A.M. No. MTJ-05-1581




SECOND DIVISION A.M. No. MTJ-05-1581 February 28, 2005 PETER L. SESBREÑO, complainant, vs. JUDGE GLORIA B. AGLUGUB, Metropolitan Trial Court, Branch 2, San Pedro, Laguna, Respondent. R E S O L U T I O N TINGA, J.: Peter L. Sesbreño filed a Verified Complaint1 dated March 2, 2004 against respondent judge, Hon. Gloria B. Aglugub, charging the latter with Gross Ignorance of the Law, Neglect of Duty and Conduct Prejudicial to the Best Interest of the Service relative to Criminal Case No. 39806 entitled People v. Enrique Marcelino, et al. It appears that complainant filed three (3) separate complaints against Enrique Marcelino (Marcelino), Susan Nuñez (Nuñez), Edna Tabazon (Tabazon) and Fely Carunungan (Carunungan), all from the Traffic Management Unit of San Pedro, Laguna, for Falsification, Grave Threats and Usurpation of Authority. The three (3) cases were assigned to respondent judge’s branch and subsequently consolidated for disposition. After conducting a preliminary examination, respondent issued a Consolidated Resolution2 dated May 6, 2003, dismissing the cases for Falsification and Grave Threats for lack of probable cause, and setting for arraignment the case for Usurpation of Authority. Except for Marcelino who failed to appear during the arraignment, all of the accused were arraigned. Respondent judge issued a warrant for Marcelino’s arrest. Subsequently, complainant filed a Private Complainants’ Urgent Manifestation3 dated February 6, 2004 alleging that the accused were also charged with violation of Republic Act No. 104 (R.A. 10) and praying that warrants of arrest be likewise issued against all of the accused. Acting upon this manifestation, respondent judge issued an Order5 dated February 12, 2004 stating that a charge for violation of R.A. 10 was indeed alleged in the complaint for Usurpation of Authority but was not resolved due to oversight. However, since the statute only applies to members of seditious organizations engaged in subversive activities pursuant to People v. Lidres,6 and considering that the complaint failed to allege this element, respondent judge found no probable cause and dismissed the charge for violation of R.A. 10. Further, citing Sec. 6(b), Rule 112 of the Revised Rules of Criminal Procedure (Rules), respondent judge denied complainant’s prayer for the issuance of warrants of arrest against the accused and ordered the records forwarded to the Provincial Prosecutor’s Office (PPO) for review.1a\^/phi1.net Thereafter, complainant’s counsel, Atty. Raul Sesbreño (Atty. Sesbreño), filed a Motion for Reconsideration and Urgent Ex-Parte Motion for Issuance of Warrant of Arrest Against Non-Appearing Accused. Respondent judge, however, did not act on these motions allegedly because the court had already lost jurisdiction over the case by then. The PPO affirmed respondent’s order and remanded the case to the court for further proceedings on the charge of Usurpation of Authority. During the hearing of the case on February 14, 2004, Tabazon, Carunungan and Nuñez did not appear. Atty. Sesbreño, however, did not move for the issuance of warrants of arrest against them. Neither did he object to the cancellation of the scheduled hearing. The foregoing circumstances brought about the filing of the instant administrative complaint. Complainant contends that respondent judge violated Sec. 6(b), Rule 112 of the Rules when she refused to issue warrants of arrest against the accused. Complainant also faults respondent judge for allegedly motu proprio reconsidering her Consolidated Resolution dated May 6, 2003 and failing to order its transmittal to the Office of the Ombudsman within ten (10) days. In her Comment With Motion To Dismiss The Administrative Complaint7 dated March 26, 2004, respondent judge counters that the issuance of a warrant of arrest is discretionary upon the judge. Since she found no indication that the accused would abscond, she found it unnecessary to issue the warrant. Moreover, under Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989, the PPO has been designated as the Deputized Ombudsman Prosecutor. The PPO can take action on similar cases for review and appropriate action. Thus, she acted in accordance with law when she forwarded the records of the case to the PPO for review and not to the Office of the Ombudsman as complainant insists. Respondent judge further accuses complainant and Atty. Sesbreño of falsification, and the latter of violation of Rule 1.01 and Rule 10.01 of the Code of Professional Responsibility. Allegedly, the affidavit which was