G.R. Nos. 212140-41 - Separate Opinions

SENATOR JINGGOY EJERCITO ESTRADA v. NBI, G.R. Nos. 212140-41, January 21, 2015
♦ Decision, Carpio [J]
♦ Dissenting Opinion, Brion [J]
♦ Dissenting Opinion, Velasco, Jr. [J]
♦ Concurring Opinion, Leonen [J]

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,
vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of the Ombudsman, NATIONAL BUREAU OF INVESTIGATION and ATTY. LEVITO D. BALIGOD, Respondents.

I dissent to reflect my objections to the ponencia 's conclusions and reasoning; it is particularly mistaken on a very critical point - the nature and extent of the respondent's due process rights during preliminary investigation. This Dissent registers as well other points that I believe should be discussed and addressed.

The petition's main issue is whether the denial via the Ombudsman's March 27, 2014 Order of petitioner Senator Jinggoy Ejercito Estrada's plea embodied in his Request constitutes, under the premises, grave abuse of discretion." This is and should be the proper approach in resolving this case.

I recite hereunder the major incidents of the case to provide the full flavor and a fuller understanding of what transpired in this case.

On the complaint filed by the National Bureau of Investigation (NB!) and Atty. Levi to Baligod, the Ombudsman conducted a preliminary investigation against Estrada, et. al.1 for violation of Republic Act (RA) No. 7080 (Anti-Plunder Law). The investigation proceeding was docketed as OMB-C-C-13-0313.

On a subsequent complaint filed by the Field Investigation Office of the Ombudsman (FIO),2 the Ombudsman conducted another preliminary investigation against Estrada for violation of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act). The preliminary investigation proceeding was docketed as OMB-C-C-13-0397.

Estrada received his copy of each of the two complaints, in OMBC-C-13-0313 and OMB-C-C-13-0397, on November 25, 2013 and December 3, 2013, respectively. In compliance with the Ombudsman’s directive, Estrada filed his Counter-Affidavits on January 8 and 16, 2014.3

Estrada’s co-respondents, on the other hand, filed their respective counter-affidavits between December 9, 2013 and March 14, 2014, specifically:

Meanwhile, Estrada received information that his co-respondents’ affidavits and submissions made reference to his purported participation in the so-called "PDAF Scam." Thus, he filed a motion – his March 20, 2014 Request– to fully allow him to refutethe allegations against him, if needed. Estrada particularly asked for the following documents (requested documents):

The Ombudsman denied Estrada’s Request on the reasoning that his rights as a respondent in the preliminary investigation depend on the rights granted him by law. The Ombudsman pointed out that the law, the Rules of Court and Administrative Order No. 7 (Rules of Procedure of the Ombudsman) only require the respondents to furnish their counter-affidavits to the complaint. The Ombudsman concluded that Estrada is not entitled, as a matter of right, to copies of his corespondents’ counter-affidavits.

On March 28, 2014, the Ombudsman issued its Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397 findingprobable cause to indict Estrada, et. al.with one (1) count of Plunder and eleven (11) counts of violation of Section 3(e)of R.A. No. 3019. For convenience, this Ombudsman action is referred to as the "Probable Cause Resolution."

Significantly, Estrada received copy of the Ombudsman’s March 27, 2014 Denial of Request Order and the March 28, 2014 Probable Cause Resolution on April 1, 2014.

On April 7, 2014, he moved for the reconsideration of the March 28, 2014 Probable Cause Resolution.

On May 7, 2014, Estrada filed the present petition for certiorari, to question, among others, the Ombudsman’s March 27, 2014 Denial of Request Order. Also on the sameday, May 7, 2014, the Ombudsman issued a Joint Order furnishing Estrada with copies of someof the requested counter-affidavits.

On May 15, 2014, the Ombudsman denied Estrada’s motion to suspend the proceedings pending the Court’s resolution of his present petition.

On June 4, 2014, the Ombudsman denied Estrada’s motion for reconsideration of the March 28, 2014 Probable Cause Resolution.

On June 6, 2014,4 the Ombudsman filed before the Sandiganbayan the Informations against Estrada, et. al., charging them with violation of the Plunder and Anti-Graft laws. The cases are docketed as SB-14-CRM-0239 and SB-14-CRM-0256 to SB-14-CRM-0266.

Estrada assails, on grounds of grave abuse of discretion and violation of his right to dueprocess under the Constitution, the following issuances of the Ombudsman: (1) the March 27, 2014 Denial of Request Order; and (2) the Resolution of March 28, 2014 finding probable cause against him.

He prays that the Court declares: (1) that he has been denied due process as a consequence of the March 27, 2014 Denial of Request Order; and (2) the nullity of the March 27, 2014 Denial of Request Order, 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 March 27, 2014 Denial of Request Order). He likewise asks the Court for a temporary restraining order (TRO) and/or preliminary injunction to restrain the Ombudsman from further proceeding in the case.

Estrada argues, in the main, that the Ombudsman denied him due process of law when the latter refused to furnish him with copies of the requested documents. Particularly, he contends that the Ombudsman’s refusal:

First, violated Section 4(c), RuleII of the Ombudsman Rules of Procedure (or the right to "have access to the evidence on record") and Section 3(a) and (b), Rule 112 of the Rules of Court (or the right to "examine the evidence submitted by the complainant which he may not have been furnished"); and

Second, contravened established Court rulings and the Constitution’s due process clause. He points out that the requested documents touch on the charges against him; to deny him access to these documents, as the Ombudsman did, is to deny him the full measure of his due process rights.

First, Estrada’s certiorari petition is procedurally infirm as he has a plain, speedy, and adequate remedy – i.e.,the motion for reconsideration he filed addressing the Ombudsman’s March 28, 2014 Probable Cause Resolution;

Second, Estrada violated the rule against forum shopping as the arguments raised in this petition are essentially the same as those he presented in his motion for reconsideration of the March 28, 2014 Probable Cause Resolution.

Third and last, it had, in fact, already furnished Estrada with copies of the requested documents on May 7, 2014.

Estrada essentially challenges the Ombudsman’s March 27, 2014 Orderdenying his Request to be furnished copies of his co-respondents’ affidavits and other documents, and posits that the Ombudsman’s order should be declared null and void.He comes to this Court via this petition for certiorari under Rule 65 of the Rules of Court.

In a Rule 65 petition, the scope of the Court’s review is limited to the question: whether the order by the tribunal, board or officer exercising judicial or quasi-judicial functions was rendered without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction.

Grave abuse of discretion is defined as such "capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or [an] exercise of power in an arbitrary and despotic manner by reason of passion or hostility, or an exercise of judgment so patent and gross as to amount to an evasionof a positive duty or to a virtual refusal to perform the duty enjoined by law, or to act in manner not in contemplation of law."5

Under the simplified terms of Estrada’s petition that I summed up above, at the core of the present controversy is clearly the regularity – viewed from the context of accepted due process standards – of the Ombudsman’s conduct when it acted as a tribunal exercising quasi judicial functions in the preliminary investigation of OMB-C-C-13-0313 and OMB-C-C-13-0397.

Estrada’s petition must fail if the Ombudsman complied with the basic requirements of due process and the prevailing rules and jurisprudence on preliminary investigations. The Court must then recognize the Ombudsman's acts to be proper and within its jurisdiction.

Estrada’s petition, however, must succeed, based on his arguments and within the limitations of his prayer, if the Ombudsman indeed defied these rules and existing jurisprudence. The grant of the petition based on the asserted violations in effect recognizesthat, in acting as it did in OMB-C-C-13-0313 and OMB-C-C-13-0397, the Ombudsman gravely abused its discretion and thereby acted inexcess of its jurisdiction.

1. Propriety of a Rule 65 petition in
assailing the Ombudsman’s March
27, 2014 Denial of Request Order

The circumstances obtaining in this case, in my view, support the finding that the certiorari petition is the most appropriate remedy available to Estrada. Contrary to the Ombudsman’s position, a motion for reconsideration addressing the Ombudsman’s March 27, 2014 Denial of Request Order would and could not have been the plain, speedy and adequate remedy available to Estrada. Neither could the Ombudsman’s disposition of Estrada’s then pending motion for reconsideration of the March 28, 2014 Probable Cause Resolution, have remedied the due process denial caused by the March 27, 2014 Denial of Request Order.

First, the sequence of the events – from the Ombudsman’s March 27, 2014 Denial of Request Order up to the filing of this petition – did not and could not have afforded Estrada sufficient opportunity to timely seek a plain, speedy and adequate remedy other than his present recourse to this Court for an extraordinary writ of certiorari.

For clarity, I draw attention to the sequence of events that transpired that rendered any other plain, speedy and adequate remedy, unavailable:

A critical point in this sequence of events is the Request that Estrada filed on March 20, 2014. Estrada filed this Request after learning from media reports that some of his co-respondents made reference in their respective counter-affidavits to his purported participation in the "PDAF scam."

Very obviously, Estrada considered these documents vital (as I likewise find them to be), given their strong evidentiary weight the Ombudsman gave these documents. Thus, copies of these documents should likewise have been given to him to allow him to adequately prepare his defense against the charges laid.

Under these developments, Estrada plainly filed his Request to contest the allegations, documents or evidence adverse to him that he was not aware of. His move finds support under Section 4, Rule II of the Ombudsman Rules in relation with Section 3, Rule 112 of the Rules of Court, which provide that the respondent shall "have access to the evidence on record."

The effect on Estrada’s cause of these submissions is glaring as they were the evidence largely used to support the Ombudsman’s probable cause finding.

To reiterate, the series of events shows that Estrada’s purpose in making his Requestwas effectively negated when the Ombudsman, on March 28, 2014, found probable cause to indict him based largely on evidence that had not been furnished to him.

This violation – prior to and independently of the probable cause finding– occurred when the Ombudsman refused to grant him access to his requested documents and proceeded to find probable cause based largely on these requested documents. Worse, Estrada did not even know of the denial of his Requestat the time the probable cause finding was made and thus could not have contested it through a timely motion for reconsideration.

A motion for reconsideration addressing the March 27, 2014 Denial of Request Order, even if granted, could not have changed the fact that the finding of probable cause on March 28,2014 was largely one-sided, given that it partly relied on the allegations in the requested documents that were not available to Estrada.

More importantly, a motion for reconsideration could not have erased the violation of his due process right caused by the finding of probable cause without hearing his defense against his co-respondents’ allegations.

Second, a motion for reconsideration, under the attendant circumstances was not an appropriate remedy: it would have been useless anyway as Estrada had already been deprived of his due process right and the most urgent relief was called for.

While it is true that, as a rule, a motion for reconsideration must – as an indispensable condition – be filed before an aggrieved party may resort to the extra ordinary writ of certiorari, this established rule is not without exception.

Jurisprudence has recognized instances when the filing of a petition for certiorari is proper notwithstanding the failure to file a motion for reconsideration. These instances include the situation when a motion for reconsideration would be useless, and when the petitioner had been deprived of his due process rights and relief was urgently needed.6

Likewise clear from the series of events in this case is the conclusion that a motion for reconsideration from the March 27, 2014 Denial of Request Order would have been useless anyway given that the Ombudsman already found probable cause to indict him on March 28, 2014 or four (4) days before Estrada even learned of the Ombudsman’s denial of his Request. Thus, even if he had filed a motion for reconsideration from the March 27, 2014 Denial of Request Order and awaited its resolution by the Ombudsman, the Ombudsman’s finding of probable cause would still have stood and Information Nos. SB-14-CRM-0239 and SB-14-CRM-0256 to SB-14-CRM-0266 would still have been filed before the Sandiganbayan.

Section 7(b), Rule II of the Ombudsman’s Rules provides that the filing of a motion for reconsideration to the finding of probable cause cannot bar the filing of the Information; a motion for reconsideration to an order denying the lesser request for documents cannot but have the same effect.

