforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned.%here the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be conducted in writing,whereby the questions desired to be as>ed by the investigating officer or a party shall be reduced into writing and served onthe witness concerned who shall be required to answer the same in writing and under oath.

g# Hpon the termination of the preliminary investigation, the investigating officer shall forward the records of the casetogether with his resolution to the designated authorities for their appropriate action thereon.

)o information may be filed and no complaint may be dismissed without the written authority or approval of the 'mbudsmanin cases falling within the &urisdiction of the 5andiganbayan, or of the proper eputy 'mbudsman in all other cases.

x x x x

5ec. =. Notie to parties. Q The parties shall be served with a copy of the resolution as finally approved by the 'mbudsmanor by the proper eputy 'mbudsman.

5ec. 2. 0otion for reonsideration. Q a# 'nly one "1# motion for reconsideration or reinvestigation of an approved order orresolution shall be allowed, the same to be filed within fifteen "1


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the complainant and his supporting witnesses. The provision in the immediately succeeding 5ection 8"c# of the same 9ule IIthat a respondent shall have Baccess to the evidence on recordD does not stand alone, but should be read in relation to theprovisions of 5ection 8"a and b# of the same 9ule II requiring the investigating officer to furnish the respondent with theBaffidavits and other supporting documentsD submitted by Bthe complainant or '!**o(tin/ 2itne''e'.D Thus, a respondent4sBaccess to evidence on recordD in 5ection 8"c#, 9ule II of the 'mbudsman4s 9ules of Procedure refers to the affidavits andsupporting documents of Bthe complainant or '!**o(tin/ 2itne''e'D in 5ection 8"a# of the same 9ule II.

,$ird , 5ection /"b#, 9ule 11! of the 9evised 9ules of riminal Procedure provides that B@tAhe respondent shall have t&e (i/&t

to e)0ine t&e ei-ence '!10itte- 1+ t&e co0*"innt which he may not have been furnished and to copy them at hisexpense.D + respondent4s right to examine refers only to Bt&e ei-ence '!10itte- 1+ t&e co0*"innt.D

Thus, whether under 9ule 11! of the 9evised 9ules of riminal Procedure or under 9ule II of the 'mbudsman4s 9ules ofProcedure, there is no requirement whatsoever that the affidavits executed by the co-respondents should be furnished to arespondent.

6ustice Eelasco4s dissent relies on the ruling in #ffie of t$e #%&uds%an v. Reyes "Reyes case#,1nows that quanta of proof and ad&ective rules vary depending on whether the cases to which theyare meant to apply are criminal, civil or administrative in character. In criminal actions, proof beyond reasonable doubt isrequired for conviction3 in civil actions and proceedings, preponderance of evidence, as support for a &udgment3 and inadministrative cases, substantial evidence, as basis for ad&udication. In criminal and civil actions, application of the 9ules ofourt is called for, with more or less strictness. In administrative proceedings, however, the technical rules of pleading andprocedure, and of evidence, are not strictly adhered to3 they generally apply only suppletorily3 indeed, in agrarian disputesapplication of the 9ules of ourt is actually prohibited.12

It should be underscored that the conduct of a preliminary investigation is only for the determination of probable cause, andBprobable cause merely implies probability of guilt and should be determined in a summary manner. + preliminaryinvestigation is not a part of the trial and it is only in a trial where an accused can demand the full exercise of his rights, suchas the right to confront and cross-examine his accusers to establish his innocence.D1: Thus, the rights of a respondent in apreliminary investigation are limited to those granted by procedural law. + preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is sufficientground to engender a well founded belief that a crime cogniOable by the 9egional Trial ourt has been committed and that

the respondent is probably guilty thereof, and should be held for trial. T&e 4!nt!0 o% ei-ence no2 (e4!i(e- in*(e"i0in(+ ine'ti/tion i' '!c& ei-ence '!%%icient to =en/en-e( 2e"" %o!n-e- 1e"ie%> ' to t&e %ct o% t&eco00i''ion o% c(i0e n- t&e (e'*on-ent?' *(o11"e /!i"t t&e(eo%. A *(e"i0in(+ ine'ti/tion i' not t&e occ'ion%o( t&e %!"" n- e)&!'tie -i'*"+ o% t&e *(tie'6 ei-ence@ it i' %o( t&e *(e'enttion o% '!c& ei-ence on"+ ' 0+en/en-e( 2e""3/(o!n-e- 1e"ie% t&t n o%%en'e &' 1een co00itte- n- t&t t&e cc!'e- i' *(o11"+ /!i"t+t&e(eo%. %e are in accord with the state prosecutor4s findings in the case at bar that there exists prima facie evidence ofpetitioner4s involvement in the commission of the crime, it being sufficiently supported by the evidence presented and thefacts obtaining therein.

i>ewise devoid of cogency is petitioner4s argument that the testimonies of ;alarion and anopol are inadmissible as to himsince he was not granted the opportunity of cross-examination.


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It i' %!n-0ent" *(inci*"e t&t t&e cc!'e- in *(e"i0in(+ ine'ti/tion &' no (i/&t to c(o''3e)0ine t&e2itne''e' 2&ic& t&e co0*"innt 0+ *(e'ent. Section , R!"e ##$ o% t&e R!"e' o% Co!(t e)*(e''"+ *(oi-e' t&t t&e(e'*on-ent '&"" on"+ &e t&e (i/&t to '!10it co!nte(3%%i-it, to e)0ine "" ot&e( ei-ence '!10itte- 1+ t&eco0*"innt n-, 2&e(e t&e %i'c" 'et' &e(in/ to *(o*o!n- c"(i%icto(+ 4!e'tion' to t&e *(tie' o( t&ei(2itne''e', to 1e %%o(-e- n o**o(t!nit+ to 1e *(e'ent 1!t 2it&o!t t&e (i/&t to e)0ine o( c(o''3e)0ine. Thus,even if petitioner was not given the opportunity to cross-examine ;alarion and anopol at the time they were presented totestify during the separate trial of the case against ;alarion and 9oxas, he cannot assert any legal right to cross-examine

them at the preliminary investigation precisely because such right was never available to him. The admissibility orinadmissibility of said testimonies should be ventilated before the trial court during the trial proper and not in the preliminaryinvestigation.

(urthermore, t&e tec&nic" (!"e' on ei-ence (e not 1in-in/ on t&e %i'c" 2&o &' !(i'-iction n- cont(o" oe( t&econ-!ct o% *(e"i0in(+ ine'ti/tion. If by its very nature a preliminary investigation could be waived by theaccused, 2e %in- no co0*e""in/ !'ti%iction %o( 't(ict **"iction o% t&e ei-enti(+ (!"e' . In addition, consideringthat under 5ection :, 9ule 11! of the 9ules of ourt, the record of the preliminary investigation does not form part of therecord of the case in the 9egional Trial ourt, then the testimonies of ;alarion and anopol may not be admitted by the trialcourt if not presented in evidence by the prosecuting fiscal. +nd, even if the prosecution does present such testimonies,petitioner can always ob&ect thereto and the trial court can rule on the admissibility thereof3 or the petitioner can, during thetrial, petition said court to compel the presentation of ;alarion and anopol for purposes of cross-examination.1 "7mphasissupplied#(urthermore, in citing the Reyes case, 6ustice Eelasco4s dissent overloo>ed a vital portion of the ourt of +ppeals4reasoning. This ourt quoted from the ourt of +ppeals4 decision? Bx x x @+Admissions made by PealoOa in his sworn

statement are binding only on him. Res inter alios ata alteri noere non de&et . The rights of a party cannot be pre&udiced byan act, declaration or omission of another.DIn OMB3C3C3#38# n- OMB3C3C3#387, t&e -0i''ion' o% Sen.E't(-6' co3(e'*on-ent' cn in no 2+ *(e!-ice Sen. E't(-. 7ven granting 6ustice Eelasco4s argument that the !:arch !018 6oint 9esolution in '*---1/-0/1/ and '*---1/-0/2!0 mentioned the testimonies of 5en. 7strada4sco-respondents li>e Tuason and unanan, their testimonies were merely corroborative of the testimonies of complainants4witnesses *enhur uy, arina 5ula, and erlina 5uas and were not mentioned in isolation from the testimonies ofcomplainants4 witnesses.

oreover, the sufficiency of the evidence put forward by the 'mbudsman against 5en. 7strada to establish its finding ofprobable cause in the !: arch !018 6oint 9esolution in '*---1/-0/1/ and '*---1/-0/2 was &udicially confirmedby the 5andiganbayan, when it examined the evidence,%o!n- *(o11"e c!'e, and issued a warrant of arrest against 5en.7strada on !/ 6une !018.

