estrada vs omb

7/23/2019 Estrada vs OMB

1/21

EN BANC

G.R. Nos. 212140-41, January 21, 2015

SENATOR JINGGOY EJERCITO ESTRADA,Petitioner,

vs.

BERSAMIN, OICE O T!E OMB"DSMAN, IE#D IN$ESTIGATION OICE,

OICE O T!E OMB"DSMAN, NATIONA# B"REA" O IN$ESTIGATION AND

ATTY. #E$ITO D. BA#IGOD,Respondents.

D E C I S I O N

CAR%IO,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. S'()*on +, Ru' 112 o )' Ru's o

Cour) '/r'ssy ro*'s )a) )' r'son'n) sa ony a' )' r*3) to submit a counter-affidavit, )o '/a*n' a o)'r '*'n(' su*))' y )' (oa*nan)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.

-Paderanga v. Drilon1

This case is a Petition for ertiorari!with prayer for "1# the issuance of a temporary restrainingorder and$or %rit of Preliminary 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#, fromconducting further proceedings in '*---1/-0/01/ and '*---1/-0/2 until the present

Petition has been resolved 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 are

void.

'*---1/-0/1/,/entitledNational Bureau of Investigation and Atty. Levito D. Baligod v.

Jose Jinggoy P. Ejerito Estrada! et al., refers to the complaint for Plunder as defined under

9epublic +ct "9+# )o. 20:0, while '*---1/-0/2,8entitled"ield Investigation #ffie!#ffie of t$e #%&uds%an v. Jose Jinggoy P. Ejerito'Estrada! et al. , refers to the complaint

for Plunder as defined under 9+ )o. 20:0 and for violation of 5ection /"e# of 9+ )o. /01

"+nti-;raft and orrupt Practices +ct#.cralawred

T' a()s

'n !< )ovember !01/, the 'mbudsman served upon 5en. 7strada a copy of the complaint in

'*---1/-0/1/, filed by the )*I and +tty. *aligod, which prayed, among others, that

criminal proceedings for Plunder as defined in 9+ )o. 20:0 be conducted 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, and for violation of 5ection /"e# of9+ )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/ and 18 arch !018.


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'n !0 arch !018, 5en. 7strada filed hisRe(uest to &e "urnis$ed )it$ *opies of *ounter'

Affidavits of t$e #t$er Respondents! Affidavits of Ne) +itnesses and #t$er "ilings "9equest# in'*---1/-0/1/. In his 9equest, 5en. 7strada as>ed for copies of the following documents?

"a# +ffidavit of @co-respondentA 9uby Tuason "Tuason#3

"b# +ffidavit of @co-respondentA ennis . unanan "unanan#3

"c# ounter-+ffidavit of @co-respondentA ;ondelina ;. +mata "+mata#3

"d# ounter-+ffidavit of @co-respondentA ario . 9elampagos "9elampagos#3

"e# onsolidated 9eply of complainant )*I, if one had been filed3 and

"f# +ffidavits$ounter-+ffidavits$Pleadings$(ilings filed by all the other respondents and$or

additional witnesses for the omplainants.=

5en. 7strada4s request was made B@pAursuant to the right of a respondent C )o '/a*n' )''*'n(' su*))' y )' (oa*nan)which he may not have been furnished4 "5ection /@bA,

9ule 11! of the 9ules of ourt# and to Ca' a(('ss )o )' '*'n(' on r'(or4 "5ection 8@cA,9ule II of the 9ules of Procedure of the 'ffice of the

'mbudsman#.D2chan9oblesvirtualawlibrary

'n !2 arch !018, the 'mbudsman issued the assailed 'rder in '*---1/-0/1/. The

pertinent portions of the assailed 'rder read?han9oblesEirtualawlibrary

This 'ffice finds however finds @sicA that the foregoing provisions @pertaining to 5ection /@bA,9ule 11! of the 9ules of ourt and 5ection 8@cA, 9ule II of the 9ules of Procedure of the 'ffice

of the 'mbudsmanA do not entitle respondent @5en. 7stradaA to befurnished all the filings of therespondents.

9ule 11! "/# "a# F "c# of the 9ules of ourt provides @sicA?han9oblesEirtualawlibrary

"a# The (oa*n)shall state the address of the respondent and shall be a((oan*' y )'

a*a*)s o )' (oa*nan) an *s 6*)n'ss's, as well as other supporting documents toestablish 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 r'son'n) sa su*) *s (oun)'r-a*a*)and that of hiswitnesses 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 (o*'s )'r'o urn*s' y * )o )' (oa*nan).(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?han9oblesEirtualawlibrarya# If the complaint is not under oath or is based only on official reports, the investigating officer

shall require the (oa*nan) or suor)*n3 6*)n'ss's )o '/'(u)' a*a*)s to substantiate the

complaints.

b# +fter such affidavitshave been secured, the investigating officer shall issue an order,

attaching thereto a (oy o )' a*a*)s an o)'r suor)*n3 o(u'n)s, directing the

respondents to submit, within ten "10# days from receipt thereof, his counter-affidavits andcontroverting evidence with roo o s'r*(' )'r'o on )' (oa*nan). 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 'ffice is required to furnish @5en.7stradaA a copy of the omplaint 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 all the 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 of the 'ffice of the

'mbudsman, the respondents areony r'7u*r' )o urn*stheir counter-affidavits andcontroverting evidence )o )'(oa*nan), and no)to the other respondents.

