G.R. Nos. 212140-41, January 21, 2015SENATOR JINGGOY EJERCITO ESTRADA,Petitioner,v.BERSAMIN, OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION AND ATTY. LEVITO D. BALIGOD,Respondents.

Ang Tibayenumerated theconstitutionalrequirements of due process, whichAng Tibaydescribed as the fundamental and essential requirements of due processin trials and investigations of an administrative character.22These requirements are fundamental and essential because without these, there is no due process as mandated by the Constitution. These fundamental and essential requirements cannot be taken away by legislation because they are part of constitutional due process. These fundamental and essential requirements are:ChanRoblesVirtualawlibrary

(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and adduce evidence tending to establish the rights which he asserts but the tribunalmust considerthe evidence presented. x x x.

(3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, x x x.

(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be substantial. Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it.23

G.R. Nos. 212140-41, January 21, 2015 - SENATOR JINGGOY EJERCITO ESTRADA, Petitioner, v. BERSAMIN, OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION AND ATTY. LEVITO D. BALIGOD, Respondents.

EN BANCG.R. Nos. 212140-41, January 21, 2015SENATOR JINGGOY EJERCITO ESTRADA,Petitioner,v.BERSAMIN, OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION AND ATTY. LEVITO D. BALIGOD,Respondents.D E C I S I O NCARPIO,J.:It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the witnesses which the complainant may present.Section 3, Rule 112 of the Rules of Court expressly provides that the respondent shall only have the rightto submit a counter-affidavit,to examine all other evidence submitted by the complainantand, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine.-Paderanga v. Drilon1This case is a Petition for Certiorari2with prayer for (1) the issuance of a temporary restraining order and/or Writ of Preliminary Injunction enjoining respondents Office of the Ombudsman (Ombudsman), Field Investigation Office (FIO) of the Ombudsman, National Bureau of Investigation (NBI), and Atty. Levito D. Baligod (Atty. Baligod) (collectively, respondents), from conducting further proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 until the present Petition has been resolved with finality; and (2) this Courts declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen. Estrada) was denied due process of law, and that the Order of the Ombudsman dated 27 March 2014 and the proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to and affected by the issuance of the challenged 27 March 2014 Order are void.

OMB-C-C-13-0313,3entitledNational Bureau of Investigation and Atty. Levito D. Baligod v. Jose Jinggoy P. Ejercito Estrada, et al., refers to the complaint for Plunder as defined under Republic Act (RA) No. 7080, while OMB-C-C-13-0397,4entitledField Investigation Office, Office of the Ombudsman v. Jose Jinggoy P. Ejercito-Estrada, et al., refers to the complaint for Plunder as defined under RA No. 7080 and for violation of Section 3(e) of RA No. 3019 (Anti-Graft and Corrupt Practices Act).cralawredThe Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-C-13-0313, filed by the NBI and Atty. Baligod, which prayed, among others, that criminal proceedings for Plunder as defined in RA No. 7080 be conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit in OMB-C-C-13-0313 on 9 January 2014.

On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-C-13-0397, filed by the FIO of the Ombudsman, which prayed, among others, that criminal proceedings for Plunder, as defined in RA No. 7080, and for violation of Section 3(e) of RA No. 3019, be conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit in OMB-C-C-13-0397 on 16 January 2014.

Eighteen of Sen. Estradas co-respondents in the two complaints filed their counter-affidavits between 9 December 2013 and 14 March 2014.5chanRoblesvirtualLawlibrary

On 20 March 2014, Sen. Estrada filed hisRequest to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings(Request) in OMB-C-C-13-0313. In his Request, Sen. Estrada asked for copies of the following documents:(a)Affidavit of [co-respondent] Ruby Tuason (Tuason);

(b)Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);

(c)Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);

(d)Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);

(e)Consolidated Reply of complainant NBI, if one had been filed; and

(f)Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional witnesses for the Complainants.6

Sen. Estradas request was made [p]ursuant to the right of a respondent to examine the evidence submitted by the complainantwhich he may not have been furnished (Section 3[b], Rule 112 of the Rules of Court) and to have access to the evidence on record (Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman).7chanRoblesvirtualLawlibrary

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313. The pertinent portions of the assailed Order read:ChanRoblesVirtualawlibraryThis Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b], Rule 112 of the Rules of Court and Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman] do not entitle respondent [Sen. Estrada] to befurnished all the filings of the respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:ChanRoblesVirtualawlibrary(a) Thecomplaintshall state the address of the respondent and shall beaccompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause xxx xxx xxx

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, therespondent shall submit his counter-affidavitand that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, withcopies thereof furnished by him to the complainant.Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure of the Office of the Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on April 10, 1990]:ChanRoblesVirtualawlibrarya) If the complaint is not under oath or is based only on official reports, the investigating officer shall require thecomplainant or supporting witnesses to execute affidavitsto substantiate the complaints.

b) Aftersuch affidavitshave been secured, the investigating officer shall issue an order, attaching thereto acopy of the affidavits and other supporting documents, directing the respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence withproof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen. Estrada] a copy of the Complaint and its supporting affidavits and documents; and this Office complied with this requirement when it furnished [Sen. Estrada] with the foregoing documents attached to the Orders to File Counter-Affidavit dated 19 November 2013 and 25 November 2013.

It is to be noted that there isnoprovision under this Offices Rules of Procedure which entitles respondent to be furnishedall the filingsby the other parties, e.g. the respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L. Relampagos themselves are all respondents in these cases. Under the Rules of Court as well as the Rules of Procedure of the Office of the Ombudsman, the respondents areonlyrequired to furnishtheir counter-affidavits and controverting evidenceto thecomplainant, andnotto the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary investigation depend on the rights granted to him by law and these cannot be based on whatever rights he believes [that] he is entitled to or those that may be derived from the phrase due process of law.

Thus, this Office cannot grant his motion to befurnishedwith copies ofall the filings by the other parties. Nevertheless, he should be furnished a copy of the Reply of complainant NBI as he is entitled thereto under the rules; however, as of this date, no Reply has been filed by complainant NBI.