%e li>ewise ta>e exception to 6ustice *rion4s assertion that Bt&e -!e *(oce'' 'tn-(-' t&t t t&e e(+ "e't '&o!"- 1econ'i-e(e- in t&e con-!ct o% *(e"i0in(+ ine'ti/tion (e t&o'e t&t t&i' Co!(t %i('t (tic!"te- in Ang Tibay v.ourt of !ndustrial Relations "Ang Tibay# .D!1 5imply put, the Ang ,i&ay guidelines for administrative cases do not apply to

preliminary investigations in criminal cases. +n application of the Ang ,i&ay guidelines to preliminary investigations will haveabsurd and disastrous consequences.

Ang ,i&ay enumerated the con'tit!tion" requirements of due process, which Ang ,i&ay described as the B%!n-0ent"n- e''enti" (e4!i(e0ent' o% -!e *(oce'' in trials and investigations of an administrative character.D!! Theserequirements are B%!n-0ent" n- e''enti"D because without these, there is no due process as mandated by theonstitution. These Bfundamental and essential requirementsD cannot be ta>en away by legislation because they are part ofconstitutional due process. These Bfundamental and essential requirementsD are? han9oblesEirtualawl ibrary"1# The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present hisown case and submit evidence in support thereof. x x x.

"!# )ot only must the party be given an opportunity to present his case and adduce evidence tending to establish the rightswhich he asserts but the tribunal %ust onsider the evidence presented. x x x.

"/# B%hile the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot bedisregarded, namely, that of having something to support its decision. + decision with absolutely nothing to support it is a

nullity, x x x.D

"8# )ot only must there be some evidence to support a finding or conclusion, but the evidence must be Bsubstantial.DB5ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept asadequate to support a conclusion.D x x x.

"


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"2# The ourt of Industrial 9elations should, in all controversial questions, render its decision in such a manner that theparties to the proceeding can >now the various issues involved, and the reasons for the decisions rendered. Theperformance of this duty is inseparable from the authority conferred upon it.!/

The guidelines set forth in Ang ,i&ay are further clarified in -I- v. +!8 "-I-#? Bwhat Ang ,i&ay failed to explicitly statewas, prescinding from the general principles governing due process, t&e (e4!i(e0ent o% n i0*(ti" t(i1!n" which,needless to say, dictates that one called upon to resolve a dispute may not sit as &udge and &ury simultaneously, neither mayhe review his decision on appeal.D!e afinal ad&udication of the rights and obligations of the parties under the law, which is the purpose of the guidelines in Ang,i&ay . T&e ine'ti/tin/ o%%ice( ine'ti/te', -ete(0ine' *(o11"e c!'e, n- *(o'ec!te' t&e c(i0in" c'e %te(%i"in/ t&e co((e'*on-in/ in%o(0tion.

The purpose in determining probable cause is to ma>e sure that the courts are not clogged with wea> cases that will only bedismissed, as well as to spare a person from the travails of a needless prosecution.!= The 'mbudsman and the prosecutionservice under the cont(o" n- '!*e(i'ion of the 5ecretary of the epartment of 6ustice are inherently the fact-finder,investigator, hearing officer, &udge and &ury of the respondent in preliminary investigations. 'bviously, this procedure cannotcomply with Ang ,i&ay , as amplified in -I-. owever, there is nothing unconstitutional with this procedure because this ismerely an 7xecutive function, a part of the law enforcement process leading to trial in court where the requirementsmandated in Ang ,i&ay , as amplified in -I-, will apply. This has been the procedure under the 1/ely than not a crime has been committedand was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neitheron evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty ofguilt. +s well put in Brinegar v. 1nited -tates, while probable cause demands more than Bbare suspicion,D it requires Blessthan evidence which would &ustify . . . conviction.D + finding of probable cause merely binds over the suspect to stand trial. Itis not a pronouncement of guilt.

onsidering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the'6 Panel did not gravely abuse its discretion in refusing to call the )*I witnesses for clarificatory questions. The decisionto call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigatoralone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To

(e*et, *(o11"e c!'e 0e(e"+ i0*"ie' *(o11i"it+ o% /!i"t n- '&o!"- 1e -ete(0ine- in '!00(+ 0nne(.P(e"i0in(+ ine'ti/tion i' not *(t o% t(i" n- it i' on"+ in t(i" 2&e(e n cc!'e- cn -e0n- t&e %!"" e)e(ci'eo% &i' (i/&t', '!c& ' t&e (i/&t to con%(ont n- c(o''3e)0ine &i' cc!'e(' to e't1"i'& &i' innocence. In the case atbar, the '6 Panel correctly ad&udged that enough evidence had been adduced to establish probable cause and clarificatoryhearing was unnecessary.!2

6ustice 6.*.. 9eyes, writing for the ourt, emphatically declared in Lo2ada v. 3ernande2 ,!: that the B(i/&t' con%e((e- !*oncc!'e- *e('on' to *(tici*te in *(e"i0in(+ ine'ti/tion' conce(nin/ t&e0'e"e' depend upon the provisions of law by which such rights are specifically secured, rather than upon the phrase $due process of law% .D This reiterates6ustice 6ose P. aurel4s oft-quoted pronouncement in 3as$i% v. Bonan! that Bt&e (i/&t to *(e"i0in(+ ine'ti/tion i''tt!to(+, not con'tit!tion".D In short, the rights of a respondent in a preliminary investigation are merely statutory rights,not constitutional due process rights. +n investigation to determine probable cause for the f iling of an information does notinitiate a criminal action so as to trigger into operation 5ection 18"!#, +rticle III of the onstitution./0 It is the filing of acomplaint or information in court that initiates a criminal action./1chan9oblesvirt ualawlibrary

The rights to due process in administrative cases as prescribed in Ang ,i&ay , as amplified in -I-, are granted by theonstitution3 hence, these rights cannot be ta>en away by mere legislation. 'n the other hand, as repeatedly reiterated by

this ourt, the right to a preliminary investigation is merely a statutory right,/! not part of the Bfundamental and essentialrequirementsD of due process as prescribed in Ang ,i&ay and amplified in -I-. Thus, a preliminary investigation can beta>en away by legislation. The constitutional right of an accused to confront the witnesses against him does not apply inpreliminary investigations3 nor will the absence of a preliminary investigation be an infringement of his right to confront thewitnesses against him.// + preliminary investigation may be done away with entirely without infringing the constitutional rightof an accused under the due process clause to a fair trial./8chan9oblesvirtu alawlibrary

The quantum of evidence needed in Ang ,i&ay , as amplified in -I-, is greater than the evidence needed in a preliminaryinvestigation to establish probable cause, or to establish the existence of a pri%a faie case that would warrant theprosecution of a case. Ang ,i&ay refers to Bsubstantial evidence,D while the establishment of probable cause needs Bonly


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more than Cbare suspicion,4 or Cless than evidence which would &ustify . . . conviction4.D In the Hnited 5tates, from where weborrowed the concept of probable cause,/nowledge and of which they had reasonably trustworthyinformation @areA sufficient in themselves to warrant a man of reasonable caution in the belief thatD an offense has been or isbeing committed. *arroll v. 1nited -tates! 758 1. -. 967! 957 .