attached to the instant verified complaint was not notarized by Atty. Raul Corro as indicated therein. Further, Atty. Sesbreño was allegedly convicted of Homicide and may have been suspended from the practice of law. Complainant reiterates his allegations in his Complainant’s Reply To Respondent’s Comment Dated March 26, 20048 dated May 11, 2004. He further contends that there is no provision in the Ombudsman Act of 1989 specifically deputizing the PPO to be the "Deputized Ombudsman Prosecutor" as respondent judge contends. He adds that respondent judge failed to comply with Administrative Order No. 8 since she has yet to forward her resolution to the Deputy Ombudsman. Moreover, complainant points out that the affidavit attached to his complaint was notarized by Atty. Corro as certified by a member of the latter’s staff. Complainant also disproves respondent judge’s allegation that Atty. Sesbreño is in the habit of filing administrative complaints against judges, explaining that the latter merely acted as counsel for litigants who filed administrative complaints against certain judges. In another Verified Complaint9 filed on March 18, 2004, complainant further charges respondent with violating Sec. 9(b), Rule 112 of the Rules. Respondent Judge filed a Comment With Motion To Dismiss Administrative Complaint10 dated May 7, 2004 clarifying that contrary to complainant’s allegation, she did not conduct a preliminary investigation in the case for Usurpation of Authority. What was submitted for preliminary investigation was the charge for violation of R.A. 10. It was her resolution dismissing the charge for violation of R.A. 10 which was transmitted to the PPO for appropriate action. However, since the charges for violation of R.A. 10 and Usurpation of Authority were contained in a single complaint, respondent judge deemed it proper to forward the entire records to the PPO. Complainant filed a Complainant’s Reply To Respondent’s Comment Dated May 7, 200411 dated May 20, 2004 substantially reiterating his allegations. The Verified Complaint filed on March 18, 2004 was treated as a supplemental complaint per the notation in the Memorandum12 dated June 25, 2004. In sum, complainant asserts that respondent judge erred in conducting a preliminary investigation for the charge of Usurpation of Authority; in not issuing warrants of arrest for failure of the accused to appear during trial; in issuing her Order dated February 12, 2004 dismissing the complaint for violation of R.A. 10; and in transmitting the records of the case to the PPO instead of the Office of the Ombudsman.1awphi1.nét The Office of the Court Administrator recommends that the instant complaint be dismissed for lack of merit but that respondent judge should be reminded to be more circumspect in the performance of her duties.13 It made the following findings: A careful consideration of the records as well as the pertinent rules reveals that there is nothing in the Rules of Criminal Procedure which requires a judge to issue a warrant of arrest for the non-appearance of the accused during the trial. Hence, its issuance rests on the sound discretion of the presiding judge. More so in this case, the private prosecutor did not move for the issuance of such warrant. As regards the next issue, Rep. Act No. 10 penalizes a person who, with or without pretense of official position, shall perform any act pertaining to the Government, or to any person in authority or public officer, without being lawfully entitled to do so, shall be punished with imprisonment of not less than two (2) years nor more than ten (10) years. Violation thereof is cognizable by the Regional Trial Court but subject to preliminary investigation. Respondent judge admitted that she overlooked the charge when she conducted the preliminary examination of the complaints. Nonetheless, after reviewing the case, respondent Judge found no probable cause and ordered the dismissal of the case. Therefore, when respondent Judge motu proprio ordered the dismissal of the case for lack of probable cause, she was acting in accordance with the procedure on preliminary investigation laid down in Sec. 3, Rule 112 of the Rules on Criminal Procedure. Respondent Judge also directed that the records of the case be forwarded to the Provincial Prosecutor’s Office on review. Sec. 5 of Rule 112 provides that the resolution of the Investigating Judge is subject to review by the provincial or city prosecutor, or the Ombudsman or his deputy, as the case may be. It is respondent Judge’s contention that the resolution shall be reviewed