EN BANC
[ G.R. No. 199082, September 18, 2012 ]JOSE MIGUEL T. ARROYO v. DEPARTMENT OF JUSTICE +
JOSE MIGUEL T. ARROYO, PETITIONER VS. DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, IN HER CAPACITY AS SECRETARY OF THE DEPARTMENT OF JUSTICE; HON. SIXTO BRILLANTES, JR., IN HIS CAPACITY AS CHAIRPERSON OF THE COMMISSION ON ELECTIONS; AND THE JOINT
DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE AND FACT-FINDING TEAM,RESPONDENTS.
[G.R. NO. 199085]
BENJAMIN S. ABALOS, SR., PETITIONER, VS. HON. LEILA DE LIMA, IN HER CAPACITY AS SECRETARY OF JUSTICE; HON. SIXTO S. BRILLANTES, JR., SARMIENTO, IN HIS CAPACITY AS COMELEC CHAIRPERSON; RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S.
LIM AND AUGUSTO C. LAGAMAN, IN THEIR CAPACITY AS COMELEC COMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, IN THEIR CAPACITY AS CHAIRPERSON AND MEMBER, RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE ON THE 200 AND 2007 ELECTION FRAUD, RESPONDENTS.
[G.R. NO. 199118]
GLORIA MACAPAGAL-AROYO, PETITIONER, VS. COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRPERSON SIXTO S. BRILLANTES, JR., DEPARTMENT OF JUSTICE, REPRESENTES BY SECRETARY LEILA M. DE LIMA, JOINT DOJ-COMELEC PRELIMENARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, AND
DOJ-COMELEC FACT FINDING TEAM, RESPONDENTS.
D E C I S I O N
JOSE MIGUEL T. ARROYO v. DEPARTMENT OF JUSTICE +
JOSE MIGUEL T. ARROYO, PETITIONER VS. DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, IN HER CAPACITY AS SECRETARY OF THE DEPARTMENT OF JUSTICE; HON. SIXTO BRILLANTES, JR., IN HIS CAPACITY AS CHAIRPERSON OF THE COMMISSION ON ELECTIONS; AND THE JOINT
DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE AND FACT-FINDING TEAM,RESPONDENTS.
[G.R. NO. 199085]
BENJAMIN S. ABALOS, SR., PETITIONER, VS. HON. LEILA DE LIMA, IN HER CAPACITY AS SECRETARY OF JUSTICE; HON. SIXTO S. BRILLANTES, JR., SARMIENTO, IN HIS CAPACITY AS COMELEC CHAIRPERSON; RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S.
LIM AND AUGUSTO C. LAGAMAN, IN THEIR CAPACITY AS COMELEC COMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, IN THEIR CAPACITY AS CHAIRPERSON AND MEMBER, RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE ON THE 200 AND 2007 ELECTION FRAUD, RESPONDENTS.
[G.R. NO. 199118]
GLORIA MACAPAGAL-AROYO, PETITIONER, VS. COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRPERSON SIXTO S. BRILLANTES, JR., DEPARTMENT OF JUSTICE, REPRESENTES BY SECRETARY LEILA M. DE LIMA, JOINT DOJ-COMELEC PRELIMENARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, AND
DOJ-COMELEC FACT FINDING TEAM, RESPONDENTS.
D E C I S I O N
PERALTA, J.:
The Court is vested with the constitutional mandate to resolve justiciable controversies by applying the rule of law with due deference to the right to due process, irrespective of the standing in society of the parties involved. It is an assurance that in
this jurisdiction, the wheels of justice turn unimpeded by public opinion or clamor, but only for the ultimate end of giving each and every member of society his just due without distinction.
Before the Court are three (3) consolidated petitions and supplemental petitions for Certiorari and Prohibition under Rule 65 of the Rules of Court filed by Jose Miguel T. Arroyo (Mike Arroyo) in G.R. No. 199082, Benjamin S. Abalos, Sr. (Abalos) in G.R. No. 199085 and Gloria Macapagal Arroyo (GMA) in G.R. No. 199118 assailing the following: (1) Commission on Elections (Comelec) Resolution No. 9266 "In the Matter of the Commission on Elections and Department of Justice Joint Investigation on the Alleged Election Offenses Committed during the 2004 and 2007 Elections Pursuant to Law"[1] dated August 2, 2011; (2) Joint Order No. 0012011 (Joint Order) "Creating and Constituting a Joint DOJ-Comelec Preliminary Investigation Committee [Joint Committee] and Fact-Finding Team on the 2004 and 2007 National Elections Electoral Fraud and Manipulation Cases"[2] dated August 15, 2011; (3) Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections (Joint Committee Rules of Procedure)[3] dated August 23, 2011; and (4) Initial Report of the Fact-Finding Team dated October 20, 2011.[4] The consolidated petitions and supplemental petitions likewise assail the validity of the proceedings undertaken pursuant to the aforesaid issuances.
The Antecedents
Acting on the discovery of alleged new evidence and the surfacing of new witnesses indicating the occurrence of massive electoral fraud and manipulation of election results in the 2004 and 2007 National Elections, on August 2, 2011, the Comelec issued Resolution No. 9266 approving the creation of a committee jointly with the Department of Justice (DOJ), which shall conduct preliminary investigation on the alleged election offenses and anomalies committed during the 2004 and 2007 elections.5
On August 4, 2011, the Secretary of Justice issued Department Order No. 6406 naming three (3) of its prosecutors to the Joint Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections electoral fraud and manipulation cases. The Joint Committee and the Fact-Finding Team are composed of officials from the DOJ and the Comelec. Section 2 of the Joint Order lays down the mandate of the Joint Committee, to wit:
The Fact-Finding Team,[8] on the other hand, was created for the purpose of gathering real, documentary, and testimonial evidence which can be utilized in the preliminary investigation to be conducted by the Joint Committee. Its specific duties and functions as enumerated in Section 4 of the Joint Order are as follows:
The members of the Fact-Finding Team unanimously agreed that the subject of the Initial Report would be the electoral fraud and manipulation of election results allegedly committed during the May 14, 2007 elections. Thus, in its Initial Report[11] dated October 20, 2011, the Fact-Finding Team concluded that manipulation of the results in the May 14, 2007 senatorial elections in the provinces of North and South Cotabato and Maguindanao were indeed perpetrated.[12] The Fact-Finding Team recommended that petitioner Abalos and ten (10) others[13] be subjected to preliminary investigation for electoral sabotage for conspiring to manipulate the election results in North and South Cotabato. Twenty-six (26)[14] persons, including petitioners GMA and Abalos, were likewise recommended for preliminary investigation for electoral sabotage for manipulating the election results in Maguindanao.[15] Several persons were also recommended to be charged administratively, while others,[16] including petitioner Mike Arroyo, were recommended to be subjected to further investigation.[17] The case resulting from the investigation of the Fact-Finding Team was docketed as DOJ- Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III (Senator Pimentel) filed a Complaint-Affidavit[18] for Electoral Sabotage against petitioners and twelve others[19] and several John Does and Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011.[20] On November 3, 2011, petitioners, through counsel, appeared before the Joint Committee.[21] On that preliminary hearing, the Joint Committee consolidated the two DOJ-Comelec cases. Respondents therein were likewise ordered to submit their Counter-Affidavits by November 14, 2011.[22]
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing the creation of the Joint Panel.[23] The petitions were eventually consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer Proceedings[24] before the Joint Committee, in view of the pendency of his petition before the Court. On the same day, petitioner GMA filed before the Joint Committee an Omnibus Motion Ad Cautelam[25] to require Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for the production of election documents as basis for the charge of electoral sabotage. GMA contended that for the crime of electoral sabotage to be established, there is a need to present election documents allegedly tampered which resulted in the increase or decrease in the number of votes of local and national candidates.[26] GMA prayed that she be allowed to file her counter-affidavit within ten (10) days from receipt of the requested documents.[27] Petitioner Abalos, for his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad Cautelam),[28] in view of the pendency of his petition brought before the Court.
In an Order[29] dated November 15, 2011, the Joint Committee denied the aforesaid motions of petitioners. GMA subsequently filed a motion for reconsideration.[30]
On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later indorsed to the Comelec.[31] On November 18, 2011, after conducting a special session, the Comelec en banc issued a Resolution[32] approving and adopting the Joint Resolution subject to modifications. The dispositive portion of the Comelec Resolution reads:
On even date, pursuant to the above Resolution, the Comelec's Law Department filed with the Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42 (b)(3) of Republic Act (R.A.) No. 9369, amending Section 27 (b) of R.A. No. 6646, docketed as Criminal Case No. RPSY-11-04432-CR.[34] The case was raffled to Branch 112 and the corresponding Warrant of Arrest was issued which was served on GMA on the same day.[35]
On November 18, 2011, petitioner GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam[36] with leave to allow the Joint Committee to resolve the motion for reconsideration filed by GMA, to defer issuance of a warrant of arrest and a Hold Departure Order, and to proceed to judicial determination of probable cause. She, likewise, filed with the Comelec a Motion to Vacate Ad Cautelam[37] praying that its Resolution be vacated for being null and void. The RTC nonetheless issued a warrant for her arrest which was duly served. GMA thereafter filed a Motion for Bail which was granted.
Issues
In G.R. No. 199082, petitioner Arroyo relies on the following grounds:
In G.R. No. 199085, petitioner Abalos raises the following issues:
In G.R. No. 199118, petitioner GMA anchors her petition on the following grounds:
We deferred the resolution of petitioners' Motion for the Issuance of a TRO and, instead, required the respondents to comment on the petitions.41 We likewise scheduled the consolidated cases for oral argument for which the parties were directed to limit their respective discussions to the following issues:
The Court, thereafter, required the parties to submit their respective Memoranda.[43]
The Court's Ruling
Procedural Issues
Respondents claim that Mike Arroyo's petition is moot and that of GMA is moot and academic. They explain that the Mike Arroyo petition presents no actual controversy that necessitates the exercise by the Court of its power of judicial review, considering that he was not among those indicted for electoral sabotage in the 2007 national elections as the Comelec dismissed the case against him for insufficiency of evidence.[44] Anent the 2004 national elections, the Fact-Finding Team is yet to complete its investigation so Mike Arroyo's apprehensions are merely speculative and anticipatory.[45] As to the GMA petition, respondents aver that any judgment of the Court will have no practical legal effect because an Information has already been filed against her in Branch 112, RTC of Pasay City.[46] With the filing of the Information, the RTC has already acquired jurisdiction over the case, including all issues relating to the constitutionality or legality of her preliminary investigation.[47] Respondents also claim that the issues relating to the constitutionality and validity of the conduct of the preliminary investigation of GMA are best left to the trial court, considering that it involves questions of fact.[48] Respondents add that considering that the RTC has concurrent jurisdiction to determine a constitutional issue, it will be practical for the Court to allow the RTC to determine the constitutional issues in this case.[49]
We do not agree.