These long-prevailing standards see> to safeguard citiOens from rash and unreasonable interferences with privacy and fromunfounded charges of crime. They also see> to give fair leeway for enforcing the law in the community4s protection. *ecausemany situations which confront officers in the course of executing their duties are more or less ambiguous, room must beallowed for some mista>es on their part. *ut the mista>es must be those of reasonable men, acting on facts leading sensiblyto their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the bestcompromise that has been found for accommodating these often opposing interests. 9equiring more would unduly hamperlaw enforcement. To allow less would be to leave law-abiding citiOens at the mercy of the officers4 whim or caprice./=

In the Philippines, there are four instances in the 9evised 9ules of riminal Procedure where probable cause is needed tobe established?

"1# In 5ections 1 and / of 9ule 11!? *y the investigating officer, to determine whether there is sufficient ground to engendera well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held fortrial. + preliminary investigation is required before the filing of a complaint or information for an offense where the penaltyprescribed by law is at least four years, two months and one day without regard to the fine3

"!# In 5ections = and of 9ule 11!? *y the &udge, to determine whether a warrant of arrest or a commitment order, if theaccused has already been arrested, shall be issued and that there is a necessity of placing the respondent under immediatecustody in order not to frustrate the ends of &ustice3

"/# In 5ection elihood, or probability, ofguilt. 6ustice *rion, in the recent case of 1nilever P$ilippines! In. v. ,an/2 "1nilever #, stated?han9oblesEirtualawl ibraryThe determination of probable cause needs only to rest on evidence showing that more li>ely than not, a crime has beencommitted and there is enough reason to believe that it was committed by the accused. It need not be based on clear andconvincing evidence of guilt, neither on evidence establishing absolute certainty of guilt. %hat is merely required isBprobability of guilt.D Its determination, too, does not call for the application of rules or standards of proof that a &udgment ofconviction requires after trial on the merits. Thus, in concluding that there is probable cause, it suffices that it is believed thatthe act or omission complained of constitutes the very offense charged.

It is also important to stress that t&e -ete(0intion o% *(o11"e c!'e -oe' not -e*en- on t&e "i-it+ o( 0e(it' o% *(t+6' cc!'tion o( -e%en'e o( on the admissibility or veracity of testimonies presented . +s previously discussed,these matters are better ventilated during the trial proper of the case. +s held in 0etropolitan Ban: ; ,rust *o%pany v.on2ales?han9oblesEirtuala wlibrary

Probable cause has been defined as the existence of such facts and circumstances as would excite the belief in areasonable mind, acting on the facts within the >nowledge of the prosecutor, that the person charged was guilty of the crimefor which he was prosecuted. x x x. The term does not mean Bactual or positive causeD nor does it import absolute certainty.It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry intowhether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omissioncomplained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution insupport of the charge. "*oldfacing and italiciOation supplied#6ustice *rion4s pronouncement in 1nilever that Bthe determination of probable cause does not depend on the validity ormerits of a party4s accusation or defense or on t&e admissibility or veracity o% te'ti0onie' *(e'ente-D correctlyrecogniOes the doctrine in the Hnited 5tates that the determination of probable cause can rest partially, or even entirely, on


11/58

hearsay evidence, as long as the person ma>ing the hearsay statement is credible. In 1nited -tates v. 'o "on/ ' t&e0/i't(te i' =in%o(0e- o% 'o0e o% t&e !n-e("+in/ ci(c!0'tnce'> '!**o(tin/ t&e %%int6' conc"!'ion' n- &i'1e"ie% t&t n+ in%o(0nt ino"e- =2&o'e i-entit+ nee- not 1e -i'c"o'e- . . .> 2' =c(e-i1"e> o( &i' in%o(0tion=(e"i1"e.> Aguilar v. ,e=as, supra, at /2: H.5. 118. "7mphasis supplied#Thus, probable cause can be established with hearsay evidence, as long as there is '!1'tnti" 1'i' for crediting thehearsay. earsay evidence is admissible in determining probable cause in a preliminary investigation because suchinvestigation is merely preliminary , and does not finally ad&udicate rights and obligations of parties. owever, inadministrative cases, where rights and obligations are finally ad&udicated, what is required is B'!1'tnti" ei-enceD whichcannot rest entirely or even partially on hearsay evidence. 5ubstantial basis is not the same as substantial evidencebecause substantial evidence excludes hearsay evidence while substantial basis can include hearsay evidence. To (e4!i(et&e **"iction o% Ang Tibay , ' 0*"i%ie- in ('!' , in *(e"i0in(+ ine'ti/tion' 2i"" c&n/e t&e 4!nt!0 o%ei-ence (e4!i(e- in -ete(0inin/ *(o11"e c!'e %(o0 ei-ence o% "ie"i&oo- o( *(o11i"it+ o% /!i"t to '!1'tnti"ei-ence o% /!i"t.

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an accused and the right to apreliminary investigation. To t(et t&e0 t&e '0e 2i"" "e- to 1'!(- n- -i''t(o!' con'e4!ence'. A"" *en-in/c(i0in" c'e' in "" co!(t' t&(o!/&o!t t&e co!nt(+ 2i"" &e to 1e (e0n-e- to t&e *(e"i0in(+ ine'ti/tion "ee"1ec!'e none o% t&e'e 2i"" 'ti'%+ Ang Tibay , ' 0*"i%ie- in ('!' . Preliminary investigations are conducted byprosecutors, who are the same officials who will determine probable cause and prosecute the cases in court. The prosecutor is hardly the impartial tribunal contemplated in Ang ,i&ay , as amplified in -I-. + reinvestigation by an investigating officeroutside of the prosecution service will be necessary if Ang ,i&ay , as amplified in -I-, were to be applied. This will require anew legislation. In the meantime, all pending criminal cases in all courts will have to be remanded for reinvestigation, toproceed only when a new law is in place. To require Ang ,i&ay , as amplified in -I-, to apply to preliminary investigation willnecessarily change the concept of preliminary investigation as we >now it now. +pplying the constitutional due processin Ang ,i&ay , as amplified in -I-, to preliminary investigation will necessarily require the application of the rights of anaccused in 5ection 18"!#, +rticle III of the 1:2 onstitution. This means that the respondent can demand an actual hearingand the right to cross-examine the witnesses against him, rights which are not afforded at present to a respondent in apreliminary investigation.

The application of Ang ,i&ay , as amplified in -I-, is not limited to those with pending preliminary investigations but even tothose convicted by final &udgment and already serving their sentences. The rule is well-settled that a &udicial decision appliesretroactively if it has a beneficial effect on a person convicted by final &udgment even if he is already serving his sentence,provided that he is not a habitual criminal./ This ourt retains its control over a case Buntil the full satisfaction of the final &udgment conformably with established legal processes.D80 +pplying Ang ,i&ay , as amplified in -I-, to preliminaryinvestigations will result in thousands of prisoners, convicted by final &udgment, being set free from prison.

'econd. 5en. 7strada4s present Petition for ertiorari is *(e0t!(e.

6ustice Eelasco4s dissent prefers that 5en. 7strada not Bbe sub&ected to the rigors of a criminal prosecution in courtD becausethere is Ba pending question regarding the 'mbudsman4s grave abuse of its discretion preceding the finding of a probablecause to indict him.D 9estated bluntly, 6ustice Eelasco4s dissent would li>e this ourt to conclude that the mere filing of thepresent Petition for ertiorari questioning the 'mbudsman4s denial of 5en. 7strada4s 9equest should have, by itself, voidedall proceedings related to the present case.

+lthough it is true that, in its !2 arch !018 'rder, the 'mbudsman denied 5en. 7strada4s 9equest, the 'mbudsman

subsequently reconsidered its 'rder. 'n 2 ay !018, the same date that 5en. 7strada filed the present Petition, the'mbudsman issued a 6oint 'rder in '*---1/-0/1/ and '*---1/-0/2 that %!(ni'&e- 5en. 7strada with thecounter-affidavits of 9uby Tuason, ennis unanan, ;ondelina +mata, ario 9elampagos, (rancisco (igura, ;regoria*uenaventura, and +lexis 5evidal, and -i(ecte- &i0 to co00ent within a non-extendible period of five days from receipt of said 'rder. Sen. E't(- -i- not %i"e n+ co00ent, as noted in the 8 6une !018 6oint 'rder of the 'mbudsman.