More importantly, the violations ofdue process rights in this case – committed through the March 27, 2014 denial of Estrada’s Request and the Ombudsman’s subsequent finding of probable cause – necessarily result in the Ombudsman’s failure to hear and fully appreciate Estrada’s defenses or possible defenses against his co-respondents’ allegations. This kind of situation should support the need for immediate resort to the remedy of a writ of certiorarias a motion for reconsideration could not have prevented the filing of Information in court – the consequence of the violation of Estrada’s due process rights.

2. Concurrence of the present Rule 65
petition and Estrada’s motion for
reconsideration to the March 28,
2014 Probable Cause Resolution
before the Ombudsman

I likewise find that Estrada did not commit forum shopping when he filed the present petition. Forum shopping exists when the elements of litis pendentia are present. To determine whether prohibited forum shopping transpired, the existence of litis pendentia is imperative, i.e., an action must already be pending when a second action is filed. This pendency requires the identity of parties in both actions; identity, likewise of the rights asserted and the reliefs prayed for, as the reliefs are founded on the same facts; and the resulting judgment, regardless of which party is successful, would amount to res judicata in the other case.7

From this perspective, Estrada’s motion for reconsideration before the Ombudsman did not and could not have led to the existence of litis pendentia that would give rise to prohibited forum shopping. For one, the parties involved in Estrada’s motion for reconsideration (to the Ombudsman’s March 28, 2014 Probable Cause Resolution) are different from those in the present petition, i.e., Estrada and the NBI and FIO in the former, and Estrada and the Ombudsman in the latter.

Additionally, the rights asserted and the reliefs prayed for are likewise entirely different. In the motion for reconsideration, what Estrada assailed was the Ombudsman’s finding of probable cause; he essentially asked the latter to set aside these findings for lack of factual and legal bases. In the present petition, what Estrada assails is the validity of the Ombudsman’s denial of his Request and essentially asks the Court to "set aside the March 27, 2014 Order and all proceedings subsequent to and affected by [this] Order" for violation of his due process rights guaranteed under the Constitution.

Finally, any decision that the Ombudsman might arrive at (or had in fact arrived at in its June 4, 2014 Order) in the motion for reconsideration would not have the effect of res judicata on the present petition.

A resolution of Estrada’s motion for reconsideration goes into the probable cause findings of the Ombudsman or on the existence (or absence) of such facts and circumstances sufficient to engender a well founded belief that Estrada committed the charges against him and thus should be held for trial. A resolution of the present petition, in contrast, goes into the validity, viewed from the accepted due process standards, of the Ombudsman’s denial of Estrada’s Request. Based on these reasons, I find that Estrada’s motion for reconsideration did not and could not have constituted res judicata to the present petition as to preclude the Court from resolving the issues to their full conclusion.

3. Effect of the Ombudsman’s May 7,
2014 Order on Estrada’s present
petition assailing the March 27,
2014 Denial of Request Order

In its May 7, 2014 Order, the Ombudsman furnished Estrada with copies of the counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Figura, Buenaventura and Sevidal. Based on this move, the Ombudsman now argues that the May 7, 2014 Order rendered moot Estrada’s petition as this Order, in effect, already achieved what Estrada sought in his Request.

The Ombudsman’s argument on this point would have been correct had it furnished, via the May 7, 2014 Order, Estrada with copies of allthe documents subject of his Request. An issue or a case becomes moot and academic when it ceases to present a justiciable controversy so that a determination thereof would bewithout practical use and value. In such cases, there is no actual substantial relief to which the petitioner would be entitled and which would be negated by the dismissal of the petition.8 The furnishing of all the requested documents would have achieved precisely what Estrada sought for in this petition.

The facts, however, glaringly reveal the flaw in this argument – the Ombudsman’s compliance was only partial. As the events showed, the Ombudsman furnished Estrada with copies of the affidavits of only seven of his co-respondents. The Ombudsman has yet to furnish Estrada with copies of the affidavits of the other nine co-respondents that, viewed from the degree of their relevance to Estrada’s cause, would have been indispensable as these formed part of the records from where the Ombudsman drew the conclusion that probable cause existed.

Thus, by these facts alone, the May 7, 2014 Order did not and could not have rendered moot Estrada’s petition. The copies of the affidavits of only seven of his co-respondents did not satisfy Estrada’s Request.

Apart from this reason, I find that the May 7, 2014 Order indeed could not have rendered Estrada’s petition moot in view of the Ombudsman’s March 28, 2014 Resolution finding probable cause against Estrada.

At the time the Ombudsman partially complied with Estrada’s Request, Estrada’s due process rights sought to be protected by this Request (which I shall separately discuss below) had already been violated. Thus, a compliance with the Request, whether partially or fully, could and can no longer erase the adverse consequences of its initial denial.

I find that the Ombudsman clearly gravely abused its discretion and thereby acted:

To support these conclusions, let me first discuss some of the underlying precepts touching on the issues at hand.

A preliminary investigation is an inquiry or proceeding to determine whether sufficient ground exists to engender a well-founded belief that a crime has been committed, that the respondent is probably guilty of this crime, and should be held for trial.9

The process has been put in place before any trial can take place "to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of a public trial, and also to protect the State from useless and expensive prosecutions."10

Thus, a preliminary investigation is not simply a process plucked out of the blue to be part of the criminal justice process; it reflects a policy with specific purposes and objectives, all of which are relevant to the orderly working of society and should thus be closely followed.

Significantly, no constitutional provision expressly mentions or defines a preliminary investigation. In this sense, it is not one of those specifically guaranteed fundamental rights under the Bill of Rights.11 Rather than an express constitutional origin, preliminary investigation traces its roots to statute.12 But this status is not reason enough to simply look at the Rules of Court and from its bare wording literally decide what the process means.

To give the process full substance and meaning, the rules establishing preliminary investigation as a process must be read in the context in which they operate. These rules cannot and should not be viewed and treated in isolation and dissociated from the whole criminal justice process, particularly, from the body of constitutional rights expressly guaranteed to those perceived, suspected or formally accused to have run afoul of society’s criminal laws.

Note that under the Constitution, from the police custodial investigation to the criminal trial, are rights guaranteed to the individual against State action as the State is the active party in these trials; it stands for the People of the Philippines and prosecutes the case, i.e., seeks the filing of the criminal Information and the conviction of the accused, in behalf of the People and against the individual.

A necessary starting point in considering how preliminary investigation and its set of rights are to be viewed is the mother of rights under the Bill of Rights – the Due Process Clause under Section 1:"[n]o person shall be deprived of life, liberty or property without due process of law." This guarantee, no less, lies atthe bedrock of preliminary investigation process as life, liberty and property all stand to be affected by State action in the criminal justice process.

Interestingly, under the Constitution, actual and active protection starts at the earliest stage when an individual – the specific concern of the Bill of Rights and whom this part of the Constitution particularly secures against State action – becomes potentially exposed to harm from an all-powerful State. The Constitution describes the trigger point of this protection to be at the "investigation for the commission of an offense."

Jurisprudence holds that this point occurs when the process ceases to be purely a police investigation and crosses over to the custodial investigation stage, i.e.,when the investigation becomes accusatory.13 At that point, Section 12 of the Bill of Rights is triggered and the individual under investigation becomes entitled to remain silent and to have competent and independent counsel.

Section 14 further provides for additional guarantees, among them, its own due process clause relating tocriminal offenses; the presumption of innocence; the right to counsel; right to information on the nature and cause of accusation; the right to speedy, impartial and public trial, including the right to meet the witnesses face to face, and the right to secure the attendance of witnesses and the production of documents.

In between the police custodial investigation (or its substitute proceeding) and the trial itself, is the intermediate preliminary investigation stage where the proceedings are already accusatory and the individual must show that the State claim that probable cause exists has no basis. This stage, to be sure, isnot spelled out in the Constitution and both the process and the guarantees are provided only by statutes.14 Nevertheless, the protection afforded – if indeed the individual is to be afforded protection from State action – should be real so that its denial is no less an infringement of the constitutional due process clause.15

This consequence must necessarily follow because the due process rightduring preliminary investigation is substantive, not merely formal or technical, and is a component part of the due process rights in the criminal justice system16 that begins at the accusatory police investigation level. To be sure, criminal justice rights cannot be substantive at the custodial investigation stage, only to be less than this at preliminary investigation, and then return to its substantive character when criminal trial starts.

Additionally, the rights during preliminary investigation are not merely implied rights because preliminary investigation is not mentioned in the Constitution. They are very real rights, granted and guaranteed as they are by law.

In short, to deny preliminary investigation rights to a person undergoing this process would deprive him of the full measure of his right to due process.17 This was the case when due process started under England’s Magna Cartain 1215,18 and should be true now: "no man shall be taken or imprisoned…but by the lawful judgment of his peers or by the law of the land [per legem terrae]."

In Torralba v. Lim,19 the Court, reiterating Go v. Court of Appeals,20 declared that "[w]hile that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right."

In Uy v. Office of the Ombudsman,21 the Court held that a preliminary investigation – while still essentially an administrative proceeding where the investigating officer exercises preliminary investigation powers that are quasi-judicial in nature – is subject to the requirements of both substantive and procedural due process that exists in court proceedings. While the rigorous standards of a criminal trial is not required, it cannot be denied that "[s]ufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal."22

At present, the right to preliminary investigation is provided, in the main, by Rule 112 of the Rules of Court,and, in particular, as applied to proceedings conducted by the Ombudsman, by Section 4, Rule II of the Ombudsman Rules in relation withR.A. No. 6770 (the Ombudsman Law).23 The provisions of the Rules of Court pertinent to the issue in the present case are Section 3(b) and (c), of Rule 11224 which provide:

(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 the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence isvoluminous, 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.

On the other hand, Section 4(a) and (b), Rule II of the Rules of Procedure of the Office of the Ombudsman (Ombudsman Rules) provide:

Sec. 4. PROCEDURE. — 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.

3. Estrada’s Request viewed in the
context of a preliminary investigation
proceeding

The ponencia advances the view that Estrada’s Requestis not supported by Rule 112 of the Rules of Court, nor by Section 4, Rule II of the Ombudsman Rules.

I disagree with this view as the ponencia forgets the most fundamental rule in construing provisions of statutes and administrative issuances – that all laws and rules must necessarily include within their terms the higher and overriding terms of the Philippine Constitution.

Among the terms of our Constitution deemed included within the terms of Rule 112 of the Rules of Court and Rule II of the Ombudsman Rules is the Bill of Rights – a significant and perhaps a most unique part of our Constitution – and its due process clauses namely: Section 1(the general provision that guarantees life, liberty and property of individuals against arbitrary State action) and Section 14(1)on criminal due process.25

I note that the public prosecutor’s power to conduct a preliminary investigation is quasi-judicial in nature. To be precise, a public prosecutor conducting preliminary investigation exercises discretion in deciding the factual issues presented and in applying the law to the given facts, all for the purpose of determining whether probable cause exists that a crime has been committed and the respondent probably committed it. This exercise of power to determine facts and to apply the law using discretion outside of the courts is undoubtedly quasi-judicial in character.