Mootness
It cannot be gainsaid that for a court to exercise its power of adjudication, there must be an actual case or controversy, that is, one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution.[50] The case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice.[51]
A case becomes moot and academic when it ceases to present a justiciable controversy so that a declaration on the issue would be of no practical use or value.[52] However, a case should not be dismissed simply because one of the issues raised therein had become moot and academic by the onset of a supervening event, whether intended or incidental, if there are other causes which need to be resolved after trial.[53]
Here, the consolidated cases are not rendered moot and academic by the promulgation of the Joint Resolution by the Joint Committee and the approval thereof by the Comelec. It must be recalled that the main issues in the three petitions before us are the constitutionality and legality of the creation of the Joint Committee and the Fact-Finding Team as well as the proceedings undertaken pursuant thereto. The assailed Joint Order specifically provides that the Joint Committee was created for purposes of investigating the alleged massive electoral fraud during the 2004 and 2007 national elections. However, in the Fact-Finding Team's Initial Report, the team specifically agreed that the report would focus on the irregularities during the 2007 elections. Also, in its November 18, 2011 Resolution, the Comelec, while directing the filing of information against petitioners Abalos and GMA, ordered that further investigations be conducted against the other respondents therein. Apparently, the Fact-Finding Team's and Joint Committee's respective mandates have not been fulfilled and they are, therefore, bound to continue discharging their duties set forth in the assailed Joint Order. Moreover, petitioners question the validity of the proceedings undertaken by the Fact-Finding Team and the Joint Committee leading to the filing of information, on constitutional grounds. We are not, therefore, barred from deciding on the petitions simply by the occurrence of the supervening events of filing an information and dismissal of the charges.
Jurisdiction over the validity of the
conduct of the preliminary investigation
This is not the first time that the Court is confronted with the issue of jurisdiction to conduct preliminary investigation and at the same time with the propriety of the conduct of preliminary investigation. In Cojuangco, Jr. v. Presidential Commission on Good Government [PCGG],[54] the Court resolved two issues, namely: (1) whether or not the PCGG has the power to conduct a preliminary investigation of the anti-graft and corruption cases filed by the Solicitor General against Eduardo Conjuangco, Jr. and other respondents for the alleged misuse of coconut levy funds; and (2) on the assumption that it has jurisdiction to conduct such a preliminary investigation, whether or not its conduct constitutes a violation of petitioner's right to due process and equal protection of the law.[55] The Court decided these issues notwithstanding the fact that Informations had already been filed with the trial court.
In Allado v. Diokno,[56] in a petition for certiorari assailing the propriety of the issuance of a warrant of arrest, the Court could not ignore the undue haste in the filing of the information and the inordinate interest of the government in filing the same. Thus, this Court took time to determine whether or not there was, indeed, probable cause to warrant the filing of information. This, notwithstanding the fact that information had been filed and a warrant of arrest had been issued. Petitioners therein came directly to this Court and sought relief to rectify the injustice that they suffered.
Hierarchy of courts
Neither can the petitions be dismissed solely because of violation of the principle of hierarchy of courts. This principle requires that recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with a higher court.[57] The Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. While this jurisdiction is shared with the Court of Appeals and the RTC, a direct invocation of this Court's jurisdiction is allowed when there are special and important reasons therefor, clearly and especially set out in the petition, as in the present case.[58] In the consolidated petitions, petitioners invoke exemption from the observance of the rule on hierarchy of courts in keeping with the Court's duty to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws, and that they have not abused the discretion given to them.[59]
It is noteworthy that the consolidated petitions assail the constitutionality of issuances and resolutions of the DOJ and the Comelec. The general rule is that this Court shall exercise only appellate jurisdiction over cases involving the constitutionality of a statute, treaty or regulation. However, such rule is subject to exception, that is, in circumstances where the Court believes that resolving the issue of constitutionality of a law or regulation at the first instance is of paramount importance and immediately affects the social, economic, and moral well-being of the people.[60] This case falls within the exception. An expeditious resolution of the issues raised in the petitions is necessary. Besides, the Court has entertained a direct resort to the Court without the requisite motion for reconsideration filed below or without exhaustion of administrative remedies where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or of the petitioners and when there is an alleged violation of due process, as in the present case.[61] We apply the same relaxation of the Rules in the present case and, thus, entertain direct resort to this Court.
Substantive Issues
Bases for the Creation of the
Fact-Finding Team and Joint Committee
Section 2, Article IX-C of the 1987 Constitution enumerates the powers and functions of the Comelec. Paragraph (6) thereof vests in the Comelec the power to:
This was an important innovation introduced by the 1987 Constitution, because the above-quoted provision was not in the 1935 and 1973 Constitutions.[62]
The grant to the Comelec of the power to investigate and prosecute election offenses as an adjunct to the enforcement and administration of all election laws is intended to enable the Comelec to effectively insure to the people the free, orderly, and honest conduct of elections. The failure of the Comelec to exercise this power could result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote.[63]
The constitutional grant of prosecutorial power in the Comelec was reflected in Section 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, to wit:
Under the above provision of law, the power to conduct preliminary investigation is vested exclusively with the Comelec. The latter, however, was given by the same provision of law the authority to avail itself of the assistance of other prosecuting arms of the government.64 Thus, under Section 2,65 Rule 34 of the Comelec Rules of Procedure, provincial and city prosecutors and their assistants are given continuing authority as deputies to conduct preliminary investigation of complaints involving election offenses under election laws and to prosecute the same. The complaints may be filed directly with them or may be indorsed to them by the petitioner or its duly authorized representatives.66
Thus, under the Omnibus Election Code, while the exclusive jurisdiction to conduct preliminary investigation had been lodged with the Comelec, the prosecutors had been conducting preliminary investigations pursuant to the continuing delegated authority given by the Comelec. The reason for this delegation of authority has been explained in Commission on Elections v. Español:[67]
Moreover, as we acknowledged in People v. Basilla,[69] the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible without the assistance of provincial and city fiscals [prosecutors] and their assistants and staff members, and of the state prosecutors of the DOJ.[70]
Section 265 of the Omnibus Election Code was amended by Section 43 of R.A. No. 9369,[71] which reads:
As clearly set forth above, instead of a mere delegated authority, the other prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction with the Comelec to conduct preliminary investigation of all election offenses and to prosecute the same.
It is, therefore, not only the power but the duty of both the Comelec and the DOJ to perform any act necessary to ensure the prompt and fair investigation and prosecution of election offenses. Pursuant to the above constitutional and statutory provisions, and as will be explained further below, we find no impediment for the Comelec and the DOJ to create the Joint Committee and Fact-Finding Team for the purpose of conducting a thorough investigation of the alleged massive electoral fraud and the manipulation of election results in the 2004 and 2007 national elections relating in particular to the presidential and senatorial elections.[73]
Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee and Fact- Finding Team is in violation of the equal protection clause of the Constitution because its sole purpose is the investigation and prosecution of certain persons and incidents. They argue that there is no substantial distinction between the allegations of massive electoral fraud in 2004 and 2007, on the one hand, and previous and subsequent national elections, on the other hand; and no substantial distinction between petitioners and the other persons or public officials who might have been involved in previous election offenses. They insist that the Joint Panel was created to target only the Arroyo Administration as well as public officials linked to the Arroyo Administration. To bolster their claim, petitioners explain that Joint Order No. 001-2011 is similar to Executive Order No. 1 (creating the Philippine Truth Commission) which this Court had already nullified for being violative of the equal protection clause.
Respondents, however, refute the above contentions and argue that the wide array of the possible election offenses and broad spectrum of individuals who may have committed them, if any, immediately negate the assertion that the assailed orders are aimed only at the officials of the Arroyo Administration.
We agree with the respondents.
The equal protection clause is enshrined in Section 1, Article III of the Constitution which reads:
The concept of equal protection has been laid down in Biraogo v. Philippine Truth Commission of 2010:[75]
Unlike the matter addressed by the Court's ruling in Biraogo v. Philippine Truth Commission of 2010, Joint Order No. 001-2011 cannot be nullified on the ground that it singles out the officials of the Arroyo Administration and, therefore, it infringes the equal protection clause. The Philippine Truth Commission of 2010 was expressly created for the purpose of investigating alleged graft and corruption during the Arroyo Administration since Executive Order No. 1[77] specifically referred to the "previous administration"; while the Joint Committee was created for the purpose of conducting preliminary investigation of election offenses during the 2004 and 2007 elections. While GMA and Mike Arroyo were among those subjected to preliminary investigation, not all respondents therein were linked to GMA as there were public officers who were investigated upon in connection with their acts in the performance of their official duties. Private individuals were also subjected to the investigation by the Joint Committee.
The equal protection guarantee exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real differences among men, it does not demand absolute equality. It merely requires that all persons under like circumstances and conditions shall be treated alike both as to privileges conferred and liabilities enforced.[78]
We once held that the Office of the Ombudsman is granted virtually plenary investigatory powers by the Constitution and by law and thus may, for every particular investigation, whether commenced by complaint or on its own initiative, decide how best to pursue each investigation. Since the Office of the Ombudsman is granted such latitude, its varying treatment of similarly situated investigations cannot by itself be considered a violation of any of the parties' rights to the equal protection of the laws.[79] This same doctrine should likewise apply in the present case.
Thus, as the constitutional body granted with the broad power of enforcing and administering all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall,[80] and tasked to ensure free, orderly, honest, peaceful, and credible elections,[81] the Comelec has the authority to determine how best to perform such constitutional mandate. Pursuant to this authority, the Comelec issues various resolutions prior to every local or national elections setting forth the guidelines to be observed in the conduct of the elections. This shows that every election is distinct and requires different guidelines in order to ensure that the rules are updated to respond to existing circumstances.