'n 8 6une !018, the 'mbudsman issued another 6oint 'rder and denied 5en. 7strada4s otion for 9econsideration of its!: arch !018 6oint 9esolution which found probable cause to indict 5en. 7strada and his co-respondents with one countof plunder and 11 counts of violation of 5ection /"e#, 9epublic +ct )o. /01. In this 8 6une !018 6oint 'rder, the'mbudsman stated that B@tAhis 'ffice, in fact, &e"- in 1e+nce t&e -i'*o'ition of motions for reconsideration in thisproceeding in light of its grant to 5enator 7strada a period of five days from receipt of the 2 ay !018 'rder to formally


12/58

respond to the above-named respondents4 claims.D

%e underscore 5en. 7strada4s procedural omission. Sen. E't(- -i- not %i"e n+ *"e-in/, 0!c& "e'' 0otion %o((econ'i-e(tion, to t&e $7 M(c& $8#9 O(-e( in OMB3C3C3#38#. Sen. E't(- i00e-ite"+ *(ocee-e- to %i"e t&i'Petition %o( Ce(tio((i 1e%o(e t&i' Co!(t. 5en. 7strada4s resort to a petition for certiorari before this ourt stands in star>contrast to his filing of his 2 +pril !018 otion for 9econsideration of the !: arch !018 6oint 9esolution finding probablecause. The present Petition for ertiorari is *(e0t!(e.

+ motion for reconsideration allows the public respondent an opportunity to correct its factual and legal errors. 5en. 7strada,however, failed to present a compelling reason that the present Petition falls under the exceptions81 to the general rule thatthe filing of a motion for reconsideration is required prior to the filing of a petition for certiorari. This ourt has reiterated innumerous decisions that a motion for reconsideration is 0n-to(+ before the filing of a petition for certiorari.8!chan9oblesvirt ualawlibrary

6ustice Eelasco4s dissent faults the ma&ority for their refusal to apply the 9eyes case to the present Petition. 6usticeEelasco4s dissent insists that Bthis ourt cannot neglect to emphasiOe that, despite the variance in the quanta of evidencerequired, a uniform observance of the singular concept of due process is indispensable in all proceedings.D

+s we try to follow 6ustice Eelasco4s insistence, we direct 6ustice Eelasco and those who &oin him in his dissent to thisourt4s ruling in Ruivivar v. #ffie of t$e #%&uds%an "Ruivivar #,8/ wherein we stated that B@tAhe law can no longer help onewho had been given ample opportunity to be heard but who did not ta>e full advantage of the proffered chance.D

The Ruivivar case, li>e the Reyes88 case, was also an administrative case before the 'mbudsman. The 'mbudsman foundpetitioner 9achel *eatriO 9uivivar administratively liable for discourtesy in the course of her official functions and imposed on

her the penalty of reprimand. Petitioner filed a motion for reconsideration of the decision on the ground that she was notfurnished copies of the affidavits of the private respondent4s witnesses. The 'mbudsman subsequently ordered thatpetitioner be furnished with copies of the counter-affidavits of private respondent4s witnesses, and that petitioner should Bfile,within ten "10# days from receipt of this 'rder, such pleading which she may deem fit under the circumstances.D Petitionerreceived copies of the affidavits, and simply filed a manifestation where she maintained that her receipt of the affidavits didnot alter the deprivation of her right to due process or cure the irregularity in the 'mbudsman4s decision to penaliOe her.

In Ruivivar , petitioner received the affidavits of the private respondent4s witnesses %te( the 'mbudsman rendered adecision against her. %e disposed of petitioner4s deprivation of due process claim in this manner? han9oblesEirtual awlibraryThe + ecision dismissed the petition for ertiorari on the ground that the petitioner failed to exhaust all the administrativeremedies available to her before the 'mbudsman. This ruling is legally correct as exhaustion of administrative remedies is arequisite for the filing of a petition for certiorari. 'ther than this legal significance, however, t$e ruling neessarily arries t$ediret and i%%ediate i%pliation t$at t$e petitioner $as &een granted t$e opportunity to &e $eard and $as refused to avail oft$is opportunity 3 hence, she cannot claim denial of due process. In the words of the + ruling itself? BPetitioner )as given t$eopportunity &y pu&li respondent to re&ut t$e affidavits su&%itted &y private respondent. . . and $ad a speedy and ade(uatead%inistrative re%edy &ut s$e failed to avail t$ereof for reasons only :no)n to $er .D

(or a fuller appreciation of our above conclusion, we clarify that although they are separate and distinct concepts,exhaustion of administrative remedies and due process embody lin>ed and related principles. The BexhaustionD principleapplies when the ruling ourt or tri&unal is not given the opportunity to re-examine its findings and conclusions because ofan availa&le opportunity that a party see>ing recourse against the court or the tribunal4s ruling omitted to ta>e. Hnder theconcept of Bdue process,D on the other hand, a violation occurs when a court or tribunal rules against a party without givinghim or her the opportunity to be heard. Thus, the exhaustion principle is based on the perspective of the ruling court ortribunal, while due process is considered from the point of view of the litigating party against whom a ruling was made. Thecommonality they share is in the same BopportunityD that underlies both. In the context of the present case, the availableopportunity to consider and appreciate the petitioner4s counter-statement of facts was denied the 'mbudsman3 hence, thepetitioner is barred from see>ing recourse at the + because the ground she would invo>e was not considered at all at the'mbudsman level. +t the same time, the petitioner R who had the same opportunity to rebut the belatedly-furnishedaffidavits of the private respondent4s witnesses R was not denied and cannot now claim denial of due process because shedid not ta>e advantage of the opportunity opened to her at the 'mbudsman level.

The records show that the petitioner duly filed a motion for reconsideration on due process grounds "i.e., for the private

respondent4s failure to furnish her copies of the affidavits of witnesses# and on questions relating to the appreciation of theevidence on record. The 'mbudsman acted on this motion by issuing its 'rder of 6anuary 12, !00/ belatedly furnishing herwith copies of the private respondent4s witnesses, together with the Bdiretive to file! )it$in ten >9?@ days fro% reeipt of t$is#rder! su$ pleading )$i$ s$e %ay dee% fit under t$e iru%stanes.D

;iven this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to file a BanifestationD whereshe too> the position that BThe order of the 'mbudsman dated 12 6anuary !00/ supplying her with the affidavits of thecomplainant does not cure the 08 )ovember !00! order,D and on this basis prayed that the 'mbudsman4s decision Bbereconsidered and the complaint dismissed for lac> of merit.D

(or her part, the private respondent filed a omment$'pposition to otion for 9econsideration dated !2 6anuary !00/ and


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prayed for the denial of the petitioner4s motion.

In the (ebruary 1!, !00/ 'rder, the 'mbudsman denied the petitioner4s motion for reconsideration after finding no basis toalter or modify its ruling. 5ignificantly, the 'mbudsman fully discussed in this 'rder the due process significance of thepetitioner4s failure to adequately respond to the belatedly-furnished affidavits. The 'mbudsman said? han9oblesEirtual awlibraryBHndoubtedly, the respondent herein has been furnished by this 'ffice with copies of the affidavits, which she claims shehas not received. (urthermore, the respondent has been given the opportunity to present her side relative thereto, however,she chose not to submit countervailing evidence or argument. The respondent, therefore "si #, cannot claim denial of due

process for purposes of assailing the ecision issued in the present case. 'n this score, the 5upreme ourt held in the caseof People v. Aot! !/! 59+ 80=, that Ba party cannot feign denial of due process where he had the opportunity to present his sideD. This becomes all the more important since, as correctly pointed out by the complainant, the decisionissued in the present case is deemed final and unappealable pursuant to 5ection !2 of 9epublic +ct =220, and 5ection 2,9ule III of +dministrative 'rder )o. 02. )espite the clear provisions of the law and the rules, the respondent hereinwas given the opportunity not normally accorded, to present her side, but she opted not to do so which is evidently fatal to her cause.> e0*&'i' '!**"ie-.Hnder these circumstances, we cannot help but recogniOe that the petitioner4s cause is a lost one, not only for her failure toexhaust her available administrative remedy, but also on due process grounds. ,$e la) an no longer $elp one )$o $ad&een given a%ple opportunity to &e $eard &ut )$o did not ta:e full advantage of t$e proffered $ane.8<

Ruivivar applies with even greater force to the present Petition because here the affidavits of 5en. 7strada4s co-respondentswere furnished to him 1e%o(e the 'mbudsman rendered her 8 6une !018 6oint 'rder. In Ruivivar , the affidavits werefurnished %te( the 'mbudsman issued a decision.