The Court explained in Spouses Dacudao, et al. v. Secretary of Justice26 that this quasi-judicial characterization of the public prosecutor’s power to conduct preliminary investigation is true only to the extent that the public prosecutor, like a quasi-judicial body, is an officer of the executive department exercising powers akin tothose of a court of law. In Paderanga v. Drilon, et al.,27 the Court, while admitting the inquisitorial nature of the preliminary investigation, also ruled that the institution of a criminal action depends on the sound discretion of the fiscal; he has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court. Under this quasi-judicial characterization (albeit a limited one as above explained), the due process standards that at the very least should be considered in the public prosecutor’s conduct of a preliminary investigation are those that this Court first articulated in Ang Tibay v. Court of Industrial Relations.28

The basic due process safeguards in administrative proceedings established in Ang Tibay are: (1) the respondents’ right to a hearing, which includes the right to present one’s case and submit supporting evidence; (2) the tribunal must consider the evidence presented; (3) the decision must have some basis to support itself; (4) there must be substantial evidence; (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; (6) in arriving at a decision, the tribunal must have acted on its own conclusions of the law and the facts of the controversy and must not have simply accepted the views of a subordinate; and (7) the decision must be rendered in such manner that respondents would know the reasons for itand the various issues involved.29

In light of Ang Tibay, the requirements in providing the evidence and materials that the respondent shall respond to in a preliminary investigation cannot simply be the complaint and affidavit, to the exclusion of the other materials such as the co-respondents’ counteraffidavits if these latter statements have been used in considering the presence or absence of probable cause.

In the present case, the relevant and material facts are not disputed.1âwphi1 Estrada’s co-respondents,namely, Tuason, Cunanan, Figura, Buenaventura and Sevidal have all been mentioned in the Order finding probable cause to charge Estrada with Plunder and violations of the Anti-Graft laws before the Sandiganbayan. Hence, Estrada should have been allowed to respond to these submissions.

First, despite the timely filed Request, the Ombudsman refused to furnish Estrada copies, among others, of the counter-affidavits of his co-respondents.

Second, immediately after it issued the March 27, 2014 Order that denied Estrada’s Request(or on March 28, 2014), the Ombudsman issued the Joint Resolution finding probable cause to indict him for violation of the Anti-Graft Law and the Plunder Law. Significantly, the Ombudsman, to a considerable extent,based its findings of probable cause on the affidavits of his co-respondents. Third, belatedly realizing perhaps the flaw in its refusal to grant Estrada’s Requestand the accompanying due process implications, the Ombudsman eventually acceded to the Request on May 7, 2014. Compliance, however, with Estrada’s Request, as I pointed out above, was only partial, as the Ombudsman did not furnish Estrada with copies of the affidavits of the other nine co-respondents from where the conclusion that probable cause existed, was drawn. In short, it still failed to fully furnish Estrada with copy of allthe requested documents.

Last, even after it granted albeit partially, Estrada’s Request, the Ombudsman also did not give Estrada sufficient opportunity to rebut the allegations against him before the Ombudsman actually decided to indict him. Note that, as I likewise discussed above, it gave Estrada only a five-day non-extendible period within which to reply or commenton the counter-affidavits of his co-respondents.

The reasonable opportunity to controvert evidence and ventilate one’s cause in a proceeding as an essential part of due process requires full knowledgeof the relevant and material facts and evidence specific to the proceeding and of which he has been sufficiently informed of.30 A respondent (or accused) cannot be expected to respond to collateral allegations or assertions made by his co-respondents, which he was unaware of.31

Still following Ang Tibay, the decision or resolution in the preliminary investigation proceeding must be rendered: on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; and in such manner that respondents would know the reasons for itand the various issues involved. Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meetthe case against them.32

In the light of the due process requirement of preliminary investigation, full knowledgeof and reasonable opportunityto controvert material evidence (such as the counter-affidavits of his co-respondents) should have been given Estrada at the preliminary investigation proceedings prior to the Ombudsman Order finding probable cause. For, without the counter-affidavits, Estrada had nothing to controvert since the burden of evidence lies with the Ombudsman who asserts that a probable cause exists.

As the preliminary investigation is the crucial sieve in the criminal justice system that spells for Estrada the difference of months or years of trial and possible jail term, on the one hand (given the non-bailable nature of and the statutory penalty for the crime of plunder), and peace of mind and liberty, on the other hand, the Ombudsman should have, at the very least, complied with these essential due process requisites.

The Ombudsman’s refusal – an act that effectively denied Estrada the full measure of his right to due process in a manner completely outside the contemplation of law – tainted the preliminary investigation proceedings with grave abuse of discretion that effectively nullifies them. This conclusion is unavoidable asin the hierarchy of rights, the Bill of Rights and its supporting statutes take precedence over the right of the State to prosecute; when weighed against each other, the scales of justice tilt towards the former.33

For the grave abuse of discretion committed by the Ombudsman in the manner by which it proceeded in OMB-C-C-13-0313 and OMB-C-C-13-0397, I vote to partially grant his petition. Some final points: Consequence of the grave irregularity in the preliminary investigation

I submit the following discussions and observations on the effect of the grave irregularity in the Ombudsman’s conduct of the preliminary investigation on the complaints filed against Estrada. I consider it important to continue to reflect and stress these points if only to clarify any confusion, on the effector consequence of a finding of irregularity in the preliminary investigation on the Information already pending before the Sandiganbayan aswell as on the warrant issued for Estrada’s arrest, that may have surfaced in the Court’s deliberations on this case.

The grave irregularity in the preliminary
investigation, effectively amounting to its
absence, does not affect the
Sandiganbayan’s jurisdiction over the
criminal case against Estrada

1. The absence of a preliminary
investigation does not affect the
validity of the Information already
filed

As has also been mentioned,the conduct of preliminary investigation is governed generally byRule 112 of the Rules of Court, and Rule II of Administrative Order No. 7or the Ombudsman Rules. In terms of particular rules relevant tothe present case, these are Section 3 of Rule 11234 and Section 4 of Rule II.35

The preliminary investigation process, as provided under the above-cited sources may be summarized as follows: first, a verified complaint or affidavit is filed before the proper investigating officer; second, the investigating officer shall issue an order, attaching to it a copy of the affidavits and other supporting documents, and directing the respondent to submit within ten (10)days from his receipt, his counter affidavits and controverting evidence with proof of service to the complainant; third,the complainant may then file reply-affidavits within ten (10) days from thereon; fourth, the investigating officer may conduct clarificatory hearing should there be any matter that, in his discretion, needs to be clarified, and where the parties may be present but without the right to confront the witness being questioned; and fifth, upon the termination of the preliminary investigation and the investigating officer finds probable cause, he shall prepare the Information and, subject to the required approval and certification, file it before the proper court; otherwise, subject to the required approval, he shall dismiss the complaint.

The filing of the Information in court initiates the criminal action. The court acquires jurisdiction and the accompanying authority to hear, control and decide the case up to its full disposition. After an Information is filed, the exercise of discretion and authority of the investigating officer over the criminal complaint ends; he loses control and discretion regarding its disposition. Should the investigating officer find the need tore-investigate the case so that the objectives of a preliminary investigation may be served, he may do so, provided he first secures the permission of the court, following the rule that the court now has control and disposition of the case.36 Should a reinvestigation be allowed,the investigating officer, after the reinvestigation and consistent with the court’s jurisdiction over the case, must submit his findings and recommendation to the court for the court’s disposition.

Thus runs the relationship betweenthe court and the investigating officer or prosecutor, viewed from the vantage point of the filing of Information in court after the preliminary investigator finds probable cause to lay a charge.

In the seminal case of Crespo v. Mogul,37 the Court laid out in detail the extent and scope of the power and duties of the fiscals or prosecutors as they conduct the preliminary investigation, and of the court once it acquires jurisdiction over the criminal case through the filing of the Information in court. The court explained:

It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence, in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscalis to prevent malicious or unfounded prosecution by private persons. It cannot be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case.

It is through the conduct of a preliminary investigation, that the fiscal determines the existence of a prima facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the casefor insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show eitherthat the defendant is innocent or that his guilt may not be established beyond reasonable doubt. In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the fiscal's should normally prevail. On the other hand, neither an injunction, preliminary or in final nor a writ of prohibition may be issued by the Courts to restrain a criminalprosecution except in the extreme case where it is necessary for the courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an oppressive and vindictive manner.

However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it may be elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action oropinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the case be filed in Court or otherwise, that an information be filed in Court.

The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused.

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court.In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused, or the right of the People to due process of law. [Emphasis supplied]

Mindful of these considerations, anorder for the dismissal of an Information already filed in court – as in Estrada’s case – would be legally wrong as such move misappreciates the nature, purpose and scope of a preliminary investigation proceeding vis-a-visthe nature, purpose and scope of the proceedings in court after the filing of the Information.

As early as the 1961 case of People v. Casiano,38 the Court declared that the absence of a preliminary investigation does not affect the court’s jurisdiction over the case, nor does it impair the validity of the Information or otherwise render it defective. This has been the settled rulein this jurisdiction: once an Information or complaint is filed in court, any disposition of the case with respect to its dismissal or the conviction or acquittal of the accused, rests with the sound discretion of the court.39

In the 1982 case of People v. Gomez,40 the Court reiterated the ruling that the absence of a preliminary investigation does not affect the court’s jurisdiction over the case, nor does it impair the validity of the Information or otherwise render it defective. In this case, the Court set aside the trial court’s order dismissing the criminal case against the accused Gomez that was based essentially on the irregularity in the preliminary investigations.

The Court repeated the Casiano ruling inDoromal v. Sandiganbayan,41 People v. Abejuela,42 Liang v. People,43 and Villaflor v. Vivar,44 to name a few.45 In Torralba v. Sandiganbayan,46 the Court added that the absence of preliminary investigation does not obliterate the proceedings already undertaken before the court.

Likewise in Doromal, the Court pointed out that the absence of the preliminary investigation is not a ground to quash the complaint or Information.47

Section 3, Rule 117 of the Rules of Court enumerates the grounds in quashing an Information, as follows:

Section 3. Grounds. – The accused may move to quash the complaint or information on any of the following grounds:

As the Court pointedly noted in Villaflor,48 nowhere in Section 3 is the "lack of preliminary investigation" mentioned as a ground for a motion to quash.

2. Neither will the absence of a
preliminary investigation affect the
validity of an issued arrest warrant

As the absence of preliminary investigation does not affect the court’s jurisdiction over the case, so also does this irregularity not affect the proceedings already undertaken before the court, nor affect the validity of any warrant that the court may have issued for the arrest of the accused.

A warrant of arrest is a legal process issued by competent authority, directing the arrest of a person or persons upon grounds stated therein.49 The issuance of an arrest warrant is governed primarily, by Section 2, Article III of the Constitution,50 and secondarily, by Section 6, Rule 112 of the Rules of Court.

Under Section 6, Rule 112 of the Rules of Court, the trial court judge may issue a warrant of arrest within ten (10) days from the filing of the Information upon a finding of probable cause that the accused should be placed under immediate custody in order not to frustrate the ends of justice. Notably, the issuance of an arrest warrant and the preliminary investigation both require the prior determination of probable cause; the probable cause determination in these two proceedings, however, differs from one another.

In Conjuanco, Jr. v. Sandiganbayan,51 citing Ho v. People,52 the Court summarized the distinctions between the determination of probable cause to merit the issuanceof a warrant of arrest, and the determination of probable cause in a preliminary investigation through this discussion:

First, x x x the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should beissued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor’s report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor’s bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of a probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.

Lastly, it is not required that the completeor entirerecords of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of anaccused. What is required, rather, is that the judge must have sufficientsupporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the veryleast, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor’s recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer. (Emphasis supplied)

First, the determination of probable cause for purposes of an arrest warrant is judicial, performed by the judge to ascertain whether the accused should be placed under the court’s custody; the determination of probable cause as basis for the filing of the Information in court is executive, performed by the investigating officer toascertain whether or not a criminal case must be filed in court against those whom he believes committed the crime.

Second, the former (the probable cause needed for a warrant of arrest) refers to "such facts and circumstances that would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person to be arrested";53 the latter (the probable cause to support the filing of the Information) refers to such facts as are sufficient to engender a well founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial.

Third, the prosecutor and the judge act independently of one another in their consideration of evidence commonly before them. One reason for this independence is their differing objectives. Another is the differing nature of the discretion they exercise, one being judicial and the other executive, with each being governed by their respective standards.