To reiterate, the rights of respondent @5en.A 7strada in the conduct of the preliminary


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investigation depend on the rights granted to him by law and these cannot be based on whatever

rights he believes @thatA he is entitled to or those that may be derived from the phrase Bdueprocess of law.D

Thus, this 'ffice cannot grant his motion to be furnished with copies of all the filings by theother parties. )evertheless, he should be furnished a copy of the 9eply of complainant )*I as he

is entitled thereto under the rules3 however, as of this date, no 9eply has been filed by

complainant )*I.

8!EREORE,respondent @5en.A 7strada4sRe(uest to &e "urnis$ed )it$ *opies of *ounter'

Affidavits of t$e #t$er Respondents! Affidavits of Ne) +itnesses and #t$er "ilingsis DENIED.e is nevertheless entitled to be furnished a copy of the 9eply if complainant opts to file suchpleading.:"7mphases in the original#

'n !: arch !018, the 'mbudsman issued in '*---1/-0/1/ and '*---1/-0/2 a

6oint 9esolutionwhich found probable cause to indict 5en. 7strada and his co-respondents withone 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 againsthim.

8*)ou) **n3 a Mo)*on or R'(ons*'ra)*on o )' Ousan9s 2: Mar( 2014 Or'r

'ny*n3 *s R'7u's),5en. 7strada filed the present Petition for ertiorari under 9ule =< andsought to annul and set aside the !2 arch !018 'rder.cralawred

T!E ARG"MENTS

5en. 7strada raised the following grounds in his Petition?han9oblesEirtualawlibraryT7 '((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' H7P9'755 '( +%.10

5en. 7strada also claimed that under the circumstances, he has Bno appeal or any other plain,speedy, and adequate remedy in the ordinary course of law, except through this Petition.D 115en.7strada applied for the issuance of a temporary restraining 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# hehas been 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 )' sa' a)', : May 2014, )' Ousan *ssu' *n OMB-C-C-1+-0+1+ an OMB-C-

C-1+-0+;: a Jo*n) Or'r urn*s*n3 S'n. Es)raa 6*) )' (oun)'r-a*a*)s o Tuason,Cunanan, Aa)a, R'aa3os, ran(*s(o *3ura, Gr'3or*a Bu'na'n)ura, an A'/*s

S'*a, an *r'()*n3 * )o (o'n) )'r'on 6*)*n a non-'/)'n*' 'r*o o *' ays

ro r'('*) o )' or'r.

'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 furnishedcopies 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 ourt. The 'mbudsman denied 5en.

7strada4s motion to suspend in an 'rder dated 1< ay !018. 5en. 7strada filed a motion for

reconsideration of the 'rder dated 1< ay !018 but his motion was denied in an 'rder dated /

6une !018.

As o 2 Jun' 2014, )' a)' o **n3 o )' Ousan9s Co'n) )o )' r's'n) %')*)*on,

S'n. Es)raa a no) *' a (o'n) on )' (oun)'r-a*a*)s urn*s' )o *.'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. 7strada4s motion forreconsideration dated 2 +pril !018. The pertinent portion of the 8 6une !018 6oint 'rder

stated?han9oblesEirtualawlibrary


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%hile it is true that 5enator 7strada4s request for copies of Tuason, unanan, +mata,

9elampagos, (igura, *uenaventura and 5evidal4s affidavits was denied by 'rder dated !2 arch!018 and &efore the promulgation of the assailed 6oint 9esolution, 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 !018transmitted to 5enator 7strada through counsel.

T*s O*(', *n a(), ' *n a'yan(' )' *sos*)*on o )' o)*ons or r'(ons*'ra)*on *n

)*s ro(''*n3 *n *3) o *)s 3ran) )o S'na)or Es)raa a 'r*o o *' ays ro r'('*) o

)' : May 2014 Or'r )o oray r'son )o )' ao'-na' (o-r'son'n)s9 (a*s.

In view of the foregoing, this 'ffice fails to see how 5enator 7strada was deprived of his right toprocedural due process.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. Thepublic respondents argued that?han9oblesEirtualawlibrary

I. P7TITI')79 @57). 75T9++A %+5 )'T 7)I7 H7 P9'755 '( +%.

II. T7 P7TITI') ('9 *ER,I#RARII5 P9'7H9+M I)(I9.

+.LI,I- PENDEN,IA7JI5T5 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 a Petition for ertiorari under 9ule =< is improper. 5en. 7strada should

have either filed a motion for reconsideration of the !2 arch !018 'rder or incorporated thealleged irregularity in his motion for reconsideration of the !: arch !018 6oint 9esolution.

There was also no violation of 5en. 7strada4s right to due process because there is no rule which

mandates that a respondent such as 5en. 7strada be furnished with copies of the submissions ofhis co-respondents.

'n 1= 6une !018, 5en. 7strada filed his 9eply to the public respondents4 omment. 5en. 7strada

insisted that he was denied 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 following

documents?han9oblesEirtualawlibrarya# '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

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.


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5en. 7strada argues that the Petition is not rendered moot by the subsequent issuance of the 2

ay !018 6oint 'rder because 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 adequate remedy in the

ordinary course of law. (inally, 5en. 7strada reiterates his application for the issuance of atemporary restraining 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*s Cour)9s Ru*n3

onsidering the facts narrated above, the 'mbudsman4s denial in its !2 arch !018 'rder of5en. 7strada4s 9equest did not 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 of his 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 theaffidavits 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 "!# copies for the official file. The affidavits shall be subscribed and sworn to before any

prosecutor or government official authoriOed to administer oath, or, in their absence or

unavailability, before a notary public, each of who must certify that he personally examined theaffiants and that he is satisfied that they voluntarily executed and understood their affidavits.

"b# %ithin ten "10# days after the filing of the complaint, the investigating officer shall eitherdismiss 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.