6ustice Eelasco4s dissent cites the cases of ,atad v. -andigan&ayan8= ",atad # and Duterte v. -andigan&ayan82 "Duterte# in an

attempt to prop up its stand. + careful reading of these cases, however, would show that they do not stand on all fours withthe present case. In ,atad , this ourt ruled that Bthe inordinate delay in terminating the preliminary investigation and filing theinformation @by the TanodbayanA in the present case is violative of the constitutionally guaranteed right of the petitioner todue process and to a speedy disposition of the cases against him.D8: The Tanodbayan too> almost three years to terminatethe preliminary investigation, despite Presidential ecree )o. 114s prescription of a ten-day period for the prosecutor toresolve a case under preliminary investigation. %e ruled similarly in Duterte, where the petitioners were merely as>ed tocomment and were not as>ed to file counter-affidavits as is the proper procedure in a preliminary investigation. oreover,in Duterte, the 'mbudsman too> four years to terminate its preliminary investigation.

+s we follow the reasoning in 6ustice Eelasco4s dissent, it becomes more apparent that 5en. 7strada4s present Petition forertiorari is premature for lac> of filing of a motion for reconsideration before the 'mbudsman. %hen the 'mbudsman gave5en. 7strada copies of the counter-affidavits and even waited for the lapse of the given period for the filing of his comment,5en. 7strada failed to avail of the opportunity to be heard due to his own fault. Thus, 5en. 7strada4s failure cannot in anyway be construed as violation of due process by the 'mbudsman, much less of grave abuse of discretion. 5en. 7strada hasnot filed any comment, and still chooses not to.

Third. 5en. 7strada4s present Petition for ertiorari constitutes forum shopping and should be summarily dismissed.

In his verification and certification of non-forum shopping in the present petition filed on 2 ay !018, 5en. 7strada stated? han9oblesEirtual awlibrary/.1 I, however, disclose that I have filed a 0otion for Reonsideration dated 02 +pril !018 in '*---1/-0/1/ and '*---1/-0/2, raising as 'o"e i''!e the finding of probable cause in the Joint Resolution dated !: arch !018.

5uch 0otion for Reonsideration has yet to be resolved by the 'ffice of the 'mbudsman.8 "7mphasis supplied#5en. 7strada4s otion for 9econsideration of the !: arch !018 6oint 9esolution prayed that the 'mbudsman reconsiderand issue a new resolution dismissing the charges against him. owever, in this otion for 9econsideration, 5en. 7stradaassailed the 'mbudsman4s !2 arch !018 6oint 'rder denying his 9equest, n- t&t '!c& -eni" i' io"tion o% &i'(i/&t to -!e *(oce''.:. It is respectfully submitted that the 'mbudsman violated the foregoing rule @9ule 11!, 5ection 8 of the 9ules of ourtA andprinciples. A (e-in/ o% t&e Joint Re'o"!tion 2i"" (ee" t&t (io!' *iece' o% ei-ence 2&ic& Sento( E't(- 2'not %!(ni'&e- 2it& &ence, -e*(iin/ &i0 o% t&e o**o(t!nit+ to cont(oe(t t&e '0e 2e(e &ei"+ con'i-e(e- 1+t&e O01!-'0n in %in-in/ *(o11"e c!'e to c&(/e &i0 2it& P"!n-e( n- 2it& io"tion' o% Section ;e< o% R.A.No. 8#.

x x x x

11. )otably, under dated !0 arch !018, 5enator 7strada f iled a B9equest to be (urnished with opies of ounter-+ffidavitsof the 'ther 9espondents, +ffidavits of )ew %itnesses and 'ther (ilings,D pursuant to the right of a respondent Bto examinethe evidence submitted by the complainant which he may not have been furnishedD "5ection /@bA, 9ule 11! of the 9ules ofourt#, and to Bhave access to the evidence on recordD "5ection 8@cA, 9ule II of the 9ules of Procedure of the 'ffice of the'mbudsman#.

owever, notwithstanding the gravity of the offenses leveled against 5enator 7strada and the law4s vigilance in protectingthe rights of an accused, t&e S*eci" Pne" o% Ine'ti/to(', in n O(-e( -te- $7 M(c& $8#9, !nce(e0onio!'"+


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-enie- t&e (e4!e't on t&e /(o!n- t&t =t&e(e i' no *(oi'ion !n-e( t&i' O%%ice6' R!"e' o% P(oce-!(e 2&ic& entit"e'(e'*on-ent to 1e %!(ni'&e- "" t&e %i"in/' by the other parties x x x x.D "'rder dated !2 arch !01/, p. /#

A' '!c&, Sento( E't(- 2' not *(o*e("+ **(i'e- o% t&e ei-ence o%%e(e- /in't &i0, 2&ic& 2e(e eent!""+0-e t&e 1'e' o% t&e O01!-'0n6' %in-in/ o% *(o11"e c!'e.


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respond to the above-named co-respondent4s claims.D

5en. 7strada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited to the fulfillment of the requisites of litis pendentia. is whether the elements of litis pendentia arepresent, o( 2&et&e( %in" !-/0ent in one c'e 2i"" 0o!nt to res *udicata in not&e( .e of thestability in the rights and status of persons.


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with Ang ,i&ay , as amplified in -I-. Preliminary investigations do not ad&udicate with finality rights and obligations ofparties, while administrative investigations governed by Ang ,i&ay , as amplified in-I-, so ad&udicate. Ang ,i&ay , asamplified in -I-, requires '!1'tnti" ei-ence for a decision against the respondent in the administrative case. Inpreliminary investigations, only "ie"i&oo- o( *(o11i"it+ o% /!i"t is required. To apply Ang ,i&ay , as amplified in -I-, topreliminary investigations will change the quantum of evidence required to establish probable cause. The respondent in anadministrative case governed by Ang ,i&ay , as amplified in -I-, has the right to an actual hearing and to cross-examinethe witnesses against him. In preliminary investigations, the respondent has no such rights.

+lso, in an administrative case governed by Ang ,i&ay , as amplified in -I-, the hearing officer must be i0*(ti" andcannot be the fact-finder, investigator, and hearing officer at the same time. In preliminary investigations, the same publicofficer may be the investigator and hearing officer at the same time, or the fact-finder, investigator and hearing officer maybe under the cont(o" n- '!*e(i'ion of the same public officer, li>e the 'mbudsman or 5ecretary of 6ustice. This explainswhy Ang ,i&ay , as amplified in -I-, does not apply to preliminary investigations. To now declare that the guidelines in Ang,i&ay , as amplified in -I-, are fundamental and essential requirements in preliminary investigations will render all past andpresent preliminary investigations invalid for violation of constitutional due process. T&i' 2i"" 0en (e0n-in/ %o((eine'ti/tion "" c(i0in" c'e' no2 *en-in/ in "" co!(t' t&(o!/&o!t t&e co!nt(+. )o preliminary investigation canproceed until a new law designates a public officer, outside of the prosecution service, to determine probable cause.oreover, those serving sentences by final &udgment would have to be released from prison because their convictionviolated constitutional due process.

5en. 7strada did not file a otion for 9econsideration of the !2 arch !018 'rder in '*---1/-0/1/ denying his9equest, which is the sub&ect of the present Petition. e should have filed a otion for 9econsideration, in the same manner that he filed a otion for 9econsideration of the 1< ay !018 'rder denying his motion to suspend proceedings. The

unquestioned rule in this &urisdiction is that certiorari will lie only if there is no appeal or any other plain, speedy andadequate remedy in the ordinary course of law against the acts of the public respondent.*$ief Justie@!Peralta! Del *astillo!