Since the Sandiganbayan already has jurisdiction and control of the present case, the case before it inevitably cannot be affected without its consent, except only by a causethat absolutely nullifies the proceedings before it. As I explained above, this nullification could not have transpired inthe present case.

3. The "radical relief," i.e., dismissal
of the Information already pending
before the Sandiganbayan, as an
exception to the rule that preserves
the court’s jurisdiction despite the
grave irregularity in the
preliminary investigation, does not
apply to this case

I am not unaware that the Court, in the past, has not hesitated to grant the "radical relief" of dismissing the Information or the criminal case already filed in court when a grave irregularity in the conduct of the preliminary investigation exists, i.e.,when there is violation of the accused’s right to due process. The present situation, however, does not warrant the grant of the "radical relief" in the way grants were made in the past.

My review of the cases where the Court granted this "radical relief" tells me that this approach has been reserved for special circumstances and situations where the violation of the accused’s constitutional rights extended beyond the lack of due process that transpired in the present case. In other words, while I find the Ombudsman’s conduct of the preliminary investigation proceedings gravely irregular, to the point of affecting Estrada’s right to due process in a manner completely outside the contemplation of law, such grave irregularity, by itself, does not sufficiently justify a "radical relief" approach.

In Duterte v. Sandiganbayan,54 the Court dismissed the criminal case, for violation of the Anti-Graft Law, against petitioners Rodrigo R. Duterte and Benjamin C. De Guzman after finding that the Ombudsman, through its Graft Investigator, violated not only the petitioners’ right to due process but also their right to speedy disposition of cases.

The Court pointed out that the Ombudsman completely disregarded the preliminary investigation procedure under Sections 2 and 4, Rule II of the Ombudsman Rules, thus, violating the petitioners’ due process rights. As well, the Ombudsman unduly and unreasonably delayed the termination of the irregularly conducted preliminary investigation, thus, infringing the petitioners’ right to the speedy disposition of their cases. In addition to these constitutional rights violations, the Court likewise found no probable cause to hold the petitioners liablefor the charge.

In Tatad v. Sandiganbayan,55 the Court dismissed the Informations, for violation of the Anti-Graft Law, filed against petitioner Francisco S. Tatad.

As in Duterte, the Court found that the Tanodbayan not only completely departed from the preliminary investigation procedures, as provided under its Rules; it also unreasonably delayed the resolution of the preliminary investigation. Thus, as in Duterte, the Tanodbayan’s acts in the case violated the petitioner’s right to due processand to the speedy disposition of their cases.More than these, the Court observed that political motivations obviously propelled the criminal prosecutions against the petitioner, i.e., the complaint came out only after the petitioner had "a falling out with President Marcos;"instead of requiring the petitioner to file counter-affidavits and controverting evidence, the Tanodbayan referred the complaint to the Presidential Security Command for the fact-finding investigation and report.

In Salonga v. Paño,56 the Court, dismissed the certiorari petition filed by Jovito Salonga on the ground of mootness, but nevertheless declared the Information filed against the latter invalid. The Court reasoned that the respondent-investigating judge absolutely failed to establish prima facie Salonga’s guilt for the crime charged; and that the respondents blatantly disregarded his constitutional right to be informed, during the arrest, of the charges against him, and of his right to counsel.

In Mead v. Argel,57 the Court ordered the respondent Judge Manuel A. Argel to dismiss on jurisdictional grounds the criminal cases for violation of R.A. No. 3931 filed against petitioner Donald Mead. Impliedly, the Court dismissed the case because of the irregularity in the preliminary investigation that proceeded from the lower court’s lack of jurisdiction.

The Court pointed out that under R.A. No. 3931, a prior determination by the National Water and Air Pollution Control Commission of the existence of "pollution" is required before any criminal case for violation of its provisions may be filed in court. The Commission also has the exclusive authority to prosecute pollution violations. No prior determination by the Commission, however, was ever made, and the prosecution was undertaken by the Provincial Fiscal, not by the Commission. In addition, the Court noted that the Information accused the petitioner of multiple offenses in contravention of the law.

In People v. Zulueta,58 the Court affirmed the Court of Appeal’s decision annulling the order of the Regional Trial Court that admitted the amended Information in the criminal case filed against respondent Jose C. Zulueta. The Court explained that the amendment to the Information that was filed after the respondent had already pleaded to the charge was substantial; it set forth a different manner of committing the felony with which the respondent was charged. To the Court, the amendment infringed on the respondent’s right to be fully apprised of the charges against him.

Lastly, in Zaldivar v. Sandiganbayan,59 the Court dismissed the criminal cases filed by the Tanodbayan against petitioner Enrique A. Zaldivar on the ground that these cases were filed by the Tanodbayan without legal and constitutional authority.

The Tanodbayan in this cited case issued its finding of probable cause against Zaldivar on February 5, 1987, filed the original Informations on March 3,1987, and the amended Informations on June 4, 1987. The Court pointed out that"under the 1987 Constitution which took effect on February 2, 1987, itis only the Ombudsman, not the Tanodbayan who has authority to file cases with the Sandiganbayan." In other words, the Information was filed by an officer without any authority and was thus patently void.

Significantly, in all of the above cases, the Court dismissed the criminal cases/information against the accused not onlybecause of the grave irregularity amounting to the complete absence of preliminary investigation and resulting in the violation of the accused’s due process rights. More importantly, a dismissal was ordered because of the presence of the other clearly valid and legal grounds or compelling factors that, together with other constitutional rights violations, justified the dismissal of the criminal case/information.

These clearly valid and legal grounds or compelling factors that the Court found present in the above cited cases may be summarized into three:

One, the cases that involved other constitutional rights violations, i.e., unreasonable delay in the conduct and termination of the preliminary investigation resulting in the violation of the right to speedy disposition of cases; and refusal of the arresting officers to inform the accused of the charges and to allow him access to his counselin violation of his right to information and to counsel during an arrest.

Two, the cases that involved grounds to quash the information, i.e., substantial amendment to the Information subsequent to the accused’s arraignment; multiple charges in the Information; and absolute lack of legal and Constitutional authority of the public officer that filed the information before the lower court or the Sandiganbayan.

Three, those that involved other clearly compelling and justifiable grounds, i.e., the absence of probable cause as found by the Court; and obvious political motivations that actively played and propelled the institution of the criminal prosecution against the accused.

Compared with these cases, I find that Estrada’s situation does not involve any clearly valid and legal grounds or compelling factors other than the grave irregularity that affected his right to due process in the preliminary investigation. As this Court made clear in Duterte and Tatad, the grant of the "radical relief"requires a particular regard for the facts and circumstances peculiar to each case.

The effect of a finding of grave
irregularity in the preliminary
investigation in this case: the proper
disposition of Estrada’s petition

In the instances where the preliminary investigation suffers defects that are not absolutely irremediable in terms of their effects on the State and the individual, I believe that the proper course of action to take is to: (1) suspend the proceedings before the lower court; and (2) remand the case to the investigating officerand require the holding of a proper preliminary investigation.

This is the fair middle ground that will protect the interest of the State and the individual. This is the fair solution that will address the irregularity at the Ombudsman level without doing violence to the jurisdiction that the trial court has already acquired. This was the course of action that the Court took in Doromal, Torralba, and Abejuela cited above.

Parenthetically, this course of action is proper when viewed from the objectives of a preliminary investigation. This procedure may save the accused from the rigors and hazards of a prolonged trial if, on preliminary investigation review, no Information should have been filed in the first place. The State may likewise be saved from spending its scarce time and resources if, in the end, there may be no case to speak of, on which a conviction can be secured.

In Yusop v. Sandiganbayan,60 the Court, after reversing the resolution of the Office of the Ombudsman for Mindanao recommending the prosecution of petitioner Alvarez A. Yusop, ordered the Ombudsman to conduct the preliminary investigation and suspended the trial on the merits of the criminal case against Yusop.

In this case, the Ombudsman agreed with the Court that Yusop was indeed deprived of his right to preliminary investigation. Yet the Court disagreed with Yusop that the case should be dismissed for lack of preliminary investigation. The Court emphasized that first, "nowhere in the Revised Rules of Criminal Procedure, or even the old Rules, is there any mention that this lack is a ground for a motion to quash;" and, second, "responsibility for the ‘absence of a preliminary investigation does not go to the jurisdiction of the court but merely tothe regularity of the proceedings."

Thus, as applied to the present Estrada case, I submit that the proper course to take is to:

The majority has decided to dismiss the petition for certiorari under Rule 65 of the Rules of Court filed by Sen. Jinggoy Ejercito Estrada assailing and seeking to annul the Office of the Ombudsman's Order dated March 27, 2014 in OMB-C-C-13-0313 and entitled "National Bureau of Investigation and Atty. Levito Baligod v. Jose 'Jinggoy' P. Ejercito Estrada, et al."

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

In OMB-C-C-13-0313, a preliminary investigation conducted on the complaint filed by the National Bureau of Investigation (NBI) and Atty. Levito Baligod (Atty. Baligod), petitioner Sen. Jinggoy Ejercito Estrada (Sen. Estrada), along with several others, was charged with Plunder. Similarly, in OMB-C-C-13-0397, petitioner was charged with the offenses of Plunder and violation of Republic Act No. (RA) 3019, or the Anti-Graft and Corrupt Practices Act,1 in the complaint filed by the Field Investigation Office-Office of the Ombudsman (OMB-FIO). Both preliminary investigations pertain to the alleged anomalous scheme behind the implementation of several government projects funded from the Priority Development Assistance Fund (PDAF) of several members of the legislature.

In compliance with the Ombudsman’s Orders, Sen. Estrada submitted, as required, a Counter-Affidavit dated January 8, 2014 to the NBI complaint, and a Counter-Affidavit dated January 16, 2014 in response to the OMBFIO complaint.

In the meantime, Sen. Estrada’s co-respondents named in the adverted complaints filed their respective counter-affidavits, to wit:

Alleging that media reports suggested that his co-respondents and several witnesses made reference in their respective affidavits to his purported participation in the so-called "PDAF scam," Sen. Estrada then filed in OMB-C-C-13-0313 a Request to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filingsdated March 20, 2014 (Request) so that he may be able to fully refute the allegations against him, if he finds the need to do so. Specifically, Sen. Estrada requested tobe furnished with copies of the following:

In the assailed Order dated March 27, 2014, the Office of the Ombudsman denied Sen. Estrada’s Request for the stated reason that his rights as a respondent in the preliminary investigations depend on the rights granted him by law, and that the Rules of Court and Administrative Order (AO) No. 7, or the Rules of Procedure of the Office of the Ombudsman, only require respondents to furnish their counter-affidavits to the complainant, and not to their co-respondents. Hence, the Ombudsman concluded that Sen. Estrada is not entitled, as a matter of right, to copies of the affidavits of his co-respondents.

The next day, March 28, 2014,the Ombudsman issued a Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397 finding probable cause to indict Sen. Estrada with one (1) count of Plunder and eleven (11) counts of violation of Section 3(e) ofRA 3019. Sen. Estrada would allege that the Ombudsman used as basis for its Joint Resolution the following documents and papers that were not furnished to him:

Sen. Estrada received both the March 27, 2014 Order and March 28, 2014 Joint Resolution on April 1, 2014.

On April 7, 2014, Sen. Estrada interposed a Motion for Reconsideration seeking the reversal of the adverted Joint Resolution finding probable cause against him.

On May 7, 2014, Sen. Estrada filed with this Court a petition for certiorari assailing the March 27, 2014 Order of the Ombudsman and praying in the main that this Court render judgment declaring (a) that he has been denied due process as a consequence of the issuance of the March 27, 2014 Order, and (b) that the March 27, 2014 Order, 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 challenged Order, are null and void. Sen. Estrada also prayed for the issuance of a temporary restraining order (TRO) and/or writ of preliminary injunction to enjoin the Office of the Ombudsman from conducting any further proceedings in OMB-C-C-13-0313 and OMBC-C-13-0397 until his petition is resolved by the Court. In a Motion dated June 27, 2014, Sen. Estrada moved for the conversion of his application for the issuance of a TRO and/or Writ of Preliminary Injunction into that for the issuance of a Status Quo Ante Order and return the parties to the last peaceable uncontested status which preceded the present controversy or immediately after the issuance of the Order dated March 27, 2014.