WHEREFORE,respondent [Sen.] EstradasRequest to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other FilingsisDENIED. He is nevertheless entitled to be furnished a copy of the Reply if complainant opts to file such pleading.8(Emphases in the original)On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint Resolution9which found probable cause to indict Sen. Estrada and his co-respondents with one count of plunder and 11 counts of violation of Section 3(e) of RA No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint Resolution dated 28 March 2014) dated 7 April 2014. Sen. Estrada prayed for the issuance of a new resolution dismissing the charges against him.

Without filing a Motion for Reconsideration of the Ombudsmans 27 March 2014 Order denying his Request,Sen. Estrada filed the present Petition for Certiorari under Rule 65 and sought to annul and set aside the 27 March 2014 Order.cralawredTHE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:ChanRoblesVirtualawlibraryTHE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGEDORDERDATED 27 MARCH 2014, ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.10Sen. Estrada also claimed that under the circumstances, he has no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, except through this Petition.11Sen. Estrada applied for the issuance of a temporary restraining order and/or writ of preliminary injunction to restrain public respondents from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397. Finally, Sen. Estrada asked for a judgment declaring that (a) he has been denied due process of law, and as a consequence thereof, (b) the Order dated 27 March 2014, as well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to and affected by the issuance of the 27 March 2014 Order, are void.12chanRoblesvirtualLawlibrary

On the same date, 7 May 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint Order furnishing Sen. Estrada with the counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Francisco Figura, Gregoria Buenaventura, and Alexis Sevidal, and directing him to comment thereon within a non-extendible period of five days from receipt of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 because the denial of his Request to be furnished copies of counter-affidavits of his co-respondents deprived him of his right to procedural due process, and he has filed the present Petition before this Court. The Ombudsman denied Sen. Estradas motion to suspend in an Order dated 15 May 2014. Sen. Estrada filed a motion for reconsideration of the Order dated 15 May 2014 but his motion was denied in an Order dated 3 June 2014.

As of 2 June 2014, the date of filing of the Ombudsmans Comment to the present Petition, Sen. Estrada had not filed a comment on the counter-affidavits furnished to him.On 4 June 2014, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 denying, among other motions filed by the other respondents, Sen. Estradas motion for reconsideration dated 7 April 2014. The pertinent portion of the 4 June 2014 Joint Order stated:ChanRoblesVirtualawlibraryWhile it is true that Senator Estradas request for copies of Tuason, Cunanan, Amata, Relampagos, Figura, Buenaventura and Sevidals affidavits was denied by Order dated 27 March 2014 andbeforethe promulgation of the assailed Joint Resolution, this Office thereafter re-evaluated the request and granted it by Order dated 7 May 2014 granting his request. Copies of the requested counter-affidavits were appended to the copy of the Order dated 7 May 2014 transmitted to Senator Estrada through counsel.

This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7 May 2014 Order to formally respond to the above-named co-respondents claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his right to procedural due process.13(Emphasis supplied)On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents), through the Office of the Solicitor General, filed their Comment to the present Petition. The public respondents argued that:ChanRoblesVirtualawlibraryI. PETITIONER [SEN. ESTRADA] WASNOTDENIED DUE PROCESS OF LAW.

II. THE PETITION FORCERTIORARIIS PROCEDURALLY INFIRM.A.LITIS PENDENTIAEXISTS IN THIS CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW.III. PETITIONER ISNOTENTITLED TO A WRIT OF PRELIMINARY INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER.14On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated that Sen. Estradas resort to a Petition for Certiorari under Rule 65 is improper. Sen. Estrada should have either filed a motion for reconsideration of the 27 March 2014 Order or incorporated the alleged irregularity in his motion for reconsideration of the 28 March 2014 Joint Resolution. There was also no violation of Sen. Estradas right to due process because there is no rule which mandates that a respondent such as Sen. Estrada be furnished with copies of the submissions of his co-respondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents Comment. Sen. Estrada insisted that he was denied due process. Although Sen. Estrada received copies of the counter-affidavits of Cunanan, Amata, Relampagos, Buenaventura, Figura, Sevidal, as well as one of Tuasons counter-affidavits, he claimed that he was not given the following documents:ChanRoblesVirtualawlibrarya) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;

e) Counter-Affidavit of Victor Roman Cojamco Cacal dated 11 December 2013 (to the FIO Complaint);

f) Counter-Affidavit of Victor Roman Cojamco Cacal dated 22 January 2014 (to the NBI Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. Villaralvo-Johnson both dated 14 March 2014;

h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guaizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and

k) Counter-affidavit of Francisco B. Figura dated 08 January 2014.Sen. Estrada argues that the Petition is not rendered moot by the subsequent issuance of the 7 May 2014 Joint Order because there is a recurring violation of his right to due process. Sen. Estrada 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 adequate remedy in the ordinary course of law. Finally, Sen. Estrada reiterates his application for the issuance of a temporary restraining order and/or writ of preliminary injunction to restrain public respondents from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.cralawredThis Courts Ruling

Considering the facts narrated above, the Ombudsmans denial in its 27 March 2014 Order of Sen. Estradas Request did not constitute grave abuse of discretion. Indeed, the denial did not violate Sen. Estradas constitutional right to due process.

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

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as well as Rule II of Administrative Order No. 7, Rules of Procedure of the Office of the Ombudsman, for ready reference.From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3.Procedure. The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall beaccompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.

The respondent shall have theright to examine the evidence submitted by the complainantwhich he may not have been furnished and to copy them at his expense.If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. 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 in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, 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. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked 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 the expiration of the period for their submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

Section 4.Resolution of investigating prosecutor and its review. If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof;that the accused was informed of the complaint and of theevidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct any other assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.

From the Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7, Rule II: Procedure in Criminal Cases

Section 1.Grounds. A criminal complaint may be brought for an offense in violation of R.A. 3019, as amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the Revised Penal Code, and for such other offenses committed by public officers and employees in relation to office.

Sec. 2.Evaluation. Upon evaluating the complaint, the investigating officer shall recommend whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

Sec. 3.Preliminary investigation; who may conduct. Preliminary investigation may be conducted by any of the following:

1) Ombudsman Investigators;

2) Special Prosecuting Officers;

3) Deputized Prosecutors;

4) Investigating Officials authorized by law to conduct preliminary investigations; or

5) Lawyers in the government service, so designated by the Ombudsman.