T' r'son'n) sa a' )' right to examine the evidence submitted by the

complainant6*( ' ay no) a' ''n urn*s' an )o (oy )' a) *s '/'ns'. If the

evidence is voluminous, the complainant may be required to specify those which he intends topresent against the respondent, and these shall be made available for examination or copying 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 at the expense of the requesting party.

"c# %ithin ten "10# days from receipt of the subpoena with the complaint and supportingaffidavits 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, withcopies 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 theevidence 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 beas>ed to the party or witness concerned.


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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 terminatedwithin five "


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5ec. /.Preli%inary investigation/ )$o %ay ondut. Q Preliminary investigation may beconducted by any of the following?

1# 'mbudsman Investigators3

!# 5pecial Prosecuting 'fficers3

/# eputiOed Prosecutors3

8# Investigating 'fficials authoriOed by law to conduct preliminary investigations3 or

ed by the investigating officer or a

party shall be reduced into writing and served on the witness concerned who shall be required toanswer the same in writing and under oath.

g# Hpon the termination of the preliminary investigation, the investigating officer shall forwardthe records of the case together 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 orapproval of the 'mbudsman in 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 'mbudsman or by the proper eputy 'mbudsman.


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5ec. 2.0otion for reonsideration. Q a# 'nly one "1# motion for reconsideration orreinvestigation of an approved order or resolution shall be allowed, the same to be filed within

fifteen "1


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6ustice Eelasco4s dissent relies on the ruling in #ffie of t$e #%&uds%an v.Reyes"Reyescase#,1nows that quanta of proof and ad&ective rules vary depending onwhether 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 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 of ourt is called for, with more or less strictness. In administrative

proceedings, however, the technical rules of pleading and procedure, and of evidence, are notstrictly adhered to3 they generally apply only suppletorily3 indeed, in agrarian disputes

application of the 9ules of ourt is actually prohibited.12

It should be underscored that the conduct of a preliminary investigation is only for thedetermination of probable cause, and Bprobable cause merely implies probability of guilt andshould be determined in a summary manner. + 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.D 1:Thus, the rights ofa respondent in a preliminary 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 sufficient ground to engender a well founded belief that a crime cogniOable bythe 9egional Trial ourt has been committed and that the respondent is probably guilty thereof,

and should be held for trial. T' 7uan)u o '*'n(' no6 r'7u*r' *n r'**nary*n's)*3a)*on *s su( '*'n(' su*(*'n) )o >'n3'n'r a 6' oun' '*'? as )o )' a() o

)' (o*ss*on o a (r*' an )' r'son'n)@s roa' 3u*) )'r'o. A r'**nary*n's)*3a)*on *s no) )' o((as*on or )' u an '/aus)*' *say o )' ar)*'s9 '*'n('

*) *s or )' r's'n)a)*on o su( '*'n(' ony as ay 'n3'n'r a 6'-3roun' '*' )a)

an o'ns' as ''n (o*))' an )a) )' a((us' *s roay 3u*)y )'r'o.%e are inaccord with the state prosecutor4s findings in the case at bar that there exists prima facie

evidence of petitioner4s involvement in the commission of the crime, it being sufficiently

supported by the evidence presented and the facts obtaining therein.


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i>ewise devoid of cogency is petitioner4s argument that the testimonies of ;alarion andanopol are inadmissible as to him since he was not granted the opportunity of cross-

examination.

I) *s a una'n)a r*n(*' )a) )' a((us' *n a r'**nary *n's)*3a)*on as no r*3) )o

(ross-'/a*n' )' 6*)n'ss's 6*( )' (oa*nan) ay r's'n). S'()*on +, Ru' 112 o )'

Ru's o Cour) '/r'ssy ro*'s )a) )' r'son'n) sa ony a' )' r*3) )o su*) a

(oun)'r-a*a*), )o '/a*n' a o)'r '*'n(' su*))' y )' (oa*nan) an, 6'r'

)' *s(a s')s a 'ar*n3 )o rooun (ar**(a)ory 7u's)*ons )o )' ar)*'s or )'*r 6*)n'ss's,

)o ' aor' an oor)un*)y )o ' r's'n) u) 6*)ou) )' r*3) )o '/a*n' or (ross-'/a*n'.Thus, even if petitioner was not given the opportunity to cross-examine ;alarion andanopol at the time they were presented to testify 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 preliminary investigation.

(urthermore, )' )'(n*(a ru's on '*'n(' ar' no) *n*n3 on )' *s(a 6o as

ur*s*()*on an (on)ro o'r )' (onu() o a r'**nary *n's)*3a)*on. If by its very nature

a preliminary investigation could be waived by the accused, 6' *n no (o'*n3 us)**(a)*on

or a s)r*() a*(a)*on o )' '*'n)*ary ru's . In addition, considering that under 5ection :,9ule 11! of the 9ules of ourt, the record of the preliminary investigation does not form part of

the record of the case in the 9egional Trial ourt, then the testimonies of ;alarion and anopol

may not be admitted by the trial court 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 the trial, petition

said court to compel the presentation of ;alarion and anopol for purposes of cross-examination.1"7mphasis supplied#

(urthermore, in citing theReyescase, 6ustice Eelasco4s dissent overloo>ed a vital portion of the

ourt of +ppeals4 reasoning. 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 by an act, declaration oromission of another.DIn OMB-C-C-1+-0+1+ an OMB-C-C-1+-0+;:, )' a*ss*ons o S'n.