On even date, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint Order dated May 7, 2014 furnishing petitioner with the counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Figura, Buenaventura, and Sevidal, and directing him to comment thereon within a non-extendible period of five (5) days from receipt of said Order. Records do not show whether or not petitioner filed a comment on the said counter-affidavits.

Sen. Estrada claims in his petition that he was denied due process of law when the Ombudsman refused to furnish him with copies of the affidavits of his co-respondents. He posits in fine that, consequent to the Ombudsman’s refusal, he was not afforded sufficient opportunity to answer the charges against him contrary to the Rules of Court, the Rules of Procedure of the Ombudsman, and several rulings of this Court applying the due process clause in administrative cases.

Traversing petitioner’s above posture, respondents aver in their respective comments2 to the first petition that Sen. Estrada was in fact furnished with the documents he requested per the May 7, 2014 Joint Order of the Ombudsman. Further, respondents contend that the present petition for certiorari filed by Sen. Estrada is procedurally infirm as he has a plain, speedy and adequate remedy—the motion for reconsideration he filed to question the March 28, 2014 Joint Resolution of the Ombudsman. As a corollary point, the respondents add thatSen. Estrada’s petition violates the rule against forum shopping, Sen. Estrada having presented the same arguments in his motion for reconsideration of the March 28, 2014 Joint Resolution filed with the Ombudsman.

Parenthetically, following his receipt of a copy of the Office of the Ombudsman’s Joint Order dated June 4, 2014 denying his Motion for Reconsideration (of the Joint Resolution dated March 28, 2014), Sen. Estrada filed another petition for certiorari before this Court, docketed as G.R. No. 212761-62.

The main issue in the petition at bar centers on whether the denial via the Ombudsman’s Order of March 27, 2014 of petitioner’s plea embodied in his Request constitutes, under the premises, grave abuse of discretion.3

I do not agree with the conclusions reached by the majority for basic reasons to be discussed shortly. But first, a consideration of the relevant procedural concerns raised by the respondents and sustained by the ponencia.

Under Section 1, Rule 65 of the Rules of Court, a petition for certiorari is only available if "there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary courseof law." In the instant case, Sen. Estrada admits to not filing a motion for reconsideration against the assailed March 27, 2014 Order, but claims that he had no chance to do so as the Order was almost simultaneously servedwith the March 28, 2014 probable cause finding Joint Resolution. Respondents, on the other hand, counter that the bare fact that Sen. Estrada filed a motion for reconsideration of the March 28, 2014 Joint Resolution shows that a "plain, speedy, and adequate remedy" was available to him. Sen. Estrada cannot, therefore, avail of the extraordinary remedy of certiorari, so respondents argue.

I cannot acquiesce with respondents’ assertion that the motion for reconsideration to the Joint Resolution finding probable cause to indict petitioner is, vis-à-vis the denial Order of March 27, 2014, equivalent to the "plain, speedy, and adequate remedy" under Rule 65. This Court has defined such remedy as "[one] which (would) equally (be) beneficial, speedy and sufficient not merely a remedy which atsome time in the future will bring about a revival of the judgment xxx complained of in the certiorari proceeding, but a remedy which will promptly relieve the petitioner from the injurious effects of that judgment and the acts of the inferior court or tribunal’ concerned."4 This in turn could only mean that only such remedy that can enjoin the immediate enforceability of the assailed order can preclude the availability of the remedy under Rule 65 of the Rules of Court. Notably, Section 7(b) of the Rules of Procedure of the Office of Ombudsman is categorical that even a motion for reconsideration to an issuance finding probable cause cannot bar the filing of the information:

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding information in Courton the basis of the finding of probable cause in the resolution subject of the motion.5

Hence, Sen. Estrada may very well be subjected to the rigors of a criminal prosecution in court even if there is a pending question regarding the Ombudsman’s grave abuse of its discretion preceding the finding of a probable cause to indict him. His motion for reconsideration to the Joint Resolution is clearly not the "plain, speedy, and adequate remedy in the ordinary course of law" that can bar a Rule 65 recourse to question the propriety of the Ombudsman’s refusal to furnish him copies of the affidavits of his co-respondents. Otherwise stated, Sen. Estrada’s present recourse is not premature.

The concurrence of the present petition
and the motion for reconsideration filed
with the Ombudsman does not amount to
forum shopping.

The majority, however, maintains that petitioner’s filing of the present petition while his motion for reconsideration to the joint resolution was pending, constitutes a violation of the rule against forum shopping. The majority maintains that Sen. Estrada’s motion for reconsideration before the Office of the Ombudsman supposedly contained the same arguments he raised in the petition at bar.

There is a violation of the rule against forum shopping when the requisites for the existence of litis pendentia are present.6 Thus, there is forum shopping when the following requisites concur: (1) identity of parties in both actions; (2) identity of rights asserted and reliefs prayed for, the reliefs being founded on the same facts; and (3) any judgment that may be rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other case.7 I submit that there is no subsistence of these elements in the present case, as the majority posits.

As to the first requisite, it is obvious that the Office of the Ombudsman, the main respondent in this petition, is not a party in the case where the motion for reconsideration was filed by Sen. Estrada. The required identity of parties is, therefore, not present.

The role of the Office of the Ombudsman, as a respondent in this certiorari proceeding, is not only relevant in the determination of the existence of the first requisite. It is also indicative of the absence of the second requisite.

In his petition for certiorari, Sen. Estrada bewails the alleged grave abuse of discretion of the Office of Ombudsman in denying his request to be furnished with copies of the affidavits of his co-respondents. Hence, petitioner prays that the denying Order and all proceedings subsequent to the issuance of the Order be considered null and void. On the other hand, the motion for reconsideration thus interposed with the Office of Ombudsman by Sen. Estrada contends that the formererred in finding probable cause to indict him for plunder and violation of RA 3019, as the evidence against him does not support such finding. He further prayed in his motion for reconsideration the reversal of the Ombudsman’s finding of probable cause. Clearly, there is no identity of rights asserted and reliefs prayed between the petition before the Court and the motion for reconsideration filed before the Office of the Ombudsman. The second requisite of litis pendentia does not exist.

The difference in the reliefs prayed for in the petition at bar and the motion for reconsideration filed with the Office of the Ombudsman argues against the presence of the third requisite. For a denial of petitioner’s motion for reconsideration by the Ombudsman would not affect the resolution of the present petition. Similarly, a favorable resolution of the present controversy would not dictate the Ombudsman to rule one way or the other in the determination of probable cause to indict petitioner for plunder or violation of RA 3019. As the certiorari proceedings before this Court is exclusively concerned with the Ombudsman’s grave abuse of discretion in denying the petitioner his constitutional right to due process, a definitive ruling herein would not amount to res judicata that would preclude a finding of probable cause in the preliminary investigation, ifthat be the case. On a similar note, the resolution of the motion for reconsideration does not bar the present petition. Obviously, the third requisite is likewise absent.

It is, however, argued that the present recourse has been rendered moot by the Ombudsman’s issuance of its Joint Resolution dated May 7, 2014 furnishing Sen. Estrada with copies of the counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Figura, Buenaventura and Sevidal. Such argument is specious failing as it does to properly appreciate the rights asserted by petitioner, i.e., the right tobe furnished the evidence against him and the right to controvert such evidence beforea finding of probable cause is rendered against him. In this case, the fact stillremains that petitioner was not given copies of incriminatory affidavits beforea finding of probable cause to indict him was rendered. As a necessary corollary, he was not given sufficient opportunity to answer these allegations beforea resolution to indict him was issued.

Further, it bears to stress at this point that the same Order gave Sen. Estrada only a five-day non-extendible period within which to reply or comment to the counter-affidavits of his co-respondents. Clearly, the Order furnishing Sen. Estrada with the counter-affidavits not only came too late, it did not provide him with adequate opportunity to rebut the allegations against him before the Office of the Ombudsman actually decided to indict him. Hence, the full measure of the due process protection was not accorded to him. The May 7, 2014 Order cannot, therefore, cancel the Office of the Ombudsman’s commission of grave abuse of discretion in trifling with, and neglecting to observe, Sen. Estrada’s constitutional right to due process.

It is true that, in the past, the Court has allowed the belated disclosure by the Ombudsman to a respondent of affidavits containing incriminating allegations against him. This may possibly be the reason why the Ombudsman deviated from the spirit of due process, which, at its minimum, is to allow a respondent prior notice and afford him sufficient opportunity to be heard before a decision is rendered against him. This cannot be further tolerated. A decision to indict a personmust not only be based on probable cause but also with due regard to the constitutional rights of the parties to due process.

Relying on the case of Ruivivar v. Office of the Ombudsman,8 the majority maintains that petitioner’s right to due process had not been violated, as the Office of the Ombudsman belatedly furnished him with some of the affidavits that he requested on May 7, 2014, before the said Office rendered its June 4, 2014 Joint Order.

It is worthy to note that Sen. Estrada requested that he be furnished with "affidavit/counter-affidavits/pleadings/filings filed by all the other respondents and/or additional witnesses for the complainants." Yet, Sen. Estrada was only furnished with the affidavits of seven (7) of his corespondents. His request to be given copies of the affidavits of the other nine (9) respondents, thus, remains unheeded by respondent Ombudsman. Clearly, the fact of the deprivation of due process still remains and not mooted by the Ombudsman’s overdueand partial volte-face. And, unlike in Ruivivar, the Office of the Ombudsman did not furnish the petitioner with all the documents he requested, leaving him in the dark as to the entire gamut of the charges against him.

Further, in Ruivivar, petitioner Ruivivar’s motion for reconsideration that prompted the Ombudsman to furnish her with copies of the affidavits of private respondent’s witnesses came after the Decision was issued by the Ombudsman. Meanwhile, in this case, Sen. Estrada’s request was submitted before the Ombudsman issued its probable cause finding resolution. Clearly, the Office of the Ombudsman had all the opportunity to comply with the requirements of due process prior to issuing its March 28, 2014 Joint Resolution, but cavalierly disregarded them. It may be rightfully conceded that its May 7, 2014 Order is nothing but an after thought and a vain attempt to remedy the violation of petitioner’s constitutional right to due process. By then, petitioner’s constitutional right to due process--to be given the opportunity to be heard and have a decision rendered based on evidence disclosed to him—had already been violated. It cannot be remedied by an insufficient and belated reconsideration of petitioner’s request. What is more, it seems that the doctrine laid down in Ruivivar is not consistent with the essence of the due process: to be heard before a decision is rendered.

This Court has time and again declared that the "moot and academic" principle is not a magical formula that automatically dissuades courts in resolving a case.9 A court may take cognizance of otherwise moot and academic cases, if it finds that (a) there is a grave violation of the Constitution; (b) the situation is of exceptional character and paramount public interest is involved; (c) the constitutional issue raised requires formulation of controlling principles toguide the bench, the bar, and the public; and (d) the case is capable of repetition yet evading review.10

Thus, even assuming arguendothat the present petition is mooted by the Ombudsman’s May 7, 2014 Joint Resolution, it is unquestionable that considering the notoriety of the petitioner and the grave violation of the Constitution he asserts, the majorityshould have availed itself of the irresistible opportunity to set a controlling guideline on the right of a respondent to be furnished, upon reasonable demand, of all evidence used against him during a preliminary investigation before a resolution thereon is issued.

Respondent Ombudsman committed grave
abuse of discretion when it disregarded
Sen. Estrada’s right to a disclosure of all
the evidence against him in the
preliminary investigation.

