G.R. Nos. 151809-12.
April 12, 2005 "reversion, reconveyance, restitution, accounting and damages" against respondents
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Petitioners,
vs.
SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN,
FLORENCIO T. SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI
NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE HIONG
(represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C.
TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO,
MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM
T. WONG, ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO, ALLIED
BANKING CORP., ALLIED LEASING AND FINANCE CORPORATION, ASIA
BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC.,
FORTUNE TOBACCO CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL
INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS,
INC., MANUFACTURING SERVICES AND TRADE CORP., MARANAW HOTELS
AND RESORT CORP., NORTHERN TOBACCO REDRYING PLANT,
PROGRESSIVE FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING
CORP., VIRGO HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO P.
MENDOZA, Respondents.
DECISION
PUNO, J.:
This case is prima impressiones and it is weighted with significance for it concerns on
one hand, the efforts of the Bar to upgrade the ethics of lawyers in government
service and on the other, its effect on the right of government to recruit competent
counsel to defend its interests.
In 1976, General Bank and Trust Company (GENBANK) encountered financial
difficulties. GENBANK had extended considerable financial support to Filcapital
Development Corporation causing it to incur daily overdrawings on its current
account with the Central Bank.1 It was later found by the Central Bank that
GENBANK had approved various loans to directors, officers, stockholders and
related interests totaling P172.3 million, of which 59% was classified as doubtful and
P0.505 million as uncollectible.2 As a bailout, the Central Bank extended emergency
loans to GENBANK which reached a total of P310 million.3 Despite the mega loans,
GENBANK failed to recover from its financial woes. On March 25, 1977, the Central
Bank issued a resolution declaring GENBANK insolvent and unable to resume
business with safety to its depositors, creditors and the general public, and ordering
its liquidation.4 A public bidding of GENBANKs assets was held from March 26 to
28, 1977, wherein the Lucio Tan group submitted the winning bid.5 Subsequently,
former Solicitor General Estelito P. Mendoza filed a petition with the then Court of
First Instance praying for the assistance and supervision of the court in GENBANKs
liquidation as mandated by Section 29 of Republic Act No. 265.
In February 1986, the EDSA I revolution toppled the Marcos government. One of the
first acts of President Corazon C. Aquino was to establish the Presidential
Commission on Good Government (PCGG) to recover the alleged ill-gotten wealth of
former President Ferdinand Marcos, his family and his cronies. Pursuant to this
mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a complaint for
Lucio Tan, Carmen Khao Tan, Florencio T. Santos, Natividad P. Santos, Domingo
Chua, Tan Hui Nee, Mariano Tan Eng Lian, Estate of Benito Tan Kee Hiong,
Florencio N. Santos, Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano
Khoo, Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola,
William T. Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy Co, Allied Banking
Corporation (Allied Bank), Allied Leasing and Finance Corporation, Asia Brewery,
Inc., Basic Holdings Corp., Foremost Farms, Inc., Fortune Tobacco Corporation,
Grandspan Development Corp., Himmel Industries, Iris Holdings and Development
Corp., Jewel Holdings, Inc., Manufacturing Services and Trade Corp., Maranaw
Hotels and Resort Corp., Northern Tobacco Redrying Plant, Progressive Farms, Inc.,
Shareholdings, Inc., Sipalay Trading Corp., Virgo Holdings & Development Corp.,
(collectively referred to herein as respondents Tan, et al.), then President Ferdinand
E. Marcos, Imelda R. Marcos, Panfilo O. Domingo, Cesar Zalamea, Don Ferry and
Gregorio Licaros. The case was docketed as Civil Case No. 0005 of the Second
Division of the Sandiganbayan.6 In connection therewith, the PCGG issued several
writs of sequestration on properties allegedly acquired by the above-named persons
by taking advantage of their close relationship and influence with former President
Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions for certiorari,
prohibition and injunction to nullify, among others, the writs of sequestration issued
by the PCGG.7 After the filing of the parties comments, this Court referred the cases
to the Sandiganbayan for proper disposition. These cases were docketed as Civil
Case Nos. 0096-0099. In all these cases, respondents Tan, et al. were represented
by their counsel, former Solicitor General Estelito P. Mendoza, who has then
resumed his private practice of law.
On February 5, 1991, the PCGG filed motions to disqualify respondent Mendoza as
counsel for respondents Tan, et al. with the Second Division of the Sandiganbayan in
Civil Case Nos. 00058 and 0096-0099.9 The motions alleged that respondent
Mendoza, as then Solicitor General10 and counsel to Central Bank, "actively
intervened" in the liquidation of GENBANK, which was subsequently acquired by
respondents Tan, et al. and became Allied Banking Corporation. Respondent
Mendoza allegedly "intervened" in the acquisition of GENBANK by respondents Tan,
et al. when, in his capacity as then Solicitor General, he advised the Central Banks
officials on the procedure to bring about GENBANKs liquidation and appeared as
counsel for the Central Bank in connection with its petition for assistance in the
liquidation of GENBANK which he filed with the Court of First Instance (now Regional
Trial Court) of Manila and was docketed as Special Proceeding No. 107812. The
motions to disqualify invoked Rule 6.03 of the Code of Professional Responsibility.
Rule 6.03 prohibits former government lawyers from accepting "engagement or
employment in connection with any matter in which he had intervened while in said
service."
On April 22, 1991 the Second Division of the Sandiganbayan issued a resolution
denying PCGGs motion to disqualify respondent Mendoza in Civil Case No. 0005.11
It found that the PCGG failed to prove the existence of an inconsistency between
respondent Mendozas former function as Solicitor General and his present
employment as counsel of the Lucio Tan group. It noted that respondent Mendoza
did not take a position adverse to that taken on behalf of the Central Bank during his
term as Solicitor General.12 It further ruled that respondent Mendozas appearance
as counsel for respondents Tan, et al. was beyond the one-year prohibited period
under Section 7(b) of Republic Act No. 6713 since he ceased to be Solicitor General
in the year 1986. The said section prohibits a former public official or employee from
practicing his profession in connection with any matter before the office he used to be
with within one year from his resignation, retirement or separation from public
office.13 The PCGG did not seek any reconsideration of the ruling.14
It appears that Civil Case Nos. 0096-0099 were transferred from the
Sandiganbayans Second Division to the Fifth Division.15 In its resolution dated July
11, 2001, the Fifth Division of the Sandiganbayan denied the other PCGGs motion to
disqualify respondent Mendoza.16 It adopted the resolution of its Second Division
dated April 22, 1991, and observed that the arguments were the same in substance
as the motion to disqualify filed in Civil Case No. 0005. The PCGG sought
reconsideration of the ruling but its motion was denied in its resolution dated
December 5, 2001.17
Hence, the recourse to this Court by the PCGG assailing the resolutions dated July
11, 2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan via a
petition for certiorari and prohibition under Rule 65 of the 1997 Rules of Civil
Procedure.18 The PCGG alleged that the Fifth Division acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed
resolutions contending that: 1) Rule 6.03 of the Code of Professional Responsibility
prohibits a former government lawyer from accepting employment in connection with
any matter in which he intervened; 2) the prohibition in the Rule is not time-bound; 3)
that Central Bank could not waive the objection to respondent Mendozas
appearance on behalf of the PCGG; and 4) the resolution in Civil Case No. 0005 was
interlocutory, thus res judicata does not apply.19
The petition at bar raises procedural and substantive issues of law. In view, however,
of the import and impact of Rule 6.03 of the Code of Professional Responsibility to
the legal profession and the government, we shall cut our way and forthwith resolve
the substantive issue.
I developing law of agency recognized basic duties of competence, loyalty and
Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional Responsibility
applies to respondent Mendoza. Again, the prohibition states: "A lawyer shall not,
after leaving government service, accept engagement or employment in connection
with any matter in which he had intervened while in the said service."
I.A. The history of Rule 6.03
A proper resolution of this case necessitates that we trace the historical lineage of
Rule 6.03 of the Code of Professional Responsibility.
In the seventeenth and eighteenth centuries, ethical standards for lawyers were
pervasive in England and other parts of Europe. The early statements of standards
did not resemble modern codes of conduct. They were not detailed or collected in
one source but surprisingly were comprehensive for their time. The principal thrust of
the standards was directed towards the litigation conduct of lawyers. It underscored
the central duty of truth and fairness in litigation as superior to any obligation to the
client. The formulations of the litigation duties were at times intricate, including
specific pleading standards, an obligation to inform the court of falsehoods and a
duty to explore settlement alternatives. Most of the lawyer's other basic duties --
competency, diligence, loyalty, confidentiality, reasonable fees and service to the
poor -- originated in the litigation context, but ultimately had broader application to all
aspects of a lawyer's practice.
The forms of lawyer regulation in colonial and early post-revolutionary America did
not differ markedly from those in England. The colonies and early states used oaths,
statutes, judicial oversight, and procedural rules to govern attorney behavior. The
difference from England was in the pervasiveness and continuity of such regulation.
The standards set in England varied over time, but the variation in early America was
far greater. The American regulation fluctuated within a single colony and differed
from colony to colony. Many regulations had the effect of setting some standards of
conduct, but the regulation was sporadic, leaving gaps in the substantive standards.
Only three of the traditional core duties can be fairly characterized as pervasive in the
formal, positive law of the colonial and post-revolutionary period: the duties of
litigation fairness, competency and reasonable fees.20
The nineteenth century has been termed the "dark ages" of legal ethics in the United
States. By mid-century, American legal reformers were filling the void in two ways.
First, David Dudley Field, the drafter of the highly influential New York "Field Code,"
introduced a new set of uniform standards of conduct for lawyers. This concise
statement of eight statutory duties became law in several states in the second half of
the nineteenth century. At the same time, legal educators, such as David Hoffman
and George Sharswood, and many other lawyers were working to flesh out the broad
outline of a lawyer's duties. These reformers wrote about legal ethics in
unprecedented detail and thus brought a new level of understanding to a lawyer's
duties. A number of mid-nineteenth century laws and statutes, other than the Field
Code, governed lawyer behavior. A few forms of colonial regulations e.g., the "do
no falsehood" oath and the deceit prohibitions -- persisted in some states. Procedural
law continued to directly, or indirectly, limit an attorney's litigation behavior. The
safeguarding of client property. Evidence law started to recognize with less
equivocation the attorney-client privilege and its underlying theory of confidentiality.
Thus, all of the core duties, with the likely exception of service to the poor, had some
basis in formal law. Yet, as in the colonial and early post-revolutionary periods, these
standards were isolated and did not provide a comprehensive statement of a lawyer's
duties. The reformers, by contrast, were more comprehensive in their discussion of a
lawyer's duties, and they actually ushered a new era in American legal ethics.21
Toward the end of the nineteenth century, a new form of ethical standards began to
guide lawyers in their practice the bar association code of legal ethics. The bar
codes were detailed ethical standards formulated by lawyers for lawyers. They
combined the two primary sources of ethical guidance from the nineteenth century.
Like the academic discourses, the bar association codes gave detail to the statutory
statements of duty and the oaths of office. Unlike the academic lectures, however,
the bar association codes retained some of the official imprimatur of the statutes and
oaths. Over time, the bar association codes became extremely popular that states
adopted them as binding rules of law. Critical to the development of the new codes
was the re-emergence of bar associations themselves. Local bar associations formed
sporadically during the colonial period, but they disbanded by the early nineteenth
century. In the late nineteenth century, bar associations began to form again, picking
up where their colonial predecessors had left off. Many of the new bar associations,
most notably the Alabama State Bar Association and the American Bar Association,
assumed on the task of drafting substantive standards of conduct for their
members.22
In 1887, Alabama became the first state with a comprehensive bar association code
of ethics. The 1887 Alabama Code of Ethics was the model for several states codes,
and it was the foundation for the American Bar Association's (ABA) 1908 Canons of
Ethics.23
In 1917, the Philippine Bar found that the oath and duties of a lawyer were
insufficient to attain the full measure of public respect to which the legal profession
was entitled. In that year, the Philippine Bar Association adopted as its own, Canons
1 to 32 of the ABA Canons of Professional Ethics.24
As early as 1924, some ABA members have questioned the form and function of the
canons. Among their concerns was the "revolving door" or "the process by which
lawyers and others temporarily enter government service from private life and then
leave it for large fees in private practice, where they can exploit information, contacts,
and influence garnered in government service."25 These concerns were classified as
adverse-interest conflicts" and "congruent-interest conflicts." "Adverse-interest
conflicts" exist where the matter in which the former government lawyer represents a
client in private practice is substantially related to a matter that the lawyer dealt with
while employed by the government and the interests of the current and former are
adverse.26 On the other hand, "congruent-interest representation conflicts" are
unique to government lawyers and apply primarily to former government lawyers.27
For several years, the ABA attempted to correct and update the canons through new
canons, individual amendments and interpretative opinions. In 1928, the ABA
amended one canon and added thirteen new canons.28 To deal with problems
peculiar to former government lawyers, Canon 36 was minted which disqualified
them both for "adverse-interest conflicts" and "congruent-interest representation