Es)raa9s (o-r'son'n)s (an *n no 6ay r'u*(' S'n. Es)raa.7ven granting 6usticeEelasco4s argument that the !: arch !018 6oint 9esolution in '*---1/-0/1/ and '*--

-1/-0/2!0mentioned the testimonies of 5en. 7strada4s co-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 of complainants4 witnesses.

oreover, the sufficiency of the evidence put forward by the 'mbudsman against 5en. 7strada

to establish its finding of probable cause in the !: arch !018 6oint 9esolution in '*---

1/-0/1/ and '*---1/-0/2 was &udicially confirmed by the 5andiganbayan, when itexamined the evidence,oun roa' (aus', and issued a warrant of arrest against 5en.7strada on !/ 6une !018.

%e li>ewise ta>e exception to 6ustice *rion4s assertion that B)' u' ro('ss s)anars )a) a)

)' 'ry 'as) sou ' (ons*'r' *n )' (onu() o a r'**nary *n's)*3a)*on ar' )os'

)a) )*s Cour) *rs) ar)*(ua)' *nAng Tibay v. ourt of !ndustrial Relations "Ang

Tibay#.D!15imply put, theAng ,i&ayguidelines for administrative cases do not apply topreliminary investigations in criminal cases. +n application of theAng ,i&ayguidelines to

preliminary investigations will have absurd and disastrous consequences.

Ang ,i&ayenumerated the (ons)*)u)*onarequirements of due process, whichAng,i&aydescribed as the Buna'n)a an 'ss'n)*a r'7u*r''n)s o u' ro('ss in trials and

investigations of an administrative character.D!!These requirements are Buna'n)a an

'ss'n)*aD because without these, there is no due process as mandated by the onstitution. TheseBfundamental and essential requirementsD cannot be ta>en away by legislation because they are

part of constitutional due process. These Bfundamental and essential requirementsD

are?han9oblesEirtualawlibrary


11/21

"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.

"!# )ot 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 tribunal %ust onsiderthe evidencepresented. x x x.

"/# B%hile the duty to deliberate does not impose the obligation to decide right, it does imply anecessity which cannot be disregarded, 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 evidencemust be Bsubstantial.D B5ubstantial evidence is more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.D x x x.

"now the various issues involved, and the

reasons for the decisions rendered. The performance of this duty is inseparable from the authorityconferred upon it.!/

The guidelines set forth inAng ,i&ayare further clarified in -I-v. +!8"-I-#? BwhatAng

,i&ayfailed to explicitly state was, prescinding from the general principles governing dueprocess, )' r'7u*r''n) o an *ar)*a )r*unawhich, needless to say, dictates that one

called upon to resolve a dispute may not sit as &udge and &ury simultaneously, neither may he

review his decision on appeal.D!e a final ad&udication of the rights and obligations

of the parties under the law, which is the purpose of the guidelines inAng ,i&ay. T'

*n's)*3a)*n3 o*('r *n's)*3a)'s, ')'r*n's roa' (aus', an ros'(u)'s )' (r**na

(as' a)'r **n3 )' (orr'son*n3 *nora)*on.

The purpose in determining probable cause is to ma>e sure that the courts are not clogged with

wea> cases that will only be dismissed, as well as to spare a person from the travails of a

needless prosecution.!=

The 'mbudsman and the prosecution service under the (on)ro ansu'r*s*onof 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 cannot comply withAng ,i&ay, as amplified in -I-. owever, there

is nothing unconstitutional with this procedure because this is merely an 7xecutive function, apart of the law enforcement process leading to trial in court where the requirements mandated

inAng ,i&ay, as amplified in -I-, will apply. This has been the procedure under the 1/ely than not acrime has been committed and was committed by the suspects. Probable cause need not be based

on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond

reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. +s well


12/21

put inBrinegar v. 1nited -tates, while probable cause demands more than Bbare suspicion,D it

requires Bless than evidence which would &ustify . . . conviction.D + finding of probable causemerely binds over the suspect to stand trial. It is not a pronouncement of guilt.

onsidering the low quantum and quality of evidence needed to support a finding of probablecause, we also hold that the '6 Panel did not gravely abuse its discretion in refusing to call the

)*I witnesses for clarificatory questions. The decision to call witnesses for clarificatory

questions is addressed to the sound discretion of the investigator and the investigator alone. If theevidence on hand already yields a probable cause, the investigator need not hold a clarificatory

hearing. To r''a), roa' (aus' 'r'y **'s roa**)y o 3u*) an sou '

')'r*n' *n a suary ann'r. %r'**nary *n's)*3a)*on *s no) a ar) o )r*a an *) *sony *n a )r*a 6'r' an a((us' (an 'an )' u '/'r(*s' o *s r*3)s, su( as )' r*3)

)o (onron) an (ross-'/a*n' *s a((us'rs )o 's)a*s *s *nno('n('.In the case at bar, the

'6 Panel correctly ad&udged that enough evidence had been adduced to establish probable

cause and clarificatory hearing was unnecessary.!2

6ustice 6.*.. 9eyes, writing for the ourt, emphatically declared inLo2ada v. 3ernande2,!:that

the Br*3)s (on'rr' uon a((us' 'rsons )o ar)*(*a)' *n r'**nary *n's)*3a)*ons(on('rn*n3 )'s''s depend upon the provisions of law by which such rights are

specifically secured, rather than upon the phrase $due process of law%.D This reiterates 6ustice

6ose P. aurel4s oft-quoted pronouncement in3as$i% v. Bonan!that B)' r*3) )o ar'**nary *n's)*3a)*on *s s)a)u)ory, no) (ons)*)u)*ona.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 filing of an information does not initiate a

criminal action so as to trigger into operation 5ection 18"!#, +rticle III of the onstitution. /0It is

the filing of a complaint or information in court that initiates a criminalaction./1chan9oblesvirtualawlibrary