A preliminary investigation is a safeguard intended to protect individuals from an abuse of the overwhelming prosecutorial power of the state. It spells for a citizen the difference between months, if not years, of agonizing trial and jail term, on one hand, and peace of mind and liberty on the other hand.11 In Uy v. Office of the Ombudsman,12 We ruled:

A preliminary investigation is held before an accused is placed on trial to secure the innocent against hasty, malicious, and oppressive prosecution; to protect him from an open and public accusation of a crime, as well as from the trouble, expenses, and anxiety of a public trial. It is also intended to protect the state from having to conduct useless and expensive trials. While the right is statutory rather than constitutional, it is a component of due process in administering criminal justice.The right to have a preliminary investigation conducted before being bound for trial and before being exposed to the risk of incarceration and penalty is not a mere formal or technical right; it is a substantive right. To deny the accused's claim to a preliminary investigation is to deprive him of the full measure of his right to due process.13

Thus, this Court had characterized a preliminary investigation as a substantive right forming part of due process in criminal justice;14 and, contrary to Justice Leonen’s position, it is not merely a technical requirement that can be done away or hastily conducted by state agencies. As eloquently put by Justice Brion, "to be sure, criminal justice rights cannot be substantive at the custodial investigation stage, only to be less than this at preliminary investigation, and then return to its substantive character when criminal trial starts."

In Yusop v. Hon. Sandiganbayan,15 this Court emphasized the substantive aspect of preliminary investigation and its crucial role in the criminal justice system:

We stress that the right to preliminary investigation is substantive, not merely formal or technical. To deny it to petitioner would deprive him of the full measure of his right to due process. Hence, preliminary investigation with regard to him must be conducted.

In any event, even the Ombudsman agrees that petitioner was deprived of this right and believes that the basic rudiments of due process are complied with. For its part, the Sandiganbayan opted to remain silent when asked by this Court to comment on the Petition.16

Furthermore, a preliminary investigation is not a one-sided affair; it takes on adversarial quality17 where the due process rights of both the state and the respondents must be considered. It is not merely intended to serve the purpose of the prosecution. Rather, its purpose is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of public trial.18 At the same time, it is designed to protect the state from having to conduct useless and expensive trials.19 In Larranaga v. Court of Appeals,20 this Court elucidated, thus: Fairness dictates that the request of petitioner for a chance to be heard in a capital offense case should have been granted by the Cebu City prosecutor. In Webb vs. de Leon, we emphasized that "attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial." As this Court emphasized in Rolito Go vs. Court of Appeals, "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." xxx21

As such, preliminary investigations must be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage.22 This Court said so in Gerken v. Quintos,23 thus:

It is hardly necessary to recall that those who find themselves in the meshes of the criminal justice system are entitled to preliminary investigation in order to secure those who are innocent against hasty, malicious, and oppressive prosecution and protect them from the inconvenience, expense, trouble, and stress of defending themselves in the course of a formal trial. The right to a preliminary investigation is a substantive right, a denial of which constitutes a deprivation of the accused’s right to due process. Such deprivation of the right to due process is aggravated where the accused isdetained without bail for his provisional liberty. Accordingly, it is important that those charged with the duty of conducting preliminary investigations do so scrupulously in accordance with the procedure provided in the Revised Rules of Criminal Procedure.24

In this case, a careful observance of the procedure outlined in Rule II of AO No. 7, otherwise known as the Rules of Procedure of the Office of the Ombudsmanis, therefore, imperative. Section 4, Rule II of AO No. 7 provides that the respondent in a preliminary investigation shall have access to the evidence on record, viz:

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 tothe following provisions:

In construing the foregoing provision, however, the Ombudsman is of the view that the respondent’s, the petitioner’s in this case, access is limited only to the documents submitted by the complainant, and not his corespondents. Thus, in its March 27, 2014 Order denying Sen. Estrada’s request to be furnished with copies of the affidavits of his co-respondents, respondent Ombudsman held:

This Office finds however finds (sic) that the foregoing provisions do not entitle respondent to be furnished all the filings of the respondents.

It is to be noted that there is no provision under this Office’s Rules of Procedure which entitles respondent to be furnished all the filings by the other parties, eg. 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 are only required to furnish their counter-affidavits and controverting evidence to the complainant, and not to the other respondents.

Unfortunately, the majority has subscribed to the Ombudsman’s position maintaining that Sections 3 and 4 of Rule 112 of the Rules of Court26 only require that a respondent be furnished with the copies of the affidavits of the complainant and the complainant’s supporting witnesses, and not the affidavits of his co-respondents.

Certainly, the majority has neglected to consider that AO No. 7 or the Rules of Procedure of the Office of the Ombudsman prevails over the provisions of the Rules of Court ininvestigations conducted by the Ombudsman. This is plain and unmistakable from Section 3, Rule V of AO No. 7, which states that the Rules of Court shall apply only in a suppletory character and only in matters not provided by the Office of the Ombudsman’s own rules:

Section 3. Rules of Court, application. – In all matters not provided in these rules, the Rules of Court shall apply in a suppletory character, or by analogy whenever practicable and convenient.27

As Section 4(c) of AO No. 7, or the Office of the Ombudsman’s very own Rules of Procedure, clearly provides that a respondent shall have access to all the "evidence on record" without discriminating as to the origin thereof and regardless of whether such evidence came from the complainant or another respondent, the provisions of the Rules of Court supposedly limiting a respondent’s access to the affidavits of the complaint only is not applicable to investigations conducted by the Ombudsman. Put piquantly, this restrictive misconstruction of Sections 3 and 4 of the Rules of Court cannot be applied to Sen. Estrada to deprive him of his right to due process clearly spelled out in AO No. 7.

In fact, a proper and harmonious understanding of Sections 3 and 4 of the Rules of Court vis-à-vis Section 4 (c) of AO No. 7 will reveal that the common denominator of these provisions is the principle that a respondent in a preliminary investigation be afforded sufficient opportunity to present controverting evidence before a judgment in that proceeding is rendered against him. Hence, a respondent in a preliminary investigation cannot be denied copies of the counter-affidavits of his co-respondents should they contain evidence that will likely incriminate him for the crimes ascribed to him.

Indeed, while the documents withheld by the Office of the Ombudsman may have been submitted by Sen. Estrada’s co-respondents, they constitute evidence against him, not unlike the affidavits of the complainants. Sen. Estrada, therefore, had the right to be given copies thereof and an opportunity to controvert the allegations contained therein pursuant to Section 4 (c) of AO No. 7.

More than the provisions of either procedural rules, this Court cannot neglect the constitutional precept underpinning these rules that "no person shall be deprived of life, liberty, or property without due process of law."28 The essence of due process permeating the rules governing criminal proceedings is that the respondent must be afforded the right to be heard before a decision is rendered against him. This right must necessarily be predicated on the opportunity to know all the allegations against him, be they contained in the affidavits of the complainant or of another respondent.

A respondent in a preliminary investigation cannot, therefore, be denied copies of the counter-affidavits of his co-respondents should they contain evidence that will likely incriminate him for the crimes charged. In other words, it behooves the Office of the Ombudsman to treat a respondent’s counter-affidavit containing incriminating allegations against a co-respondent as partaking the nature ofa complaint-affidavit, insofar as the implicated respondent is concerned. Thus, it is my opinion that the Office of the Ombudsman should follow the same procedure observed when a complaint is first lodged with it, i.e., furnish a copy to the respondent incriminated in the counter-affidavit and give him sufficient time to answer the allegations contained therein. It need not wait for a request or a motion from the implicated respondent to begiven copies of the affidavits containing the allegations against him. A request or motion to be furnished made by the respondent alluded to in the counter-affidavits makes the performance of such duty by the Office of the Ombudsman more urgent.

In the seminal case of Ang Tibay v. Court of Industrial Relations,29 this Court identified the primary rights that must be respected in administrative proceedings in accordance with the due process of law. Not the least of which rights is that the decision must be rendered on evidence disclosed to the parties affected, viz:

(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. (Interstate Commerce Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected intheir right to know and meet the case against them. xxx30

Thus, in Office of Ombudsman v. Reyes,31 this Court set aside the decision of the Ombudsman that was based on the counter-affidavits of therein respondent Reyes’ co-respondents that were not furnished to him before the Ombudsman rendered his decision. The Court held:

In the main, the evidence submitted by the parties in OMB-MINADM-01-170 consisted of their sworn statements, as well as that of their witnesses. In the affidavit of Acero, he categorically identified both Reyes and Peñaloza as the persons who had the prerogative to reconsider his failed examination, provided that he paid an additional amount on top of the legal fees. For his part, Peñaloza ostensibly admitted the charge of Acero in his counter-affidavit but he incriminated Reyes therein as the mastermind of the illicitactivity complained of ….

Reyes faults petitioner for placing too much reliance on the counter-affidavit of Peñaloza, as well as the affidavits of Amper and Valdehueza. Reyes claims that he was not furnished a copy of the said documents before petitioner rendered its Decision dated September 24, 2001. Reyes, thus, argues that his right to due process was violated. Petitioner, on the other hand, counters that Reyes was afforded due process since he was given all the opportunities tobe heard, as well as the opportunity to file a motion for reconsideration of petitioner’s adverse decision.

Moreover, Department of Health v. Camposano restates the guidelines laid down in AngTibay v. Court of Industrial Relations that due process in administrative proceedings requires compliance with the following cardinal principles: (1) the respondents’ right to a hearing, which includes the right to present one’s case and submit supporting evidence, must be observed; (2) the tribunal must consider the evidence presented; (3) the decision must have some basis to support itself; (4) there must be substantial evidence; (5) the decision must be rendered on the evidence presented at the hearing, or atleast contained in the record and disclosed to the parties affected; (6) in arriving at a decision, the tribunal must have acted on its own consideration of the law and the facts of the controversy and must not have simply accepted the views of a subordinate; and (7) the decision must be rendered in such manner that respondents would know the reasons for it and the various issues involved.

In the present case, the fifth requirement stated above was not complied with. Reyes was not properly apprised of the evidence offered against him, which were eventually made the bases of petitioner’s decision that found him guilty of grave misconduct.32

It is true that, in this case, the failure to furnish copies of the counteraffidavits happened in a preliminary investigation, and not in an administrative proceeding as what happened in Reyes. There is likewise no gainsaying that the quanta of proof and adjective rules between a preliminary investigation and an administrative proceeding differ. In fact, "[i]n administrative proceedings… the technical rules of pleading and procedure, and of evidence, are not strictly adhered to; they apply only suppletorily."33

Yet, it must be noted that despite the procedural leniency allowed in administrative proceedings, Reyes still required that the respondent be furnished with copies of the affidavits of his co-respondent to give him "a fair opportunity to squarely and intelligently answer the accusations therein or to offer any rebuttal evidence thereto." Again, Reyes was rendered in a case where at stake was, at worst, only the right of the respondent to hold a public office.

In the present case, Sen. Estrada is not only on the brink of losing his right to hold public office but also of being dragged to an open and public trial for a serious crime where he may not only lose his office and good name, but also his liberty, which, based on the hierarchy of constitutionally protected rights, is second only to life itself.34 In a very real sense, the observance of due process is even more imperative in the present case.

In fact, this Court in Uy v. Office of Ombudsman35 applied the standards of "administrative" due process outlined in Ang Tibay to the conduct of preliminary investigation by the Ombudsman. Wrote this Court in Uy:

[A]s in a court proceeding (albeit with appropriate adjustments because it is essentially still an administrative proceeding in which the prosecutor or investigating officer is a quasi-judicial officer by the nature of his functions), a preliminary investigation is subject to the requirements of both substantive and procedural due process. This view may be less strict in its formulation than what we held in Cojuangco, Jr. vs. PCGG, et al.[30] when we said:

In light of the due process requirement, the standards that at the very least assume great materiality and significance are those enunciated in the leading case of Ang Tibay v. Court of Industrial Relations. This case instructively tells us - in defining the basic due process safeguards in administrative proceedings - that the decision (by an administrative body) must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them; it should not, however, detract from the tribunal's duty to actively see that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy.