Sec. 4.Procedure. The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:

a) If the complaint is not under oath or is based only on official reports,the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b)After such affidavits have been secured,the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant.The complainant 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) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of particulars be entertained. If respondent desires any matter in the complainants affidavit to be clarified, the particularization thereof may be 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 6 hereof, or having been served, does not comply 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 the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward the records of the case together with his resolution to the designated authorities for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all other cases.x x x x

Sec. 6.Notice to parties. The parties shall be served with a copy of the resolution as finally approved by the Ombudsman or by the proper Deputy Ombudsman.

Sec. 7.Motion for reconsideration. a) Only one (1) motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, the same to be filed within fifteen (15) days from notice thereof with the Office of the Ombudsman, or the proper deputy ombudsman as the case may be.x x x x

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding Information in court on the basis of the finding of probable cause in the resolution subject of the motion. (Emphasis supplied)Sen. Estrada claims that the denial of his Request for the counter-affidavits of his co-respondents violates his constitutional right to due process.Sen. Estrada, however, fails to specify a law or rule which states that it is a compulsory requirement of due process in a preliminary investigation that the Ombudsman furnish a respondent with the counter-affidavits of his co-respondents.Neither Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman supports Sen. Estradas claim.

What the Rules of Procedure of the Office of the Ombudsman require is for the Ombudsman to furnish the respondent with a copy of the complaint and the supporting affidavits and documentsat the time the order to submit the counter-affidavit is issued to the respondent. This is clear from Section 4(b), Rule II of the Rules of Procedure of the Office of the Ombudsman when it states, [a]fter such affidavits [of the complainant and his witnesses] have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits x x x. At this point, there is still no counter-affidavit submitted by any respondent.Clearly, what Section 4(b) refers to are affidavits of the complainant and his witnesses, not the affidavits of the co-respondents.Obviously, the counter-affidavits of the co-respondents are not part of the supporting affidavits of the complainant. No grave abuse of discretion can thus be attributed to the Ombudsman for the issuance of the 27 March 2014 Order which denied Sen. Estradas Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides that a respondent shall have access to the evidence on record, this provision should be construed in relation to Section 4(a) and (b)of the same Rule, as well as to the Rules of Criminal Procedure.First, Section 4(a) states that the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaint. The supporting witnesses are the witnesses of the complainant, and do not refer to the co-respondents.

Second, Section 4(b) states that the investigating officer shall issue an order attaching thereto a copy of the affidavits and all other supporting documents, directing the respondent to submit his counter-affidavit. The affidavits referred to in Section 4(b) are the affidavits mentioned in Section 4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant and his supporting witnesses. The provision in the immediately succeeding Section 4(c) of the same Rule II that a respondent shall have access to the evidence on record does not stand alone, but should be read in relation to the provisions of Section 4(a and b) of the same Rule II requiring the investigating officer to furnish the respondent with the affidavits and other supporting documents submitted by the complainant orsupporting witnesses. Thus, a respondents access to evidence on record in Section 4(c), Rule II of the Ombudsmans Rules of Procedure refers to the affidavits and supporting documents of the complainant orsupporting witnesses in Section 4(a) of the same Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that [t]he respondent shall havethe right to examine the evidence submitted by the complainantwhich he may not have been furnished and to copy them at his expense. A respondents right to examine refers only to the evidence submitted by the complainant.

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the Ombudsmans Rules of Procedure, there is no requirement whatsoever that the affidavits executed by the co-respondents should be furnished to a respondent.

Justice Velascos dissent relies on the ruling inOffice of the Ombudsman v. Reyes(Reyescase),15anadministrativecase, in which a different set of rules of procedure and standards apply. Sen. Estradas Petition, in contrast, involves the preliminary investigation stage in a criminal case. Rule III on the Procedure inAdministrativeCases of the Rules of Procedure of the Office of the Ombudsman applies in theReyescase, while Rule II on the Procedure inCriminalCases of the Rules of Procedure of the Office of the Ombudsman applies in Sen. Estradas Petition. In both cases, the Rules of Court apply in a suppletory character or by analogy.16chanRoblesvirtualLawlibrary

In theReyescase, the complainant Acero executed an affidavit against Reyes and Pealoza, who were both employees of the Land Transportation Office. Pealoza submitted his counter-affidavit, as well as those of his two witnesses. Reyes adopted his counter-affidavit in another case before the Ombudsman as it involved the same parties and the same incident. None of the parties appeared during the preliminary conference. Pealoza waived his right to a formal investigation and was willing to submit the case for resolution based on the evidence on record. Pealoza also submitted a counter-affidavit of his third witness. The Ombudsman found Reyes guilty of grave misconduct and dismissed him from the service. On the other hand, Pealoza was found guilty of simple misconduct and penalized with suspension from office without pay for six months. This Court agreed with the Court of Appeals finding that Reyes right to due process was indeed violated. This Court remanded the records of the case to the Ombudsman, for two reasons: (1) Reyes should not have been meted the penalty of dismissal from the service when the evidence was not substantial, an d (2) there was disregard of Reyes right to due process because he was not furnished a copy of the counter-affidavits of Pealoza and of Pealozas three witnesses.In theReyescase, failure to furnish a copy of the counter-affidavits happened in the administrative proceedings on the merits, which resulted in Reyes dismissal from the service.In Sen. Estradas Petition, the denial of his Request happened during the preliminary investigation where the only issue is the existence of probable cause for the purpose of determining whether an information should be filed, and does not prevent Sen. Estrada from requesting a copy of the counter-affidavits of his co-respondents during the pre-trial or even during the trial.

We should remember to consider the differences in adjudicating cases, particularly an administrative case and a criminal case:ChanRoblesVirtualawlibraryAny lawyer worth his salt knows that quanta of proof and adjective rules vary depending on whether the cases to which they are meant to apply are criminal, civil or administrative in character. In criminal actions, proof beyond reasonable doubt is required for conviction; in civil actions and proceedings, preponderance of evidence, as support for a judgment; and in administrative cases, substantial evidence, as basis for adjudication. In criminal and civil actions, application of the Rules of Court is called for, with more or less strictness. In administrative proceedings, however, the technical rules of pleading and procedure, and of evidence, are not strictly adhered to; they generally apply only suppletorily; indeed, in agrarian disputes application of the Rules of Court is actually prohibited.17It should be underscored that the conduct of a preliminary investigation is only for the determination of probable cause, and probable cause merely implies probability of guilt and should be determined in a summary manner. A preliminary investigation 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, such as the right to confront and cross-examine his accusers to establish his innocence.18Thus, the rights of a respondent in a preliminary investigation are limited to those granted by procedural law.A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial.The quantum of evidence now required in preliminary investigation is such evidence sufficient to engender a well founded belief as to the fact of the commission of a crime and the respondent's probable guilt thereof. A preliminary investigation is not the occasion for the full and exhaustive display of the parties evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof.We are in accord with the state prosecutors findings in the case at bar that there exists prima facie evidence of petitioners involvement in the commission of the crime, it being sufficiently supported by the evidence presented and the facts obtaining therein.