conflicts."29 The rationale for disqualification is rooted in a concern that the
government lawyers largely discretionary actions would be influenced by the
temptation to take action on behalf of the government client that later could be to the
advantage of parties who might later become private practice clients.30 Canon 36
provides, viz.:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter upon the
merits of which he has previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the public employ should
not, after his retirement, accept employment in connection with any matter he has
investigated or passed upon while in such office or employ.
Over the next thirty years, the ABA continued to amend many of the canons and
added Canons 46 and 47 in 1933 and 1937, respectively.31
In 1946, the Philippine Bar Association again adopted as its own Canons 33 to 47 of
the ABA Canons of Professional Ethics.32
By the middle of the twentieth century, there was growing consensus that the ABA
Canons needed more meaningful revision. In 1964, the ABA President-elect Lewis
Powell asked for the creation of a committee to study the "adequacy and
effectiveness" of the ABA Canons. The committee recommended that the canons
needed substantial revision, in part because the ABA Canons failed to distinguish
between "the inspirational and the proscriptive" and were thus unsuccessful in
enforcement. The legal profession in the United States likewise observed that Canon
36 of the ABA Canons of Professional Ethics resulted in unnecessary disqualification
of lawyers for negligible participation in matters during their employment with the
government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969 ABA Model
Code of Professional Responsibility.33 The basic ethical principles in the Code of
Professional Responsibility were supplemented by Disciplinary Rules that defined
minimum rules of conduct to which the lawyer must adhere.34 In the case of Canon
9, DR 9-101(b)35 became the applicable supplementary norm. The drafting
committee reformulated the canons into the Model Code of Professional
Responsibility, and, in August of 1969, the ABA House of Delegates approved the
Model Code.36
Despite these amendments, legal practitioners remained unsatisfied with the results
and indefinite standards set forth by DR 9-101(b) and the Model Code of
Professional Responsibility as a whole. Thus, in August 1983, the ABA adopted new
Model Rules of Professional Responsibility. The Model Rules used the "restatement
format," where the conduct standards were set-out in rules, with comments following
each rule. The new format was intended to give better guidance and clarity for
enforcement "because the only enforceable standards were the black letter Rules."
The Model Rules eliminated the broad canons altogether and reduced the emphasis
on narrative discussion, by placing comments after the rules and limiting comment
discussion to the content of the black letter rules. The Model Rules made a number
of substantive improvements particularly with regard to conflicts of interests.37 In
particular, the ABA did away with Canon 9, citing the hopeless dependence of the
concept of impropriety on the subjective views of anxious clients as well as the
norms indefinite nature.38
In cadence with these changes, the Integrated Bar of the Philippines (IBP) adopted a
proposed Code of Professional Responsibility in 1980 which it submitted to this Court
for approval. The Code was drafted to reflect the local customs, traditions, and
practices of the bar and to conform with new realities. On June 21, 1988, this Court
promulgated the Code of Professional Responsibility.39 Rule 6.03 of the Code of
Professional Responsibility deals particularly with former government lawyers, and
provides, viz.:
Rule 6.03 A lawyer shall not, after leaving government service, accept engagement
or employment in connection with any matter in which he had intervened while in said
service.
Rule 6.03 of the Code of Professional Responsibility retained the general structure of
paragraph 2, Canon 36 of the Canons of Professional Ethics but replaced the
expansive phrase "investigated and passed upon" with the word "intervened." It is,
therefore, properly applicable to both "adverse-interest conflicts" and "congruent-
interest conflicts."
The case at bar does not involve the "adverse interest" aspect of Rule 6.03.
Respondent Mendoza, it is conceded, has no adverse interest problem when he
acted as Solicitor General in Sp. Proc. No. 107812 and later as counsel of
respondents Tan, et al. in Civil Case No. 0005 and Civil Case Nos. 0096-0099 before
the Sandiganbayan. Nonetheless, there remains the issue of whether there exists a
"congruent-interest conflict" sufficient to disqualify respondent Mendoza from
representing respondents Tan, et al.
I.B. The "congruent interest" aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the meaning of "matter"
referred to in the rule and, second, the metes and bounds of the "intervention" made
by the former government lawyer on the "matter." The American Bar Association in
its Formal Opinion 342, defined "matter" as any discrete, isolatable act as well as
identifiable transaction or conduct involving a particular situation and specific party,
and not merely an act of drafting, enforcing or interpreting government or agency
procedures, regulations or laws, or briefing abstract principles of law.
Firstly, it is critical that we pinpoint the "matter" which was the subject of intervention
by respondent Mendoza while he was the Solicitor General. The PCGG relates the
following acts of respondent Mendoza as constituting the "matter" where he
intervened as a Solicitor General, viz:40
The PCGGs Case for Atty. Mendozas Disqualification
The PCGG imputes grave abuse of discretion on the part of the Sandiganbayan
(Fifth Division) in issuing the assailed Resolutions dated July 11, 2001 and
December 5, 2001 denying the motion to disqualify Atty. Mendoza as counsel for
respondents Tan, et al. The PCGG insists that Atty. Mendoza, as then Solicitor
General, actively intervened in the closure of GENBANK by advising the Central
Bank on how to proceed with the said banks liquidation and even filing the petition
for its liquidation with the CFI of Manila.
As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared
by certain key officials of the Central Bank, namely, then Senior Deputy Governor
Amado R. Brinas, then Deputy Governor Jaime C. Laya, then Deputy Governor and
General Counsel Gabriel C. Singson, then Special Assistant to the Governor Carlota
P. Valenzuela, then Asistant to the Governor Arnulfo B. Aurellano and then Director
of Department of Commercial and Savings Bank Antonio T. Castro, Jr., where they
averred that on March 28, 1977, they had a conference with the Solicitor General
(Atty. Mendoza), who advised them on how to proceed with the liquidation of
GENBANK. The pertinent portion of the said memorandum states:
Immediately after said meeting, we had a conference with the Solicitor General and
he advised that the following procedure should be taken:
1. Management should submit a memorandum to the Monetary Board reporting that
studies and evaluation had been made since the last examination of the bank as of
August 31, 1976 and it is believed that the bank can not be reorganized or placed in
a condition so that it may be permitted to resume business with safety to its
depositors and creditors and the general public.
2. If the said report is confirmed by the Monetary Board, it shall order the liquidation
of the bank and indicate the manner of its liquidation and approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of Genbank of the
foregoing decision to liquidate the bank and the liquidation plan approved by the
Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First Instance reciting
the proceedings which had been taken and praying the assistance of the Court in the
liquidation of Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary
Board where it was shown that Atty. Mendoza was furnished copies of pertinent
documents relating to GENBANK in order to aid him in filing with the court the
petition for assistance in the banks liquidation. The pertinent portion of the said
minutes reads:
The Board decided as follows:
...
E. To authorize Management to furnish the Solicitor General with a copy of the
subject memorandum of the Director, Department of Commercial and Savings Bank
dated March 29, 1977, together with copies of:
1. Memorandum of the Deputy Governor, Supervision and Examination Sector, to the
Monetary Board, dated March 25, 1977, containing a report on the current situation
of Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust Co., dated
March 23, 1977;
3. Memorandum of the Director, Department of Commercial and Savings Bank, to the
Monetary Board, dated March 24, 1977, submitting, pursuant to Section 29 of R.A.
No. 265, as amended by P.D. No. 1007, a repot on the state of insolvency of
Genbank, together with its attachments; and
4. Such other documents as may be necessary or needed by the Solicitor General for
his use in then CFI-praying the assistance of the Court in the liquidation of Genbank.
Beyond doubt, therefore, the "matter" or the act of respondent Mendoza as Solicitor
General involved in the case at bar is "advising the Central Bank, on how to proceed
with the said banks liquidation and even filing the petition for its liquidation with the
CFI of Manila." In fine, the Court should resolve whether his act of advising the
Central Bank on the legal procedure to liquidate GENBANK is included within the
concept of "matter" under Rule 6.03. The procedure of liquidation is given in black
and white in Republic Act No. 265, section 29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. Whenever, upon examination by the head
of the appropriate supervising or examining department or his examiners or agents
into the condition of any bank or non-bank financial intermediary performing quasi-
banking functions, it shall be disclosed that the condition of the same is one of
insolvency, or that its continuance in business would involve probable loss to its
depositors or creditors, it shall be the duty of the department head concerned
forthwith, in writing, to inform the Monetary Board of the facts, and the Board may,
upon finding the statements of the department head to be true, forbid the institution to
do business in the Philippines and shall designate an official of the Central Bank or a
person of recognized competence in banking or finance, as receiver to immediately
take charge of its assets and liabilities, as expeditiously as possible collect and
gather all the assets and administer the same for the benefit of its creditors,
exercising all the powers necessary for these purposes including, but not limited to,
bringing suits and foreclosing mortgages in the name of the bank or non-bank
financial intermediary performing quasi-banking functions.
...
If the Monetary Board shall determine and confirm within the said period that the
bank or non-bank financial intermediary performing quasi-banking functions is
insolvent or cannot resume business with safety to its depositors, creditors and the
general public, it shall, if the public interest requires, order its liquidation, indicate the
manner of its liquidation and approve a liquidation plan. The Central Bank shall, by
the Solicitor General, file a petition in the Court of First Instance reciting the
proceedings which have been taken and praying the assistance of the court in the
liquidation of such institution. The court shall have jurisdiction in the same
proceedings to adjudicate disputed claims against the bank or non-bank financial
intermediary performing quasi-banking functions and enforce individual liabilities of
the stockholders and do all that is necessary to preserve the assets of such
institution and to implement the liquidation plan approved by the Monetary Board.
The Monetary Board shall designate an official of the Central Bank, or a person of
recognized competence in banking or finance, as liquidator who shall take over the
functions of the receiver previously appointed by the Monetary Board under this
Section. The liquidator shall, with all convenient speed, convert the assets of the
banking institution or non-bank financial intermediary performing quasi-banking
functions to money or sell, assign or otherwise dispose of the same to creditors and
other parties for the purpose of paying the debts of such institution and he may, in
the name of the bank or non-bank financial intermediary performing quasi-banking
functions, institute such actions as may be necessary in the appropriate court to
collect and recover accounts and assets of such institution.
The provisions of any law to the contrary notwithstanding, the actions of the
Monetary Board under this Section and the second paragraph of Section 34 of this
Act shall be final and executory, and can be set aside by the court only if there is
convincing proof that the action is plainly arbitrary and made in bad faith. No
restraining order or injunction shall be issued by the court enjoining the Central Bank
from implementing its actions under this Section and the second paragraph of
Section 34 of this Act, unless there is convincing proof that the action of the Monetary
Board is plainly arbitrary and made in bad faith and the petitioner or plaintiff files with
the clerk or judge of the court in which the action is pending a bond executed in favor
of the Central Bank, in an amount to be fixed by the court. The restraining order or
injunction shall be refused or, if granted, shall be dissolved upon filing by the Central
Bank of a bond, which shall be in the form of cash or Central Bank cashier(s) check,
in an amount twice the amount of the bond of the petitioner or plaintiff conditioned
that it will pay the damages which the petitioner or plaintiff may suffer by the refusal
or the dissolution of the injunction. The provisions of Rule 58 of the New Rules of
Court insofar as they are applicable and not inconsistent with the provisions of this
Section shall govern the issuance and dissolution of the restraining order or
injunction contemplated in this Section.
Insolvency, under this Act, shall be understood to mean the inability of a bank or non-
bank financial intermediary performing quasi-banking functions to pay its liabilities as
they fall due in the usual and ordinary course of business. Provided, however, That
this shall not include the inability to pay of an otherwise non-insolvent bank or non-
bank financial intermediary performing quasi-banking functions caused by
extraordinary demands induced by financial panic commonly evidenced by a run on
the bank or non-bank financial intermediary performing quasi-banking functions in the
banking or financial community.
The appointment of a conservator under Section 28-A of this Act or the appointment
of a receiver under this Section shall be vested exclusively with the Monetary Board,
the provision of any law, general or special, to the contrary notwithstanding. (As
amended by PD Nos. 72, 1007, 1771 & 1827, Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the procedure to liquidate
GENBANK is not the "matter" contemplated by Rule 6.03 of the Code of Professional
Responsibility. ABA Formal Opinion No. 342 is clear as daylight in stressing that the
"drafting, enforcing or interpreting government or agency procedures, regulations or
laws, or briefing abstract principles of law" are acts which do not fall within the scope
of the term "matter" and cannot disqualify.
Secondly, it can even be conceded for the sake of argument that the above act of
respondent Mendoza falls within the definition of matter per ABA Formal Opinion No.
342. Be that as it may, the said act of respondent Mendoza which is the "matter"
involved in Sp. Proc. No. 107812 is entirely different from the "matter" involved in
Civil Case No. 0096. Again, the plain facts speak for themselves. It is given that