by the Provincial Prosecutor. She explained that pursuant to the Ombudsman Act of 1989, the Provincial Prosecutor has jurisdiction to take cognizance of the charge of Violation of R.A. No. 10. However, Sec. 31 of Rep. Act No. 6770 or "The Ombudsman Act of 1989" provides that prosecutors can (be) deputized by the Ombudsman to act as special investigator or prosecutor only on certain cases. Such provision is not applicable to the issue at hand. Therefore, respondent Judge erred when she forwarded the case for review to the Provincial Prosecutor’s Office. Nonetheless, complainant failed to show that respondent Judge was motivated by bad faith when she issued the assailed order. At most, she is guilty of judicial error for which she could not be held administratively accountable absent any proof of fraud or other evil motive.14 A 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 (4) years, two (2) months and one (1) day without regard to the fine.15 Thus, a preliminary investigation is not required nor was one conducted for the charge of violation of Art. 177 of the Revised Penal Code which is punishable by prision correccional in its minimum and medium periods or from six (6) months and one (1) day to four (4) years and two (2) months.16 This being so, Sec. 9, Rule 112 of the Rules is applicable. Said section provides: Sec. 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure.— (b) If filed with the Municipal Trial Court.—If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case.l^vvphi1.net When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. Under the foregoing section, if a complaint or information is filed directly with the Municipal Trial Court, the procedure laid down in Sec. 3(a), Rule 112 of the Rules shall be observed. If the judge finds no sufficient ground to hold the respondent for trial, he shall dismiss the complaint or information. Otherwise, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold the latter for trial. However, the judge is given the discretion to merely issue summons instead of a warrant of arrest if he does not find it necessary to place the accused under custody. It is thus not obligatory but merely discretionary upon the investigating judge to issue a warrant for the arrest of the accused even after having personally examined the complainant and his witnesses in the form of searching questions for the determination of whether probable cause exists. Whether it is necessary to place the accused in custody in order not to frustrate the ends of justice is left to the judge’s sound judgment.17 Moreover, the judge is not required to transmit the records of the case to the prosecutor for review. In this case, respondent judge, following the foregoing procedure, found probable cause to hold the accused for trial for the charge of Usurpation of Authority and forthwith set their arraignment and the pre-trial. There is nothing irregular in the course of action taken by respondent judge. Neither is there merit in complainant’s contention that respondent judge should have issued a warrant of arrest against the accused for their failure to appear during the initial presentation of evidence for the prosecution for the charge of Usurpation of Authority. The issuance of a warrant of arrest for non-appearance of the accused during trial is discretionary upon the judge. Indeed, there is nothing in the Rules which requires a judge to issue a warrant of arrest for non-appearance of the accused during trial. Respondent judge concedes, however, that due to oversight, she failed to rule on the charge of violation of R.A. 10 in her Consolidated Resolution dated May 6, 2003. Nonetheless, she asserts in her Comment With Motion To Dismiss Administrative Complaint18 dated May 7, 2004 that she conducted a preliminary investigation for the charge of violation of R.A. 10 and dismissed the charge after taking into consideration the affidavits and evidence presented. Complainant does not dispute the fact that indeed a preliminary investigation was conducted for this charge.19 Thus, when respondent judge dismissed the complaint for violation of R.A. 10, she merely did so to correct an oversight. Furthermore, as the Order dated February 12, 2004 confirms, it was the dismissal of the charge for violation of R.A. 10 that was elevated to the PPO for review. It was imprudent, however, for respondent judge to transmit the entire records of the case to the PPO knowing that the charge for Usurpation of Authority was included in the records of the case. Respondent judge should have ensured that at least one