Likewise devoid of cogency is petitioners argument that the testimonies of Galarion and Hanopol are inadmissible as to him since he was not granted the opportunity of cross-examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine.Thus, even if petitioner was not given the opportunity to cross-examine Galarion and Hanopol at the time they were presented to testify during the separate trial of the case against Galarion and Roxas, 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 or inadmissibility of said testimonies should be ventilated before the trial court during the trial proper and not in the preliminary investigation.

Furthermore,the technical rules on evidence are not binding on the fiscal who has jurisdiction and control over the conduct of a preliminary investigation. If by its very nature a preliminary investigation could be waived by the accused,we find no compelling justification for a strict application of the evidentiary rules. In addition, considering that under Section 8, Rule 112 of the Rules of Court, the record of the preliminary investigation does not form part of the record of the case in the Regional Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by the trial court if not presented in evidence by the prosecuting fiscal. And, even if the prosecution does present such testimonies, petitioner can always object thereto and the trial court can rule on the admissibility thereof; or the petitioner can, during the trial, petition said court to compel the presentation of Galarion and Hanopol for purposes of cross-examination.19(Emphasis supplied)Furthermore, in citing theReyescase, Justice Velascos dissent overlooked a vital portion of the Court of Appeals reasoning. This Court quoted from the Court of Appeals decision: x x x [A]dmissions made by Pealoza in his sworn statement are binding only on him.Res inter alios acta alteri nocere non debet. The rights of a party cannot be prejudiced by an act, declaration or omission of another.In OMB-C-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estradas co-respondents can in no way prejudice Sen. Estrada.Even granting Justice Velascos argument that the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-039720mentioned the testimonies of Sen. Estradas co-respondents like Tuason and Cunanan, their testimonies were merely corroborative of the testimonies of complainants witnesses Benhur Luy, Marina Sula, and Merlina Suas and were not mentioned in isolation from the testimonies of complainants witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada to establish its finding of probable cause in the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397 was judicially confirmed by the Sandiganbayan, when it examined the evidence,found probable cause, and issued a warrant of arrest against Sen. Estrada on 23 June 2014.

We likewise take exception to Justice Brions assertion that the due process standards that at the very least should be considered in the conduct of a preliminary investigation are those that this Court first articulated inAng Tibay v. Court of Industrial Relations [Ang Tibay].21Simply put, theAng Tibayguidelines for administrative cases do not apply to preliminary investigations in criminal cases. An application of theAng Tibayguidelines to preliminary investigations will have absurd and disastrous consequences.

Ang Tibayenumerated theconstitutionalrequirements of due process, whichAng Tibaydescribed as the fundamental and essential requirements of due processin trials and investigations of an administrative character.22These requirements are fundamental and essential because without these, there is no due process as mandated by the Constitution. These fundamental and essential requirements cannot be taken away by legislation because they are part of constitutional due process. These fundamental and essential requirements are:ChanRoblesVirtualawlibrary(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and adduce evidence tending to establish the rights which he asserts but the tribunalmust considerthe evidence presented. x x x.

(3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, x x x.

(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be substantial. Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it.23The guidelines set forth inAng Tibayare further clarified inGSISv. CA24(GSIS): whatAng Tibayfailed to explicitly state was, prescinding from the general principles governing due process,the requirement of an impartial tribunalwhich, needless to say, dictates that one called upon to resolve a dispute may not sit as judge and jury simultaneously, neither may he review his decision on appeal.25TheGSISclarification affirms the non-applicability of theAng Tibayguidelines to preliminary investigations in criminal cases: The investigating officer, which is the role that the Office of the Ombudsman plays in the investigation and prosecution of government personnel, will never be the impartial tribunal required inAng Tibay, as amplified inGSIS. The purpose of the Office of the Ombudsman in conducting a preliminary investigation,after conducting its own fact-finding investigation, is to determine probable cause for filing an information, and not to make a final adjudication of the rights and obligations of the parties under the law, which is the purpose of the guidelines inAng Tibay.The investigating officer investigates, determines probable cause, and prosecutes the criminal case after filing the corresponding information.

The purpose in determining probable cause is to make sure that the courts are not clogged with weak cases that will only be dismissed, as well as to spare a person from the travails of a needless prosecution.26The Ombudsman and the prosecution service under thecontrol and supervisionof the Secretary of the Department of Justice are inherently the fact-finder, investigator, hearing officer, judge and jury of the respondent in preliminary investigations. Obviously, this procedure cannot comply withAng Tibay, as amplified inGSIS. However, there is nothing unconstitutional with this procedure because this is merely an Executive function, a part of the law enforcement process leading to trial in court where the requirements mandated inAng Tibay, as amplified inGSIS, will apply. This has been the procedure under the 1935, 1973 and 1987 Constitutions. To now rule thatAng Tibay, as amplified inGSIS, should apply to preliminary investigations will mean that all past and present preliminary investigations are in gross violation of constitutional due process

The rights to due process in administrative cases as prescribed inAng Tibay, as amplified inGSIS, are granted by the Constitution; hence, these rights cannot be taken away by mere legislation. On the other hand, as repeatedly reiterated by this Court, the right to a preliminary investigation is merely a statutory right,32not part of the fundamental and essential requirements of due process as prescribed inAng Tibayand amplified inGSIS. Thus, a preliminary investigation can be taken away by legislation. The constitutional right of an accused to confront the witnesses against him does not apply in preliminary investigations; nor will the absence of a preliminary investigation be an infringement of his right to confront the witnesses against him.33A preliminary investigation may be done away with entirely without infringing the constitutional right of an accused under the due process clause to a fair trial.34chanRoblesvirtualLawlibrary