respondent Mendoza had nothing to do with the decision of the Central Bank to
liquidate GENBANK. It is also given that he did not participate in the sale of
GENBANK to Allied Bank. The "matter" where he got himself involved was in
informing Central Bank on the procedure provided by law to liquidate GENBANK thru
the courts and in filing the necessary petition in Sp. Proc. No. 107812 in the then
Court of First Instance. The subject "matter" of Sp. Proc. No. 107812, therefore, is
not the same nor is related to but is different from the subject "matter" in Civil Case
No. 0096. Civil Case No. 0096 involves the sequestration of the stocks owned by
respondents Tan, et al., in Allied Bank on the alleged ground that they are ill-gotten.
The case does not involve the liquidation of GENBANK. Nor does it involve the sale
of GENBANK to Allied Bank. Whether the shares of stock of the reorganized Allied
Bank are ill-gotten is far removed from the issue of the dissolution and liquidation of
GENBANK. GENBANK was liquidated by the Central Bank due, among others, to the
alleged banking malpractices of its owners and officers. In other words, the legality of
the liquidation of GENBANK is not an issue in the sequestration cases. Indeed, the
jurisdiction of the PCGG does not include the dissolution and liquidation of banks. It
goes without saying that Code 6.03 of the Code of Professional Responsibility cannot
apply to respondent Mendoza because his alleged intervention while a Solicitor
General in Sp. Proc. No. 107812 is an intervention on a matter different from the
matter involved in Civil Case No. 0096.
Thirdly, we now slide to the metes and bounds of the "intervention" contemplated by
Rule 6.03. "Intervene" means, viz.:
1: to enter or appear as an irrelevant or extraneous feature or circumstance . . . 2: to
occur, fall, or come in between points of time or events . . . 3: to come in or between
by way of hindrance or modification: INTERPOSE . . . 4: to occur or lie between two
things (Paris, where the same city lay on both sides of an intervening river . . .)41
On the other hand, "intervention" is defined as:
1: the act or fact of intervening: INTERPOSITION; 2: interference that may affect the
interests of others.42
There are, therefore, two possible interpretations of the word "intervene." Under the
first interpretation, "intervene" includes participation in a proceeding even if the
intervention is irrelevant or has no effect or little influence.43 Under the second
interpretation, "intervene" only includes an act of a person who has the power to
influence the subject proceedings.44 We hold that this second meaning is more
appropriate to give to the word "intervention" under Rule 6.03 of the Code of
Professional Responsibility in light of its history. The evils sought to be remedied by
the Rule do not exist where the government lawyer does an act which can be
considered as innocuous such as "x x x drafting, enforcing or interpreting government
or agency procedures, regulations or laws, or briefing abstract principles of law."
In fine, the intervention cannot be insubstantial and insignificant. Originally, Canon 36
provided that a former government lawyer "should not, after his retirement, accept
employment in connection with any matter which he has investigated or passed upon
while in such office or employ." As aforediscussed, the broad sweep of the phrase
"which he has investigated or passed upon" resulted in unjust disqualification of
former government lawyers. The 1969 Code restricted its latitude, hence, in DR 9-
101(b), the prohibition extended only to a matter in which the lawyer, while in the
government service, had "substantial responsibility." The 1983 Model Rules further
constricted the reach of the rule. MR 1.11(a) provides that "a lawyer shall not
represent a private client in connection with a matter in which the lawyer participated
personally and substantially as a public officer or employee."
It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc. No.
107812 is significant and substantial. We disagree. For one, the petition in the
special proceedings is an initiatory pleading, hence, it has to be signed by
respondent Mendoza as the then sitting Solicitor General. For another, the record is
arid as to the actual participation of respondent Mendoza in the subsequent
proceedings. Indeed, the case was in slumberville for a long number of years. None
of the parties pushed for its early termination. Moreover, we note that the petition
filed merely seeks the assistance of the court in the liquidation of GENBANK. The
principal role of the court in this type of proceedings is to assist the Central Bank in
determining claims of creditors against the GENBANK. The role of the court is not
strictly as a court of justice but as an agent to assist the Central Bank in determining
the claims of creditors. In such a proceeding, the participation of the Office of the
Solicitor General is not that of the usual court litigator protecting the interest of
government.
II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility represents a
commendable effort on the part of the IBP to upgrade the ethics of lawyers in the
government service. As aforestressed, it is a take-off from similar efforts especially
by the ABA which have not been without difficulties. To date, the legal profession in
the United States is still fine tuning its DR 9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of Professional
Responsibility, the Court took account of various policy considerations to assure that
its interpretation and application to the case at bar will achieve its end without
necessarily prejudicing other values of equal importance. Thus, the rule was not
interpreted to cause a chilling effect on government recruitment of able legal talent.
At present, it is already difficult for government to match compensation offered by the
private sector and it is unlikely that government will be able to reverse that situation.
The observation is not inaccurate that the only card that the government may play to
recruit lawyers is have them defer present income in return for the experience and
contacts that can later be exchanged for higher income in private practice.45 Rightly,
Judge Kaufman warned that the sacrifice of entering government service would be
too great for most men to endure should ethical rules prevent them from engaging in
the practice of a technical specialty which they devoted years in acquiring and cause
the firm with which they become associated to be disqualified.46 Indeed, "to make
government service more difficult to exit can only make it less appealing to enter."47
In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation
tactic to harass opposing counsel as well as deprive his client of competent legal
representation. The danger that the rule will be misused to bludgeon an opposing
counsel is not a mere guesswork. The Court of Appeals for the District of Columbia
has noted "the tactical use of motions to disqualify counsel in order to delay
proceedings, deprive the opposing party of counsel of its choice, and harass and
embarrass the opponent," and observed that the tactic was "so prevalent in large civil
cases in recent years as to prompt frequent judicial and academic commentary."48
Even the United States Supreme Court found no quarrel with the Court of Appeals
description of disqualification motions as "a dangerous game."49 In the case at bar,
the new attempt to disqualify respondent Mendoza is difficult to divine. The
disqualification of respondent Mendoza has long been a dead issue. It was
resuscitated after the lapse of many years and only after PCGG has lost many legal
incidents in the hands of respondent Mendoza. For a fact, the recycled motion for
disqualification in the case at bar was filed more than four years after the filing of the
petitions for certiorari, prohibition and injunction with the Supreme Court which were
subsequently remanded to the Sandiganbayan and docketed as Civil Case Nos.
0096-0099.50 At the very least, the circumstances under which the motion to
disqualify in the case at bar were refiled put petitioners motive as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not unconcerned with the prejudice
to the client which will be caused by its misapplication. It cannot be doubted that
granting a disqualification motion causes the client to lose not only the law firm of
choice, but probably an individual lawyer in whom the client has confidence.51 The
client with a disqualified lawyer must start again often without the benefit of the work
done by the latter.52 The effects of this prejudice to the right to choose an effective
counsel cannot be overstated for it can result in denial of due process.
The Court has to consider also the possible adverse effect of a truncated reading of
the rule on the official independence of lawyers in the government service. According
to Prof. Morgan: "An individual who has the security of knowing he or she can find
private employment upon leaving the government is free to work vigorously,
challenge official positions when he or she believes them to be in error, and resist
illegal demands by superiors. An employee who lacks this assurance of private
employment does not enjoy such freedom."53 He adds: "Any system that affects the
right to take a new job affects the ability to quit the old job and any limit on the ability
to quit inhibits official independence."54 The case at bar involves the position of
Solicitor General, the office once occupied by respondent Mendoza. It cannot be
overly stressed that the position of Solicitor General should be endowed with a great
degree of independence. It is this independence that allows the Solicitor General to
recommend acquittal of the innocent; it is this independence that gives him the right
to refuse to defend officials who violate the trust of their office. Any undue dimunition
of the independence of the Solicitor General will have a corrosive effect on the rule of
law.
No less significant a consideration is the deprivation of the former government lawyer
of the freedom to exercise his profession. Given the current state of our law, the
disqualification of a former government lawyer may extend to all members of his law
firm.55 Former government lawyers stand in danger of becoming the lepers of the
legal profession.
It is, however, proffered that the mischief sought to be remedied by Rule 6.03 of the
Code of Professional Responsibility is the possible appearance of impropriety and
loss of public confidence in government. But as well observed, the accuracy of
gauging public perceptions is a highly speculative exercise at best56 which can lead
to untoward results.57 No less than Judge Kaufman doubts that the lessening of
restrictions as to former government attorneys will have any detrimental effect on that
free flow of information between the government-client and its attorneys which the
canons seek to protect.58 Notably, the appearance of impropriety theory has been
rejected in the 1983 ABA Model Rules of Professional Conduct59 and some courts
have abandoned per se disqualification based on Canons 4 and 9 when an actual
conflict of interest exists, and demand an evaluation of the interests of the defendant,
government, the witnesses in the case, and the public.60
It is also submitted that the Court should apply Rule 6.03 in all its strictness for it
correctly disfavors lawyers who "switch sides." It is claimed that "switching sides"
carries the danger that former government employee may compromise confidential
official information in the process. But this concern does not cast a shadow in the
case at bar. As afore-discussed, the act of respondent Mendoza in informing the
Central Bank on the procedure how to liquidate GENBANK is a different matter from
the subject matter of Civil Case No. 0005 which is about the sequestration of the
shares of respondents Tan, et al., in Allied Bank. Consequently, the danger that
confidential official information might be divulged is nil, if not inexistent. To be sure,
there are no inconsistent "sides" to be bothered about in the case at bar. For there is
no question that in lawyering for respondents Tan, et al., respondent Mendoza is not
working against the interest of Central Bank. On the contrary, he is indirectly
defending the validity of the action of Central Bank in liquidating GENBANK and
selling it later to Allied Bank. Their interests coincide instead of colliding. It is for this
reason that Central Bank offered no objection to the lawyering of respondent
Mendoza in Civil Case No. 0005 in defense of respondents Tan, et al. There is no
switching of sides for no two sides are involved.
It is also urged that the Court should consider that Rule 6.03 is intended to avoid
conflict of loyalties, i.e., that a government employee might be subject to a conflict of
loyalties while still in government service.61 The example given by the proponents of
this argument is that a lawyer who plans to work for the company that he or she is
currently charged with prosecuting might be tempted to prosecute less vigorously.62
In the cautionary words of the Association of the Bar Committee in 1960: "The
greatest public risks arising from post employment conduct may well occur during the
period of employment through the dampening of aggressive administration of
government policies."63 Prof. Morgan, however, considers this concern as "probably
excessive."64 He opines "x x x it is hard to imagine that a private firm would feel
secure hiding someone who had just been disloyal to his or her last client the
government. Interviews with lawyers consistently confirm that law firms want the
best government lawyers the ones who were hardest to beat not the least
qualified or least vigorous advocates."65 But again, this particular concern is a non
factor in the case at bar. There is no charge against respondent Mendoza that he
advised Central Bank on how to liquidate GENBANK with an eye in later defending
respondents Tan, et al. of Allied Bank. Indeed, he continues defending both the
interests of Central Bank and respondents Tan, et al. in the above cases.
Likewise, the Court is nudged to consider the need to curtail what is perceived as the
"excessive influence of former officials" or their "clout."66 Prof. Morgan again warns
against extending this concern too far. He explains the rationale for his warning, viz:
"Much of what appears to be an employees influence may actually be the power or
authority of his or her position, power that evaporates quickly upon departure from
government x x x."67 More, he contends that the concern can be demeaning to those
sitting in government. To quote him further: "x x x The idea that, present officials
make significant decisions based on friendship rather than on the merit says more
about the present officials than about their former co-worker friends. It implies a lack
of will or talent, or both, in federal officials that does not seem justified or intended,
and it ignores the possibility that the officials will tend to disfavor their friends in order
to avoid even the appearance of favoritism."68
III
The question of fairness
Mr. Justices Panganiban and Carpio are of the view, among others, that the
congruent interest prong of Rule 6.03 of the Code of Professional Responsibility
should be subject to a prescriptive period. Mr. Justice Tinga opines that the rule
cannot apply retroactively to respondent Mendoza. Obviously, and rightly so, they are
disquieted by the fact that (1) when respondent Mendoza was the Solicitor General,
Rule 6.03 has not yet adopted by the IBP and approved by this Court, and (2) the bid
to disqualify respondent Mendoza was made after the lapse of time whose length
cannot, by any standard, qualify as reasonable. At bottom, the point they make
relates to the unfairness of the rule if applied without any prescriptive period and
retroactively, at that. Their concern is legitimate and deserves to be initially
addressed by the IBP and our Committee on Revision of the Rules of Court.