Moreover, as has been practiced in the past, complaints for violations of election laws may be filed either with the Comelec or with the DOJ. The Comelec may even initiate, motu proprio, complaints for election offenses.[82] Pursuant to law and the Comelec's own Rules, investigations may be conducted either by the Comelec itself through its law department or through the prosecutors of the DOJ. These varying procedures and treatment do not, however, mean that respondents are not treated alike. Thus, petitioners' insistence of infringement of their constitutional right to equal protection of the law is misplaced.
B. Due Process
Petitioners claim that the Joint Panel does not possess the required cold neutrality of an impartial judge because it is all at once the evidence- gatherer, prosecutor and judge. They explain that since the Fact-Finding Team has found probable cause to subject them to preliminary investigation, it is impossible for the Joint Committee to arrive at an opposite conclusion. Petitioners likewise express doubts of any possibility that the Joint Committee will be fair and impartial to them as Secretary De Lima and Chairman Brillantes had repeatedly expressed prejudgment against petitioners through their statements captured by the media.
For their part, respondents contend that petitioners failed to present proof that the President of the Philippines, Secretary of Justice, and Chairman of the Comelec actually made the statements allegedly prejudging their case and in the context in which they interpreted them. They likewise contend that assuming that said statements were made, there was no showing that Secretary De Lima had tried to intervene in the investigation to influence its outcome nor was it proven that the Joint Committee itself had prejudged the case. Lastly, they point out that Joint Order No. 001-2011 created two bodies, the Fact-Finding Team and the Joint Committee, with their respective mandates. Hence, they cannot be considered as one.
We find for respondents.
It is settled that the conduct of preliminary investigation is, like court proceedings, subject to the requirements of both substantive and procedural due process.[83] Preliminary investigation is considered as a judicial proceeding wherein the prosecutor or investigating officer, by the nature of his functions, acts as a quasi-judicial officer.[84] The authority of a prosecutor or investigating officer duly empowered to preside over or to conduct a preliminary investigation is no less than that of a municipal judge or even an RTC Judge.[85] Thus, as emphasized by the Court in Ladlad v. Velasco:[86]
In this case, as correctly pointed out by respondents, there was no showing that the statements claimed to have prejudged the case against petitioners were made by Secretary De Lima and Chairman Brillantes or were in the prejudicial context in which petitioners claimed the statements were made. A reading of the statements allegedly made by them reveals that they were just responding to hypothetical questions in the event that probable cause would eventually be found by the Joint Committee.
More importantly, there was no proof or even an allegation that the Joint Committee itself, tasked to conduct the requisite preliminary investigation against petitioners, made biased statements that would convey to the public that the members were favoring a particular party. Neither did the petitioners show that the President of the Philippines, the Secretary of Justice or the Chairman of the Comelec intervened in the conduct of the preliminary investigation or exerted undue pressure on their subordinates to tailor their decision with their public declarations and adhere to a predetermined result.[88] Moreover, insofar as the Comelec is concerned, it must be emphasized that the constitutional body is collegial. The act of the head of a collegial body cannot be considered as that of the entire body itself.[89] In equating the alleged bias of the above-named officials with that of the Joint Committee, there would be no arm of the government credible enough to conduct a preliminary investigation.[90]
It must also be emphasized that Joint Order No. 001-2011 created two bodies, namely: (1) the Fact-Finding Team tasked to gather real, documentary and testimonial evidence which can be utilized in the preliminary investigation to be conducted by the Joint Committee; and (2) the Joint Committee mandated to conduct preliminary investigation. It is, therefore, inaccurate to say that there is only one body which acted as evidence-gatherer, prosecutor and judge.
C. Separation of powers
Petitioners claim that the Joint Panel is a new public office as shown by its composition, the creation of its own Rules of Procedure, and the source of funding for its operation. It is their position that the power of the DOJ to investigate the commission of crimes and the Comelec's constitutional mandate to investigate and prosecute violations of election laws do not include the power to create a new public office in the guise of a joint committee. Thus, in creating the Joint Panel, the DOJ and the Comelec encroached upon the power of the Legislature to create public office.
Respondents dispute this and contend that the Joint Committee and Fact-Finding Team are not new public offices, but merely collaborations between two existing government agencies sharing concurrent jurisdiction. This is shown by the fact that the members of the Joint Panel are existing officers of the DOJ and the Comelec who exercise duties and functions that are already vested in them.
Again, we agree with respondents.
As clearly explained above, the Comelec is granted the power to investigate, and where appropriate, prosecute cases of election offenses. This is necessary in ensuring free, orderly, honest, peaceful and credible elections. On the other hand, the DOJ is mandated to administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system.[91] It is specifically empowered to "investigate the commission of crimes, prosecute offenders and administer the probation and correction system."[92] Also, the provincial or city prosecutors and their assistants, as well as the national and regional state prosecutors, are specifically named as the officers authorized to conduct preliminary investigation.[93] Recently, the Comelec, through its duly authorized legal offices, is given the power, concurrent with the other prosecuting arms of the government such as the DOJ, to conduct preliminary investigation of all election offenses.[94]
Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the assailed Joint Order which give the DOJ and the Comelec the power to conduct preliminary investigation. No new power is given to them by virtue of the assailed order. As to the members of the Joint Committee and Fact-Finding Team, they perform such functions that they already perform by virtue of their current positions as prosecutors of the DOJ and legal officers of the Comelec. Thus, in no way can we consider the Joint Committee as a new public office.
D. Independence of the Comelec
Petitioners claim that in creating the Joint Panel, the Comelec has effectively abdicated its constitutional mandate to investigate and, where appropriate, to prosecute cases of violation of election laws including acts or omissions constituting election frauds, offenses, and malpractices in favor of the Executive Department acting through the DOJ Secretary. Under the set-up, the Comelec personnel is placed under the supervision and control of the DOJ. The chairperson is a DOJ official. Thus, the Comelec has willingly surrendered its independence to the DOJ and has acceded to share its exercise of judgment and discretion with the Executive Branch.
We do not agree.
Section 1,[95] Article IX-A of the 1987 Constitution expressly describes all the Constitutional Commissions as independent. Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions.[96] The Constitution envisions a truly independent Comelec committed to ensure free, orderly, honest, peaceful, and credible elections and to serve as the guardian of the people's sacred right of suffrage the citizenry's vital weapon in effecting a peaceful change of government and in achieving and promoting political stability.[97]
Prior to the amendment of Section 265 of the Omnibus Election Code, the Comelec had the exclusive authority to investigate and prosecute election offenses. In the discharge of this exclusive power, the Comelec was given the right to avail and, in fact, availed of the assistance of other prosecuting arms of the government such as the prosecutors of the DOJ. By virtue of this continuing authority, the state prosecutors and the provincial or city prosecutors were authorized to receive the complaint for election offense and delegate the conduct of investigation to any of their assistants. The investigating prosecutor, in turn, would make a recommendation either to dismiss the complaint or to file the information. This recommendation is subject to the approval of the state, provincial or city prosecutor, who himself may file the information with the proper court if he finds sufficient cause to do so, subject, however, to the accused's right to appeal to the Comelec.[98]
Moreover, during the past national and local elections, the Comelec issued Resolutions[99] requesting the Secretary of Justice to assign prosecutors as members of Special Task Forces to assist the Comelec in the investigation and prosecution of election offenses. These Special Task Forces were created because of the need for additional lawyers to handle the investigation and prosecution of election offenses.
Clearly, the Comelec recognizes the need to delegate to the prosecutors the power to conduct preliminary investigation. Otherwise, the prompt resolution of alleged election offenses will not be attained. This delegation of power, otherwise known as deputation, has long been recognized and, in fact, been utilized as an effective means of disposing of various election offense cases. Apparently, as mere deputies, the prosecutors played a vital role in the conduct of preliminary investigation, in the resolution of complaints filed before them, and in the filing of the informations with the proper court.
As pointed out by the Court in Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections,[100] the grant of exclusive power to investigate and prosecute cases of election offenses to the Comelec was not by virtue of the Constitution but by the Omnibus Election Code which was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ now conducts preliminary investigation of election offenses concurrently with the Comelec and no longer as mere deputies. If the prosecutors had been allowed to conduct preliminary investigation and file the necessary information by virtue only of a delegated authority, they now have better grounds to perform such function by virtue of the statutory grant of authority. If deputation was justified because of lack of funds and legal officers to ensure prompt and fair investigation and prosecution of election offenses, the same justification should be cited to justify the grant to the other prosecuting arms of the government of such concurrent jurisdiction.
In view of the foregoing disquisition, we find no impediment for the creation of a Joint Committee. While the composition of the Joint Committee and Fact-Finding Team is dominated by DOJ officials, it does not necessarily follow that the Comelec is inferior. Under the Joint Order, resolutions of the Joint Committee finding probable cause for election offenses shall still be approved by the Comelec in accordance with the Comelec Rules of Procedure. This shows that the Comelec, though it acts jointly with the DOJ, remains in control of the proceedings. In no way can we say that the Comelec has thereby abdicated its independence to the executive department.
The text and intent of the constitutional provision granting the Comelec the authority to investigate and prosecute election offenses is to give the Comelec all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections.[101] The Comelec should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created.[102] We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this Court should not interfere.[103] Thus, Comelec Resolution No. 9266, approving the creation of the Joint Committee and Fact-Finding Team, should be viewed not as an abdication of the constitutional body's independence but as a means to fulfill its duty of ensuring the prompt investigation and prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest, peaceful and credible elections.