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an accused and the right to a preliminary investigation.To treat them the same will lead to absurd and disastrous consequences. All pending criminal cases in all courts throughout the country will have to be remanded to the preliminary investigation level because none of these will satisfyAng Tibay, as amplified inGSIS.Preliminary investigations are conducted by prosecutors, who are the same officials who will determine probable cause and prosecute the cases in court. The prosecutor is hardly the impartial tribunal contemplated inAng Tibay, as amplified inGSIS. A reinvestigation by an investigating officer outside of the prosecution service will be necessary ifAng Tibay, as amplified inGSIS, were to be applied. This will require a new legislation. In the meantime, all pending criminal cases in all courts will have to be remanded for reinvestigation, to proceed only when a new law is in place. To requireAng Tibay, as amplified inGSIS, to apply to preliminary investigation will necessarily change the concept of preliminary investigation as we know it now. Applying the constitutional due process inAng Tibay, as amplified inGSIS, to preliminary investigation will necessarily require the application of the rights of an accused in Section 14(2), Article III of the 1987 Constitution. This means that the respondent can demand an actual hearing and the right to cross-examine the witnesses against him, rights which are not afforded at present to a respondent in a preliminary investigation.

G.R. No. 206666, January 21, 2015ATTY. ALICIA RISOS-VIDAL,Petitioner,

ALFREDO S. LIM,Petitioner-Intervenor, v.COMMISSION ON ELECTIONS AND JOSEPH EJERCITO ESTRADA,Respondents.

Former President Estrada was granted anabsolutepardon that fully restoredallhis civil and political rights, which naturally includes the right to seek public elective office, the focal point of this controversy. The wording of the pardon extended to former President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the language of the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code.Recall that the petition for disqualification filed by Risos-Vidal against former President Estrada, docketed as SPA No. 13-211 (DC), was anchored on Section 40 of the LGC, in relation to Section 12 of the OEC, that is, having been convicted of a crime punishable by imprisonment of one year or more, and involving moral turpitude, former President Estrada must be disqualified to run for and hold public elective office notwithstanding the fact that he is a grantee of a pardon that includes a statement expressing [h]e is hereby restored to his civil and political rights.

Risos-Vidal theorizes that former President Estrada is disqualified from running for Mayor of Manila in the May 13, 2013 Elections, and remains disqualified to hold any local elective post despite the presidential pardon extended to him in 2007 by former President Arroyo for the reason that it (pardon) did not expressly provide for the remission of the penalty of perpetual absolute disqualification, particularly the restoration of his (former President Estrada) right to vote and be voted upon for public office. She invokes Articles 36 and 41 of the Revised Penal Code as the foundations of her theory.

It is insisted that, since a textual examination of the pardon given to and accepted by former President Estrada does not actually specify which political right is restored, it could be inferred that former President Arroyo did not deliberately intend to restore former President Estradas rights of suffrage and to hold public office, or to otherwise remit the penalty of perpetual absolute disqualification. Even if her intention was the contrary, the same cannot be upheld based on the pardons text.The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the President of the Philippines possesses the power to grant pardons, along with other acts of executive clemency, to wit:ChanRoblesVirtualawlibrary

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

x x x x

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission.It is apparent from the foregoing constitutional provisions that the only instances in which the President may not extend pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the COMELEC. Therefore, it can be argued that any act of Congress by way of statute cannot operate to delimit the pardoning power of the President.

InCristobal v. Labrador27andPelobello v. Palatino,28which were decided under the 1935 Constitution, wherein the provision granting pardoning power to the President shared similar phraseology with what is found in the present 1987 Constitution, the Court then unequivocally declared that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action. The Court reiterated this pronouncement inMonsanto v. Factoran, Jr.29thereby establishing that, under the present Constitution, a pardon, being a presidential prerogative, should not be circumscribed by legislative action. Thus, it is unmistakably the long-standing position of this Court that the exercise of the pardoning power is discretionary in the President and may not be interfered with by Congress or the Court, except only when it exceeds the limits provided for by the Constitution.This doctrine of non-diminution or non-impairment of the Presidents power of pardon by acts of Congress, specifically through legislation, was strongly adhered to by an overwhelming majority of the framers of the 1987 Constitution when they flatly rejected a proposal to carve out an exception from the pardoning power of the President in the form of offenses involving graft and corruption that would be enumerated and defined by Congress through the enactment of a law.

G.R. No. 212196, January 12, 2015PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee,v.RAMIL DORIA DAHIL AND ROMMEL CASTRO Y CARLOS,Accused-Appellants.

The Court cannot either agree with the CA that the evidentiary rule involving the presumption of regularity of the performance of official duties could apply in favor of the police officers. The regularity of the performance of duty could not be properly presumed in favor of the police officers because the records were replete with indicia of their serious lapses.51The presumption stands when no reason exists in the records by which to doubt the regularity of the performance of official duty. And even in that instance, the presumption of regularity will never be stronger than the presumption of innocence in favor of the accused. Otherwise, a mere rule of evidence will defeat the constitutionally enshrined right of an accused to be presumed innocent.

G.R. No. 205728, January 21, 2015THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA AND THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY,Petitioners,v.COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON,The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the fundamental and preferred right to expression of the electorate during political contests no matter how seemingly benign will be tolerated.InAmbil, Jr. v. COMELEC,the losing party in the gubernatorial race of Eastern Samar filed the election protest.32At issue was the validity of the promulgation of a COMELEC Division resolution.33No motion for reconsideration was filed to raise this issue before the COMELEC En Banc. This court declared that it did not have jurisdiction and clarified:chanroblesvirtuallawlibrary

We have interpreted [Section 7, Article IX-A of the Constitution]34to meanfinal orders, rulings and decisionsof the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers. This decision must be afinal decision or resolutionof the Comelecen banc, not of a division,certainly not an interlocutory orderof a division.The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections.35(Emphasis in the original, citations omitted)

However, in the next case cited by respondents,Repol v. COMELEC, this court provided exceptions to this general rule. Repol was another election protest case, involving the mayoralty elections in Pagsanghan, Samar.36This time, the case was brought to this court because the COMELEC First Division issued a status quo ante order against the Regional Trial Court executing its decision pending appeal.37This courts ponencia discussed the general rule enunciated inAmbil, Jr.that it cannot take jurisdiction to review interlocutory orders of a COMELEC Division.38However, consistent withABS-CBN Broadcasting Corporation v. COMELEC,39it clarified the exception:chanroblesvirtuallawlibrary

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves the principle of social justice or the protection of labor, when the decision or resolution sought to be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.40

Based onABS-CBN, this court could review orders and decisions of COMELEC in electoral contests despite not being reviewed by the COMELEC En Banc, if:chanroblesvirtuallawlibrary

1)It will prevent the miscarriage of justice;

2)The issue involves a principle of social justice;

3)The issue involves the protection of labor;

4)The decision or resolution sought to be set aside is a nullity; or

5)The need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.