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11. arivic E. 6over, +ccountant III, T93

1!. ennis . unanan, eputy irector ;eneral, T93

1/. 7velyn 5ucgang, employee, )3

18. hita hua 6alandoni, epartment anager III, )3

1


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!


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Perello, 8=0 Phil. =

1/-0/1/ and entitled BNational Bureau of Investigation and Atty. LevitoBaligod v. Jose Jinggoy P. Ejerito Estrada! et al.D

I cannot find myself agreeing with my distinguished colleagues and so register my dissent. cralawred

T&e Antece-ent'

In '*---1/-0/1/, a preliminary investigation conducted on the complaint filed by the )ational *ureau of Investigation")*I# and +tty. evito*aligod "+tty. *aligod#, petitioner 5en. 6inggoy7&ercito 7strada "5en. 7strada#, along with severalothers, was charged with Plunder. 5imilarly, in '*---1/-0/2, petitioner was charged with the offenses of Plunder andviolation of 9epublic +ct )o. "9+# /01, or the +nti-;raft and orrupt Practices +ct,1 in the complaint filed by the (ieldInvestigation 'ffice-'ffice of the 'mbudsman "'*-(I'#. *oth preliminary investigations pertain to the alleged anomalous


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scheme behind the implementation of several government pro&ects funded from the Priority evelopment +ssistance (und"P+(# of several members of the legislature.

In compliance with the 'mbudsman4s 'rders, 5en. 7strada submitted, as required, a ounter-+ffidavit dated 6anuary :,!018 to the )*I complaint, and a ounter-+ffidavit dated 6anuary 1=, !018 in response to the '*-(I' complaint.

In the meantime, 5en. 7strada4s co-respondents named in the adverted complaints filed their respective counter-affidavits,to wit?han9oblesEirtual awlibrary

1# 9uby Tuason "Tuason# R Two "!# ounter-+ffidavits both dated (ebruary !1, !0183

!# ;ondelina+mata "+mata# R ounter-+ffidavit dated ecember !=, !01/ to the'*-(I' omplaint and ounter-+ffidavit dated 6anuary !0, !018 to the )*Iomplaint3

/# ;regoria *uenaventura "*uenaventura# R ounter-+ffidavit dated arch =, !0183

8# +lexis 5evidal "5evidal# R ounter-+ffidavit dated 6anuary 1


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concluded that 5en. 7strada is not entitled, as a matter of right, to copies of the affidavits of his co-respondents.

The next day, arch !:, !018, the 'mbudsman issued a 6oint 9esolution in '*---1/-0/1/ and '*---1/-0/2finding probable cause to indict 5en. 7strada with one "1# count of Plunder and eleven "11# counts of violation of 5ection/"e# of 9+ /01. 5en. 7strada would allege that the 'mbudsman used as basis for its 6oint 9esolution the followingdocuments and papers that were not furnished to him? han9oblesEirtualawl ibrary

1# 5evidal4s ounter-+ffidavits dated 6anuary 1< and (ebruary !8, !0183

!# unanan4s ounter-+ffidavits both dated (ebruary !0, !0183/# (igura4s ounter-+ffidavit dated 6anuary :, !0183

8# Tuason4s +ffidavits both dated (ebruary !1, !0183


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respondent with copies of the counter-affidavits of his co-respondents3

!# 5en. 7strada4s present recourse is allegedly premature3 and

/# 5en. 7strada4s petition purportedly constitutes forum shopping that should be

summarily dismissed.M+ Di''ent

I do not agree with the conclusions reached by the ma&ority for basic reasons to be discussed shortly. *ut first, aconsideration of the relevant procedural concerns raised by the respondents and sustained by the ponenia.

Petitione(6' 0otion %o( (econ'i-e(tion /in't t&e Joint Re'o"!tion i' not *"in, '*ee-+, n- -e4!te (e0e-+.

Hnder 5ection 1, 9ule =< of the 9ules of ourt, a petition for certiorari is only available if Bthere is no appeal, nor any plain,speedy, and adequate remedy in the ordinary course of law.D In the instant case, 5en. 7strada admits to not filing a motionfor reconsideration against the assailed arch !2, !018 'rder, but claims that he had no chance to do so as the 'rder wasalmost simultaneously served with the arch !:, !018 probable cause finding 6oint 9esolution. 9espondents, on the otherhand, counter that the bare fact that 5en. 7strada filed a motion for reconsideration of the arch !:, !018 6oint 9esolutionshows that a Bplain, speedy, and adequate remedyD was available to him. 5en. 7strada cannot, therefore, avail of theextraordinary remedy of certiorari, so respondents argue.

I cannot acquiesce with respondents4 assertion that the motion for reconsideration to the 6oint 9esolution finding probablecause to indict petitioner is, vis-U-vis the denial 'rder of arch !2, !018, equivalent to the Bplain, speedy, and adequateremedyD under 9ule =


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denying 'rder and all proceedings subsequent to the issuance of the 'rder be considered null and void. 'n the other hand,the motion for reconsideration thus interposed with the 'ffice of 'mbudsman by 5en. 7strada contends that the formererred in finding probable cause to indict him for plunder and violation of 9+ /01, as the evidence against him does notsupport such finding. e further prayed in his motion for reconsideration the reversal of the 'mbudsman4s finding ofprobable cause. learly, there is no identity of rights asserted and reliefs prayed between the petition before the ourt andthe motion for reconsideration filed before the 'ffice of the 'mbudsman. The second requisite of litis pendentia does notexist.

The difference in the reliefs prayed for in the petition at bar and the motion for reconsideration filed with the 'ffice of the'mbudsman argues against the presence of the third requisite. (or a denial of petitioner4s motion for reconsideration by the'mbudsman would not affect the resolution of the present petition. 5imilarly, a favorable resolution of the presentcontroversy would not dictate the 'mbudsman to rule one way or the other in the determination of probable cause to indictpetitioner for plunder or violation of 9+ /01. +s the certiorari proceedings before this ourt is exclusively concerned withthe 'mbudsman4s grave abuse of discretion in denying the petitioner his constitutional right to due process, a definitiveruling herein would not amount to res judiata that would preclude a finding of probable cause in the preliminaryinvestigation, if that be the case. 'n a similar note, the resolution of the motion for reconsideration does not bar the presentpetition. 'bviously, the third requisite is li>ewise absent.

T&e *etition i' not 0oote- 1+ t&e M+ 7, $8#9 O(-e(.

It is, however, argued that the present recourse has been rendered moot by the 'mbudsman4s issuance of its 6oint9esolution dated ay 2, !018 furnishing 5en. 7strada with copies of the counter-affidavits of Tuason, unanan, +mata,9elampagos, (igura, *uenaventura and 5evidal. 5uch argument is specious failing as it does to properly appreciate the

rights asserted by petitioner, i.e., the right to be furnished the evidence against him and the right to controvert suchevidence &efore a finding of probable cause is rendered against him. In t&i' c'e, t&e %ct 'ti"" (e0in' t&t *etitione(2' not /ien co*ie' o% inc(i0into(+ %%i-it' before %in-in/ o% *(o11"e c!'e to in-ict &i0 2' (en-e(e-. A' nece''(+ co(o""(+, &e 2' not /ien '!%%icient o**o(t!nit+ to n'2e( t&e'e ""e/tion' 1e%o(e (e'o"!tion toin-ict &i0 2' i''!e-.

(urther, it bears to stress at this point that the same 'rder gave 5en. 7strada only a five'day non'e=tendi&le period withinwhich to reply or comment to the counter-affidavits of his co-respondents. learly, t&e O(-e( %!(ni'&in/ Sen. E't(- 2it&t&e co!nte(3%%i-it' not on"+ c0e too "te, it -i- not *(oi-e &i0 2it& -e4!te o**o(t!nit+ to (e1!t t&e""e/tion' /in't &i0before t&e O%%ice o% t&e O01!-'0n ct!""+ -eci-e- to in-ict &i0. Hence, t&e %!"" 0e'!(eo% t&e -!e *(oce'' *(otection 2' not cco(-e- to &i0 . The ay 2, !018 'rder cannot, therefore, cancel the 'ffice ofthe 'mbudsman4s commission of grave abuse of discretion in trifling with, and neglecting to observe, 5en. 7strada4sconstitutional right to due process.