The rights to due process in administrative cases as prescribed in Ang ,i&ay, as amplifiedin -I-, are granted by the onstitution3 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 inAng ,i&ayand amplified in -I-. Thus, a

preliminary investigation can be ta>en away by legislation. The constitutional right of an accusedto confront the witnesses against him does not apply in preliminary investigations3 nor will the

absence of a preliminary investigation be an infringement of his right to confront the witnessesagainst him.//+ 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./8chan9oblesvirtualawlibrary

The quantum of evidence needed inAng ,i&ay, as amplified in -I-, is greater than the evidence

needed in a preliminary investigation to establish probable cause, or to establish the existence ofapri%a faiecase that would warrant the prosecution of a case.Ang ,i&ayrefers to Bsubstantial

evidence,D while the establishment of probable cause needs Bonly 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 trustworthy information @areA sufficient inthemselves to warrant a man of reasonable caution in the belief thatD an offense has been or is

being committed. *arroll v. 1nited -tates! 758 1. -. 967! 957.


13/21

These long-prevailing standards see> to safeguard citiOens from rash and unreasonable

interferences with privacy and from unfounded charges of crime. They also see> to give fairleeway for enforcing the law in the community4s protection. *ecause many situations which

confront officers in the course of executing their duties are more or less ambiguous, room must

be allowed for some mista>es on their part. *ut the mista>es must be those of reasonable men,acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is

a practical, nontechnical conception affording the best compromise that has been found for

accommodating these often opposing interests. 9equiring more would unduly hamper lawenforcement. 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 whereprobable cause is needed to be established?

"1# In 5ections 1 and / of 9ule 11!? *y the investigating officer, to determine whether there is

sufficient ground to engender a well-founded belief that a crime has been committed and therespondent is probably guilty thereof, and should be held for trial. + preliminary investigation is

required before the filing of a complaint or information for an offense where the penalty

prescribed 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 the accused has already been arrested, shall be issued and that there is a

necessity of placing the respondent under immediate custody in order not to frustrate the ends of&ustice3

"/# In 5ection elihood, or probability, of guilt. 6ustice *rion, in the recent case of 1nilever P$ilippines! In.

v. ,an/2"1nilever#, stated?han9oblesEirtualawlibrary

The determination of probable cause needs only to rest on evidence showing that more li>elythan not, a crime has been committed and there is enough reason to believe that it was committed

by the accused. It need not be based on clear and convincing evidence of guilt, neither on

evidence establishing absolute certainty of guilt. %hat is merely required is Bprobability ofguilt.D Its determination, too, does not call for the application of rules or standards of proof that a

&udgment of conviction requires after trial on the merits. Thus, in concluding that there is

probable cause, it suffices that it is believed that the act or omission complained of constitutesthe very offense charged.

It is also important to stress that )' ')'r*na)*on o roa' (aus' o's no) ''n on )'

a**)y or 'r*)s o a ar)y9s a((usa)*on or ''ns' or 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 in0etropolitan Ban: ; ,rust *o%pany v.

on2ales?han9oblesEirtualawlibraryProbable cause has been defined as the existence of such facts and circumstances as would excite

the belief in a reasonable mind, acting on the facts within the >nowledge of the prosecutor, that

the person charged was guilty of the crime for 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 onopinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into

whether there is sufficient evidence to procure a conviction. It is enough that it is believed that

the act or omission complained of constitutes the offense charged. Precisely, there is a trial forthe reception of evidence of the prosecution in support of the charge. "*oldfacing and

italiciOation supplied#


14/21

6ustice *rion4s pronouncement in 1nileverthat Bthe determination of probable cause does not

depend on the validity or merits of a party4s accusation or defense or on )' admissibility or

veracityo )'s)*on*'s r's'n)'D correctly recogniOes the doctrine in the Hnited 5tates that the

determination of probable cause can rest partially, or even entirely, on hearsay evidence, as long

as the person ma>ing the hearsay statement is credible. In 1nited -tates v. 6os' *'n)*)y n'' no) ' *s(os' . . .? 6as

>(r'*'? or *s *nora)*on >r'*a'.?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 sus)an)*aas*sfor crediting the hearsay. earsay evidence is admissible in determining probable cause in a

preliminary investigation because such investigation is merelypreliminary, and does not finallyad&udicate rights and obligations of parties. owever, in administrative cases, where rights and

obligations are finally ad&udicated, what is required is Bsus)an)*a '*'n('D which cannot rest

entirely or even partially on hearsay evidence. 5ubstantial basis is not the same as substantialevidence because substantial evidence excludes hearsay evidence while substantial basis can

include hearsay evidence. To r'7u*r' )' a*(a)*on oAng Tibay, as a**' *n ('!', *nr'**nary *n's)*3a)*ons 6* (an3' )' 7uan)u o '*'n(' r'7u*r' *n ')'r*n*n3

roa' (aus' ro '*'n(' o *'*oo or roa**)y o 3u*) )o sus)an)*a '*'n(' o

3u*).

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of anaccused and the right to a preliminary investigation. To )r'a) )' )' sa' 6* 'a )o asuran *sas)rous (ons'7u'n('s. A 'n*n3 (r**na (as's *n a (our)s )rou3ou) )'

(oun)ry 6* a' )o ' r'an' )o )' r'**nary *n's)*3a)*on '' '(aus' non' o

)'s' 6* sa)*syAng Tibay, as a**' *n ('!'.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 ,i&ay, asamplified in -I-. + reinvestigation by an investigating officer outside of the prosecution service

will be necessary ifAng ,i&ay, as amplified in -I-, 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 forreinvestigation, to proceed only when a new law is in place. To requireAng ,i&ay, as amplifiedin -I-, to apply to preliminary investigation will necessarily change the concept of preliminary

investigation as we >now it now. +pplying the constitutional due process in Ang ,i&ay, as

amplified in -I-, to preliminary investigation will necessarily require the application of therights of an accused in 5ection 18"!#, +rticle III of the 1:2 onstitution. 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.