Ultimately, this court took jurisdiction inRepoland decided that thestatus quo anteorder issued by the COMELEC Division was unconstitutional.

Respondents also citeSoriano, Jr. v. COMELEC.This case was also an election protest case involving candidates for the city council of Muntinlupa City.41Petitioners inSoriano, Jr.filed before this court a petition for certiorari against an interlocutory order of the COMELEC First Division.42While the petition was pending in this court, the COMELEC First Division dismissed the main election protest case.43Sorianoapplied the general rule that only final orders should be questioned with this court. The ponencia for this court, however, acknowledged the exceptions to the general rule inABS-CBN.44chanRoblesvirtualLawlibrary

Blanco v. COMELEC,another case cited by respondents, was a disqualification case of one of the mayoralty candidates of Meycauayan, Bulacan.45The COMELEC Second Division ruled that petitioner could not qualify for the 2007 elections due to the findings in an administrative case that he engaged in vote buying in the 1995 elections.46No motion for reconsideration was filed before the COMELEC En Banc. This court, however, took cognizance of this case applying one of the exceptions inABS-CBN: The assailed resolution was a nullity.47chanRoblesvirtualLawlibrary

Finally, respondents citedCayetano v. COMELEC,a recent election protest case involving the mayoralty candidates of Taguig City.48Petitioner assailed a resolution of the COMELEC denying her motion for reconsideration to dismiss the election protest petition for lack of form and substance.49This court clarified the general rule and refused to take cognizance of the review of the COMELEC order. While recognizing the exceptions inABS-CBN, this court ruled that these exceptions did not apply.50chanRoblesvirtualLawlibrary

Ambil, Jr., Repol, Soriano, Jr., Blanco, andCayetanocited by respondents do not operate as precedents to oust this court from taking jurisdiction over this case. All these cases cited involve election protests or disqualification cases filed by the losing candidate against the winning candidate.

In the present case, petitioners arenotcandidates seeking for public office. Their petition is filed to assert their fundamental right to expression.

Furthermore, all these cases cited by respondents pertained to COMELECs exercise of its adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the implementation of its regulatory powers. When it issued the notice and letter, the COMELEC was allegedly enforcing election laws.cralawred

I.BRule 65, grave abuse of discretion,and limitations on political speech

The main subject of this case is an alleged constitutional violation: the infringement on speech and the chilling effect caused by respondent COMELECs notice and letter.

Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the notice51dated February 22, 2013 and letter52dated February 27, 2013 ordering the removal of the tarpaulin.53It is their position that these infringe on their fundamental right to freedom of expression and violate the principle of separation of church and state and, thus, are unconstitutional.54chanRoblesvirtualLawlibrary

The jurisdiction of this court over the subject matter is determined from the allegations in the petition. Subject matter jurisdiction is defined as the authority to hear and determine cases of the general class to which the proceedings in question belong and is conferred by the sovereign authority which organizes the court and defines its powers.55Definitely, the subject matter in this case is different from the cases cited by respondents.

Nothing less than the electorates political speech will be affected by the restrictions imposed by COMELEC. Political speech is motivated by the desire to be heard and understood, to move people to action. It is concerned with the sovereign right to change the contours of power whether through the election of representatives in a republican government or the revision of the basic text of the Constitution. The zeal with which we protect this kind of speech does not depend on our evaluation of the cogency of the message. Neither do we assess whether we should protect speech based on the motives of COMELEC. We evaluate restrictions on freedom of expression from their effects. We protect both speech and medium because the quality of this freedom in practice will define the quality of deliberation in our democratic society.

COMELECs notice and letter affect preferred speech. Respondents acts are capable of repetition. Under the conditions in which it was issued and in view of the novelty of this case, it could result in a chilling effect that would affect other citizens who want their voices heard on issues during the elections. Other citizens who wish to express their views regarding the election and other related issues may choose not to, for fear of reprisal or sanction by the COMELEC.

Direct resort to this court is allowed to avoid such proscribed conditions. Rule 65 is also the procedural platform for raising grave abuse of discretion.

Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this courts expanded exercise of certiorari as provided by the Constitution as follows:chanroblesvirtuallawlibrary

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable,and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.56(Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all questionsaffectingelections. Article IX-C, Section 2(3) of the Constitution, provides:chanroblesvirtuallawlibrary

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

. . . .

(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.

Respondents reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of jurisdiction, gravely abused it. We are confronted with the question as to whether the COMELEC had any jurisdiction at all with its acts threatening imminent criminal action effectively abridging meaningful political speech.

It is clear that the subject matter of the controversy is the effect of COMELECs notice and letter on free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of the word affecting in this provision cannot be interpreted to mean that COMELEC has the exclusive power to decideany and allquestions that arise during elections. COMELECs constitutional competencies during elections should not operate to divest this court of its own jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the Constitution. This provision provides for this courts original jurisdiction over petitions for certiorari and prohibition. This should be read alongside the expanded jurisdiction of the court in Article VIII, Section 1 of the Constitution.

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within this courts power to review.

During elections, we have the power and the duty to correct any grave abuse of discretion or any act tainted with unconstitutionality on the part of any government branch or instrumentality. This includes actions by the COMELEC. Furthermore, it is this courts constitutional mandate to protect the people against governments infringement of their fundamental rights. This constitutional mandate outweighs the jurisdiction vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.cralawred

I.CHierarchy of courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in directly filing their petition before this court.