IN VIEW WHEREOF, the petition assailing the resolutions dated July 11, 2001 and
December 5, 2001 of the Fifth Division of the Sandiganbayan in Civil Case Nos.
0096-0099 is denied.

No cost.

SO ORDERED.

G.R. No. 127107 October 12, 1998
PETER PAUL DIMATULAC and VERONICA DIMATULAC, petitioners,
vs.
HON. SESINANDO VILLON in his capacity as Presiding Judge of the Regional
Trial Court of Pampanga, Branch 54; HON. TEOFISTO GUINGONA, in his
capacity as Secretary of Justice; MAYOR SANTIAGO YABUT, SERVILLANO
YABUT, MARTIN YABUT and FORTUNATO MALLARI, respondents.
DAVIDE, JR., J.:
The issues raised by petitioners in their Memorandum 1 and by the Office of the
Solicitor General in its Comment 2 in this special civil action for certiorari, prohibition
and mandamus under Rule 65 of the Rules of Court filed by petitioners, children of
the deceased Police Officer 3 (PO3) Virgilio Dimatulac of Masantol, Pampanga, may
be summarized as follows:
A. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR
COMMITTED GRAVE ABUSE OF DISCRETION IN: (1) GIVING DUE COURSE TO
THE MOTION FOR REINVESTIGATION BY PRIVATE RESPONDENTS AGAINST
WHOM WARRANTS OF ARREST WERE ISSUED BUT WHO HAD NOT YET BEEN
BROUGHT INTO THE CUSTODY Of THE LAW; and (2) FILING THE
INFORMATION FOR HOMICIDE DESPITE KNOWLEDGE OF THE APPEAL FROM
SAID PROSECUTOR'S RESOLUTION TO THE OFFICE OF THE SECRETARY OF
JUSTICE.
B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF
JURISDICTION IN PROCEEDING WITH THE ARRAIGNMENT AND IN DENYING
PETITIONERS' MOTIONS TO SET ASIDE ARRAIGNMENT AND
RECONSIDERATION THEREOF DESPITE HIS KNOWLEDGE OF THE
PENDENCY OF THE APPEAL AND THE SUBMISSION OF VITAL EVIDENCE TO
PROVE THAT MURDER AND NOT HOMICIDE WAS COMMITTED BY THE
ACCUSED.
C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE
COMMITTED GRAVE ABUSE OF DISCRETION IN RECONSIDERING HIS ORDER
FINDING THAT THE CRIME COMMITTED WAS MURDER AND DIRECTING THE
PROVINCIAL PROSECUTOR TO AMEND THE INFORMATION FROM HOMICIDE
TO MURDER.
The records and the pleadings of the parties disclose the antecedents.
On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his residence in
Barangay San Nicolas, Masantol, Pampanga.
On 5 November 1995, a complaint for Murder was filed before the Municipal Circuit
Trial Court (MCTC) of Macabebe-Masantol in Macabebe, Pampanga, by SPO1
Renato Layug of the Masantol Police Station against private respondents Mayor
Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David, Justino Mandap,
Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Fortunato Mallari, Jesus
de la Cruz, Joselito Miranda, SPO3 Gilberto Malabanan, Aniano Magnaye, Vladimir
Yumul, a certain "Danny," and a certain "Koyang/Arding." The complaint was
docketed as Criminal Case No. 95-360. After conducting a preliminary examination in
the form of searching questions and answers, and finding probable cause, Judge
Designate Serafin B. David of the MCTC issued warrants for the arrest of the
accused and directed them to file their counter-affidavits.
Only accused Evelino David, Justino Mandap, Juan Magat and Francisco Yambao
were arrested; while only Francisco Yambao submitted his counter affidavit. 3
On 1 December 1995, after appropriate proceedings, Judge David issued a
Resolution 4 in Criminal Case No. 95-360 finding reasonable ground to believe that
the crime of murder had been committed and that the accused were probably guilty
thereof. His findings of fact and conclusions were as follows:
That on or about November 3, 1995, all the accused under the leadership of Mayor
Santiago "Docsay" Yabut, including two John Does identified only as Dan/Danny and
Koyang/Arding, went to Masantol, Pampanga for the purpose of looking for a certain
PO3 Virgilio Dimatulac.
At first, the accused, riding on [sic] a truck, went to the Municipal Hall of Masantol,
Pampanga inquiring about PO3 Virgilio Dimatulac. Thereafter, they went to the house
of Mayor Lacap for the purpose of inquiring [about] the [the location of the] house of
PO3 Virgilio Dimatulac, until finally, they were able to reach the house of said Virgilio
Dimatulac at San Nicolas, Masantol, Pampanga.
Upon reaching the house of PO3 Virgilio Dimatulac, the truck the accused were all
riding, stopped and parked in front of the house of said PO3 Virgilio Dimatulac, some
of the accused descended from the truck and positioned themselves around the
house while others stood by the truck and the Mayor stayed [in] the truck with a
bodyguard.
Accused Billy Yabut, Kati Yabut and Francisco Yambao, went inside the house of
Virgilio Dimatulac [and] were even offered coffee.
[A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio Dimatulac to
go down to see the Mayor outside in front of his house to say sorry.
[W]hen Virgilio Dimatulac went down his house, suddenly [a] gun shot was heard and
then, the son of Virgilio Dimatulac, Peter Paul, started to shout the following words:
"What did you do to my father?!"
One of the men of Mayor "Docsay" Yabut shot Virgilio Dimatulac, and as a
consequence, he died; and before he expired, he left a dying declaration pointing to
the group of Mayor "Docsay" Yabut as the one responsible.
That right after Virgilio Dimatulac was shot, accused "Docsay" Yabut ordered his men
to go on board the truck and immediately left away leaving Virgilio Dimatulac
bleeding and asking for help.
On their way home to Minalin, accused Santiago "Docsay" Yabut gave money to
accused John Doe Dan/Danny and Francisco "Boy" Yambao was asked to bring the
accused John Doe to Nueva Ecija which he did.
Further, accused Santiago "Docsay" Yabut told his group to deny that they ever went
to Masantol.
The court, after having conducted preliminary examination on the complainant and
the witnesses presented, [is] satisfied that there is a [sic] reasonable ground to
believe that the crime of murder was committed and that the accused in conspiring
and confederating with one another are probably guilty thereof.
Circumstantial evidence strongly shows the presence of conspiracy.
That in order not to frustrate the ends of justice, warrants of arrest were issued
against Santiago Yabut, Martin Yabut, Servillano Yabut, Francisco Yambao, Avelino
David, Casti David, Catoy Naguit, Fortunato Mallari, Boy dela Cruz, Lito Miranda and
Juan Magat with no bail recommended.
However, with respect to accused Dan/Danny and Koyang/Arding, the court directed
the police authorities to furnish the court [a] description personae of the accused for
the purpose of issuing the needed warrant of arrest.
The accused were furnish [sic] copies of the complaint and affidavits of witnesses for
them to file their counter-affidavits in accordance to [sic] law.
As of this date, only accused Francisco "Boy" Yambao filed his counter-affidavit and
all the others waived the filing of the same.
A close evaluation of the evidence submitted by the accused Francisco Yambao
which the court finds it [sic] straightforward and more or less credible and seems to
be consistent with truth, human nature and [the] natural course of things and lack of
motives [sic], the evidence of guilt against him is rather weak [compared to] the
others, which [is why] the court recommends a cash bond of P50,000.00 for his
provisional liberty, and the court's previous order of no bail for said accused is hereby
reconsidered.
WHEREFORE, premises considered, the Clerk of Court is directed to forward he
entire records of the case to the Office of the Provincial Prosecutor of Pampanga for
further action, together with the bodies of accused Francisco Yambao and Juan
Magat to be remanded to the provincial Jail of Pampanga. 5 (emphasis supplied)
In a sworn statement, 6 petitioner Peter Paul Dimatulac narrated that Mayor Santiago
Yabut, accompanied by a number of bodyguards, went to the residence of PO3
Virgilio Dimatulac to talk about a problem between the Mayor and Peter Paul's uncle,
Jun Dimatulac. Virgilio warmly welcomed the group and even prepared coffee for
them. Servillano and Martin Yabut told Virgilio to come down from his house and
apologize to the Mayor, but hardly had Virgilio descended when Peter Paul heard a
gunshot. While Peter Paul did not see who fired the shot, he was sure it was one of
Mayor Yabut's companions. Peter Paul opined that his father was killed because the
latter spoke to the people of Minalin, Pampanga, against the Mayor, Peter Paul
added in a supplemental statement (Susog na Salaysay) 7 that he heard Mayor
Yabut order Virgilio killed.
It his Sinumpaang Salaysay, 8 Police Officer Leopoldo Soriano of the Masantol
Municipal Police Station in Masantol, Pampanga, declared that on 3 November 1995,
between 3:30 and 4:00 p.m., while he was at the polite station, three men
approached him and asked for directions to the house of Mayor Epifanio Lacap.
Soriano recognized one of the men as SPO1 Labet Malabanan of Minalin,
Pampanga. The group left after Soriano gave them directions, but one of the three
returned to ask whether PO3 Virgilio Dimatulac was on duty, to which Soriano replied
that Dimatulac was at home. The group left on board a military truck headed for San
Nicolas, Masantol, Pampanga. Later that day, SPO2 Michael Viray received a
telephone call at the police station reporting that someone had shot Virgilio
Dimatulac.
Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-Flores
conducted a reinvestigation. However, it is not clear from the record whether she
conducted the same motu proprio or upon motion of private respondents Santiago
Yabut, Servillano Yabut and Martin Yabut (hereafter YABUTs). All of the accused
who had not submitted their counter-affidavits before the MCTC, except accused
"Danny" and "Koyang/Arding," submitted their counter-affidavits to Assistant
Provincial Prosecutor Alfonso Flores.
In her Resolution dated 29 January 1996, 9 Assistant Provincial Prosecutor Alfonso-
Flores found that the YABUTs and the assailant Danny, to the exclusion of the other
accused, were in conspiracy with one another, but that the offense committed was
only homicide, not murder. In support of such finding, Alfonso-Flores reasoned thus:
The complainant in this case charges the crime of Murder qualified by treachery. It
must be noted that to constitute treachery, two conditions must be present, to wit, 1)
the employment of the [sic] means of execution were give [sic] the person attacked
no opportunity to defend himself or to retaliate; and 2) the means of execution were
deliberately or consciously adopted . . . .
In the instant case, the presence of the first requisite was clearly established by the
evidence, such that the attack upon the victim while descending the stairs was so
sudden and unexpected as to render him no opportunity to defend himself or to
retaliate. However, the circumstances, as portrayed by witness Peter Paul Dimatulac,
negate the presence of the second requisite. According to the said witness, the victim
was already descending when Mayor Yabut commanded the assailant to shoot him,
and immediately thereafter, he heard the gunshot. This would therefore show that the
assailant did not consciously adopt the position of the victim at the time he fired the
fatal shot. The command of Mayor Yabut to shoot came so sudden as to afford no
opportunity for the assailant to choose the means or method of attack. The act of
Mayor Yabut in giving the command to shoot further bolster[s] the fact that the
conspirator did not concert the means and method of attack nor the manner thereof.
Otherwise there would have been no necessity for him to give the order to the
assailant. The method and manner of attack was adopted by the assailant at the spur
of the moment and the vulnerable position of the victim was not deliberately and
consciously adopted. Treachery therefore could not be appreciated and the crime
reasonably believe[d] to have been committed is Homicide as no circumstance would
qualify the killing to murder.

