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@ourt of lppests
Manila

SPECIAI,TENTH DIVISION
DIVISION OT TIVE
MARrO IOEr, T. REYES,
Petitioner, C.H,-G.R. $P No. t2l553

- versus-

Members:

Tijam, N. G. Chairperson Lampas Peralta, F. SECRETARYLEILA DE LIII{A, Barza, R. F, ASSIST.trNT STATEPROSECUTOR Acosta, F. P., and $TEWART .trIrIrH,N .8. MARIJINO, Gacutan, A. 4,, I,

ASSISTANTSTATEPROSECUTOR VILMAR M. BARCELI,ANO, ASSISTANTSTATEPROSECUTOR GER-ELDE. GAERITEN,and Promulgated: P.H,TRIfi, GLORTI INO CENCIO oRTEGAn SEP Respondents.

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RESOLUTION
GACUT.H,N, .H.. A.r I.i
Before Us is the Motion for Reconsideration filed by public respondents Secretary Leila de Lima, Prosecutor General Claro Arellano, and State Prosecutors Stewart Allan A. Mariano, Vilmar M. Barcellano and Gerald E. Gaerlan, seeking a reconsideration of our Decision dated March 19, 2013, the dispositive portion of which reads: "WHEREFORE, in view of the foregoing premises, We herehy grant the Petition for Certiorari and Prohibition and judgment is hereby rendered: ^ 7

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a. DECITA,RING as NUITIJand VOID Department Order No. 710 including the resolution of the second Panel of Prosecutors dated March 12, 2012; and b. REIN$T.F,TING the Resolutions of the first Panel of Prosecutors dated June 8, 20I1 and September 2,201I. SO ORDERED,'' The motion states the following grounds: "I. The People of the Philippines is also an aggrieved party. II. The Honorable Court grossly misappreciated the facts of Ihe case when it ruled that the Secretary of Justice committed grave abuse of discretion because she did not rule on the Petition for Review but instead issued D . O .N o . 7 1 0 . D.O. No. 710 is valid. Il was issued by the Secretary of Justice even before any of the parties filed a Petition for Review. III. Law and Jurisprudence recognize the authority of the Secretary of Justice to appoint a prosecutor to conduct a reinvestigation. IV. The Second Panel of Prosecutors did not exceed their authority when they recommended the filing of an It must be information against the petitioner. emphasized that it was the Prosecutor General who modified the first Panel's resolution V. Even if D.O. No. 710 is declared to be a nullity, the Resolution dated March 13, 20I2 remains to be valid in view of respondent prosecutors' de {acto authority to conduet the reinvestigation. On the first ground cited, public respondents would like to impress us that the real complainant in a preliminary investigation of a criminal case before the DOJ is the People of the Philippines, who is represented by the Secretary of Justice. Public respondents contend that if the family of the victim does not wish to pursue an cause appeal of an erroneous resolution finding no probable against a respondent, the People, through the Secretary of Justice is left without recourse in crimes were there are no private complainants. They assert that Our assailed Decision dated March

19, 2013negatesthe power of control expressly granted by law to

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'ocreates an untenable and insidious the Secretary of Justice and state of affairs where crimes could potentially go unpunishedn and injustice, whether through erroneous resolutions or delay or both, is permitted to prevail unrectified." above by public First off, the scenario described respondents does not obtain in the instant case' The Resolution of the First Pane1 of Prosecutors which found no probable cause against the petitioner for insufficiency of evidence' was not erroneous. It was rendered after a full and impartial hearing. Not every accusation segues into the indictment of the accused. If evidence is lacking, the accused, who enjoys the presumption of innocence, as well as the State, should be free from the burden and uncertainties of a litigious trial' secondly, there is a private complainant in this case, Patria Gloria Inocencio Ortega, the widow of the slain victim "Doc Gerry". Patty Ortega took active part in pursuing the case, thus, there shoutd be no occasion to fear that the People is "without recourse". But oddly, when recourse was taken by Patty Ortega, her Petition for Review ad cautelam did not merit the attention of public respondent Secretary of Justice. Ttrus, we do not find the first argument to be persuasive. The preliminary investigation is the initiatory stage of a criminal case where the role of the Department of Justice is not that of prosecutor on behalf of the complainant, whether the private -omptainant or the People of the Philippines, as posited by public respondents. The duty of the Department of Justice is to conduct an inquiry for the pulpose of determining whether there is sufficient ground to engender a well'founded belief that a crime has been committed and that respondent is probably guilty thereof, and should be held for trial.r fhe proseeutor is expected to act as a neutral arbiter akin to "the cold neutrality of an impartial judge", otherwise, he becomes an advocate of the complaining party and this would impinge on the substantive right of persons suspected of crimes. We do not, thus, remove from the Secretary of Justice the authority to review resolutions of the prosecutors if no petition for review is filed. The Secretary of Justice can review the decision of the First Panel of Prosecutors without the need for creating the Second Panel of Prosecutors, What we have stated is that "the exercise of such awesome power is not unbridled." \Mhen Patty Ortega filed her Petition for Review Ad Cautelam the resolution "fn/
I Section l, Rule I 12,Rulesof Court