Respondents contend that petitioners failure to file the proper suit with a lower court of concurrent jurisdiction is sufficient ground for the dismissal of their petition.57They add that observation of the hierarchy of courts is compulsory, citingHeirs of Bertuldo Hinog v. Melicor.58While respondents claim that while there are exceptions to the general rule on hierarchy of courts, none of these are present in this case.59chanRoblesvirtualLawlibrary

On the other hand, petitioners citeFortich v. Corona60on this courts discretionary power to take cognizance of a petition filed directly to it if warranted by compelling reasons, or [by] the nature and importance of the issues raised. . . .61Petitioners submit that there are exceptional and compelling reasons to justify a direct resort [with] this Court.62chanRoblesvirtualLawlibrary

InBaez, Jr. v. Concepcion,63we explained the necessity of the application of the hierarchy of courts:chanroblesvirtuallawlibrary

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not to be ignored without serious consequences. The strictness of the policy is designed to shield the Court from having to deal with causes that are also well within the competence of the lower courts, and thus leave time to the Court to deal with the more fundamental and more essential tasks that the Constitution has assigned to it. The Court may act on petitions for the extraordinary writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and important reasons exist to justify an exception to the policy.64

In Baez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari, prohibition, and mandamus, citingVergara v. Suelto:65chanRoblesvirtualLawlibrary

The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely necessary or where serious and important reasons exist therefore. Hence, that jurisdiction should generally be exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies or agencies whose acts for some reason or another are not controllable by the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action for the writs procurement must be presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers must strictly observe.66(Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that every level of the judiciary performs its designated roles in an effective and efficient manner. Trial courts do not only determine the facts from the evaluation of the evidence presented before them. They are likewise competent to determine issues of law which may include the validity of an ordinance, statute, or even an executive issuance in relation to the Constitution.67To effectively perform these functions, they are territorially organized into regions and then into branches. Their writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-important task of inferring the facts from the evidence as these are physically presented before them. In many instances, the facts occur within their territorial jurisdiction, which properly present the actual case that makes ripe a determination of the constitutionality of such action. The consequences, of course, would be national in scope. There are, however, some cases where resort to courts at their level would not be practical considering their decisions could still be appealed before the higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of facts and law made by the trial courts. It is collegiate in nature. This nature ensures more standpoints in the review of the actions of the trial court. But the Court of Appeals also has original jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide scope. It is competent to determine facts and, ideally, should act on constitutional issues that may not necessarily be novel unless there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating in the light of new circumstances or in the light of some confusions of bench or bar existing precedents. Rather than a court of first instance or as a repetition of the actions of the Court of Appeals, this court promulgates these doctrinal devices in order that it truly performs that role.

In other words, the Supreme Courts role to interpret the Constitution and act in order to protect constitutional rights when these become exigent should not be emasculated by the doctrine in respect of the hierarchy of courts. That has never been the purpose of such doctrine.

Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68This court has full discretionary power to take cognizance and assume jurisdiction [over] special civil actions for certiorari . . . filed directly with it for exceptionally compelling reasons69or if warranted by the nature of the issues clearly and specifically raised in the petition.70As correctly pointed out by petitioners,71we have provided exceptions to this doctrine:

First, a direct resort to this court is allowed when there are genuine issues of constitutionality that must be addressed at the most immediate time. A direct resort to this court includes availing of the remedies of certiorari and prohibition to assail the constitutionality of actions of both legislative and executive branches of the government.72chanRoblesvirtualLawlibrary

In this case, the assailed issuances of respondents prejudice not only petitioners right to freedom of expression in the present case, but also of others in future similar cases. The case before this court involves an active effort on the part of the electorate to reform the political landscape. This has become a rare occasion when private citizens actively engage the public in political discourse. To quote an eminent political theorist:chanroblesvirtuallawlibrary

[T]he theory of freedom of expression involves more than a technique for arriving at better social judgments through democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age that was awakened and invigorated by the idea of new society in which man's mind was free, his fate determined by his own powers of reason, and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative, progressive, exciting and intellectually robust community. It contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant.73

In a democracy, the citizens right to freely participate in the exchange of ideas in furtherance of political decision-making is recognized. It deserves the highest protection the courts may provide, as public participation in nation-building is a fundamental principle in our Constitution. As such, their right to engage in free expression of ideas must be given immediate protection by this court.

A second exception is when the issues involved are of transcendental importance.74In these cases, the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts from the paralysis of procedural niceties when clearly faced with the need for substantial protection.

In the case before this court, there is a clear threat to the paramount right of freedom of speech and freedom of expression which warrants invocation of relief from this court. The principles laid down in this decision will likely influence the discourse of freedom of speech in the future, especially in the context of elections. The right to suffrage not only includes the right to vote for ones chosen candidate, but also the right to vocalize that choice to the public in general, in the hope of influencing their votes. It may be said that in an election year, the right to vote necessarily includes the right to free speech and expression. The protection of these fundamental constitutional rights, therefore, allows for the immediate resort to this court.

Third, cases of first impression75warrant a direct resort to this court. In cases of first impression, no jurisprudence yet exists that will guide the lower courts on this matter. InGovernment of the United States v. Purganan,76this court took cognizance of the case as a matter of first impression that may guide the lower courts:chanroblesvirtuallawlibrary

In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.77

This court finds that this is indeed a case of first impression involving as it does the issue of whether the right of suffrage includes the right of freedom of expression. This is a question which this court has yet to provide substantial answers to, through jurisprudence. Thus, direct resort to this court is allowed.

Fourth, the constitutional issues raised are better decided by this court. InDrilon v. Lim,78this court held that:chanroblesvirtuallawlibrary

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgment of this Court in the consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and with the concurrence of the majority of those who participated in its discussion.79(Citation omitted)

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality on whether COMELEC committed grave abuse of discretion or performed acts contrary to the Constitution through the assailed issuances.

Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013 election period. Although the elections have already been concluded, future cases may be filed that necessitate urgency in its resolution. Exigency in certain situations would qualify as an exception for direct resort to this court.