Although it belongs to the executive department, as the agency tasked to investigate crimes, prosecute offenders, and administer the correctional system, the DOJ is likewise not barred from acting jointly with the Comelec. It must be emphasized that the DOJ and the Comelec exercise concurrent jurisdiction in conducting preliminary investigation of election offenses. The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter.[104] Contrary to the contention of the petitioners, there is no prohibition on simultaneous exercise of power between two coordinate bodies. What is prohibited is the situation where one files a complaint against a respondent initially with one office (such as the Comelec) for preliminary investigation which was immediately acted upon by said office and the re-filing of substantially the same complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction by the second office over the cases filed will not be allowed. Indeed, it is a settled rule that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others.[105] As cogently held by the Court in Department of Justice v. Hon. Liwag:[106]
None of these problems would likely arise in the present case. The Comelec and the DOJ themselves agreed that they would exercise their concurrent jurisdiction jointly. Although the preliminary investigation was conducted on the basis of two complaints the initial report of the Fact-Finding Team and the complaint of Senator Pimentel both complaints were filed with the Joint Committee. Consequently, the complaints were filed with and the preliminary investigation was conducted by only one investigative body. Thus, we find no reason to disallow the exercise of concurrent jurisdiction jointly by those given such authority. This is especially true in this case given the magnitude of the crimes allegedly committed by petitioners. The joint preliminary investigation also serves to maximize the resources and manpower of both the Comelec and the DOJ for the prompt disposition of the cases.
Citing the principle of concurrent jurisdiction, petitioners insist that the investigation conducted by the Comelec involving Radam and Martirizar bars the creation of the Joint Committee for purposes of conducting another preliminary investigation. In short, they claim that the exercise by the Comelec of its jurisdiction to investigate excludes other bodies such as the DOJ and the Joint Committee from taking cognizance of the case. Petitioners add that the investigation should have been conducted also by the Comelec as the 2007 cases of Radam and Martirizar include several John Does and Jane Does.
We do not agree.
While the Comelec conducted the preliminary investigation against Radam, Martirizar and other unidentified persons, it only pertains to election offenses allegedly committed in North and South Cotabato. On the other hand, the preliminary investigation conducted by the Joint Committee (involving GMA) pertains to election offenses supposedly committed in Maguindanao. More importantly, considering the broad power of the Comelec to choose the means of fulfilling its duty of ensuring the prompt investigation and prosecution of election offenses as discussed earlier, there is nothing wrong if the Comelec chooses to work jointly with the DOJ in the conduct of said investigation. To reiterate, in no way can we consider this as an act abdicating the independence of the Comelec.
Publication Requirement
In the conduct of preliminary investigation, the DOJ is governed by the Rules of Court, while the Comelec is governed by the 1993 Comelec Rules of Procedure. There is, therefore, no need to promulgate new Rules as may be complementary to the DOJ and Comelec Rules.
As earlier discussed, considering that Joint Order No. 001-2011 only enables the Comelec and the DOJ to exercise powers which are already vested in them by the Constitution and other existing laws, it need not be published for it to be valid and effective. A close examination of the Joint Committee's Rules of Procedure, however, would show that its provisions affect the public. Specifically, the following provisions of the Rules either restrict the rights of or provide remedies to the affected parties, to wit: (1) Section 1 provides that "the Joint Committee will no longer entertain complaints from the public as soon as the Fact-Finding Team submits its final report, except for such complaints involving offenses mentioned in the Fact-Finding Team's Final Report"; (2) Section 2 states that "the Joint Committee shall not entertain a Motion to Dismiss"; and (3) Section 5 provides that a Motion for Reconsideration may be availed of by the aggrieved parties against the Joint Committee's Resolution. Consequently, publication of the Rules is necessary.
The publication requirement covers not only statutes but administrative regulations and issuances, as clearly outlined in Tañada v. Tuvera:[108]
As opposed to Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice,[110] where the Court held that OMB-DOJ Joint Circular No. 95-001 is only an internal arrangement between the DOJ and the Office of the Ombudsman outlining the authority and responsibilities among prosecutors of both offices in the conduct of preliminary investigation, the assailed Joint Committee's Rules of Procedure regulate not only the prosecutors of the DOJ and the Comelec but also the conduct and rights of persons, or the public in general. The publication requirement should, therefore, not be ignored.
Publication is a necessary component of procedural due process to give as wide publicity as possible so that all persons having an interest in the proceedings may be notified thereof.[111] The requirement of publication is intended to satisfy the basic requirements of due process. It is imperative for it will be the height of injustice to punish or otherwise burden a citizen for the transgressions of a law or rule of which he had no notice whatsoever.[112]
Nevertheless, even if the Joint Committee's Rules of Procedure is ineffective for lack of publication, the proceedings undertaken by the Joint Committee are not rendered null and void for that reason, because the preliminary investigation was conducted by the Joint Committee pursuant to the procedures laid down in Rule 112 of the Rules on Criminal Procedure and the 1993 Comelec Rules of Procedure.
Validity of the Conduct of
Preliminary Investigation
In her Supplemental Petition,[113] GMA outlines the incidents that took place after the filing of the instant petition, specifically the issuance by the Joint Committee of the Joint Resolution, the approval with modification of such resolution by the Comelec and the filing of information and the issuance of a warrant of arrest by the RTC. With these supervening events, GMA further assails the validity of the proceedings that took place based on the following additional grounds: (1) the undue and unbelievable haste attending the Joint Committee's conduct of the preliminary investigation, its resolution of the case, and its referral to and approval by the Comelec, taken in conjunction with the statements from the Office of the President, demonstrate a deliberate and reprehensible pattern of abuse of inalienable rights and a blatant disregard of the envisioned integrity and independence of the Comelec; (2) as it stands, the creation of the Joint Committee was for the singular purpose of railroading the proceedings in the prosecution of the petitioner and in flagrant violation of her right to due process and equal protection of the laws; (3) the proceedings of the Joint Committee cannot be considered impartial and fair, considering that respondents have acted as law enforcers, who conducted the criminal investigation, gathered evidence and thereafter ordered the filing of complaints, and at the same time authorized preliminary investigation based on the complaints they caused to be filed; (4) the Comelec became an instrument of oppression when it hastily approved the resolution of the Joint Committee even if two of its members were in no position to cast their votes as they admitted to not having yet read the voluminous records of the cases; and (5) flagrant and repeated violations of her right to due process at every stage of the proceedings demonstrate a deliberate attempt to single out petitioner through the creation of the Joint Committee.[114]
In their Supplement to the Consolidated Comment,[115] respondents accuse petitioners of violating the rule against forum shopping. They contend that in filing the Supplemental Petition before the Court, the Urgent Omnibus Motion Ad Cautelam with the RTC, and the Motion to Vacate Ad Cautelam with the Comelec, GMA raises the common issue of whether or not the proceedings before the Joint Committee and the Comelec are null and void for violating the Constitution. Respondents likewise claim that the issues raised in the supplemental petition are factual which is beyond the power of this Court to decide.
We cannot dismiss the cases before us on the ground of forum shopping.
Forum shopping is the act of a party against whom an adverse judgment has been rendered in one forum, of seeking another and possibly favorable opinion in another forum other than by appeal or the special civil action of certiorari.[116] There can also be forum shopping when a party institutes two or more suits in different courts, either simultaneously or successively, in order to ask the courts to rule on the same and related causes and/or to grant the same or substantially the same reliefs on the supposition that one or the other court would make a favorable disposition or increase a party's chances of obtaining a favorable decision or action.[117]
Indeed, petitioner GMA filed a Supplemental Petition before the Court, an Urgent Omnibus Motion Ad Cautelam before the RTC, and a Motion to Vacate Ad Cautelam before the Comelec, emphasizing the unbelievable haste committed by the Joint Committee and the Comelec in disposing of the cases before them. However, a plain reading of the allegations in GMA's motion before the RTC would show that GMA raised the issue of undue haste in issuing the Joint Resolution only in support of her prayer for the trial court to hold in abeyance the issuance of the warrant of arrest, considering that her motion for reconsideration of the denial of her motion to be furnished copies of documents was not yet acted upon by the Joint Committee. If at all the constitutional issue of violation of due process was raised, it was merely incidental. More importantly, GMA raised in her motion with the RTC the finding of probable cause as she sought the judicial determination of probable cause which is not an issue in the petitions before us. GMA's ultimate prayer is actually for the court to defer the issuance of the warrant of arrest. Clearly, the reliefs sought in the RTC are different from the reliefs sought in this case. Thus, there is no forum shopping.
With respect to the Motion to Vacate Ad Cautelam filed with the Comelec, while the issues raised therein are substantially similar to the issues in the supplemental petition which, therefore, strictly speaking, warrants outright dismissal on the ground of forum shopping, we cannot do so in this case in light of the due process issues raised by GMA.[118] It is worthy to note that the main issues in the present petitions are the constitutionality of the creation of the Joint Panel and the validity of the proceedings undertaken pursuant thereto for alleged violation of the constitutional right to due process. In questioning the propriety of the conduct of the preliminary investigation in her Supplemental Petition, GMA only raises her continuing objection to the exercise of jurisdiction of the Joint Committee and the Comelec. There is, therefore, no impediment for the Court to rule on the validity of the conduct of preliminary investigation.
In Uy v. Office of the Ombudsman,[119] the Court explained the nature of preliminary investigation, to wit:
A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not a mere formal or technical right but a substantive one, forming part of due process in criminal justice. [121]
In a preliminary investigation, the Rules of Court guarantee the petitioners basic due process rights such as the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits, and other supporting documents in her defense.[122] Admittedly, GMA received the notice requiring her to submit her counter-affidavit. Yet, she did not comply, allegedly because she could not prepare her counter-affidavit. She claimed that she was not furnished by Senator Pimentel pertinent documents that she needed to adequately prepare her counter-affidavit.
In her Omnibus Motion Ad Cautelam[123] to require Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for production of election documents as basis for the charge of electoral sabotage, GMA prayed that the Joint Committee issue an Order directing the Fact-Finding Team and Senator Pimentel to furnish her with copies of the following documents:
GMA likewise requested the production of election documents used in the Provinces of South and North Cotabato and Maguindanao.[125]
The Joint Committee, however, denied GMA's motion which carried with it the denial to extend the filing of her counter-affidavit. Consequently, the cases were submitted for resolution sans GMA's and the other petitioners' counter-affidavits. This, according to GMA, violates her right to due process of law.
We do not agree.
GMA's insistence of her right to be furnished the above-enumerated documents is based on Section 3 (b), Rule 112 of the Rules on Criminal Procedure, which reads:
Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants the respondent such right of examination, to wit:
Clearly from the above-quoted provisions, the subpoena issued against respondent [therein] should be accompanied by a copy of the complaint and the supporting affidavits and documents. GMA also has the right to examine documents but such right of examination is limited only to the documents or evidence submitted by the complainants (Senator Pimentel and the Fact-Finding Team) which she may not have been furnished and to copy them at her expense.