The application ofAng ,i&ay, as amplified in -I-, is not limited to those with pending

preliminary investigations but even to those convicted by final &udgment and already serving

their sentences. The rule is well-settled that a &udicial decision applies retroactively if it has abeneficial 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 legalprocesses.D80+pplyingAng ,i&ay, as amplified in -I-, to preliminary investigations will result

in thousands of prisoners, convicted by final &udgment, being set free from prison.


15/21

'econd.5en. 7strada4s present Petition for ertiorari is r'a)ur'.

6ustice Eelasco4s dissent prefers that 5en. 7strada not Bbe sub&ected to the rigors of a criminal

prosecution in courtD because there is Ba pending question regarding the 'mbudsman4s grave

abuse of its discretion preceding the finding of a probable cause to indict him.D 9estated bluntly,6ustice Eelasco4s dissent would li>e this ourt to conclude that the mere filing of the present

Petition for ertiorari questioning the 'mbudsman4s denial of 5en. 7strada4s 9equest should

have, by itself, voided all 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 datethat 5en. 7strada filed the present Petition, the 'mbudsman issued a 6oint 'rder in '*---1/-0/1/ and '*---1/-0/2 that urn*s'5en. 7strada with the counter-affidavits of 9uby

Tuason, ennis unanan, ;ondelina +mata, ario 9elampagos, (rancisco (igura, ;regoria

*uenaventura, and +lexis 5evidal, and *r'()' * )o (o'n)within a non-extendible periodof five days from receipt of said 'rder. S'n. Es)raa * no) *' any (o'n) , 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 count of plunder and 11 counts of violation of

5ection /"e#, 9epublic +ct )o. /01. In this 8 6une !018 6oint 'rder, the 'mbudsman stated thatB@tAhis 'ffice, in fact, ' *n a'yan(' )' *sos*)*onof motions for reconsideration in this

proceeding in light of its grant to 5enator 7strada a period of five days from receipt of the 2 ay

!018 'rder to formally respond to the above-named respondents4 claims.D

%e underscore 5en. 7strada4s procedural omission. S'n. Es)raa * no) *' any 'a*n3,u( 'ss a o)*on or r'(ons*'ra)*on, )o )' 2: Mar( 2014 Or'r *n OMB-C-C-1+-0+1+.

S'n. Es)raa *'*a)'y ro(''' )o *' )*s %')*)*on or C'r)*orar* 'or' )*s

Cour).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 6oint9esolution finding probable cause. The present Petition for ertiorari is r'a)ur'.

+ 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 presentPetition falls under the exceptions81to the general rule that the filing of a motion for

reconsideration is required prior to the filing of a petition for certiorari. This ourt has reiterated

in numerous decisions that a motion for reconsideration is ana)orybefore the filing of apetition for certiorari.8!chan9oblesvirtualawlibrary

6ustice Eelasco4s dissent faults the ma&ority for their refusal to apply the 9eyes case to thepresent Petition. 6ustice Eelasco4s dissent insists that Bthis ourt cannot neglect to emphasiOe

that, despite the variance in the quanta of evidence required, 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 this ourt4s ruling inRuivivar v. #ffie of t$e

#%&uds%an"Ruivivar#,8/wherein we stated that B@tAhe law can no longer help one who had beengiven ample opportunity to be heard but who did not ta>e full advantage of the proffered

chance.D

TheRuivivarcase, li>e theReyes88case, was also an administrative case before the 'mbudsman.

The 'mbudsman found petitioner 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 not furnished copiesof the affidavits of the private respondent4s witnesses. The 'mbudsman subsequently ordered

that petitioner 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, suchpleading which she may deem fit under the circumstances.D Petitioner received copies of the

affidavits, and simply filed a manifestation where she maintained that her receipt of the affidavits

did not alter the deprivation of her right to due process or cure the irregularity in the


16/21

'mbudsman4s decision to penaliOe her.

InRuivivar, petitioner received the affidavits of the private respondent4s witnesses a)'rthe

'mbudsman rendered a decision against her. %e disposed of petitioner4s deprivation of due

process claim in this manner?han9oblesEirtualawlibraryThe + ecision dismissed the petition for ertiorarion the ground that the petitioner failed to

exhaust all the administrative remedies available to her before the 'mbudsman. This ruling is

legally correct as exhaustion of administrative remedies is a requisite for the filing of a petitionfor 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 $as refused to avail of t$is opportunity3 hence, she cannot claim denial of due process.In the words of the + ruling itself? BPetitioner )as given t$e opportunity &y pu&li respondentto re&ut t$e affidavits su&%itted &y private respondent. . . and $ad a speedy and ade(uate

ad%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 principle applies when the ruling ourt or tri&unalis notgiven the opportunity to re-examine its findings and conclusions because of an availa&le

opportunitythat a party see>ing recourse against the court or the tribunal4s ruling omitted to ta>e.