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body. InAlbano v. Arranz,80cited by petitioners, this court held that [i]t is easy to realize the chaos that would ensue if the Court of First Instance of each and every province were [to] arrogate itself the power to disregard, suspend, or contradict any order of the Commission on Elections: that constitutional body would be speedily reduced to impotence.81chanRoblesvirtualLawlibrary

In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with the lower courts, any ruling on their part would not have been binding for other citizens whom respondents may place in the same situation. Besides, this court affords great respect to the Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this court would be in the best interest of respondents, in order that their actions may be guided accordingly in the future.

Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the ordinary course of law that could free them from the injurious effects of respondents acts in violation of their right to freedom of expression.

In this case, the repercussions of the assailed issuances on this basic right constitute an exceptionally compelling reason to justify the direct resort to this court. The lack of other sufficient remedies in the course of law alone is sufficient ground to allow direct resort to this court.

Eighth, the petition includes questions that are dictated by public welfare and the advancement of public policy, or demanded by the broader interest of justice, or the orders complained of were found to be patent nullities, or the appeal was considered as clearly an inappropriate remedy.82In the past, questions similar to these which this court ruled on immediately despite the doctrine of hierarchy of courts included citizens right to bear arms,83government contracts involving modernization of voters registration lists,84and the status and existence of a public office.85chanRoblesvirtualLawlibrary

This case also poses a question of similar, if not greater import. Hence, a direct action to this court is permitted.

It is not, however, necessary that all of these exceptions must occur at the same time to justify a direct resort to this court. While generally, the hierarchy of courts is respected, the present case falls under the recognized exceptions and, as such, may be resolved by this court directly.cralawred

I.DThe concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political question, hence not within the ambit of this courts power of review. They cite Justice Vitugs separate opinion inOsmea v. COMELEC86to support their position:chanroblesvirtuallawlibrary

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. I see neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to be all that adversarial or irreconcilably inconsistent with the right of free expression. In any event, the latter, being one of general application, must yield to the specific demands of the Constitution. The freedom of expression concededly holds, it is true, a vantage point in hierarchy of constitutionally-enshrined rights but, like all fundamental rights, it is not without limitations.

The case is not about a fight between the rich and the poor or between the powerful and the weak in our society but it is to me a genuine attempt on the part of Congress and the Commission on Elections to ensure that all candidates are given an equal chance to media coverage and thereby be equally perceived as giving real life to the candidates right of free expression rather than being viewed as an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that which the legislature deems to be best in giving life to the Constitutional mandate, is not for the Court to question; it is a matter that lies beyond the normal prerogatives of the Court to pass upon.87

This separate opinion is cogent for the purpose it was said. But it is not in point in this case.

The present petition does not involve a dispute between the rich and poor, or the powerful and weak, on their equal opportunities for media coverage of candidates and their right to freedom of expression. This case concerns the right of petitioners, who are non-candidates, to post the tarpaulin in their private property, as an exercise of their right of free expression. Despite the invocation of the political question doctrine by respondents, this court is not proscribed from deciding on the merits of this case.

InTaada v. Cuenco,88this court previously elaborated on the concept of what constitutes a political question:chanroblesvirtuallawlibrary

What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act.89(Emphasis omitted)

It is not for this court to rehearse and re-enact political debates on what the text of the law should be. In political forums, particularly the legislature, the creation of the text of the law is based on a general discussion of factual circumstances, broadly construed in order to allow for general application by the executive branch. Thus, the creation of the law is not limited by particular and specific facts that affect the rights of certain individuals,per se.

Courts, on the other hand, rule on adversarial positions based on existing facts established on a specific case-to-case basis, where parties affected by the legal provision seek the courts understanding of the law.

The complementary nature of the political and judicial branches of government is essential in order to ensure that the rights of the general public are upheld at all times. In order to preserve this balance, branches of government must afford due respect and deference for the duties and functions constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence dictates that we are careful not to veto political acts unless we can craft doctrine narrowly tailored to the circumstances of the case.

The case before this court does not call for the exercise of prudence or modesty. There is no political question. It can be acted upon by this court through the expanded jurisdiction granted to this court through Article VIII, Section 1 of the Constitution.

A political question arises in constitutional issues relating to the powers or competence of different agencies and departments of the executive or those of the legislature. The political question doctrine is used as a defense when the petition asks this court to nullify certain acts that are exclusively within the domain of their respective competencies, as provided by the Constitution or the law. In such situation, presumptively, this court should act with deference. It will decline to void an act unless the exercise of that power was so capricious and arbitrary so as to amount to grave abuse of discretion.

The concept of a political question, however, never precludes judicial review when the act of a constitutional organ infringes upon a fundamental individual or collective right. Even assuming arguendo that the COMELEC did have the discretion to choose the manner of regulation of the tarpaulin in question, it cannot do so by abridging the fundamental right to expression.

Marcos v. Manglapus90limited the use of the political question doctrine:chanroblesvirtuallawlibrary

When political questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide.91

How this court has chosen to address the political question doctrine has undergone an evolution since the time that it had been first invoked inMarcos v. Manglapus. Increasingly, this court has taken the historical and social context of the case and the relevance of pronouncements of carefully and narrowly tailored constitutional doctrines. This trend was followed in cases such asDaza v. Singson92andCoseteng v. Mitra Jr.93chanRoblesvirtualLawlibrary

DazaandCosetenginvolved a question as to the application of Article VI, Section 18 of the 1987 Constitution involving the removal of petitioners from the Commission on Appointments. In times past, this would have involved a quintessentially political question as it related to the dominance of political parties in Congress. However, in these cases, this court exercised its power of judicial review noting that the requirement of interpreting the constitutional provision involved the legality and not the wisdom of a manner by which a constitutional duty or power was exercised. This approach was again reiterated inDefensor Santiago v. Guingona, Jr.94chanRoblesvirtualLawlibrary

InIntegrated Bar of the Philippines v. Zamora,95this court declared again that the possible existence of a political question did not bar an examination of whether the exercise of discretion was done with grave abuse of discretion. In that case, this court ruled on the question of whether there was grave abuse of discretion in the Presidents use of his power to call out the armed forces to prevent and suppress lawless violence.

InEstrada v. Desierto,96this court ruled that the legal question as to whether a former President resigned was not a political question even if the consequences would be to ascertain the political legitimacy of a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use the resolution of constitutional issues as leverage. But the expanded jurisdiction of this court now mandates a duty for it to exercise its power of judicial review expanding on principles that may avert catastrophe or resolve social conflict.

This courts understandin