While it is true that Senator Pimentel referred to certain election documents which served as bases in the allegations of significant findings specific to the protested municipalities involved, there were no annexes or attachments to the complaint filed.[128] As stated in the Joint Committee's Order dated November 15, 2011 denying GMA's Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to furnish petitioners with all the supporting evidence.[129] However, Senator Pimentel manifested that he was adopting all the affidavits attached to the Fact-Finding Team's Initial Report.[130] Therefore, when GMA was furnished with the documents attached to the Initial Report, she was already granted the right to examine as guaranteed by the Comelec Rules of Procedure and the Rules on Criminal Procedure. Those were the only documents submitted by the complainants to the Committee. If there are other documents that were referred to in Senator Pimentel's complaint but were not submitted to the Joint Committee, the latter considered those documents unnecessary at that point (without foreclosing the relevance of other evidence that may later be presented during the trial)[131] as the evidence submitted before it were considered adequate to find probable cause against her.[132] Anyway, the failure of the complainant to submit documents supporting his allegations in the complaint may only weaken his claims and eventually works for the benefit of the respondent as these merely are allegations unsupported by independent evidence.
We must, however, emphasize at this point that during the preliminary investigation, the complainants are not obliged to prove their cause beyond reasonable doubt. It would be unfair to expect them to present the entire evidence needed to secure the conviction of the accused prior to the filing of information.[133] A preliminary investigation is not the occasion for the full and exhaustive display of the parties' respective evidence but the presentation only of such evidence as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof and should be held for trial.[134] Precisely there is a trial to allow the reception of evidence for the prosecution in support of the charge.[135]
With the denial of GMA's motion to be furnished with and examine the documents referred to in Senator Pimentel's complaint, GMA's motion to extend the filing of her counter-affidavit and countervailing evidence was consequently denied. Indeed, considering the nature of the crime for which GMA was subjected to preliminary investigation and the documents attached to the complaint, it is incumbent upon the Joint Committee to afford her ample time to examine the documents submitted to [the Joint Committee] in order that she would be able to prepare her counter-affidavit. She cannot, however, insist to examine documents not in the possession and custody of the Joint Committee nor submitted by the complainants. Otherwise, it might cause undue and unnecessary delay in the disposition of the cases. This undue delay might result in the violation of the right to a speedy disposition of cases as enshrined in Section 16, Article III of the Constitution which states that "all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." The constitutional right to speedy disposition of cases is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings.[136] Any party to a case has the right to demand on all officials tasked with the administration of justice to expedite its disposition.[137] Society has a particular interest in bringing swift prosecutions, and the society's representatives are the ones who should protect that interest.[138]
Even assuming for the sake of argument that the denial of GMA's motion to be furnished with and examine the documents referred to in Senator Pimentel's complaint carried with it the denial to extend the filing of her counter-affidavit and other countervailing evidence rendering the preliminary investigation irregular, such irregularity would not divest the RTC of jurisdiction over the case and would not nullify the warrant of arrest issued in connection therewith, considering that Informations had already been filed against petitioners, except Mike Arroyo. This would only compel us to suspend the proceedings in the RTC and remand the case to the Joint Committee so that GMA could submit her counter-affidavit and other countervailing evidence if she still opts to. However, to do so would hold back the progress of the case which is anathema to the accused's right to speedy disposition of cases.
It is well settled that the absence [or irregularity] of preliminary investigation does not affect the court's jurisdiction over the case. Nor does it impair the validity of the criminal information or render it defective. Dismissal is not the remedy.[139] Neither is it a ground to quash the information or nullify the order of arrest issued against the accused or justify the release of the accused from detention.[140] The proper course of action that should be taken is to hold in abeyance the proceedings upon such information and to remand the case for the conduct of preliminary investigation.[141]
In the landmark cases of Cojuangco, Jr. v. Presidential Commission on Good Government [PCGG][142] and Allado v. Diokno,[143] we dismissed the criminal cases and set aside the informations and warrants of arrest. In Cojuangco, we dismissed the criminal case because the information was filed by the PCGG which we declared to be unauthorized to conduct the preliminary investigation and, consequently, file the information as it did not possess the cold neutrality of an impartial judge. In Allado, we set aside the warrant of arrest issued against petitioners therein and enjoined the trial court from proceeding further for lack of probable cause. For one, there was serious doubt on the reported death of the victim in that case since the corpus delicti had not been established nor had his remains been recovered; and based on the evidence submitted, there was nothing to incriminate petitioners therein. In this case, we cannot reach the same conclusion because the Information filed before the RTC of Pasay City was filed by the Comelec en banc which had the authority to file the information for electoral sabotage and because the presence or absence of probable cause is not an issue herein. As can be gleaned from their assignment of errors/issues, petitioners did not question the finding of probable cause in any of their supplemental petitions. It was only in GMA's memorandum where she belatedly included a discussion on the "insufficiency" of the evidence supporting the finding of probable cause for the filing of the Information for electoral sabotage against her.[144] A closer look at her arguments, however, would show that they were included only to highlight the necessity of examining the election documents GMA requested to see before she could file her counter-affidavit. At any rate, since GMA failed to submit her counter-affidavit and other countervailing evidence within the period required by the Joint Committee, we cannot excuse her from noncompliance.
There might have been overzealousness on the part of the Joint Committee in terminating the investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the information in court. However, speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an injudicious performance of functions.[145] The orderly administration of justice remains the paramount consideration with particular regard to the peculiar circumstances of each case.[146] To be sure, petitioners were given the opportunity to present countervailing evidence. Instead of complying with the Joint Committee's directive, several motions were filed but were denied by the Joint Committee. Consequently, petitioners' right to submit counter-affidavit and countervailing evidence was forfeited. Taking into account the constitutional right to speedy disposition of cases and following the procedures set forth in the Rules on Criminal Procedure and the Comelec Rules of Procedure, the Joint Committee finally reached its conclusion and referred the case to the Comelec. The latter, in turn, performed its task and filed the information in court. Indeed, petitioners were given the opportunity to be heard. They even actively participated in the proceedings and in fact filed several motions before the Joint Committee. Consistent with the constitutional mandate of speedy disposition of cases, unnecessary delays should be avoided.
Finally, we take judicial notice that on February 23, 2012, GMA was already arraigned and entered a plea of "not guilty" to the charge against her and thereafter filed a Motion for Bail which has been granted. Considering that the constitutionality of the creation of the Joint Panel is sustained, the actions of the Joint Committee and Fact-Finding Team are valid and effective. As the information was filed by the Commission authorized to do so, its validity is sustained. Thus, we consider said entry of plea and the Petition for Bail waiver on the part of GMA of her right to submit counter- affidavit and countervailing evidence before the Joint Committee, and recognition of the validity of the information against her. Her act indicates that she opts to avail of judicial remedies instead of the executive remedy of going back to the Joint Committee for the submission of the counter- affidavit and countervailing evidence. Besides, as discussed earlier, the absence [or irregularity] of preliminary investigation does not affect the court's jurisdiction over the case nor does it impair the validity of the criminal information or render it defective.
It must be stressed, however, that this supervening event does not render the cases before the Court moot and academic as the main issues raised by petitioners are the constitutionality of the creation of the Joint Committee and the Fact-Finding Team and the validity of the proceedings undertaken pursuant to their respective mandates.
The Court notes that the Joint Committee and the Comelec have not disposed of the cases of the other respondents subjects of the preliminary investigation as some of them were subjected to further investigation. In order to remove the cloud of doubt that pervades that petitioners are being singled out, it is to the best interest of all the parties concerned that the Joint Committee and the Comelec terminate the proceedings as to the other respondents therein and not make a piecemeal disposition of the cases.
A peripheral issue which nonetheless deserves our attention is the question about the credibility of the Comelec brought about by the alleged professional relationship between Comelec Chairman Brillantes on one hand and the complainant Senator Pimentel and Fernando Poe, Jr. (FPJ), GMA's rival in the 2004 elections, on the other hand; and by the other Commissioners'[147] reasons for their partial inhibition. To be sure, Chairman Brillantes' relationship with FPJ and Senator Pimentel is not one of the grounds for the mandatory disqualification of a Commissioner. At its most expansive, it may be considered a ground for voluntary inhibition which is indeed discretionary as the same was primarily a matter of conscience and sound discretion on the part of the Commissioner judge based on his or her rational and logical assessment of the case.[148] Bare allegations of bias and prejudice are not enough in the absence of clear and convincing evidence to overcome the presumption that a judge will undertake his noble role to dispense justice according to law and evidence without fear or favor.[149] It being discretionary and since Commissioner Brillantes was in the best position to determine whether or not there was a need to inhibit from the case, his decision to participate in the proceedings, in view of higher interest of justice, equity and public interest, should be respected. While a party has the right to seek the inhibition or disqualification of a judge (or prosecutor or Commissioner) who does not appear to be wholly free, disinterested, impartial, and independent in handling the case, this right must be weighed with his duty to decide cases without fear of repression.[150]
Indeed, in Javier v. Comelec,[151] the Court set aside the Comelec's decision against Javier when it was disclosed that one of the Commissioners who had decided the case was a law partner of Javier's opponent and who had refused to excuse himself from hearing the case. Javier, however, is not applicable in this case. First, the cited case involves the Comelec's exercise of its adjudicatory function as it was called upon to resolve the propriety of the proclamation of the winner in the May 1984 elections for Batasang Pambansa of Antique. Clearly, the grounds for inhibition/disqualification were applicable. Second, the case arose at the time where the purity of suffrage has been defiled and the popular will scorned through the confabulation of those in authority.[152] In other words, the controversy arose at the time when the public confidence in the Comelec was practically nil because of its transparent bias in favor of the administration.[153] Lastly, in determining the propriety of the decision rendered by the Comelec, the Court took into consideration not only the relationship (being former partners in the law firm) between private respondents therein, Arturo F. Pacificador, and then Comelec Commissioner Jaime Opinion (Commissioner Opinion) but also the general attitude of the Comelec toward the party in power at that time. Moreover, the questioned Comelec decision was rendered only by a division of the Comelec. The Court thus concluded in Javier that Commissioner Opinion's refusal to inhibit himself divested the Comelec's Second Division of the necessary vote for the questioned decision and rendered the proceedings null and void.[154]
On the contrary, the present case involves only the conduct of preliminary investigation and the questioned resolution is an act of the Comelec En Banc where all the Commissioners participated and more than a majority (even if Chairman Brillantes is excluded) voted in favor of the assailed Comelec resolution. Unlike in 1986, public confidence in the Comelec remains. The Commissioners have already taken their positions in light of the claim of "bias and partiality" and the causes of their partial inhibition. Their positions should be respected confident that in doing so, they had the end in view of ensuring that the credibility of the Commission is not seriously affected.