It is true that, in the past, the ourt has allowed the belated disclosure by the 'mbudsman to a respondent of affidavitscontaining incriminating allegations against him. This may possibly be the reason why the 'mbudsman deviated from the

spirit of due process, which, at its minimum, is to allow a respondent prior notice and afford him sufficient opportunity to beheard &efore a decision is rendered against him.This cannot be further tolerated. A -eci'ion to in-ict *e('on 0!'t noton"+ 1e 1'e- on *(o11"e c!'e 1!t "'o 2it& -!e (e/(- to t&e con'tit!tion" (i/&t' o% t&e *(tie' to -!e *(oce''.

9elying on the case of Ruivivar v. #ffie of t$e #%&uds%an,: the ma&ority maintains that petitioner4s right to due processhad not been violated, as the 'ffice of the 'mbudsman belatedly furnished him with so%e of the affidavits that he requestedon ay 2, !018, before the said 'ffice rendered its 6une 8, !018 6oint 'rder.

It is worthy to note that 5en. 7strada requested that he be furnished with Baffidavit$counter-affidavits$pleadings$filings filed byall the other respondents and$or additional witnesses for the complainants.D Met, 5en. 7strada was only furnished with theaffidavits of seven "2# of his co-respondents. is request to be given copies of the affidavits of the other nine "#respondents, thus, remains unheeded by respondent 'mbudsman. learly, the fact of the deprivation of due process stillremains and not mooted by the 'mbudsman4s overdue and partial volte-face. +nd, !n"ie inRuivivar , t&e O%%ice o% t&eO01!-'0n -i- not %!(ni'& t&e *etitione( 2it& "" t&e -oc!0ent' &e (e4!e'te-, "ein/ &i0 in t&e -( ' to t&eenti(e /0!t o% t&e c&(/e' /in't &i0.

(urther, in Ruivivar , petitioner 9uivivar4s motion for reconsideration that prompted the 'mbudsman to furnish her with copiesof the affidavits of private respondent4s witnesses came after the ecision was issued by the 'mbudsman. eanwhile, inthis case, 5en. 7strada4s request was submitted before the 'mbudsman issued its probable cause finding resolution.learly, the 'ffice of the 'mbudsman had all the opportunity to comply with the requirements of due process prior to issuingits arch !:, !018 6oint 9esolution, but cavalierly disregarded them. It may be rightfully conceded that its M+ 7, $8#9O(-e( i' not&in/ 1!t n %te(t&o!/&t n- in tte0*t to (e0e-+ t&e io"tion o% *etitione(6' con'tit!tion" (i/&t to-!e *(oce''. B+ t&en, *etitione(6' con'tit!tion" (i/&t to -!e *(oce''33to 1e /ien t&e o**o(t!nit+ to 1e &e(- n-&e a decision rendered based on evidence disclosed to him&- "(e-+ 1een io"te-. It cnnot 1e (e0e-ie- 1+n in'!%%icient n- 1e"te- (econ'i-e(tion o% *etitione(6' (e4!e't . %hat is more, it seems that the doctrine laid downin Ruivivar is not consistent with the essence of the due process? to be heard before a decision is rendered.


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This ourt has time and again declared that the Bmoot and academicD principle is not a magical formula that automaticallydissuades courts in resolving a case. + court may ta>e cogniOance of otherwise moot and academic cases, if it finds that "a#there is a grave violation of the onstitution3 "b# the situation is of exceptional character and paramount public interest isinvolved3 "c# the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and thepublic3 and "d# the case is capable of repetition yet evading review.10chan9oblesvirtualawlibrary

Thus, even assuming arguendo that the present petition is mooted by the 'mbudsman4s ay 2, !018 6oint 9esolution, it isunquestionable that considering the notoriety of the petitioner and the grave violation of the onstitution he asserts, the

ma&ority should have availed itself of the irresistible opportunity to set a controlling guideline on the right of a respondent tobe furnished, upon reasonable demand, of all evidence used against him during a preliminary investigation before aresolution thereon is issued.

Re'*on-ent O01!-'0n co00itte- /(e 1!'e o% -i'c(etion 2&en it -i'(e/(-e- Sen. E't(-6' (i/&t to -i'c"o'!(e o% "" t&e ei-ence /in't &i0 in t&e *(e"i0in(+ ine'ti/tion.

+ preliminary investigation is a safeguard intended to protect individuals from an abuse of the overwhelming prosecutorialpower of the state. It spells for a citiOen the difference between months, if not years, of agoniOing trial and &ail term, on onehand, and peace of mind and liberty on the other hand.11 In 1y v. #ffie of t$e #%&uds%an,1! %e ruled?han9oblesEirtuala wlibrary + preliminary investigation is held before an accused is placed on trial to secure the innocent against hasty, malicious, andoppressive prosecution3 to protect him from an open and public accusation of a crime, as well as from the trouble, expenses,and anxiety of a public trial. It is also intended to protect the state from having to conduct useless and expensive trials. %hilethe right is statutory rather than constitutional, it is a component of due process in administering criminal &ustice. The right tohave a preliminary investigation conducted before being bound for trial and before being exposed to the ris> of incarceration

and penalty is not a mere formal or technical right3 it is a substantive right. To -en+ t&e cc!'e-?' c"i0 to *(e"i0in(+ine'ti/tion i' to -e*(ie &i0 o% t&e %!"" 0e'!(e o% &i' (i/&t to -!e *(oce''. 1/

Thus, t&i' Co!(t &- c&(cte(ie- *(e"i0in(+ ine'ti/tion ' substantive right %o(0in/ *(t o% -!e *(oce'' inc(i0in" !'tice@18and, contrary to 6ustice eonen4s position, it is not merely a technical requirement that can be done awayor hastily conducted by state agencies. +s eloquently put by 6ustice *rion, Bto be sure, criminal &ustice rights cannot besubstantive at the custodial investigation stage, only to be less than this at preliminary investigation, and then return to itssubstantive character when criminal trial starts.D

In Cusop v. 3on. -andigan&ayan,1


26/58

In this case, a careful observance of the procedure outlined in 9ule II of +' )o. 2,otherwise >nown as the Rules ofProedure of t$e #ffie of t$e #%&uds%an is, therefore, imperative. 5ection 8, 9ule II of +' )o. 2 provides that t&e(e'*on-ent in *(e"i0in(+ ine'ti/tion '&"" &e cce'' to t&e ei-ence on (eco(-, vi2 ?han9oblesEirtuala wlibrary5ec. 8. Proedure. R The preliminary investigation of cases falling under the &urisdiction of the 5andiganbayan and 9egionalTrial ourts shall be conducted in the manner prescribed in 5ection /, 9ule 11! of the 9ules of ourt, sub&ect to thefollowing provisions?

"a# If the complaint is not under oath or is based solely on official reports, the investigating officer shall require the

complainant or supporting witnesses to execute affidavits to substantiate the complaints.

"b# +fter such affidavit have been secured, the investigating officer shall issue an order, attaching thereto a copy of theaffidavits and other supporting documents, directing the respondents to submit, within ten "10# days from receipt thereof, hiscounter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainants may filereply affidavits within "10# days after service of the counter-affidavits.