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the First Panel of Prosecutors dated June 8, 2011 still subsists and this fact was confirmed by the Secretary of Justice in her reply to the letter of Atty. Custodio ]r., counsel of petitioner, as she stated that "D.O. No. 7I0 does not set aside the resolutions dated June 8, 2011 and September Z, 201I rendered by the previous panel of prosecutors". We stress anew, that our Decision has not clipped any power of the Secretary of Justice to review the finding of any prosecutor but that power should be used by observing proper procedural protocols in accord with the Rules governing investigations of cases. In the case at bench, there was already a "petition by the proper party", creating the occasion for the exercise of such power by the Secretary of Justice but the latter did not. As regards the second issue, We are not swayed by the argument that the Second Panel was created by the Secretary of Justice "to prevent a miscarriage of justice". It has not been demonstrated how and when a "miscarriage of justice" actually occurred in this case. A full-blown proceedings were conducted by the First Panel. Both parties were given full opportunity to appear before the said panel where they were fr{ly represented by their respective counsel. The First Panel of Prosecutors received the evidence of both parties. fhe Motion for Partial Reconsideration and Motion to Re-Open Preliminary Investigation for the purpose of introducing supposedly "new evidence" were properly acted upon by the First Panel. Thus, neither party was deprived of his constitutional rights during the preliminary investigation before the First Panel of Prosecutors. Specifically, the remedies availed of by Patty Ortega such as the motion for the re-opening of the investigation for the admission of the records of communication between petitioner and Edrad; the motion for partial reconsideration ad cautelam of the June B, 2011 resolution and the petition for review assailing the September 2, 20tl resolution of the first panel of prosecutors amply served the "interest of senrice and due processn' We also observe that the "additional evidence" sought to be presented partakes more of "forgotten evidence" than of "newlydiscovered evidence". The said "forgotten evidence" was already available during the course of preliminary investigation before the First Panel. We believe that the failure to present such "forgotten evidence" is not a ground for reopening or new trial. If a case may be reopened from time to time as a party or his lawyer remembers evidence which was overlooked, then litigation will suffer undue delay. The prosecutory arm of the state cannot be allowed to kee;

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conducting one investigation after another until the desired end is achieved, lest, it may be perceived as a persecution rather than a criminal investigation. Public respondents invoke the Manual for Prosecutors in justifying the creation of the Second Panel. We believe, however, that the said manual consists merely of internal rules for the guidance of the National Prosecution Service. What should prevail is the 2000 National Prosecution Service Rules on Appeal, which had been duly published and therefore has the force and effect of adjective statute. Under the said Rules, the reinvestigation must be made by the same prosecutor, or in this case, panel of prosecutors. The exception is for "compelling reasons" which, however, have not been shown in this case. At any rate, the Secretary of Justice stated in her letter to petitioner's counsel that the findings of the First Panel are not vacated by the Second Panel. Since the review power of the Secretary was already in play upon the filing of the parties' respective Petitions for Review, there was no need for the Second Panel to further discharge its functions and, thus, caused confusion on the DOJ's rules of procedure. Lastly, the pubtic respondents argue that even if D'O. No' 710 is declared a nullity, the Resolution dated March 13, 2012 remains valid because the prosecutors comprising the Second Panel had "de facto authority to conduct the reinvestigation". This is a dangerous stance that is promotive of chaos and misc-hiefs in the ranks of the National Prosecution Service if any prosecutor can initiate any criminal investigation or re-investigate without any directive from the Head of the Department. It must be stressed that the Second Panel of Prosecutors was created by virtue of D.O. No.7t0. If the act that created the Second Panel of Prosecutors is void, it defies logic for its resolution to prevail over the resolution of the First Panel created under D.O. No. 091 which was never declared void. At this point, We end our discussion by reiterating the separate and concurring opinion of Justice Francisco P. Acosta, to wit:
"There can be no argument that pending affirmation, reversal, modification or nullification of the Secretary of Justice herself of the resolutions issued by the first panel of prosecutors, said resolutions are still valid and subsisting. It bears to stress at this point that the power to atfirm,6{,

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reverse, modify or nullify an act made by the prosecutors rests on the Secretary of Justice and not on any other prosecutor, x x x."

WHEREfORE, premises considered, the Motion for Reconsideration is hereby DENTED for lack of merit. The assailed Decision ST.ENDS. SO ORDERED.

O^^r/rL &r..r^, ANGELITA JT.GAGUTAN

Associate Justice
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