To recapitulate, we find and so hold that petitioners failed to establish any constitutional or legal impediment to the creation of the Joint DOJ- Comelec Preliminary Investigation Committee and Fact-Finding Team.
First, while GMA and Mike Arroyo were among those subjected to preliminary investigation, not all respondents therein were linked to GMA; thus, Joint Order No. 001-2011 does not violate the equal protection clause of the Constitution.
Second, the due process clause is likewise not infringed upon by the alleged prejudgment of the case as petitioners failed to prove that the Joint Panel itself showed such bias and partiality against them. Neither was it shown that the Justice Secretary herself actually intervened in the conduct of the preliminary investigation. More importantly, considering that the Comelec is a collegial body, the perceived prejudgment of Chairman Brillantes as head of the Comelec cannot be considered an act of the body itself.
Third, the assailed Joint Order did not create new offices because the Joint Committee and Fact-Finding Team perform functions that they already perform by virtue of the Constitution, the statutes, and the Rules of Court.
Fourth, in acting jointly with the DOJ, the Comelec cannot be considered to have abdicated its independence in favor of the executive branch of government. Resolution No. 9266 was validly issued by the Comelec as a means to fulfill its duty of ensuring the prompt investigation and prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest, peaceful, and credible elections. The role of the DOJ in the conduct of preliminary investigation of election offenses has long been recognized by the Comelec because of its lack of funds and legal officers to conduct investigations and to prosecute such cases on its own. This is especially true after R.A. No. 9369 vested in the Comelec and the DOJ the concurrent jurisdiction to conduct preliminary investigation of all election offenses. While we uphold the validity of Comelec Resolution No. 9266 and Joint Order No. 001-2011, we declare the Joint Committee's Rules of Procedure infirm for failure to comply with the publication requirement. Consequently, Rule 112 of the Rules on Criminal Procedure and the 1993 Comelec Rules of Procedure govern.
Fifth, petitioners were given the opportunity to be heard. They were furnished a copy of the complaint, the affidavits, and other supporting documents submitted to the Joint Committee and they were required to submit their counter-affidavit and countervailing evidence. As to petitioners Mike Arroyo and Abalos, the pendency of the cases before the Court does not automatically suspend the proceedings before the Joint Committee nor excuse them from their failure to file the required counter-affidavits. With the foregoing disquisitions, we find no reason to nullify the proceedings undertaken by the Joint Committee and the Comelec in the electoral sabotage cases against petitioners.
WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the Fact- Finding Team's Initial Report dated October 20, 2011, are declared VALID. However, the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of publication.
In view of the constitutionality of the Joint Panel and the proceedings having been conducted in accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases for electoral sabotage against petitioners GMA and Abalos are pending, proceed with dispatch.
SO ORDERED.
Velasco, Jr., Bersamin, Del Castillo, Perez, Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.
Sereno, C.J., I concur, except for the part where J. Carpio dissents.
Carpio, J., see separate concurring and dissenting opinion.
Leonardo-De Castro, J., join the dissenting and concurring opinion of Justice Brion.
Brion, J., see my dissenting opinion.
Abad, J., join Justice A.D. Brion in his dissent.
Villarama, Jr., J., on official leave.
[1] Rollo (G.R. No. 199118), pp. 47-48.
[2] Id. at 49-53.
[3] Id. at 54-57.
[4] Id. at 58-139.
[5] Id. at 47.
[6] Id. at 50.
[7] Id. at 50-51.
[8] Composed of the following:
[10] Section 7. Rules of Procedure. Within forty-eight (48) hours from the issuance of this Joint Order, the Committee shall meet and craft its rules of procedure as may be complementary to the respective rules of DOJ and Comelec, and submit the same to the Secretary of Justice and the Comelec En Banc for approval within five (5) days from such initial meeting.
[11] Rollo (G.R. No. 199118), pp. 58-143.
[12] Id. at 124.
[13] Michael C. Abas; Col. Reuben Basiao; John Doe Alias Major Joey Leaban; John Doe alias Capt. Peter Reyes; Atty. Jaime Paz; Atty. Alberto Agra; Romy Dayday; Jeremy Javier; Atty. Lilian A. Suan-Radam and Atty. Yogie G. Martirizar.
[14] Gloria Macapagal Arroyo; Datu Andal Ampatuan, Sr.; Lintang H. Bedol; Norie K. Unas; John Doe alias Butch; Benjamin Abalos, [Sr.]; Nicodemo Ferrer; Estelita B. Orbase; Elisa A. Gasmin; Elsa Z. Atinen;. Saliao S. Amba; Magsaysay B. Mohamad; Salonga K. Adzela; Ragah D. Ayunan; Susan U. Cabanban; Russam H. Mabang; Asuncion Corazon P. Reniedo; Nena A. Alid;. Ma. Susan L. Albano; Rohaida T. Khalid; Araw M. Cao; Jeehan S. Nur; Alice A. Lim; Norijean P. Hangkal; Christina Roan M. Dalope; Maceda L. Abo
[15] Rollo (G.R. No. 199118), pp. 132-134.
[16] Former First Gentleman Miguel Arroyo; Bong Serrano; Salonga K. Edzela; Election Assistant Gani Maliga; Members of the SPBOC of Maguindanao Atty. Emilio Santos, Atty. Manuel Lucero and Atty. Dinah Valencia; PES Faisal Tanjili; RED for Region XI Remlani Tambuang; RED for ARMM Ray Sumalipao; Boboy Magbutay from the Visayas; and certain Pobe from the Caraga Region.
[17] Rollo (G.R. No. 199118), p. 137.
[18] Rollo (G.R. No. 199085), pp. 163-194.
[19] Bong Serrano; Gabby Claudio; Nicodemo Ferrer; Michael C. Abas; Ben Basiao; John Oliver Leaban; Peter Reyes; Jaime Paz; Alberto Agra; Andrei Bon Tagum; Romy Dayday; Jeremy Javier.
[20] Rollo (G.R. No. 199118), p. 316.
[21] Id. at 17.
[22] Rollo (G.R. No. 199082), p. 21.
[23] Refers to the Joint Committee and Fact-Finding Team.
[24] Rollo (G.R. No. 199082), pp. 158-161.
[25] Rollo (G.R. No. 199118), pp. 250-259.
[26] Id. at 254.
[27] Id. at 257.
[28] Rollo (G.R. No. 199085), pp. 302-306.
[29] Rollo (G.R. No. 199118), pp. 260-264.
[30] Id. at 224.
[31] Id. at 319.
[32] Id. at 265-273.
[33] Id. at 271-272.
[34] Id. at 321.
[35] Id. at 226.
[36] Id. at 274-280.
[37] Id. at 439-451.
[38] Rollo (G.R. No. 199082), pp. 21-23.
[39] Rollo (G.R. No. 199085), pp. 23-24.
[40] Rollo (G.R. No. 199118), pp. 18-19.
[41] Id. at 281-282.
[42] Id. at 291-292.
[43] Id. at 576-577.
[44] Id. at 326-327.
[45] Id. at 238.
[46] Id. at 330.
[47] Id. at 331.
[48] Id. at 333.
[49] Id. at 335.
[50] Mattel, Inc. v. Francisco, G.R. No. 166886, July 30, 2008, 560 SCRA 504, 514.
[51] Id.
[52] Garayblas v. Atienza, Jr., G.R. No. 149493, June 22, 2006, 492 SCRA 202, 216; See: Tantoy, Sr. v. Abrogar, G.R. No. 156128, May 9, 2005, 458 SCRA 301, 305.
[53] Garayblas v. Atienza, Jr., supra, at 216-217.
[54] 268 Phil. 235 (1990).
[55] Id. at 241.
[56] G.R. No. 113630, May 5, 1994, 232 SCRA 192.
[57] Bagabuyo v. Commission on Elections, G.R. No. 176970, December 8, 2008, 573 SCRA 290, 296.
[58] Id.
[59] Rollo (G.R. No. 199082), p. 6; rollo (G.R. No. 199085), p. 5; rollo (G.R. No. 199118), p. 9.
[60] Moldex Realty, Inc. v. Housing and Land Use Regulatory Board, G.R. No. 149719, June 21, 2007, 525 SCRA 198, 206.
[61] Chua v. Ang, G.R. No. 156164, September 4, 2009, 598 SCRA 229, 237-238.
[62] Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections, G.R. No. 177508, August 7, 2009, 595 SCRA 477, 493-494.
[63] Baytan v. Comelec, 444 Phil. 812, 817-818 (2003); Pimentel, Jr. v. Comelec, 352 Phil. 424, 439 (1998).
[64] Diño v. Olivarez, G.R. No. 170447, December 4, 2009, 607 SCRA 251, 261; Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections, supra note 62, at 495-496; Commission on Elections v. Español, G.R. Nos. 149164-73, December 10, 2003, 417 SCRA 554, 565.
[65] Section 2. Continuing Delegation of Authority to Other Prosecution Arms of the Government. The Chief State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants are hereby given continuing authority, as deputies of the Commission, to conduct preliminary investigation of complaints involving election offenses under the election laws which may be filed directly with them, or which may be indorsed to them by the Commission or its duly authorized representatives and to prosecute the same. Such authority may be revoked or withdrawn anytime by the Commission whenever in its judgment such revocation or withdrawal is necessary to protect the integrity of the Commission, promote the common good, or when it believes that successful prosecution of the case can be done by the Commission.
[66] Commission on Elections v. Español, supra note 64, at 565.
[67] Id.
[68] Id. at 565-566.
[69] G.R. Nos. 83938-40, November 6, 1989, 179 SCRA 190.
[70] People v. Basilia, supra, cited in Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections, supra note 62, at 496.
[71] An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending for the purpose Batas Pambansa Blg. 881, As Amended, Republic Act No. 7166 and Other Related Election Laws, Providing Funds Therefor and for Other Purposes."