Alfonso-Flores then ruled:
WHEREFORE, in view of the foregoing, it is hereby recommended that:
1. An information be filed with the proper court charging Santiago, Servillano
and Martin all surnamed Yabut, and one John Doe alias Danny as conspirators in the
crime of Homicide;
2. The case be dismissed against accused Evelino David, Justino Mandap
a.k.a. Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Bladimir
Dimatulac, Fortunato Mallari, Aniano Magnaye, Gilberto Malabanan, Jesus dela Cruz
and Joselito Miranda.
Bail of P20,000.00 for each of the accused is likewise recommended.
The Resolution discloses that Alfonso-Flores conducted a hearing on 11 January
1996 and clarificatory questions were propounded only to Peter Paul Dimatulac.
On 23 February 1996, before the Information for homicide was filed, complainants,
herein petitioners, appealed the resolution of Alfonso-Flores to the Secretary of the
Department of Justice (DOJ). 10 They alleged in their appeal that:
1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED IN
RULING THAT THERE WAS NO TREACHERY TO QUALIFY THE CRIME TO
MURDER, BUT LIKEWISE ERRED IN NOT APPRECIATING THE PRESENCE OF
OTHER QUALIFYING CIRCUMSTANCES, TO WIT:
(A) THAT THE ACCUSED COMMITTED THE CRIME WITH THE AID OF
ARMED MEN AND WITH THE USE OF A PERSON TO INSURE OR AFFORD
IMPUNITY;
(B) THAT THE CRIME WAS COMMITTED IN CONSIDERATION OF A PRICE,
REWARD, OR PROMISE;
(C) THAT THE CRIME WAS COMMITTED ON THE OCCASION OF A
DESTRUCTIVE CYCLONE, WHEN THE SUPER-TYPHOON "ROSING" WAS
RAGING ON NOVEMBER 3, 1995;
(D) THAT THE CRIME WAS COMMITTED WITH EVIDENT PREMEDITATION;
2. THAT THE HONORABLE INVESTIGATING ASSISTANT PROSECUTOR
ERRED IN DISMISSING THE COMPLAINT AGAINST FORTUNATO MALLARI AND
FRANCISCO YAMBAO BY RULING OUT CONSPIRACY WITH THE YABUT
BROTHERS AS AGAINST FORTUNATO MALLARI AND NOT CHARGING
FRANCISCO YAMBAO AS AN ACCESSORY TO MURDER.
To refute Alfonso-Flores' finding that the means of execution were not deliberately
adopted, petitioners asserted that the meeting of the accused and the victim was not
accidental as the former purposely searched for the victim at the height of a typhoon,
while accused Mayor Santiago Yabut even remarked to his co-accused "Danny,"
"Dikitan mo lang, alam mo na kung ano ang gagawin mo, bahala ka na" (Just stay
close to him, you know what to do). Thus, Danny positioned himself near the stairs to
goad the victim to come out of his house, while Fortunato Mallari represented to the
deceased that the latter was being invited by a certain General Ventura. When the
victim declined the invitation by claiming he was sick, accused Servillano Yabut
persuaded the victim to come down by saying, "[T]o settle this matter, just apologize
to the Mayor who is in the truck." In view of that enticement, the victim came down,
while Danny waited in ambush. To emphasize the accused's resolve to kill the
deceased, petitioners further narrated that when the deceased ran away after the first
shot, the gunman still pursued him, while Mayor Santiago Yabut, who was a doctor,
kept away at a safe distance and told everyone in the truck, "Tama na, bilisan ninyo,"
(That's enough, move quickly) without giving medical assistance to the deceased and
without exerting any effort to arrest the gunman.
The Office of the Provincial Prosecutor of Pampanga was furnished with a copy of
the Appeal.
On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a Resolution
11 ordering the release of accused Evelino David, Justino Mandap, Juan Magat and
Arturo Naguit (who were then detained) in view of the aforementioned resolution of
Alfonso-Flores, which, as stated in the order, the Provincial Prosecutor approved "on
February 7, 1996."
On 28 February 1996, an Information 12 for Homicide, signed by Assistant Provincial
Prosecutor Flores and Provincial Prosecutor Jesus Y. Manarang, was filed before
Branch 55 of the Regional Trial Court (RTC) in Macabebe, Pampanga, against the
YABUTs and John Doe alias "Danny Manalili" and docketed as Criminal Case No.
96-1667(M). The accusatory portion of the information read as follows:
That on or about the 3rd day of November, 1995, in the municipality of Masantol,
province of Pampanga, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together and mutually
helping one another, with deliberate intent to take the life of PO3 Virgilio A.
Dimatulac, did then and there wilfully, unlawfully and feloniously shoot the said PO3
Virgilio A. Dimatulac on his abdomen with the use of a handgun, thereby inflicting,
upon him a gunshot wound which cause[d] the death of the said victim.
All contrary to law.
The Information, although dated 29 January 1996 was signed by Provincial
Prosecutor Manarang on "2/27/96", i.e., a day before its filing in court.
On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55,
approved the cash bonds of the YABUTs, each in the amount of P20,000.00, and
recalled the warrants for their arrest. 13
On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as
private prosecutor, filed two (2) motions with the trial court: (1) a Motion to Issue Hold
Departure Order Against All Accuseds 14 [sic]; and an (2) Urgent Motion to Defer
Proceedings, 15 copies of which were furnished the Office of the Provincial
Prosecutor of Pampanga. The second motion was grounded on the pendency of the
appeal before the Secretary of Justice and a copy thereof was attached to the
motion. Judge Roura set the motions for hearing on 8 March 1996. 16
On 7 March 1996, Judge Roura ordered the arrest of the remaining accused, Danny
Manalili. 17
On 8 March 1996, the YABUTs filed their opposition 18 to the Motion to Issue Hold
Departure Order and the Motion to Defer Proceedings. The YABUTs asserted that,
as to the first, by posting bail bonds, they submitted to the jurisdiction of the trial court
and were bound by the condition therein to "surrender themselves whenever so
required by the court, and to seek permission from the court should any one of them
desire to travel;" and, as to the second, the pendency of the appeal before the
Secretary of Justice was not a ground to defer arraignment; moreover, the trial court
had to consider their right to a speedy trial, especially since there was no definite
date for the resolution of the appeal. Then invoking this Court's rulings in Crespo v.
Mogul 19 and Balgos v. Sandiganbayan, 20 the YABUTs further asserted that
petitioners should have filed a motion to defer the filing of the information for
homicide with the Office of the Provincial Prosecutor, or sought, from the Secretary of
Justice, an order directing the Provincial Prosecutor to defer the filing of the
information in court.
In a Reply 21 to the opposition, the private prosecution, citing Section 20 of Rule 114
of the Rules of Court, insisted on the need for a hold-departure order against the
accused; argued that the accused's right to a speedy trial would not be impaired
because the appeal to the Secretary of Justice was filed pursuant to Department
Order No. 223 of the DOJ and there was clear and convincing proof that the killing
was committed with treachery and other qualifying circumstances not absorbed in
treachery; and contended that the accused's invocation of the right to a speedy trial
was inconsistent with their filing of various dilatory motions during the preliminary
investigation. The YABUTs filed a Rejoinder 22 to this Opposition.
On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and
Comment 27 with the trial court wherein he opposed the motion to inhibit Judge
Roura; manifested that "there is nothing in the record . . . which shows that the
subject killing is qualified into murder;" and announced that he "will no longer allow
the private prosecutor to participate or handle the prosecution of [the] case" in view of
the latter's petition to inhibit Judge Roura.
On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the case
transferred to Branch 54 of the RTC, presided over by herein public respondent
Judge Sesinando Villon. 28
On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received the
record of Criminal Case No. 96-1667(M). 29
On 30 April 1996, petitioners filed with the trial court a Manifestation 30 submitting, in
connection with their Motion to Defer Proceedings and Motion to Inhibit Judge Roura,
documentary evidence to support their contention that the offense committed was
murder, not homicide. The documents which they claimed were not earlier submitted
by the public prosecution were the following:
a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.
b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac.
c. Counter-Affidavit of Francisco I. Yambao.
d. Counter-Affidavit of SPO2 Fortunato Mallari.

On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a Hold e. Sinumpaang Salaysay of Aniano Magnaye.
Departure Order until "such time that all the accused who are out on bail are
arraigned," but denied the Motion to Defer Proceedings as he found no compelling f. Sinumpaang Salaysay of Leopoldo Soriano.
reason therefor, considering that although the appeal was filed on 23 February 1996,
"the private prosecution has not shown any indication that [the] appeal was given due g. Transcript of Stenographic Notes of the Preliminary Investigation of Criminal
course by the Secretary of Justice." Judge Roura also set the arraignment of the Case No. 95-360, containing the testimony of:
accused on 12 April 1996. 23
a. Peter Paul Dimatulac
It would appear that the private prosecution moved to reconsider the order denying
the Motion to Defer Proceedings since, on 12 April 1996, Judge Roura issued an b. Vladimir D. Yumul
Order 24 giving the private prosecutor "ten (10) days from today within which to file a
petition for certiorari questioning the order of the Court denying his motion for c. SPO1 Gilberto Malabanan
reconsideration of the order of March 26, 1996." Arraignment was then reset to 3
May 1996. d. PO3 Alfonso Canilao