Mindful of these considerations, we hold that the petitioner's right to due process has been violated.36

It must be emphasized 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. In Garcia v. Molina,37 this Court held, thus:

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted from their jurisdiction. The violation of a party's right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right to due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. This rule is equally true in quasi-judicial and administrative proceedings, for the constitutional guarantee that no man shall be deprived of life, liberty, or property without due process is unqualified by the type of proceedings (whether judicial or administrative) where he stands to lose the same.38

To be sure, a preliminary investigation is not part of trial and the respondent is not given the right to confront and cross-examine his accusers. Nonetheless, a preliminary investigation is an essential component part of due process in criminal justice. A respondent cannot, therefore, be deprived of the most basic right to be informed and to be heard before an unfavorable resolution is made against him. The fact that, in a preliminary investigation, a respondent is not given the right to confront nor to cross examine does not mean that the respondentis likewise divested of the rights to be informed of the allegations against him and to present countervailing evidence thereto. These two sets of rights are starkly different.

In this case, it is not disputed that the March 27, 2014 Order denying Sen. Estrada’s Request was issued a day before the Ombudsman rendered the Joint Resolution finding probable cause to indict him. The Joint Resolution notably contains reference to the counter-affidavits that were not disclosed at that time to Sen. Estrada. There is, therefore, no gains aying that the Office of the Ombudsman violated its duty to inform the respondent of all allegations against him. In the process, Sen. Estrada was not afforded sufficient opportunity to know and refute the allegations against him before the Ombudsman acted on those allegations.

The immortal cry of Themistocles: "Strike! But hear me first!" distills the essence of due process. It is, thus, indispensable that the respondent is given "the opportunity to be heard, logically preconditioned on prior notice, before judgment is rendered."39 As Sen. Estrada was not given copies of counter-affidavits containing allegations against him and afforded a chance to refute these allegations before the Joint Resolution to indict him was rendered, he was clearly denied his right to the due process of law.

The majority, however, suggests thatI have overlooked the Court of Appeal’s reasoning in Reyes that, pursuant to the doctrine of res inter alios acta alteri nocere non debet, the respondent cannot be prejudiced by the declaration of his co-respondent. Justice Carpio then concludes that "[i]n OMB-C-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estrada’s co-respondents can in no way prejudice Sen. Estrada."

Clearly, the majority ignores the obvious fact that Sen. Estrada had already been prejudiced by the affidavits of his co-respondents that were not furnished to him. The majority Decision pays no heed to the fact that the Joint Resolution of the Office of the Ombudsman precisely invoked the counter-affidavits of Sen. Estrada’s co-respondents that were not furnished to him. To recall, the March 28, 2014 Joint Resolution of the Office of the Ombudsman contains reference to the counter-affidavits that were not thereto for disclosed to Sen. Estrada. In finding probable cause to indict Sen. Estrada, respondent Office of the Ombudsman quoted from the withheld counter-affidavitsof respondents Tuason,40 Cunanan,41 Figura,42 Buenaventura,43 and Sevidal.44 Thus, to state that "the admissions of Sen. Estrada’s co-respondents can in no way prejudice Sen. Estrada" is clearly at war with the facts of the case.

With that, the suggestion that a thorough consideration of jurisprudence must be made before they are used as basis for this Court’s decisions is appreciated. Contrary to what the majority Decision suggests, the Court of Appeals’ disquisition quoted in Reyes did not go unnoticed but was simply deemed irrelevant in the present case. In fact, the application of the res inter alios actadoctrine was not even considered by this Court in Reyes; it was simply a part of the narration of the factual antecedents. Hence, a discussion of the doctrine in the present controversy is even more unnecessary.

The right to the disclosure of the evidence against a party prior to the issuance of a judgment against him is, toreiterate, a vital component of the due process of law, a clear disregard of such right constitutes grave abuse of discretion. As this Court has held, grave abuse of discretion exists when a tribunal violates the Constitution or grossly disregards the law or existing jurisprudence.45 In other words, once a deprivation of a constitutional right is shown to exist, the tribunal that rendered the decision or resolution is deemed ousted of jurisdiction.46 As the Court held in Montoya v. Varilla47 --

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted from their jurisdiction. The violation of a party’s right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction.48

Given the foregoing perspective, the issuance of the corrective writ of certiorari is warranted in the present controversy.

On one hand, a case for the total nullification of the proceedings, including the filing of the dismissal of the Information filed and the quashal of the arrest warrants, may be made. On the other, a position has been advanced that the irregularity of the preliminary investigation is remedied by the issuance of the arrest warrant, so that a deprivation of the due process during the preliminary investigation is irrelevant.

Between these two extremes, it is my considered view that the irregularity at the preliminary investigation stage arising from a violation of the due process rights of the respondentw arrants a reinvestigation and the suspension of the proceedings in court where an information has already been filed.

The grave abuse of discretion committed by the Office of the Ombudsman in its conduct of the preliminary investigation cannot divest the Sandiganbayan of the jurisdiction over the case considering that Informations had already been filed, as in fact a warrant of arrest had already been issued in connection therewith.49 It is a familiar doctrine that the irregularity in, or even absence of, a preliminary investigation is not a ground for the deprivation of the court ofits jurisdiction. So it was that in Pilapil v. Sandiganbayan,50 the Court held, thus:

We are not persuaded. The lack of jurisdiction contemplated in Section 3(b), Rule 117 of the Revised Rules of Court refersto the lack of any law conferring upon the court the power to inquire into the facts, to apply the law and to declare the punishment for an offense in a regular course of judicial proceeding. When the court has jurisdiction, as in this case, any irregularity in the exercise of that power is not a ground for a motion to quash. Reason is not wanting for this view. Lack of jurisdiction is not waivable but absence of preliminary investigation is waivable. In fact, it is frequently waived.51

On the other hand, it is erroneous to simply disregard the violation of the due process of law during the preliminary investigation as irrelevant and without any significant effect. Such stance will only serve to "legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively dilute important rights of accused persons well-nigh to the vanishing point."52 Thus, I submit that the proper recourse to be taken under the premises isthe suspension of the proceedings in the Sandiganbayan and the immediate remand of the case to the Office of the Ombudsman53 so that Sen. Estrada, if he opts to, can file his counter-affidavit and controverting evidence to all the counter-affidavits containing incriminating allegations against him.

The jurisdiction acquired by the trial court upon the filing of an information, as recognized in Crespo v. Mogul,54 is not negated by such suspension of the proceedings or the reinvestigation by the Ombudsman. Surely, this Court’s pronouncements in Crespowas not intended to curb the power of this Court to supervise lower courts and ensure that the rights of the accused are respected and protected against the all-encompassing powers of the State.

The fine balance recognizing the jurisdiction of the trial court and the right of a respondent to a reinvestigation has been observed in several cases. In Matalam v. Sandiganbayan,55 the petitioner who was not afforded a chance to fully present his evidence during the preliminary investigation stage was afforded a reinvestigation, thus:

It is settled that the preliminary investigation proper, i.e., the determination of whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be subjected to the expense, rigors and embarrassment oftrial, is the function of the prosecution. ….Accordingly, finding that petitioner was not given the chance to fully present his evidence on the amended information which contained a substantial amendment,a new preliminary investigation is in order.

Finally, as to petitioner’s prayer that the Amended Information be quashed and dismissed, the same cannot be ordered. The absence or incompleteness of a preliminary investigation does not warrant the quashal or dismissal of the information. Neither does it affect the court’s jurisdiction over the case or impair the validity of the information or otherwise render it defective. The court shall hold in abeyance the proceedings on such information and order the remand of the case for preliminary investigation or completion thereof.56

A similar disposition was made in Torralba v. Sandiganbayan57 where the Court held:

The incomplete preliminary investigation in this case, however, does not warrant the quashal of the information, nor should it obliterate the proceedings already had. Neither isthe court's jurisdiction nor validity of an information adversely affected by deficiencies in the preliminary investigation. Instead, the Sandiganbayan is to hold in abeyance any further proceedings therein and to remand the case to the Office of the Ombudsman for the completion of the preliminary investigation, the outcome of which shall then beindorsed to Sandiganbayan for its appropriate action.

This course of action was also taken by the Court in a catena of other cases including Go v. Court of Appeals,58 Yusop v. Sandiganbayan,59 Rodis, Sr. v. Sandiganbayan,60 and Agustin v. People.61

It might be argued that such recourse will only be circuitous and might simply be postponing the inevitable. Surely, it will hold the conduct of the case. But where the rights of an individual are concerned, the end does not justify the means.To be sure, "society has particular interest in bringing swift prosecutions."62 Nonetheless, the constitutional rights of citizens cannot be sacrificed at thealtar of speed and expediency.As enunciated in Brocka v. Enrile,63 the Court cannot, and will not, sanction procedural shortcuts that forsake dueprocess in our quest for the speedy disposition of cases. The Court held:

We do not begrudge the zeal that may characterize a public official's prosecution of criminal offenders. We, however, believe that this should not be a license to run roughshod over a citizen's basic constitutional rights, such as due process, or manipulate the law to suit dictatorial tendencies.

Constitutional rights must be upheld at all costs, for this gesture is the true sign of democracy. These may not be set aside to satisfy perceived illusory visions of national grandeur.: and

"Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution . . ." (G.R. No. L-59524, February 18, 1985, 134 SCRA 438-at p. 448).64

Indeed, the prime goal of our criminal justice system remains to be the achievement of justice under a rule of law. This ideal can only be attained if the Ombudsman, and the prosecutorial arm of the government for that matter, ensures the conduct of a proper, thorough, and meticulous preliminary investigation. The frustration caused by a suspension of the proceedings in the Sandiganbayan to allow the Office of the Ombudsman to correct its error cannot equal the despair of the deprivation of the rights of a person under the Constitution.

Thus, I submit that the Office of the Ombudsman should be ordered to take a second look at the facts of the case after Sen. Estrada is given copies of all the documents he requested and a sufficient chance to controvert, if so minded, all the allegations against him.

For all the foregoing, I vote to partially GRANT the Petition in G.R. No. 212140-4, to SET ASIDE the assailed March 27, 2014 Order, and to ORDER the immediate REMAND to the Office of the Ombudsman of OMB-C-C-13-0313 and OMB-C-C-13-0397 so that Sen. Estrada will be furnished all the documents subject of his Request dated March 20, 2014 and be allowed a period of fifteen (15) days to comment thereon. Further, I vote that the Sandiganbayan should be ORDERED to SUSPEND the proceedings in SB-14-CRM-0239 and SB-14-CRM-0256 to SB-14-CRM-0266 until the conclusion of the reinvestigation.

I concur with the ponencia. The petition should be dismissed for failure to show grave abuse of discretion on the part of the Ombudsman. It is unorthodox and contrary to existing doctrine to suspend the proceedings in a court that has acquired jurisdiction simply on the basis of an alleged error on the part of the Ombudsman.1

I agree that the fuhdamental constitutional norm of "due process of law" embeds the social Value of fairness. I disagree, however, with the approach proposed by both Justices Velasco and Brion in their dissents that will clinically remove the preliminary investigation from the entire process of holding the accused to account through a process of criminal trial. The approach they propose also detaches the formalities of procedure from the preliminary investigation's purpose.

First, has the petitioner been so fundamentally deprived of his opportunity to be hear in the light of the purposes of a preliminary investigation?

Second, assuming that aspects of the opportunity to be heard were less than ideally observed, are these infirmities so fatal that these deprive petitioner of all opportunities to be heard during the course of judicial examination, i.e., pre-trial and trial?