Hnder the concept of Bdue process,D on the other hand, a violation occurs when a court or

tribunal rules against a partywithout giving him or her the opportunity to be heard. Thus, theexhaustion principle is based on the perspective of the ruling court or tribunal, while due process

is considered from the point of view of the litigating party against whom a ruling was made. The

commonality they share is in the same BopportunityD that underlies both. In the context of thepresent case, the available opportunity to consider and appreciate the petitioner4s counter-

statement of facts was denied the 'mbudsman3 hence, the petitioner 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-furnished affidavits of the private respondent4s witnesses R was not denied and cannot

now claim denial of due process because she did not ta>e advantage of the opportunity opened toher 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 ofwitnesses# and on questions relating to the appreciation of the evidence on record. The

'mbudsman acted on this motion by issuing its 'rder of 6anuary 12, !00/ belatedly furnishing

her with copies of the private respondent4s witnesses, together with the Bdiretive to file! )it$inten >9?@ days fro% reeipt of t$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 where she too> the position that BThe order of the 'mbudsman dated 12

6anuary !00/ supplying her with the affidavits of the complainant 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 9econsiderationdated !2 6anuary !00/ and prayed for the denial of the petitioner4s motion.

In the (ebruary 1!, !00/ 'rder, the 'mbudsman denied the petitioner4s motion forreconsideration after finding no basis to alter or modify its ruling. 5ignificantly, the 'mbudsman

fully discussed in this 'rder the due process significance of the petitioner4s failure to adequately

respond to the belatedly-furnished affidavits. The 'mbudsman said?han9oblesEirtualawlibrary

BHndoubtedly, the respondent herein has been furnished by this 'ffice with copies of theaffidavits, which she claims she has 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 forpurposes of assailing the ecision issued in the present case. 'n this score, the 5upreme ourt

held in the case ofPeople v. Aot!!/! 59+ 80=, that Ba party cannot feign denial of dueprocess where he had the opportunity to present his sideD. This becomes all the more important


17/21

since, as correctly pointed out by the complainant, the decision issued in the present case is

deemed final and unappealable pursuant to 5ection !2 of 9epublic +ct =220, and 5ection 2, 9uleIII of +dministrative 'rder )o. 02.)espite the clear provisions of the law and the rules, the

respondent herein was given the opportunity not normally accorded, to present her side, but

she opted not to do so which is evidently fatal to her cause.? 'as*s su*'.

Hnder these circumstances, we cannot help but recogniOe that the petitioner4s cause is a lost one,

not only for her failure to exhaust 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 almost three years to terminate the 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 inDuterte, where the

petitioners were merely as>ed to comment and were not as>ed to file counter-affidavits as is the

proper procedure in a preliminary investigation. oreover, inDuterte, the 'mbudsman too> fouryears to terminate its preliminary investigation.

+s we follow the reasoning in 6ustice Eelasco4s dissent, it becomes more apparent that 5en.7strada4s present Petition for ertiorari is premature for lac> of filing of a motion for

reconsideration before the 'mbudsman. %hen the 'mbudsman gave 5en. 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 any way be construed as violation of due process by the 'mbudsman,much less of grave abuse of discretion. 5en. 7strada has not 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?han9oblesEirtualawlibrary/.1 I, however, disclose that I have filed a0otion for Reonsiderationdated 02 +pril !018 in

'*---1/-0/1/ and '*---1/-0/2, raising as so' *ssu'the finding of probable cause

in theJoint Resolutiondated !: arch !018.

5uch0otion for Reonsiderationhas 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 reconsider and issue a new resolution dismissing the charges against him. owever,

in this otion for 9econsideration, 5en. 7strada assailed the 'mbudsman4s !2 arch !018 6oint

'rder denying his 9equest, an )a) su( 'n*a *s a *oa)*on o *s r*3) )o u' ro('ss.:. It is respectfully submitted that the 'mbudsman violated the foregoing rule @9ule 11!, 5ection

8 of the 9ules of ourtA and principles. A r'a*n3 o )' Jo*n) R'sou)*on 6* r''a )a)ar*ous *'('s o '*'n(' 6*( S'na)or Es)raa 6as no) urn*s' 6*) H 'n(',

'r**n3 * o )' oor)un*)y )o (on)ro'r) )' sa' H 6'r' 'a*y (ons*'r' y )'Ousan *n *n*n3 roa' (aus' )o (ar3' * 6*) %un'r an 6*) *oa)*ons o

S'()*on +


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(ilings,D pursuant to the right of a respondent Bto examine the 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 protecting the rights of an accused, )' S'(*a %an' o In's)*3a)ors, *n anOr'r a)' 2: Mar( 2014, un('r'on*ousy 'n*' )' r'7u's) on )' 3roun )a) >)'r'

*s no ro*s*on un'r )*s O*('9s Ru's o %ro('ur' 6*( 'n)*)'s r'son'n) )o '

urn*s' a )' **n3s by the other partiesx x x x.D "'rder dated !2 arch !01/, p. /#

As su(, S'na)or Es)raa 6as no) ro'ry ar*s' o )' '*'n(' o'r' a3a*ns) *,

6*( 6'r' ''n)uay a' )' as's o )' Ousan9s *n*n3 o roa' (aus'.