On 19 April 1996, petitioners filed a motion to inhibit Judge Roura 25 from hearing h. Investigation Report-dated November 4, 1995.
Criminal Case No. 96-1667(M) on the ground that he: (a) hastily set the case for
arraignment while the former's appeal in the DOJ was still pending evaluation; and i. Dying declaration of Virgilio Dimatulac.
(b) prejudged the matter, having remarked in open court that there was "nothing in
the records of the case that would qualify the case into Murder." At the same time, j. Sketch
petitioners filed a petition for prohibition 26 with the Court of Appeals docketed
therein as CA-G.R. SP No. 40393, to enjoin Judge Roura from proceeding with the k. Unscaled Sketch
arraignment in Criminal Case No. 96-1667(M).
Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP No.
40393, a Resolution 31 directing respondent therein to file his comment to the
petition within ten days from notice and to show cause within the same period "why
no writ of preliminary injunction should be issued as prayed for in the petition."
However, the Court of Appeals "deferred action" on the prayer for a temporary
restraining order "until after the required comment [was] submitted."
On 3 May 1996, petitioners filed an Ex-Parte Manifestation 32 with the RTC,
furnishing the trial court with a copy of the aforementioned resolution of the Court of
Appeals and drawing the attention of the trial court to the rulings of this Court in
"Valdez vs. Aquilisan, (133 SCRA 150), Galman vs. Sandiganbayan, and Eternal
Gardens Memorial Park Corp. vs. Court of Appeals . . . as well as the decision in
Paul G. Roberts vs. The Court of Appeals."
On 3 May 1996, Judge Villon issued an order resetting arraignment of the accused to
20 May 1996. 33 On the latter date, the YABUTs each entered a plea of not guilty. 34
Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996, an Urgent
Motion to Set Aside Arraignment, 35 citing the resolution of 30 April 1996 of the Court
of Appeals in CA-G.R. SP No. 40393 which, inter alia, deferred resolution on the
application for a temporary restraining order "until after the required comment is
submitted by the respondent;" stressed that the filing of the information for the lesser
offense of homicide was "clearly unjust and contrary to law in view of the
unquestionable attendance of circumstances qualifying the killing to murder;" and
asserted that a number of Supreme Court decisions supported suspension of the
proceedings in view of the pendency of their appeal before the DOJ.
On 31 May 1997, Judge Villon issued an Order 36 directing the accused to file their
comment on the Urgent Motion to Set Aside Arraignment within fifteen days from
notice.
In a letter 37 addressed to the Provincial Prosecutor dated 7 June 1996, public
respondent Secretary Teofisto Guingona of the DOJ resolved the appeal in favor of
petitioners. Secretary Guingona ruled that treachery was present and directed the
Provincial Prosecutor of San Fernando, Pampanga "to amend the information filed
against the accused from homicide to murder," and to include Fortunato Mallari as
accused in the amended information. The findings and conclusions of Secretary
Guingona read as follows:
Contrary to your findings, we find that there is treachery that attended the killing of
PO3 Dimatulac. Undisputedly, the victim was suddenly shot while he was descending
the stairs. The attack was unexpected as the victim was unarmed and on his way to
make peace with Mayor Yabut, he was unsuspecting so to speak. From the
circumstances surrounding his killing, PO3 Dimatulac was indeed deprived of an
opportunity to defend himself or to retaliate.
Corollarily, we are also convinced that such mode of attack was consciously and
deliberately adopted by the respondents to ensure the accomplishment of their
criminal objective. The admission of respondent Malabanan is replete with details on
how the principal respondent, Mayor Yabut, in conspiracy with the assailant and
others, had consciously and deliberately adopted means to ensure the execution of
the crime. According to him, while they were on their way to the victim's house,
Mayor Yabut already instructed Danny, the assailant, that, "Dikitan mo lang, alam no
na king ano ang gagawin mo, bahala ka na" This explains why Danny positioned
himself near the stairs of the victim's house armed with a handgun, such positioning
was precisely adopted as a means to ensure the accomplishment of their evil design
and Mayor Yabut ordered nobody else but Danny to shoot the victim while
descending the stairs as his position was very strategic to ensure the killing of the
victim.
As has been repeatedly held, to constitute treachery, two conditions must be present,
to wit: (1) employment of means of execution that gives the person [attacked] no
opportunity to defend himself or retaliate; and (2) the means of execution were
deliberately or consciously adopted (People vs. Talaver, 230 SCRA 281 [1994]). In
the case at bar, these two (2) requisites are present as established from the
foregoing discussion. Hence, there being a qualifying circumstance of treachery, the
crime committed herein is murder, not homicide (People vs. Gapasin, 231 SCRA 728
[1994]).
Anent the alleged participation of respondents Fortunato Mallari and Francisco
Yambao, we find sufficient evidence against Mallari as part of the conspiracy but not
against Yambao. As can be gleaned from the sworn-statement of Yambao, which
appears to be credible, Mallari tried also to persuade the victim to go with them,
using as a reason that he (victim) was being invited by General Ventura. He was also
seen trying to fix the gun which was used in killing the victim. These actuations are
inconsistent with the claim that his presence at the crime scene was merely passive.
On the other hand, we find credible the version and explanation of Yambao. Indeed,
under the obtaining circumstances, Yambao had no other option but to accede to the
request of Mayor Yabut to provide transportation to the assailant. There being an
actual danger to his life then, and having acted under the impulse of an
uncontrollable fear, reason dictates that he should be freed from criminal liability. 38
The YABUTs moved to reconsider the resolution, 39 citing Section 4 of
"Administrative/Administration Order No. 223 of the DOJ." 40
In an Ex-Parte Manifestation 41 dated 21 June 1996, petitioners called the trial
court's attention to the resolution of the Secretary of Justice, a copy of which was
attached thereto. Later, in a Manifestation and Motion 42 dated 1 July 1996,
petitioners asked the trial court to grant their motion to set aside arraignment.
Attached thereto was a copy of the Manifestation and Motion 43 of the Solicitor
General dated 18 June 1996 filed with the Court of Appeals in CA-G.R. SP No.
40393 wherein the Solicitor General joined cause with petitioners and prayed that "in
the better interest of justice, [the] Petition for Prohibition be GRANTED and a writ of
prohibition be ISSUED forthwith." In support of said prayer, the Solicitor General
argued:
2. There is merit to the cause of petitioners. If the Secretary of Justice would
find their Appeal meritorious, the Provincial Prosecutor would be directed to upgrade
the Information to Murder and extreme prejudice if not gross injustice would thereby
have been avoided.
3. Consequently, the undersigned counsel interpose no objection to the
issuance of a writ of prohibition enjoining respondent Judge from holding further
proceedings in Criminal Case No. 96-1667-M, particularly in holding the arraignment
of the accused, pending resolution of the Appeals with the Secretary of Justice.
The YABUTs opposed 44 petitioner's Manifestation and Motion dated 1 July 1996
because they had already been arraigned and, therefore, would be placed in double
jeopardy; and that the public prosecutor not the private prosecutor had control
of the prosecution of the case.
In his letter 45 dated 1 July 1996 addressed to the Provincial Prosecutor of
Pampanga, the Secretary of Justice set aside his order to amend the information
from homicide to murder considering that the appeal was rendered moot and
academic by the arraignment of the accused for homicide and their having entered
their pleas of not guilty. The Secretary stated:
Considering that Santiago Yabut, Servillano Yabut and Martin Yabut had already
been arraigned on May 20, 1996 and had pleaded not guilty to the charge of
homicide, as shown by a copy of the court order dated May 20, 1996, the petition for
review insofar as the respondents-Yabut are concerned has been rendered moot and
academic.
However, the Secretary reiterated that Fortunato Mallari should be included in the
information for homicide.
On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to Amend
Information and to Admit Amended Information. 46 The Amended Information 47
merely impleaded Fortunato Mallari as one of the accused.
In his Order 48 of 1 August 1996, Judge Villon denied petitioners' motion to set aside
arraignment, citing Section 4, DOJ Department Order No. 223, and the letter of the
Secretary of Justice of 1 July 1996. Petitioners forthwith moved for reconsideration
49 of the order, arguing that the Motion to Defer the Proceedings filed by petitioners
was meritorious and did not violate the accused's right to speedy trial; and that the
DOJ had ruled that the proper offense to be charged was murder and did not reverse
such finding. Petitioners also cited the Solicitor General's stand 50 in CA-G.R. SP
No. 40393 that holding accused's arraignment in abeyance was proper under the
circumstances. Finally, petitioners contended that in proceeding with the arraignment
despite knowledge of a petition for prohibition pending before the Court of Appeals,
the trial court violated Section 3(d), Rule 71 of the Rules of Court on indirect
contempt. The YABUTs opposed the motion on the ground that it raised no argument
which had not yet been resolved. 51
On 3 September 1996, petitioners filed a Motion to Defer Arraignment of Accused
Fortunato Mallari, 52 which the trial court granted in view of petitioners' motion for
reconsideration of the court's order denying petitioners' motion to set aside private
respondents' arraignment. 53 As expected, Mallari moved to reconsider the trial
court's order and clamored for consistency in the trial court's rulings. 54
In an order 55 dated 15 October 1996, Judge Villon denied reconsideration of the
order denying petitioners' motion to set aside arraignment, citing the YABUTs' right to
a speedy trial and explaining that the prosecution of an offense should be under the
control of the public prosecutor, whereas petitioners did not obtain the conformity of
the prosecutor before they filed various motions to defer proceedings. Considering
said order, Judge Villon deemed accused Mallari's motion for reconsideration moot
and academic. 56
On 16 October 1996, the Court of Appeals promulgated its decision 57 in CA-G.R.
SP No. 40393 dismissing the petition therein for having become moot and academic
in view of Judge Roura's voluntary inhibition, the arraignment of the YABUTs and the
dismissal, by the Secretary of Justice, of petitioners' appeal as it had been mooted by
said arraignment.
Judge Villon was later detailed to Branch 24 of the Regional Trial Court of Manila,
and Judge Roura was ordered by the Supreme Court to preside over cases pending
in Branch 54 of the Regional Trial Court of Macabebe, Pampanga, which was
previously presided over by Judge Villon. 58 Judge Roura informed the Office of the
Court Administrator and this Court that he had already inhibited himself from hearing
Criminal Case No. 96-1667(M). 59
On 28 December 1996, petitioners filed the instant Petition for Certiorari/Prohibition
and Mandamus. They urge this Court to reverse the order of respondent Judge
denying their Motion to Set Aside Arraignment; set aside arraignment of private
respondents; order that no further action be taken by any court in Criminal Case No.
96-1667(M) until this petition is resolved; and order respondents Secretary of Justice
and the prosecutors concerned to amend the information from homicide to murder.
Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by treachery
since private respondents tricked the victim into coming out of his house and then
shot him while he was going down the stairs. There was, petitioners claim, "an
orchestrated effort on the part of [private respondents] to manipulate the rules on
administrative appeals with the end in view of evading prosecution for the [non-
bailable] offense of murder," as shown by the following events or circumstances:
(1) Assistant Provincial Prosecutor Alfonso-Flores downgraded the nature of
the crime committed to homicide, a bailable offense, on strength of a motion for
reinvestigation filed by the YABUTs who had not yet been arrested.
(2) Respondent Mayor and his companions returned to Minalin after the killing
and went into hiding for four (4) months until the offense charged was downgraded.
(3) The information for homicide was nevertheless filed despite notice to the
Office of the Provincial Prosecutor of the appeal filed with the Secretary of Justice
and request to defer any action on the case.
(4) The Office of the Public Prosecutor of Pampanga disallowed the private
prosecutor from further participating in the case.
(5) Judge Roura denied the motion to defer proceedings and declared in open
court that there was no prima facie case for murder, notwithstanding the pendency of
petitioners' appeal with respondent Secretary of Justice.
(6) Even before receipt by petitioners of Judge Roura's order inhibiting himself
and the order regarding the transfer of the case to Branch 54, public respondent
Judge Villon set the case for arraignment and, without notice to petitioners, forthwith
arraigned the accused on the information for homicide on 20 May 1996, despite the
pendency of the petition for prohibition before the Court of Appeals and of the appeal
before the DOJ.
(7) The Pampanga Provincial Prosecutor's Office did not object to the
arraignment nor take any action to prevent further proceedings on the case despite
knowledge of the pendency of the appeal.
(8) The Provincial Prosecutor did not comply with the resolution of 7 June 1996
of the Secretary of Justice directing the amendment of the information to charge the
crime of murder.
Petitioners argue that in light of Roberts, Jr., v. Court of Appeals, 60 respondent
Judge acted in excess of his jurisdiction in proceeding with private respondents'
arraignment for homicide and denying petitioners' motion to set aside arraignment.
Moreover, although respondent Judge Villon was not the respondent in CA-G.R. SP
No. 40393; he should have deferred the proceedings just the same as the very issue
in said case was whether or not the RTC could proceed with the arraignment despite
the pending review of the case by respondent Secretary of Justice. Further, Judge
Villon unjustly invoked private respondents' right to a speedy trial, after a lapse of
barely three (3) months from the filing of the information on 23 February 1996;
overlooked that private respondents were estopped from invoking said right as they
went into hiding after the killing, only to resurface when the charge was reduced to
homicide; and failed to detect the Provincial Prosecutor's bias in favor of private
respondents. Judge Villon should have been more circumspect as he knew that by
proceeding with the arraignment, the appeal with the DOJ would be rendered
technically nugatory.
Finally, petitioners submit that the DOJ rule prohibiting appeals from resolutions of
prosecutors to the Secretary of Justice once the accused had already been arraigned
applies only to instances where the appellants are the accused, since by submitting
to arraignment, they voluntarily abandon their appeal.
In their comment, private respondents contend that no sufficient legal justification
exists to set aside private respondents' arraignment, it having already been reset
twice from 12 April 1996 to 3 may 1996, due to petitioners' pending appeals with the
DOJ; and from 3 May 1996 to 20 May 1996, due to the transfer of this case to Branch
54. Moreover, as of the latter date, the DOJ had not yet resolved petitioners' appeal
and the DOJ did not request that arraignment be held in abeyance, despite the fact
that petitioners' appeal had been filed as early as 23 February 1996, at least 86 days
prior to private respondents' arraignment. They point out that petitioners did not move
to reconsider the RTC's 26 March 1996 denial of the Motion to Defer, opting instead
for Judge Roura's recusal and recourse to the Court of Appeals, and as no
restraining order was issued by the Court of Appeals, it was but proper for
respondent Judge to proceed with the arraignment of private respondent, to which
the public and private prosecutors did not object.
Private respondents further argue that the decision of respondent Secretary,
involving as it did the exercise of discretionary powers, is not subject to judicial
review. Under the principle of separation of powers, petitioners' recourse should have
been to the President. While as regards petitioners' plea that the Secretary be
compelled to amend the information from homicide to murder, private respondents
submit that mandamus does not lie, as the determination as to what offense was
committed is a prerogative of the DOJ, subject only to the control of the President.
As regards DOJ Department Order No. 223, private respondents theorize that appeal
by complainants is allowed only if the complaint is dismissed by the prosecutor and
not when there is a finding of probable cause, in which case, only the accused can
appeal. Hence, petitioners' appeal was improper.
Finally, private respondents stress the fact that petitioners never appealed the
withdrawal by the public prosecutor of the private prosecutor's authority to handle the
case.
In its comment for the public respondents, the Office of the Solicitor General (OSG)
prays that the petition be denied because: (a) in accordance with Section 4 of DOJ
Order No. 223, upon arraignment of the accused, the appeal to the Secretary of
Justice shall be dismissed motu proprio; (b) the filing of the information for homicide
was in compliance with the directive under Section 4(2), D.O. No. 223, i.e., an appeal
or motion for reinvestigation from a resolution finding probable cause shall not hold
the filing of the information in court; (c) the trial court even accommodated petitioners
by initially deferring arraignment pending resolution by the Court of Appeals of the
petition for prohibition, and since said Court did not issue any restraining order,
arraignment was properly had; and (d) reliance on Roberts is misplaced, as there,
accused Roberts and others had not been arraigned and respondent Judge had
ordered the indefinite postponement of the arraignment pending resolution of their
petitions before the Court of Appeals and the Supreme Court.
We now consider the issues enumerated at the outset of this ponencia.
Plainly, the proceedings below were replete with procedural irregularities which lead
us to conclude that something had gone awry in the Office of the Provincial
Prosecutor of Pampanga resulting in manifest advantage to the accused, more
particularly the YABUTs, and grave prejudice to the State and to private
complainants, herein petitioners.
First, warrants for the arrest of the YABUTs were issued by the MCTC, with no bail
recommended for their temporary liberty. However, for one reason or another
undisclosed in the record, the YABUTs were not arrested; neither did they surrender.
Hence, they were never brought into the custody of the law. Yet, Asst. Provincial
Fiscal Alfonso Reyes, either motu proprio or upon motion of the YABUTs, conducted
a reinvestigation. Since said accused were at large, Alfonso-Reyes should not have
done so. While it may be true that under the second paragraph of Section 5, Rule
112 of the Rules of Court, the provincial prosecutor may disagree with the findings of
the judge who conducted the preliminary investigation, as here, this difference of
opinion must be on the basis of the review of the record and evidence transmitted by
the judge. Were that all she did, as she had no other option under the circumstance,
she was without any other choice but to sustain the MCTC since the YABUTs and all
other accused, except Francisco Yambao, waived the filing of their counter-affidavits.
Then, further stretching her magnanimity in favor of the accused, Alfonso-Reyes
allowed the YABUTs to submit their counter-affidavits without first demanding that
they surrender because of the standing warrants of arrest against them. In short,
Alfonso-Reyes allowed the YABUTs to make a mockery of the law in order that they
gain their provisional liberty pending trial and be charged with the lesser offense of
homicide.
Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the YABUTs
and co-accused "Danny," despite the fact that they were charged with homicide and
they were, at the time, fugitives from justice for having avoided service of the warrant
of arrest issued by the MCTC and having failed to voluntarily surrender.
Third, Alfonso-Reyes was fully aware of the private prosecution's appeal to the DOJ
from her resolution. She could not have been ignorant of the fact that the appeal