[72] Emphasis supplied.
[73] Rollo (G.R. No. 199118), pp. 49-50.
[74] Emphasis supplied.
[75] G.R. Nos. 192935 and 193036, December 7, 2010, 637 SCRA 78.
[76] Id. at 166-167.
[77] Creating the Philippine Truth Commission.
[78] Santos v. People, G.R. No. 173176, August 26, 2008, 563 SCRA 341, 369.
[79] Dimayuga v. Office of the Ombudsman, G.R. No. 129099, July 20, 2006, 495 SCRA 461, 469.
[80] 1987 Constitution, Article IX (C), Section 2 (l).
[81] 1987 Constitution, Article IX (C), Section 2 (4).
[82] 1993 Comelec Rules of Procedure, Sec. 3.
[83] Cruz, Jr. v. People, G.R. No. 110436, June 27, 1994, 233 SCRA 439, 449.
[84] Id.
[85] Id. at 450, citing Cojuangco, Jr. v. PCGG, et al., supra note 54.
[86] G.R. Nos. 170270-72, June 1, 2007, 523 SCRA 318.
[87] Id. at 345, citing Tatad v. Sandiganbayan, G.R. No. L-72335-39, March 21, 1998, 159 SCRA 70.
[88] Santos-Concio v. Department of Justice, G.R. No. 175057, January 29, 2008, 543 SCRA 70, 90.
[89] Gutierrez v. House of Representatives Committee on Justice, G.R. No. 193459, February 15, 2011, 643 SCRA 198, 234.
[90] Santos-Concio v. Department of Justice, supra note 88.
[91] Section 1, Chapter I, Title III, Book IV of the Administrative Code of 1987.
[92] Section 3 (2), Chapter 1, Title III, Book IV, Administrative Code of 1987.
[93] Rules of Criminal Procedure, Rule 112, Section 1.
[94] R.A. 9369, Sec. 43.
[95] Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.
[96] Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18, 1990, 192 SCRA 358, 360.
[97] Gallardo v. Tabamo, Jr., G.R. No. 104848, January 29, 1993, 218 SCRA 253, 264.
[98] Comelec Rules of Procedure, Rule 34.
[99] Comelec Resolution No. 3467 "In the Matter of Requesting the Honorable Secretary of Justice to Assign Prosecutors as Members of a Special Task Force to Assist the Commission in the Investigation and Prosecution of Election Offenses in the May 14, 2001 National and Local Elections and reiterating the Continuing Deputation of Prosecutors under Rule 34 of the Comelec Rules of Procedure"; Resolution No. 8733 "In the Matter of Requesting the Honorable Secretary of Justice to Assign Prosecutors as Members of a Special Task Force Created by the Commission to Conduct the Investigation and Prosecution of Election Offenses in Connection with the May 10, 2010 National and Local Elections"; Resolution No. 9057 "In the Matter of Requesting the Honorable Secretary of Justice to Assign Prosecutors as Members of a Special Task Force to Assist the Commission in the Investigation and Prosecution of Election Offenses in Connection with the October 25, 2010 Barangay and Sanguniang Kabataan Elections." (Emphasis supplied.)
[100] Supra note 62.
[101] Bedol v. Commission on Elections, G.R. No. 179830, December 3, 2009, 606 SCRA 554, 569, citing Loong v. Commission on Elections, G.R. No. 133676, April 14, 1999, 305 SCRA 832.
[102] Tolentino v. Comelec, G.R. No. 148334, January 21, 2004, 465 SCRA 385, 416.
[103] Id., citing Pungutan v. Abubakar, 150 Phil. 1 (1972).
[104] Department of Justice v. Hon. Liwag, 491 Phil. 270, 285 (2005).
[105] Id. at 287.
[106] Id.
[107] Id. at 287-288.
[108] 230 Phil. 528 (1986).
[109] Id. at 535.
[110] G.R. No. 159747, April 13, 2004, 427 SCRA 46.
[111] National Association of Electricity Consumers for Reforms (NASECORE) v. Energy Regulatory Commission (ERC), G.R. No. 163935, August 16, 2006, 499 SCRA 103, 125.
[112] Garcillano v. House of Representatives Committees on Public Information, Public Order and Safety, National Defense and Security, Information and Communication Technology, and Suffrage and Electoral Reforms, G.R. No. 170338, December 23, 2008, 575 SCRA 170, 190.
[113] Rollo (G.R. No. 199118), pp. 222-249.
[114] Id. at 226-227.
[115] Id. at 472-488.
[116] Philippine Radiant Products, Inc. v. Metropolitan Bank & Trust Company, Inc., 513 Phil. 414, 428 (2005).
[117] Huibonhoa v. Concepcion, G.R. No. 153785, August 3, 2006, 497 SCRA 562, 569-570.
[118] See: Disini v. Sandiganbayan, G.R. No. 175730, July 5, 2010, 623 SCRA 354, 377.
[119] G.R. Nos. 156399-400, June 27, 2008, 556 SCRA 73.
[120] Id. at 93-94.
[121] Ladlad v. Velasco, supra note 86, at 344.
[122] Estandarte v. People, G.R. Nos. 156851-55, February 18, 2008, 546 SCRA 130, 144.
[123] Rollo (G.R. No. 199118), pp. 250-259.
[124] Id. at 251-253.
[125] Id. at 255.
[126] Emphasis supplied.
[127] Emphasis supplied.
[128] Rollo (G.R. No. 199085), p. 747.
[129] Rollo (G.R. No. 199118), p. 262.
[130] Rollo (G.R. No. 199085), p. 748.
[131] Id. at 763.
[132] Id. at 763-770.
[133] PCGG v. Hon. Desierto, 445 Phil. 154, 192 (2003).
[134] Id. at 193; Raro v. Sandiganbayan, 390 Phil. 917, 945 (2000).
[135] PCGG v. Hon. Desierto, supra note 133, at 193.
[136] Ombudsman v. Jurado, G.R. No. 154155, August 6, 2008, 561 SCRA 135, 146.
[137] Id. ; Yulo v. People, G.R. No. 142762, March 4, 2005, 452 SCRA 705, 710.
[138] Uy v. Adriano, G.R. No. 159098, October 27, 2006, 505 SCRA 625, 647.
[139] Raro v. Sandiganbayan, G.R. No. 108431, July 14, 2000, 335 SCRA 581; Socrates v. Sandiganbayan, G.R. Nos. 116259-60, February 20, 1996, 253 SCRA 773, 792; Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993, 221 SCRA 349, 355, citing Doromal v. Sandiganbayan, G.R. No. 85468, September 7, 1989, 177 SCRA 354.
[140] San Agustin v. People, G.R. No. 158211, August 31, 2004, 437 SCRA 392, 401.
[141] Raro v. Sandiganbayan, supra note 139; Socrates v. Sandiganbayan, supra note 139; Pilapil v. Sandiganbayan, supra note 139.
[142] Supra note 54.
[143] Supra note 56.
[144] Memorandum of GMA, rollo (G.R. No. 199118), pp. 74-84.
[145] Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA 575, 606, citing Santos-Concio v. Department of Justice, G.R. No. 175057, January 29, 2008, 543 SCRA 70.
[146] Id.
[147] Commissioners Elias R. Yusoph and Christian Robert S. Lim.
[148] Dipatuan v. Mangotara, A.M. No. RTJ-09-2190, April 23, 2010, 619 SCRA 48, 53; Argana v. Republic of the Philippines, 485 Phil 565, 591-592 (2004).
[149] Kilosbayan Foundation v. Janolo, Jr., G.R. No. 180543, July 27, 2010, 625 SCRA 684, 697-698.
[150] Philippine Commercial International Bank v. Dy Hong Pi, G.R. No. 171137, June 5, 2009, 588 SCRA 612, 632.
[151] Nos. L-68379-81, September 22, 1986, 144 SCRA 194.
[152] Javier v. Commission on Elections, Nos. L-68379-81, September 22, 1986, 144 SCRA 194, 196.
[153] Id. at 199.
[154] Id. at 207.
SEPARATE CONCURlNG AND DISSENTING OPINION
CARPIO, J.:
I concur with the ponencia in its conclusion that (I) there is no violation of the Due Process and Equal Protection Clause in the creation, composition, and proceedings of the Joint Department of Justice ( DOJ) Commission on Elections (COMELEC) Preliminary Investigation Committee (Committee) and the Fact--Finding Team; (2) petitiou0r Gloria Macapagal-Arroyo (Macapagal-Arroyo) in Ci.R. No. 1991 J8 was not lknied oppotiunity to be heard in the course of the Committee's preliminary investigation proceedings; and (3) the preliminary investigation against petitioners, which followed Rule 112 of the Rules on Criminal Procedure and Rule 34 of the COMELEC Rules of Procedure, is valid.
Petitioners' attack against the impartiality of the Committee and the Fact-Finding Team because of their composition and source of tlmding is negated by (1) the express statutory authority fiJr the DO.J and the COMELEC to conduct concurrently preliminary investigations on electionrelated offenses, (2) the separate tlmding for the Committee and FactFinding Team's personnel, and (3) the failure of petitioners to rebut the presumption of regularity in the performance of official functions. Similarly, the equal protection attack against Joint Order 001-2011 for its alleged underinclusivity fails as jurisprudence is clear that underinclusivity of classification, by itself, does not offend the Equal Protection Clause.[1]
Nor is there merit in petitioner Macapagal-Arroyo's claim that the Committee's denial of her request for time to file her counter-affidavit and for copies of documents relating to the complaint of Aquilino Pimentel III (Pimentel) and the Fact-Finding's partial investigation report robbed her of opportunity to be heard. Petitioner Macapagal-Arroyo was furnished with all the documents the Committee had in its possession. Further, the documents relating to Pimentel's complaint,[2] all based on an election protest he filed with the Senate Electoral Tribunal,[3] are not indispensable for petitioner Macapagal-Arroyo to prepare her counter-affidavit to answer the charge that she acted as principal by conspiracy, not by direct participation, to commit electoral sabotage in Maguindanao in the 2007 elections.
I am, however, unable to join the ponencia in its conclusion that the rules of procedure adopted by the Committee (Committee Rules) must be published.