Third, granting without conceding that there were infirmities in the preliminary investigation, will there be a public policy interest in suspending the criminal action? Or would it in effect be detrimental to the fundamental rights of both the prosecution and the petitioner?

The grant of the opportunity to be heard in a preliminary investigation must relate to the purpose for which a preliminary investigation is created. To declare that the judicial proceedings in a criminal procedure will be affected by alleged irregularities in a preliminary investigation misapprehends the nature and purpose of a preliminary investigation.

Due process takes a different form in a preliminary investigation as compared with its form in a criminal action. In Artillero v. Casimiro:2

The law is vigilant in protecting the rights of an accused. Yet, notwithstanding the primacy put on the rights of an accused in a criminal case, even they cannot claim unbridled rights in [p]reliminary [i]nvestigations. In Lozada v. Hernandez, we explained the nature of a [p]reliminary [i]nvestigation in relation to the rights of an accused, to wit:

It has been said time and again that a preliminary investigation is not properly a trial or any part thereof but is merely preparatory thereto, its only purpose being to determine whether a crime has been committed and whether there is probable cause to believe the accused guilty thereof. The right to such investigation is not a fundamental right guaranteed by the constitution. At most, it is statutory. And rights conferred upon accused persons to participate in preliminary investigations concerning themselves depend upon the provisions of law by which such rights are specifically secured, rather than upon the phrase "due process of law."3 (Emphasis supplied)

The right to due process of accused respondent in a preliminary investigation is merely a statutory grant.It is not a constitutional guarantee. Thus, the validity of its procedures mustbe related to the purpose for which it was created.

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials.5

Thus, the right of a respondent topresent counter-affidavits and to confront the witnesses against him or her in a preliminary investigation is merely to assist the prosecution to decide in a summary manner whether there is basis for supporting a charge and preventing a harassment suit that prejudices respondent and wastes the resources of the state. The process is essentially one-sided, that is, it only serves to assist the prosecution in determining whether it has prima facie evidence to sustain the filing of an information. In Salonga:

The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports or to establish the facts, or to counter balance the presumption of innocence to warrant a conviction.6

Due to the preliminary nature of the proceedings, it would be erroneous to insist that the due process safeguards in Ang Tibay v. Court of Industrial Relations7 apply in a preliminary investigation.

It can be recalled that in Ang Tibay, this court observed that although quasi-judicial agencies "may be said tobe free from the rigidity of certain procedural requirements[,] [it] does not mean that it can, in justifiable cases before it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and investigations of an administrative character."’8 It presupposes that the administrative investigation has the effect of an adjudication on respondent’s guilt or innocence.

A preliminary investigation is not a quasi-judicial proceeding similar to that conducted by other agencies inthe executive branch. The prosecutor does not pass judgment on a respondent; he or she merely ascertains if there is enough evidence to proceed to trial. It is a court of law which ultimately decides on an accused’s guilt or innocence.

It would also be erroneous to conclude that the prosecutor performs a quasi-judicial function merely on the basis that the proceeding is similar to that in courts. This court clarified the similarities in Bautista v. Court of Appeals:9

Petitioner submits that a prosecutor conducting a preliminary investigation performs a quasi-judicial function, citing Cojuangco v. PCGG, Koh v. Court of Appeals, Andaya v. Provincial Fiscal of Surigao del Norteand Crespo v. Mogul. In these cases this Court held that the power to conduct preliminary investigation is quasi-judicial in nature. But this statement holds true only in the sense that, like quasi-judicial bodies, the prosecutor is an office in the executive department exercising powers akin to those of a court. Here is where the similarity ends.

A closer scrutiny will show that preliminary investigation is very different from other quasi-judicial proceedings. A quasi-judicial body has been defined as "an organ of government other than a court and other than a legislature which affects the rightsof private parties through either adjudication or rule-making."

[T]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise adjudication nor rule-making functions.

Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal.10 (Emphasis supplied)

Preliminary investigation, in cases of public officers, is outlined in Republic Act No. 677011 or The Ombudsman Act of 1989, and Administrative Order No. 712 or The Rules of Procedure of the Office of the Ombudsman. Section 18 of Republic Act No. 6770 mandates the Office of the Ombudsman to formulate its rules of procedure. The procedure for preliminary investigations is outlined in Rule II, Section 4 of Administrative Order No. 7:

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

Furthermore, the Rules of Court, Rule 112, Section 1 of the Rules of Criminal Procedure describes the process as:

— Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a wellfounded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

The opportunity to be heard and to defend one’s self issatisfied by the filing of respondent’s counter-affidavits. There is no right granted to a respondent in a preliminary investigation to be furnished with the counter affidavits of his or her co-respondents, save for the provision where he or she "shall have access tothe evidence on record,"13 regardless of whether or not he or she files a counter-affidavit. It contemplates a situation wherein the evidence on record only consists of complainant’s evidence, to which respondent shall have access "[i]n any event."14 Given the purpose of a preliminary investigation, this should already be the extent of due process granted to him or her by law.

The Ombudsman may avail herself of information provided by the respondent to the case contained in his or her counter-affidavits against another respondent. To require that the Ombudsman conduct her summary investigation with all the rigors of a criminal trial would be more than what is statutorily required. Besides, all she needs to determine is whether there is sufficient probable cause that will give confidence in moving forward with the prosecution.

Assuming without conceding that there were irregularities in the preliminary investigation, any alleged infirmity in the preliminary investigation does not deprive the petitioner of his opportunity to be heard during the course of judicial examination.

Preliminary investigation is not part of the criminal action. It is merely preparatory and may even be disposed of in certain situations.15 The "invalidity or absence of preliminary investigation does not affect the jurisdiction of the court."16 Thus, in People v. Narca:17

It must be emphasized that the preliminary investigation is not the venue for the full exercise of the rights of the parties. This is why preliminary investigation isnot considered as a part of trial but merely preparatory thereto and that the records therein shall not form part of the records of the case in court. Parties may submit affidavits but have no right to examine witnesses though they can propound questions through the investigating officer. In fact, a preliminary investigation may even be conducted ex-parte in certain cases. Moreover, in Section 1 of Rule 112, the purpose of a preliminary investigation is only to determine a well grounded belief if a crime was "probably" committed by an accused. In any case, the invalidity or absence of a preliminary investigation does not affect the jurisdiction of the court which may have taken cognizance of the information nor impair the validity of the information or otherwise render it defective.18 (Emphasis supplied)

Similarly, in Drilon v. Court of Appeals,19 this court clarified the role and function of preliminary investigation.

Probable cause should be determined in a summary but scrupulous manner to prevent material damage to a potential accused's constitutional right of liberty and the guarantees of freedom and fair play. The preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence. It is for the presentation of such evidence as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof.It is a means of discovering the persons who may be reasonably charged with a crime. The validity and merits of a party's defense and accusation, as well as admissibility of testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level.20 (Emphasis supplied)

Any irregularities that may have been committed during a preliminary investigation should not deprive the parties — both the prosecution and the accused — of their rights to due process and to trial. A criminal trial is a separate proceeding from that of the preliminary investigation. The courts will judge and act at their own instance, independently of the conclusions of the prosecutor since:

a finding of probable cause does not ensure a conviction, or a conclusive finding of guilt beyond reasonable doubt. The allegations adduced by the prosecution will be put to test in a fullblown trial where evidence shall be analyzed, weighed, given credence or disproved.21

Thus, after determination of probable cause by the Sandiganbayan, the best venue to fully ventilate the positions of the parties in relation to the evidence in this case is during the trial. The alleged violation of due process during the preliminary investigation stage,if any, does not affect the validity of the acquisition of jurisdiction over the accused.

There is, of course, a fundamental difference between a government agency allegedly committing irregularities in the conduct of a preliminary investigation and the failure of a government agency in conducting a preliminary investigation. The first is a question of procedure while the second involves a question of whether the government agency deprived respondent of a statutory right. It is, thus, erroneous for the dissenting opinions to cite Uy v. Ombudsman,22 Yusop v. Sandiganbayan,23 and Larrañaga v. Court of Appeals24 and to insist that irregularities in the conduct of a preliminary investigation deprived petitioner of his constitutional rights. These cases involve situations where a regular preliminary investigation was never conducted despite repeated requests.

In this case, the preliminary investigation was conducted by the Office of the Ombudsman in the regular courseof its duties. The only question involved is whether petitioner has the right to be furnished copies of the affidavits of his co-respondents in the preliminary investigation despite the absence of this requirement in the rules of procedure.

The right to due process of law applies to both the prosecution representing the people and the accused. Even as the Constitution outlines a heavy burden on the part of law enforcers when a person is "under investigation for the commission of an offense"25 and when a person is actually under prosecution,26 it does not do away with the guarantee of fairness both for the prosecution and the accused.

The rights of the people from what could sometimes be an "oppressive" exercise of government prosecutorial powers do need to be protected when circumstance so require. But just as we recognize this need, we also acknowledge that the State must likewise be accorded due process. Thus, when there is no showing of nefarious irregularity or manifest error in the performance of a public prosecutor’s duties, courts ought to refrain from interfering with such lawfully and judicially mandated duties.28 (Emphasis supplied)

A defect in the procedure in the statutory grant of a preliminary investigation would not immediately be considered as a deprivation of the accused’s constitutional right to due process. Irregularities committed in the executive determination of probable cause do not affect the conduct of a judicial determination of probable cause.

The Constitution mandates the determination by a judge of probable cause to issue a warrant of arrest against an accused. This determination is done independently of any prior determination made by a prosecutor for the issuance of the information.

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized.(Emphasis supplied)

It is a constitutional requirement that before a warrant can be issued, the judge must first determine the existence of probable cause. The phrase "to be determined personally" means that the judge determines the existence of probable cause himself or herself. This determination can even be ex partesince the Constitution only mentions "after examination under oath or affirmation of the complainant and the witnesses he [or she] may produce."

The judicial determination of probable cause is considered separate from the determination of probable cause by the prosecutor in a preliminary investigation. In People v. Inting:29

Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper — whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial — is the function of the Prosecutor.30 (Emphasis supplied)

The difference between the executive determination of probable cause and the judicial determination of probable cause is doctrinal and has been extensively explained by this court. In Ho v. People:31

Lest we be too repetitive, we only wish to emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor isfor a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e. whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary investigation besubmitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer.32 (Emphasis supplied)

The issuance of the warrant of arrest is based on an independent assessment by the Sandiganbayan of the evidence on hand, which may or may not be the same evidence that the prosecutor relies on to support his or her own conclusions. Hence, irregularities in the conduct of the preliminary investigation — for purposes of the criminal procedure — are negated upon the issuance of the warrant of arrest. The Sandiganbayan has, independent of the preparatory actions by the prosecutor, determined for themselves the existence of probable causeas to merit the arrest of the accused, acquire jurisdiction over his or her person, and proceed to trial.

Once the information is filed and the court acquires jurisdiction, it is the Sandiganbayan that examines whether,despite the alleged irregularity in the preliminary investigation, there still isprobable cause to proceed to trial.

The actions or inactions of the Ombudsman or the investigating prosecutor do not bind the court.

[t]he filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused.

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it istrue that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court, the only qualification is that the action of the Court must not impair the substantial rights of the accused or the right of the People to due process of law.

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control. The rule therefore in this jurisdiction is that once a complaint or information is filed in Court, any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is. done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.34 (Emphasis supplied)

Thus, after the Sandiganbayan has determined for itself the existence of probable cause, it is also within its authority to issue the warrant of arrest. The Sandiganbayan should proceed with due and deliberate dispatch to proceed to trial in order to provide the accused with the fullest opportunity to defend himself or herself.

ACCORDINGLY, I vote that the petition be DENIED. The Sandiganbayan should proceed with the cases docketed as SB-14-CRM-0239 and SB-14-CRM-0256 to SB-14-CRM-0266 with due and deliberate dispatch.