vigorously assailed her finding that there was no qualifying circumstance attending
the killing, and that the private prosecution had convincing arguments to support the
appeal. The subsequent resolution of the Secretary of Justice confirmed the
correctness of the private prosecution's stand and exposed the blatant errors of
Alfonso-Reyes.
Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the Information for
homicide on 28 February 1996. It is interesting to note that while the information was
dated 29 January 1996, it was approved by the Provincial Prosecutor only on 27
February 1996. This simply means that the Office of the Prosecutor was not, initially,
in a hurry to file the Information. No undue prejudice could have been caused to the
YABUTs if it were filed even later for the YABUTs were still at large; in fact, they filed
their bonds of P20,000.00 each only after the filing of the Information. If Alfonso-
Flores was extremely generous to the YABUTs, no compelling reason existed why
she could not afford the offended parties the same courtesy by at least waiting for
instructions from the Secretary of Justice in view of the appeal, if she were unwilling
to voluntarily ask the latter for instructions. Clearly, under the circumstances, the
latter course of action would have been the most prudent thing to do.
Fifth, as if to show further bias in favor of the YABUTs, the Office of the Provincial
Prosecutor of Pampanga did not even bother to motu proprio, inform the trial court
that the private prosecution had appealed from the resolution of Alfonso-Flores and
had sought, with all the vigour it could muster, the filing of an information for murder,
as found by the MCTC and established by the evidence before it.
Unsatisfied with what had been done so far to accommodate the YABUTs, the Office
of the Provincial Prosecutor did not even have the decency to agree to defer
arraignment despite its continuing knowledge of the pendency of the appeal. This
amounted to defiance of the DOJ's power of control and supervision over
prosecutors, a matter which we shall later elaborate on. Moreover, in an
unprecedented move, the trial prosecutor, Olimpio Datu, had the temerity, if not
arrogance, to announce that "he will no longer allow the private prosecutor to
participate or handle the prosecution of [the] case" simply because the private
prosecution had asked for the inhibition of Judge Roura. Said prosecutor forgot that
since the offended parties here had not waived the civil action nor expressly reserved
their right to institute it separately from the criminal action, then they had the right to
intervene in the criminal case pursuant to Section 16 of Rule 1l0 of the Rules of
Court.
It is undebatable that petitioners had the right to appeal to the DOJ from the
resolution of Alfonso-Flores. The last paragraph of Section 4 of Rule 112 of the Rules
of Court provides:
If upon petition by a proper party, the Secretary of Justice reverses the resolution of
the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal
concerned to file the corresponding information without conducting another
preliminary investigation or to dismiss or move for the dismissal of the complaint or
information.
It is clear from the above, that the proper party referred to therein could be either the
offended party or the accused.
More importantly, an appeal to the DOJ is an invocation of the Secretary's power of
control over prosecutors. Thus, in Ledesma v. Court of Appeals, 16 we emphatically
held:
Decisions or resolutions of prosecutors are subject to appeal to the secretary of
justice who, under the Revised Administrative Code, 62 exercises the power of direct
control and supervision over said prosecutors; and who, may thus affirm, nullify,
reverse or modify their rulings.
Sec. 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9, Chapter 2, Title III of
the Code gives the secretary of justice supervision and control over the Office of the
Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of his
power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7,
Book IV of the Code:
(1) Supervision and Control. Supervision and control shall include authority
to act directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate officials or units; . . . .
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37
of Act 4007, which read:
Sec. 3. . . .
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State
Prosecutors, and the State Prosecutors shall . . . perform such other duties as may
be assigned to them by the Secretary of Justice in the interest of public service.
xxx xxx xxx
Sec. 37. The provisions of the existing law to the contrary notwithstanding, whenever
a specific power, authority, duty, function, or activity is entrusted to a chief of bureau,
office, division or service, the same shall be understood as also conferred upon the
proper Department Head who shall have authority to act directly in pursuance
thereof, or to review, modify, or revoke any decision or action of said chief of bureau,
office, division or service.
"Supervision" and "control" of a department head over his subordinates have been
defined in administrative law as follows:
In administrative law, supervision means overseeing or the power or authority of an
officer to see that subordinate officers perform their duties. If the latter fail or neglect
to fulfill them, the former may take such action or step as prescribed by law to make
them perform such duties. Control, on the other hand, means the power of an officer
to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the
latter.
Review as an act of supervision and control by the justice secretary over the fiscals
and prosecutors finds basis in the doctrine of exhaustion of administrative remedies
which holds that mistakes, abuses or negligence committed in the initial steps of an
administrative activity or by an administrative agency should be corrected by higher
administrative authorities, and not directly by courts. As a rule, only after
administrative remedies are exhausted may judicial recourse be allowed.
DOJ Order No. 223 of 30 June 1993 recognizes the right of both the offended parties
and the accused to appeal from resolutions in preliminary investigations or
reinvestigations, as provided for in Section 1 and Section 4, respectively. Section 1
thereof provides, thus:
Sec. 1. What May Be Appealed. Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Prosecutor or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice except
as otherwise provided in Section 4 hereof.
While the section speaks of resolutions dismissing a criminal complaint, petitioners
herein were not barred from appealing from the resolution holding that only homicide
was committed, considering that their complaint was for murder. By holding that only
homicide was committed, the Provincial Prosecutor's Office of Pampanga effectively
"dismissed" the complaint for murder. Accordingly, petitioners could file an appeal
under said Section 1. To rule otherwise would be to forever bar redress of a valid
grievance, especially where the investigating prosecutor, as in this case,
demonstrated what unquestionably appeared to be unmitigated bias in favor of the
accused. Section 1 is not to be literally applied in the sense that appeals by the
offended parties are allowed only in cases of dismissal of the complaint, otherwise
the last paragraph of Section 4, Rule 112, Rules of Court would be meaningless.
We cannot accept the view of the Office of the Solicitor General and private
respondents that Section 1 of DOJ Department Order No. 223 is the controlling rule;
hence, pursuant to the second paragraph thereof the appeal of petitioners did not
hold the filing of the information. As stated above, Section 4 applies even to appeals
by the respondents or accused. The provision reads:
Sec. 4. Non-appealable cases. Exceptions. No appeal may be taken from a
resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor finding probable cause except upon a showing of manifest error or grave
abuse of discretion. Notwithstanding the showing of minifest error or grave abuse of
discretion, no appeal shall be entertained where the appellant had already been
arraigned. If the appellant is arraigned during the pendency of the appeal, said
appeal shall be dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause,
however, shall not hold the filing of the information in court. (emphasis supplied)
The underlined portion indisputably shows that the section refers to appeals by
respondents or accused. So we held in Marcelo v. Court of
Appeals, 63 that nothing in the ruling in Crespo v. Mogul, 64 reiterated in Roberts v.
Court of Appeals, 65 forecloses the power of authority of the Secretary of Justice to
review resolutions of his subordinates in criminal cases despite an information
already having been filed in court. The Secretary of Justice is only enjoined to refrain,
as far as practicable, from entertaining a petition for review or appeal from the action
of the prosecutor once a complaint or information is filed in court. In any case, the
grant of a motion to dismiss, which the prosecution may file after the Secretary of
Justice reverses an appealed resolution, is subject to the discretion of the court. In
Roberts we went further by saying that Crespo could not have foreclosed said power
or authority of the Secretary of Justice "without doing violence to, or repealing, the
last paragraph of Section 4, Rule 112 of the Rules of Court" which is quoted above.
Indubitably then, there was on the part of the public prosecution, indecent haste in
the filing of the information for homicide, depriving the State and the offended parties
of due process.
As to the second issue, we likewise hold that Judge Roura acted with grave abuse of
discretion when, in his order of 26 March l996, 66 he deferred resolution on the
motion for a hold departure order until "such time that all the accused who are out on
bail are arraigned" and denied the motion to defer proceedings for the reason that the
"private prosecution has not shown any indication that [the] appeal was given due
course by the Secretary of Justice." Neither rhyme nor reason or even logic, supports
the ground for the deferment of the first motion. Precisely, immediate action thereon
was called for as the accused were out on bail and, perforce, had all the opportunity
to leave the country if they wanted to. To hold that arraignment is a prerequisite to
the issuance of a hold departure order could obviously defeat the purpose of said
order. As to the second motion, Judge Roura was fully aware of the pendency of
petitioner's appeal with the DOJ, which was filed as early as 23 February 1996. In
fact, he must have taken that into consideration when he set arraignment of the
accused only on 12 April 1996, and on that date, after denying petitioners' motion to
reconsider the denial of the motion to defer proceedings, he further reset arraignment
to 3 May 1996 and gave petitioners ten (10) days within which to file a petition for
certiorari to question his denial of the motion to defer and of the order denying the
reconsideration. In any event, the better part of wisdom suggested that, at the very
least, he should have asked petitioners as regards the status of the appeal or warned
them that if the DOJ would not decide the appeal within a certain period, then
arraignment would proceed.
Petitioners did in fact file the petition with the Court of Appeals on 19 April 1996 and,
at the same time, moved to inhibit Judge Roura. These twin moves prompted Judge
Roura to "voluntarily" inhibit himself from the case on 29 April 1996 67 and to transfer
the case to the branch presided by public respondent Judge Villon. The latter
received the records of the case on 30 April 1996. From that time on, however, the
offended parties did not receive any better deal. Acting with deliberate dispatch,
Judge Villon issued an order on 3 May 1996 setting arraignment of the accused on
20 May 1996. If Judge Villon only perused the record of the case with due diligence,
as should be done by anyone who has just taken over a new case, he could not have
helped but notice: (a) the motion to defer further proceedings; (2) the order of Judge
Roura giving petitioners ten days within which to file a petition with the Court of
Appeals; (3) the fact of the filling of such petition in CA-G.R. SP No. 40393; (4) the
resolution of the Court of Appeals directing respondents to comment on the petition
and show cause why the application for a writ of preliminary injunction should not be
granted and deferring resolution of the application for a temporary restraining order
until after the required comment was filed, which indicated a prima facie showing of
merit; (5) the motion to inhibit Judge Roura precisely because of his prejudgment that
the crime committed was merely homicide; (6) Judge Roura's subsequent inhibition;
(7) various pieces of documentary evidence submitted by petitioners on 30 April 1996
supporting a charge of murder, not homicide; and (8) most importantly , the pending
appeal with the DOJ.
All the foregoing demanded from any impartial mind, especially that of Judge Villon, a
cautious attitude as these were unmistakable indicia of the probability of a
miscarriage of justice should arraignment be precipitately held. However, Judge
Villon cursorily ignored all this. While it may be true that he was not bound to await
the DOJ's resolution of the appeal, as he had, procedurally speaking, complete
control over the case and any disposition thereof rested on his sound discretion, 68
his judicial instinct should have led him to peruse the documents submitted on 30
April 1996 and to initially determine, for his own enlightenment with serving the ends
of justice as the ultimate goal, if indeed murder was the offense committed; or, he
could have directed the private prosecutor to secure a resolution on the appeal within
a specified time. Given the totality of circumstances, Judge Villon should have
heeded our statement in Marcelo 69 that prudence, if not wisdom, or at least, respect
for the authority of the prosecution agency, dictated that he should have waited for
the resolution of the appeal then pending before the DOJ. All told, Judge Villon
should not have merely acquiesced to the findings of the public prosecutor.
We do not then hesitate to rule that Judge Villon committed grave abuse of discretion
in rushing the arraignment of the YABUTs on the assailed information for homicide.
Again, the State and the offended parties were deprived of due process.
Up to the level then of Judge Villon, two pillars of the criminal justice system failed in
this case to function in a manner consistent with the principle of accountability
inherent in the public trust character of a public office. Judges Roura and Villon and
prosecutors Alfonso-Flores and Datu need be reminded that it is in the public interest
that every crime should be punished 70 and judges and prosecutors play a crucial
role in this regard for theirs is the delicate duty to see justice done, i.e., not to allow
the guilty to escape nor the innocent to
suffer. 71
Prosecutors must never forget that, in the language of Suarez v. Platon, 72 they are
the representatives not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, in a criminal prosecution is not that it shall win
every case but that justice be done. As such, they are in a peculiar and every definite
sense the servants of the law, whose two-fold aim is that guilt shall not escape or
innocence suffer.
Prosecutors are charged with the defense of the community aggrieved by a crime,
and are expected to prosecute the public action with such zeal and vigor as if they
were the ones personally aggrieved, but at all times cautious that they refrain from
improper methods designed to secure a wrongful conviction. 73 With them lies the
duty to lay before the court the pertinent facts at the judge's disposal with strict
attention to punctilios, thereby clarifying contradictions and sealing all gaps in the
evidence, with a view to erasing all doubt from the court's mind as to the accused's
innocence or guilt.
The judge, on the other hand, "should always be imbued with a high sense of duty
and responsibility in the discharge of his obligation to promptly and properly
administer justice." 74 He must view himself as a priest, for the administration of
justice is akin to a religious crusade. Thus, exerting the same devotion as a priest "in
the performance of the most sacred ceremonies of religious liturgy," the judge must
render service with impartiality commensurate with the public trust and confidence
reposed in him. 75 Although the determination of a criminal case before a judge lies
within his exclusive jurisdiction and competence, 76 his discretion is not unfettered,
but rather must be exercised within reasonable confines. 77 The judge's action must
not impair the substantial rights of the accused, nor the right of the State and
offended party to due process of law. 78
Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed
for the accused alone. The interests of society and the offended parties which have
been wronged must be equally considered. Verily, a verdict of conviction is not
necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice,
for, to the society offended and the party wronged, it could also mean injustice. 79
Justice then must be rendered even-handedly to both the accused, on one hand, and
the State and offended party, on the other.
In this case, the abuse of discretion on the part of the public prosecution and Judges
Roura and Villon was gross, grave and palpable, denying, the State and the offended
parties their day in court, or in a constitutional sense, due process. As to said judges,
such amounted to lack or excess of jurisdiction, or that their court was ousted of the
jurisdiction in respect thereto, thereby nullifying as having been done without
jurisdiction, the denial of the motion to defer further hearings, the denial of the motion
to reconsider such denial, the arraignment of the YABUTs and their plea of not guilty.
These lapses by both the judges and prosecutors concerned cannot be taken lightly.
We must remedy the situation before the onset of any irreversible effects. We thus
have no other recourse, for as Chief Justice Claudio Teehankee pronounced in
Galman v. Sandiganbayan: 80
The Supreme Court cannot permit such a sham trial and verdict and travesty of
justice to stand unrectified. The courts of the land under its aegis are courts of law
and justice and equity. They would have no reason to exist if they were allowed to be
used as mere tools of injustice, deception and duplicity to subvert and suppress the
truth, instead of repositories of judicial power whose judges are sworn and committed
to render impartial justice to all alike who seek the enforcement or protection of a
right or the prevention of redress of a wrong, without fear or favor and removed from
the pressures of politics and prejudice.
We remind all members of the pillars of the criminal justice system that theirs is not a
mere ministerial task to process each accused in and out of prison, but a noble duty
to preserve our democratic society under a rule of law.
 trial court the amended information for murder. Thereafter the trial court shall
Anent the third issue, it was certainly grave error for the DOJ to reconsider its 7 June proceed in said case with all reasonable dispatch.
1996 resolution, holding that murder was committed and directing the Provincial
Prosecutor to accordingly amend the information, solely on the basis of the No pronouncement as to costs.
information that the YABUTs had already been arraigned. In so doing, the DOJ
relinquished its power of control and supervision over the Provincial Prosecutor and SO ORDERED.
the Assistant Provincial Prosecutors of Pampanga; and meekly surrendered to the
latter's inappropriate conductor even hostile attitude, which amounted to neglect of
duty or conduct prejudicial to the best interest of the service, as well as to the undue
haste of Judge Roura and Villon in respect of the arraignment of the YABUTs. The
sins of omission or commission of said prosecutors and judges resulted, in light of
the finding of the DOJ that the crime committed was murder, in unwarranted benefit
to the YABUTs and gross prejudice to the State and the offended parties. The DOJ
should have courageously exercised its power of control by taking bolder steps to
rectify the shocking "mistakes" so far committed and, in the final analysis, to prevent
further injustice and fully serve the ends of justice. The DOJ could have, even if
belatedly, joined cause with petitioners to set aside arraignment. Further, in the
exercise of its disciplinary powers over its personnel, the DOJ could have directed
the public prosecutors concerned to show cause why no disciplinary action should be
taken against them for neglect of duty or conduct prejudicial to the best interest of the
service in not, inter alia, even asking the trial court to defer arraignment in view of the
pendency of the appeal, informing the DOJ, from time to time, of the status of the
case, and, insofar as prosecutor Datu was concerned, in disallowing the private
prosecutor from further participating in the case.