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)otably, in itsJoint #rderdated 02 ay !018, the 'ffice of the 'mbudsman even arbitrarilylimited the filing of 5en. 7strada4s comment to the voluminous documents comprising the

documents it furnished 5en. 7strada to a Bnon-extendibleD period of five "ing it

virtually impossible for 5en. 7strada to adequately study the charges leveled against him andintelligently respond to them. TheJoint #rderalso failed to disclose the existence of other

counter-affidavits and failed to furnish 5en. 7strada copies of such counter-affidavits.

of litis pendentia is the theory that a party is not allowed to vex another more than onceregarding the same sub&ect matter and for the same cause of action. This theory is founded on the

public policy that the same matter should not be the sub&ect of controversy in court more than

once in order that possible conflicting &udgments may be avoided, for the sa>e of the stability inthe rights and status of persons.trac>ed on. 'ther permutations depending on the rulings of the two courts and the

timing of these rulings are possible. In ''ry (as', our us)*(' sys)' su'rs as )*s *n o

sar ra()*(' o'ns )' sys)' )o )' oss***)y o an*ua)*on )o un('r)a*n)*'s 6'n

(on*() o ru*n3s ar*s' an a) 'as) )o '/a)*on or (o*(a)*ons o)'r )an (on*() o

ru*n3s.Thus, it matters not that ultimately the ourt of +ppeals may completely agree with the9T3 6a) )' ru' on oru so*n3 ar'ss's ar' )' oss***)y an )' a()ua*)y o *)s

aru ''()s on our u*(*a sys)'.


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riminal Procedure, and 5ection 8, 9ule II of the 9ules of Procedure of the 'ffice of the

'mbudsman, +dministrative 'rder )o. 2. *oth the 9evised 9ules of riminal Procedure and the9ules of Procedure of the 'ffice of the 'mbudsman require the investigating officer to furnish

the respondent with copies of the affidavits of the complainant and affidavits of his supporting

witnesses. )either of these 9ules require the investigating officer to furnish the respondent withcopies of the affidavits of his co-respondents. T' r*3) o )' r'son'n) *s ony >)o '/a*n'

)' '*'n(' submitted by the complainant,?as expressly stated in 5ection /"b#, 9ule 11! of the

9evised 9ules of riminal Procedure. This ourt has unequivocally ruled in PaderangathatB5ection /, 9ule 11! of the 9evised 9ules of riminal Procedure 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 clarificatoryquestions to the parties or their witnesses, to be afforded an opportunity to be present but withoutthe right to examine or cross-examine.D oreover, 5ection 8 "a, an (# of 9ule II of the

'mbudsman4s 9ule of Procedure, r'a )o3')'r, only require the investigating officer to furnish

the respondent with copies of the affidavits of the complainant and his supporting witnesses.There is no law or rule requiring the investigating officer to furnish the respondent with copies of

the affidavits of his co-respondents.

In the 2 ay !018 6oint 'rder, the 'mbudsman 6'n) 'yon '3a u)yand even furnished

5en. 7strada with copies of the counter-affidavits of his co-respondents whom he specifically

named, as well as the counter-affidavits of some of other co-respondents. In the 8 6une !018

6oint 'rder, the 'mbudsman even held in abeyance the disposition of the motions forreconsideration because the 'mbudsman granted 5en. 7strada five days from receipt of the 2

ay !018 6oint 'rder to formally respond to the claims made by his co-respondents. The

'mbudsman faithfully complied with the existing 9ules on preliminary investigation and evenaccommodated 5en. 7strada beyond what the 9ules required. Thus, the 'mbudsman could not

be faulted with grave abuse of discretion. S*n(' )*s *s a %')*)*on or C'r)*orar* un'r Ru' 5,)' %')*)*on a*s *n )' as'n(' o 3ra' aus' o *s(r')*on on )' ar) o )' Ousan.

The constitutional due process requirements mandated inAng ,i&ay, as amplified in -I-, are

not applicable to preliminary investigations which are creations of statutory law giving rise tomere statutory rights. + law can abolish preliminary investigations without running afoul with

the constitutional requirements of due process as prescribed inAng ,i&ay, as amplified in -I-.The present procedures for preliminary investigations do not comply, and were never intended to

comply, withAng ,i&ay, as amplified in -I-. Preliminary investigations do not ad&udicate withfinality rights and obligations of parties, while administrative investigations governed by Ang

,i&ay, as amplified in-I-, so ad&udicate.Ang ,i&ay, as amplified in -I-, requires sus)an)*a

'*'n('for a decision against the respondent in the administrative case. In preliminaryinvestigations, only *'*oo or roa**)y o 3u*)is required. To applyAng ,i&ay, as

amplified in -I-, to preliminary investigations will change the quantum of evidence required to

establish probable cause. The respondent in an administrative case governed byAng ,i&ay, asamplified in -I-, has the right to an actual hearing and to cross-examine the witnesses against

him. In preliminary investigations, the respondent has no such rights.

+lso, in an administrative case governed byAng ,i&ay, as amplified in -I-, the hearing officermust be *ar)*aand cannot be the fact-finder, investigator, and hearing officer at the same

time. In preliminary investigations, the same public officer may be the investigator and hearing

officer at the same time, or the fact-finder, investigator and hearing officer may be underthe (on)ro an su'r*s*onof the same public officer, li>e the 'mbudsman or 5ecretary of

6ustice. This explains whyAng ,i&ay, as amplified in -I-, does not apply to preliminary

investigations. To now declare that the guidelines inAng ,i&ay, as amplified in -I-, arefundamental and essential requirements in preliminary investigations will render all past and

present preliminary investigations invalid for violation of constitutional due process. T*s 6*'an r'an*n3 or r'*n's)*3a)*on a (r**na (as's no6 'n*n3 *n a (our)s )rou3ou)

)' (oun)ry.)o preliminary investigation can proceed until a new law designates a publicofficer, 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 conviction

violated constitutional due process.

5en. 7strada did not file a otion for 9econsideration of the !2 arch !018 'rder in '*--

-1/-0/1/ denying his 9equest, which is the sub&ect of the present Petition. e should have filed


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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 inthis &urisdiction is that certiorari will lie only if there is no appeal or any other plain, speedy and

adequate remedy in the ordinary course of law against the acts of the public respondent.

estrada vs omb

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