complete set of the records remained in her sala so that the prosecution for Usurpation of Authority would not be held up. Injudicious though her actuation was, we do not agree with complainant that respondent judge was motivated by an evil intent to delay the case. This brings us to the issue of whether respondent should have transmitted her Order dated February 12, 2004 dismissing the charge of violation of R.A. 10 to the Office of the Ombudsman instead of the PPO. Complainant asserts that since the charge of violation of R.A. 10 is cognizable by the Sandiganbayan, the Office of the Ombudsman has the primary jurisdiction to review the resolution of dismissal. This issue is answered by Administrative Order No. 820 entitled Clarifying and Modifying Certain Rules of Procedure of the Ombudsman, which provides "that all prosecutors are now deputized Ombudsman prosecutors." Moreover, "[R]esolutions in Ombudsman cases21 against public officers and employees prepared by a deputized assistant prosecutor shall be submitted to the Provincial or City Prosecutor concerned who shall, in turn, forward the same to the Deputy Ombudsman of the area with his recommendation for the approval or disapproval thereof. The Deputy Ombudsman shall take appropriate final action thereon, including the approval of its filing in the proper regular court or the dismissal of the complaint, if the crime charged is punishable by prision correccional or lower, or fine of not more than ₱6,000.00 or both. Resolutions involving offenses falling within the jurisdiction of the Sandiganbayan shall be forwarded by the Deputy Ombudsman with his recommendation thereon to the Office of the Ombudsman." Thus, respondent judge did not err and was, in fact, merely acting in accordance with law when she forwarded the case for violation of R.A. 10 to the PPO. The fact that the PPO remanded the case to the court for further proceedings instead of forwarding the same to the Deputy Ombudsman as required by Administrative Order No. 8 is quite another matter. In any event, respondent judge should have taken the necessary steps to remedy the lapse in order to preclude delay in the disposition of the case. In sum, for liability to attach for ignorance of the law, the assailed order, decision or actuation of the judge in the performance of official duties must not only be found to be erroneous but, most importantly, it must be established that he was moved by bad faith, dishonesty or some other like motive. Respondent judge’s actuations are hardly indicative of bad faith or any motive to delay the case which characterizes the offense of gross ignorance of the law.22 IN VIEW OF THE FOREGOING, the instant complaint is DISMISSED for lack of merit. Respondent Judge Gloria B. Aglugub is ADMONISHED to be more circumspect in the performance of her duties in the future. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur. Footnotes 1 Rollo, pp. 1-5. 2 Id. at 15. 3 Id. at 66-68. 4 The pertinent provision reads: Sec. 1. Any person who with or without pretense of official position, shall perform any act pertaining to the Government, or to any person in authority or public officer, without being lawfully entitled to do so, shall be punished with imprisonment for not less than two years, nor more than ten years. 5 Supra, note 1 at 36-38. 6 108 Phil. 995 (1960). 7 Supra note 1 at 51-59. 8 Id. at 95-104. 9 Id. at 113-117. 10 Id. at 127-131. 11 Id. at 163-174. 12 Id. at 109-112. 13 The OCA further recommends that the complaint of respondent judge against Atty. Raul H. Sesbreño be referred to the Office of the Bar Confidant for proper disposition. Memorandum dated January 6, 2005. 14 Id. at 181-182. 15 Sec. 1, Rule 112, Rules. 16 See Arts. 177 and 76, Revised Penal Code. 17 P/Supt. Severino Cruz and Francisco Monedero v. Judge Areola, 428 Phil. 373 (2002). 18 Id. at 127-131. 19 Complainant avers: "Simply stated: (1) Despite the fact that violation of Art. 177, Rev. Penal Code is NOT to be subjected to preliminary investigation, respondent subjected it to preliminary investigation, together with the complaint for violation of Section 1, Republic Act No. 10…" Id. at 166. 20 November 12, 1990. 21 An Ombudsman Case is defined as a complaint filed in or taken cognizance of by the Office of the Ombudsman charging any public officer or employee including those in government owned or controlled corporations, with an act or omission alleged to be illegal, unjust, improper or inefficient. 22 Pesayco v. Layague, A.M. No. RTJ-04-1889, December 22, 2004. The Lawphil Project - Arellano Law Foundation