"c# If the respondent does not file a counter-affidavit. The investigating officer may consider the comment filed by him, if any,as his answer to the complaint. In any event,t$e respondent s$all $ave aess to t$e evidene on reord .!<

In construing the foregoing provision, however, the 'mbudsman is of the view that the respondent4s, the petitioner4s in thiscase, access is limited only to the documents submitted by the complainant, and not his co-respondents. Thus, in its arch!2, !018 'rder denying 5en. 7strada4s request to be furnished with copies of the affidavits of his co-respondents,respondent 'mbudsman held?han9oblesEirtualawl ibraryThis 'ffice finds however finds "sic# that the foregoing provisions do not entitle respondent to be furnished all the filings ofthe respondents.cralawred

xxx xxx xxx

It is to be noted that there is no provision under this 'ffice4s 9ules of Procedure which entitles respondent to be furnished all t$e filings &y t$e ot$er parties, eg. the respondents. 9uby Tuason, ennis unanan, ;ondelina ;. +mata and ario .9elampagos themselves are all respondents in these cases. Hnder the 9ules of ourt as well as the 9ules of Procedure ofthe 'ffice of the 'mbudsman, the respondents areon"+ (e4!i(e- to %!(ni'& their counter-affidavits and controvertingevidence to t&eco0*"innt, and not to the other respondents.Hnfortunately, the ma&ority has subscribed to the 'mbudsman4s position maintaining that 5ections / and 8 of 9ule 11! of the9ules of ourt!= only require that a respondent be furnished with the copies of the affidavits of the complainant and thecomplainant4s supporting witnesses, and not the affidavits of his co-respondents.

ertainly, the ma&ority has neglected to consider that AO No. 7 o( t&e Rules of rocedure of the -ffice of the-mbudsman *(ei"' oe( t&e *(oi'ion' o% t&e R!"e' o% Co!(t in ine'ti/tion' con-!cte- 1+ t&e O01!-'0n .This is plain and unmista>able from 5ection /, 9ule E of +' )o. 2, which states that the 9ules of ourt shall apply only in asuppletory character and only in matters not provided by the 'ffice of the 'mbudsman4s own rules? han9oblesEirtual awlibrary

5ection /. Rules of *ourt! appliation. R In "" 0tte(' not *(oi-e- in t&e'e (!"e', t&e R!"e' o% Co!(t '&"" **"+ in '!**"eto(+ c&(cte( , or by analogy whenever practicable and convenient.!2

+s 5ection 8"c# of +' )o. 2, or the 'ffice of the 'mbudsman4s very own 9ules of Procedure,clearly provides that arespondent shall have access to all the Bei-ence on (eco(-D without discriminating as to the origin thereof and regardlessof whether such evidence came from the complainant or another respondent, the provisions of the 9ules of ourtsupposedly limiting a respondent4s access to the affidavits of the complaint only is not applicable to investigations conductedby the 'mbudsman. Put piquantly, this restrictive misconstruction o% Section' n- 9 o% t&e R!"e' o% Co!(t cnnot 1e**"ie- to Sen. E't(- to -e*(ie &i0 o% &i' (i/&t to -!e *(oce'' c"e("+ '*e""e- o!t in AO No. 7 .

In fact, a proper and harmonious understanding of 5ections / and 8 of the 9ules of ourt vis-U-vis 5ection 8 "c# of +' )o. 2will reveal that the common denominator of these provisions is the principle that a respondent in a preliminary investigationbe afforded sufficient opportunity to present controverting evidence before a &udgment in that proceeding is rendered againsthim. ence, (e'*on-ent in *(e"i0in(+ ine'ti/tion cnnot 1e -enie- co*ie' o% t&e co!nte(3%%i-it' o% &i' co3(e'*on-ent' '&o!"- t&e+ contin ei-ence t&t 2i"" "ie"+ inc(i0inte &i0 %o( t&e c(i0e' 'c(i1e- to &i0 .

Indeed, while the documents withheld by the 'ffice of the 'mbudsman may have been submitted by 5en. 7strada4s co-respondents, they constitute evidence against him, not unli>e the affidavits of the complainants. 5en. 7strada, therefore, hadthe right to be given copies thereof and an opportunity to controvert the allegations contained therein pursuant to 5ection 8"c# of +' )o. 2.

ore than the provisions of either procedural rules, this ourt cannot neglect the constitutional precept underpinning theserules that Bno person shall be deprived of life, liberty, or property without due process of law.D!: T&e e''ence o% -!e*(oce'' *e(0etin/ t&e (!"e' /oe(nin/ c(i0in" *(ocee-in/' i' t&t t&e (e'*on-ent 0!'t 1e %%o(-e- t&e (i/&t to1e &e(- 1e%o(e -eci'ion i' (en-e(e- /in't &i0. T&i' (i/&t 0!'t nece''(i"+ 1e *(e-icte- on t&e o**o(t!nit+ tono2 "" t&e ""e/tion' /in't &i0, 1e t&e+ contine- in t&e %%i-it' o% t&e co0*"innt o( o% not&e((e'*on-ent.


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+ respondent in a preliminary investigation cannot, therefore, be denied copies of the counter-affidavits of his co-respondents should they contain evidence that will li>ely incriminate him for the crimes charged. In other words, it behoovesthe 'ffice of the 'mbudsman to treat a respondent4s counter-affidavit containing incriminating allegations against a co-respondent as parta>ing the nature of a complaint-affidavit, insofar as the implicated respondent is concerned. Thus, it is myopinion that the 'ffice of the 'mbudsman should follow the same procedure observed when a complaint is first lodged withit, i.e., furnish a copy to the respondent incriminated in the counter-affidavit and give him sufficient time to answer theallegations contained therein. It need not wait for a request or a motion from the implicated respondent to be given copies ofthe affidavits containing the allegations against him. + request or motion to be furnished made by the respondent alluded to

in the counter-affidavits ma>es the performance of such duty by the 'ffice of the 'mbudsman more urgent.

In the seminal case of Ang,i&ay v. *ourt of Industrial Relations,! this ourt identified the primary rights that must berespected in administrative proceedings in accordance with the due process of law. )ot the least of which rights is that thedecision must be rendered on evidence disclosed to the parties affected, vi2 ?han9oblesEirtual awlibrary"


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In fact, this ourt in 1y v. #ffie of #%&uds%an/ed the ourt of +ppeal4s reasoning in Reyesthat, pursuant to thedoctrine of res inter alios ata alteri noere non de&et , the respondent cannot be pre&udiced by the declaration of his co-respondent. 6ustice arpio then concludes that B@iAn '*---1/-0/1/ and '*---1/-0/2, the admissions of 5en.7strada4s co-respondents can in no way pre&udice 5en. 7strada.D

learly, the ma&ority ignores the obvious fact that Sen. E't(- &- "(e-+ 1een *(e!-ice- 1+ t&e %%i-it' o% &i' co3(e'*on-ent' t&t 2e(e not %!(ni'&e- to &i0. The ma&ority ecision pays no heed to the fact that the 6oint 9esolution ofthe 'ffice of the 'mbudsman precisely invo>ed the counter-affidavits of 5en. 7strada4s co-respondents that were notfurnished to him. To recall, the arch !:, !018 6oint 9esolution of the 'ffice of the 'mbudsman contains reference to thecounter-affidavits that were not theretofor disclosed to 5en. 7strada. In finding probable cause to indict 5en. 7strada,respondent 'ffice of the 'mbudsman quoted from the withheld counter-affidavits of respondentsTuason,80 unanan,81 (igura,8! *uenaventura,8/ and 5evidal.88 Thus, to state that Bthe admissions of 5en. 7strada4s co-respondents can in no way pre&udice 5en. 7stradaD is clearly at war with the facts of the case.

%ith that, the suggestion that a thorough consideration of &urisprudence must be made before they are used as basis for thisourt4s decisions is appreciated. ontrary to what the ma&ority ecision suggests, the ourt of +ppeals4 disquisition quotedin Reyes did not go unnoticed but was simply deemed irrelevant in the present case. In fact, the application of the res interalios ata doctrine was not even considered by this ourt in Reyes3 it was simply a part of the narration of the factual


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antecedents. ence, a discussion of the doctrine in the present controversy is even more unnecessary.

The right to the disclosure of the evidence against a party prior to the issuance of a &udgment against him is, to reiterate, avital component of the due process of law, a clear disregard of such right constitutes grave abuse of discretion. +s this ourthas held, grave abuse of discretion exists when a

estrada vs. bersamin.docx

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