Finally, the DOJ should have further inquired into the vicissitudes of the case below
to determine the regularity of arraignment, considering that the appeal was received
by the DOJ as early as 23 February 1996.

We then rule that the equally hasty motu proprio "reconsideration" of the 7 June 1996
resolution of the DOJ was attended with grave abuse of discretion.

It is settled that when the State is deprived of due process in a criminal case by
reason of grave abuse of discretion on the part of the trial court, the acquittal of the
accused 81 or the dismissal of the case 82 is void, hence double jeopardy cannot be
invoked by the accused. If this is so in those cases, so must it be where the
arraignment and plea of not guilty are void, as in this case as above discussed.

WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo Roura of 26

March 1996 denying the Motion to Defer Proceeding and of 12 April 1996 denying
the motion to reconsider the denial of said Motion to Defer Proceedings, and the
orders of respondent Judge Sesinando Villon of 3 May 1996 resetting the
arraignment to 20 May 1998 and of 25 October 1996 denying the Motion to Set Aside
Arraignment in Criminal Case No. 96-1667(M) are declared VOID and SET ASIDE.
The arraignment of private respondents Mayor Santiago Yabut, Servillano Yabut and
Martin Yabut and their separate pleas of not guilty are likewise declared VOID and
SET ASIDE. Furthermore, the order of public respondent Secretary of Justice of 1
July 1996 is SET ASIDE and his order of 7 June 1996 REINSTATED.

The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply with

the order (letter) of the Secretary of Justice of 7 June 1996 by forthwith filing with the
 First. Petitioners citizenship and taxpayer status do not clothe him with standing to bring this
suit. We have granted access to citizens suits on the narrowest of ground: when they raise
G.R. No. 176278 June 25, 2010 issues of "transcendental" importance calling for urgent resolution.5 Three factors are
relevant in our determination to allow third party suits so we can reach and resolve the
ALAN F. PAGUIA, Petitioner, merits of the crucial issues raised the character of funds or assets involved in the
vs. controversy, a clear disregard of constitutional or statutory prohibition, and the lack of any
OFFICE OF THE PRESIDENT, SECRETARY OF FOREIGN AFFAIRS, and HON. other party with a more direct and specific interest to bring the suit.6 None of petitioners
HILARIO DAVIDE, JR. in his capacity as Permanent Representative of the Philippines allegations comes close to any of these parameters. Indeed, implicit in a petition seeking a
to the United Nations, Respondents. judicial interpretation of a statutory provision on the retirement of government personnel
occasioned by its seemingly ambiguous crafting is the admission that a "clear disregard of
RESOLUTION constitutional or statutory prohibition" is absent. Further, the DFA is not devoid of personnel
with "more direct and specific interest to bring the suit." Career ambassadors forced to leave
CARPIO, J.: the service at the mandated retirement age unquestionably hold interest far more substantial
and personal than petitioners generalized interest as a citizen in ensuring enforcement of
At issue is the power of Congress to limit the Presidents prerogative to nominate the law.1avvphi1
ambassadors by legislating age qualifications despite the constitutional rule limiting
Congress role in the appointment of ambassadors to the Commission on Appointments The same conclusion holds true for petitioners invocation of his taxpayer status. Taxpayers
confirmation of nominees.1 However, for lack of a case or controversy grounded on contributions to the states coffers entitle them to question appropriations for expenditures
petitioners lack of capacity to sue and mootness,2 we dismiss the petition without reaching which are claimed to be unconstitutional or illegal.7 However, the salaries and benefits
the merits, deferring for another day the resolution of the question raised, novel and respondent Davide received commensurate to his diplomatic rank are fixed by law and other
fundamental it may be. executive issuances, the funding for which was included in the appropriations for the DFAs
total expenditures contained in the annual budgets Congress passed since respondent
Petitioner Alan F. Paguia (petitioner), as citizen and taxpayer, filed this original action for the Davides nomination. Having assumed office under color of authority (appointment),
writ of certiorari to invalidate President Gloria Macapagal-Arroyos nomination of respondent respondent Davide is at least a de facto officer entitled to draw salary,8 negating petitioners
former Chief Justice Hilario G. Davide, Jr. (respondent Davide) as Permanent claim of "illegal expenditure of scarce public funds."9
Representative to the United Nations (UN) for violation of Section 23 of Republic Act No.
7157 (RA 7157), the Philippine Foreign Service Act of 1991. Petitioner argues that Second. An incapacity to bring legal actions peculiar to petitioner also obtains. Petitioners
respondent Davides age at that time of his nomination in March 2006, 70, disqualifies him suspension from the practice of law bars him from performing "any activity, in or out of court,
from holding his post. Petitioner grounds his argument on Section 23 of RA 7157 pegging which requires the application of law, legal procedure, knowledge, training and
the mandatory retirement age of all officers and employees of the Department of Foreign experience."10 Certainly, preparing a petition raising carefully crafted arguments on equal
Affairs (DFA) at 65.3 Petitioner theorizes that Section 23 imposes an absolute rule for all protection grounds and employing highly legalistic rules of statutory construction to parse
DFA employees, career or non-career; thus, respondent Davides entry into the DFA ranks Section 23 of RA 7157 falls within the proscribed conduct.
discriminates against the rest of the DFA officials and employees.
Third. A supervening event has rendered this case academic and the relief prayed for moot.
In their separate Comments, respondent Davide, the Office of the President, and the Respondent Davide resigned his post at the UN on 1 April 2010.
Secretary of Foreign Affairs (respondents) raise threshold issues against the petition. First,
they question petitioners standing to bring this suit because of his indefinite suspension WHEREFORE, we DISMISS the petition.
from the practice of law.4 Second, the Office of the President and the Secretary of Foreign
Affairs (public respondents) argue that neither petitioners citizenship nor his taxpayer status SO ORDERED.
vests him with standing to question respondent Davides appointment because petitioner
remains without personal and substantial interest in the outcome of a suit which does not
involve the taxing power of the state or the illegal disbursement of public funds. Third, public
respondents question the propriety of this petition, contending that this suit is in truth a
petition for quo warranto which can only be filed by a contender for the office in question.

On the eligibility of respondent Davide, respondents counter that Section 23s mandated
retirement age applies only to career diplomats, excluding from its ambit non-career
appointees such as respondent Davide.

The petition presents no case or controversy for petitioners lack of capacity to sue and
mootness.