Section 7 of the Joint Order provides that the "Committee shall meet and craft its rules of procedure as may be complementary to the respective rules of DOJ and COMELEC x x x." Section 2 of the Committee Rules provides that the "preliminary investigation shall be conducted in the following manner as may be complementary to Rule 112 of the Rules on Criminal Procedure and Rule 34 of the COMELEC Rules of Procedure." This means that the Committee Rules will apply only if they complement Rule 112 or Rule 34. If the Committee Rules do not complement Rule 112 or Rule 34 because the Committee Rules conflict with Rule 112 or Rule 34, the Committee Rules will not apply and what will apply will either be Rule 112 or Rule 34. Clearly, the Committee Rules do not amend or revoke Rule 112 or Rule 34, but only complement Rule 112 or Rule 34 if possible. "Complementary" means an addition so as to complete or perfect.[4] The Committee Rules apply only to the extent that they "may be complementary to" Rule 112 or Rule 34. In short, despite the adoption of the Committee Rules, Rule 112 of the Rules on Criminal Procedure and Rule 34 of the COMELEC Rules of Procedure indisputably remain in full force and effect.
Assuming, for the sake of argument, that the Committee Rules amend Rule 112 and Rule 34, the lack of publication of the Committee Rules renders them void, as correctly claimed by petitioners. In such a case, Rule 112 and Rule 34 remain in full force and effect unaffected by the void Committee Rules. The preliminary investigation in the present case was conducted in accordance with Rule 112 and Rule 34. Petitioners do not claim that any of their rights under Rule 112 or Rule 34 was violated because of the adoption of the Committee Rules. In short, petitioners cannot impugn the validity of the preliminary investigation because of the adoption of the Committee Rules, whether the adoption was void or not.
As shown in the matrix drawn by public respondents in their Comment,[5] of the ten paragraphs in Section 2 (Procedure) of the Committee Rules, only one paragraph is not found in Rule 112 of the Rules on Criminal Procedure and this relates to an internal procedure on the treatment of referrals by other government agencies or the Fact-Finding Team to the Committee.[6] In Honasan II v. Panel of Prosecutors of the DOJ,[7] the Court quoted and adopted the following argument of the Ombudsman:
In addition, Section 3 of the Committee Rules (Resolution of the Committee) is a substantial reproduction of the first paragraph of Section 4 of Rule 112, save for language replacing "investigating prosecutor" with "Committee." Section 4 of the Committee Rules (Approval of Resolution), while not appearing in Rule 112, is an internal automatic review mechanism (for the COMELEC en banc to review the Committee's findings) not affecting petitioners' rights.[8] Thus, save for ancillary internal rules, the Committee Rules merely reiterate the procedure embodied in Rule 112.
Nevertheless, the ponencia finds publication (and filing of the Committee Rules with the U.P. Law Center9) "necessary" because three provisions of the Committee Rules "either restrict the rights or provide remedies to the affected parties," namely:
None of these provisions justify placing the Committee Rules within the ambit of Tañada v. Tuvera.[11]
Section 1 of the Committee Rules allows the Committee, after the submission by the Fact-Finding Team of its Final Report, to entertain complaints mentioned in the Final Report and disallows the Committee to entertain complaints unrelated to the offenses mentioned in the Final Report. This is still part of the fact-finding stage and the Committee has the discretion to require the Fact-Finding Team to take into account new complaints relating to offenses mentioned in the Final Report. At this stage, there is still no preliminary investigation. Section 1 refers solely to the fact- finding stage, not the preliminary investigation. Thus, Section 1 cannot in any way amend, revoke or even clarify Rule 112 or Rule 34 which governs the preliminary investigation and not the fact-finding stage. Section 1 is merely an internal rule governing the fact-finding stage. To repeat, Section 1 does not have the force and effect of law that affects and binds the public in relation to the preliminary investigation. In short, there is no need to publish Section 1 because it deals solely with fact-finding, not with the preliminary investigation.
In barring acceptance of new complaints after the submission of the Fact-Finding Team's Final Report to the Committee, save for complaints on offenses covered in the Final Report, Section 1 merely states a commonsensical rule founded on logic. If the Final Report is with the Committee, it makes no sense to re-open the investigation for the Fact- Finding Team to investigate offenses wholly unrelated to the Final Report. For such new offenses, the Fact-Finding Team will have to open a new investigation. On the other hand, it makes eminent sense for the Fact- Finding Team to re-open investigation (and thus revise its Final Report) if the new complaints "involv[e] offenses mentioned in the Fact-Finding Team's Final Report," allowing the Fact-Finding Team to submit as thorough and comprehensive a Report as possible on the offenses subject of the Final Report. Far from "restrict[ing] the rights" of the "affected parties," Section 1 favors the petitioners by letting the Fact-Finding Team parse as much evidence available, some of which may be exculpatory, even after the Final Report has been submitted to the Committee, provided they relate to offenses subject of the Final Report.
On Section 2 and Section 5 of the Committee Rules, these provisions merely reiterate extant rules found in the Rules of Court and relevant administrative rules, duly published and filed with the U.P. Law Center. Thus, Section 2's proscription against the filing of a motion to dismiss is already provided in Section 3(c) of Rule 112 which states that "[t]he respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit."[12] Similarly, the right to seek reconsideration from an adverse Committee Resolution under Section 5, again favoring petitioners, has long been recognized and practiced in the preliminary investigations undertaken by the DOJ.[13] DOJ Order No. 223, dated 1 August 1993, as amended by DOJ Department Circular No. 70, dated 1 September 2000, grants to the aggrieved party the right to file "one motion for reconsideration" and reckons the period for the filing of appeal to the DOJ Secretary from the receipt of the order denying reconsideration.[14]
Tañada v. Tuvera requires publication of administrative rules that have the force and effect of law and the Revised Administrative Code requires the filing of such rules with the U.P. Law Center as facets of the constitutional guarantee of procedural due process, to prevent surprise and prejudice to the public who are legally presumed to know the law.[15] As the Committee Rules merely complement and even reiterate Rule 112 of the Rules on Criminal Procedure, I do not see how their non-publication and non-filing caused surprise or prejudice to petitioners. Petitioners' claim of denial of due process would carry persuasive weight if the Committee Rules amended, superseded or revoked existing applicable procedural rules or contained original rules found nowhere in the corpus of procedural rules of the COMELEC or in the Rules of Court, rendering publication and filing imperative.[16] Significantly, petitioner Macapagal-Arroyo encountered no trouble in availing of Rule 112 to file a motion with the Committee praying for several reliefs.[17]
Lastly, the complementary nature of the Committee Rules necessarily means that the proceedings of the Committee would have continued and no prejudice would have been caused to petitioners even if the Committee Rules were non-existent. The procedure provided in Rule 112 of the Rules on Criminal Procedure and Rule 34 of the COMELEC Rules of Procedure would have ipso facto applied since the Committee Rules merely reiterate Rule 112 and Rule 34. The ponencia concedes as much when it refused to invalidate the Committee's proceedings, observing that "the prelimenary investigation was conducted by the Joint Committee pursuant to the procedures laid down in Rule 112 of the Rules on Criminal Procedure and the 1993 COMELEC Rules of Procedure."[18]
Accordingly, I vote to DISMISS the petitions.
[1] See e.g. Quinto v. Commission on Elections, G.R. No. 189698, 22 February 2010, 613 SCRA 385 (reversing the earlier ruling of the Court striking down a law for its underinclusivity).
[2] Numerous election forms and 201,855 ballots from 1,078 precincts in Maguindanao.
[3] SET Case No. 001-07 (Aquilino Pimentel III v. Juan Miguel F. Zubiri).
[4] Merriam-Webster Dictionary, Version 3 (2003).
[5] Consolidated Comment, pp. 78-82.
[6] Section 2(a), second paragraph which provides: "The Committee shall treat a referral made by a government agency authorized to enforce the law or the referral, report or recommendation of the Fact-Finding Team for the prosecution of an offense as a complaint to initiate preliminary investigation. In any of these instances, the referral, report or recommendation must be supported by affidavits, documentary, and such other evidence to establish probable cause."
[7] G.R. No. 159747, 13 April 2004, 427 SCRA 46.
[8] The Committee Rules omit that portion of Section 3(b), Rule 112 which provides that "[I]f the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense." This, however, does not work prejudice to petitioner Macapagal- Arroyo because she was furnished with all the documents the Committee had in its possession relating to the two cases under investigation.
[9] Under Executive Order No. 292, Book VII, Chapter 2, Sections 3-4.
[10] Decision, p. 37.
[11] G.R. No. L-63915, 24 April 1985, 136 SCRA 27 (Decision); 29 December 1986, 146 SCRA 446 (Resolution).
[12] Section 3(c) provides in full: "Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit." (Emphasis supplied)
[13] See, e.g. Adamson v. Court of Appeals, G.R. No. 120935, 21 May 2009, 588 SCRA 27 (where the DOJ denied reconsideration of its Resolution for probable cause for violation of several provisions of the National Internal Revenue Code); People v. Potot, 432 Phil. 1028 (2002) (where a provincial prosecutor denied reconsideration to a finding of probable cause for Homicide.)
[14] Section 3 of DOJ Department Circular No. 70 provides in full: "Period to Appeal. The appeal shall be taken within fifteen (15) days from receipt of the resolution or of the denial of the motion for reconsideration/reinvestigation if one has been filed within fifteen (15) days from receipt of the assailed resolution. Only one motion for reconsideration shall be allowed." This amends Section 2 of DOJ Order No. 223 which provides: "When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel."
[15] Civil Code, Article 3.
[16] See e.g. Republic v. Express Telecommunications, Inc., G.R. No. 147096, 15 January 2002, 373 SCRA 316; GMA Network, Inc. v. MTRCB, G.R. No. 148579, 5 February 2007, 514 SCRA 191.
[17] On 8 November 2011, petitioner Macapagal-Arroyo filed an "Omnibus Motion Ad Cautelam" requesting copies of documents relating to DOJ-COMELEC Case No. 001-2011 and DOJCOMELEC Case No. 002-2011. In her motion, petitioner invoked Section 3, Rule 112 of the Rules on Criminal Procedure (Annex "A," Supplemental Petition, G.R. No. 199118).
[18] Decision, pp. 38-39. Emphasis supplied.
DISSENTING AND CONCURING OPINION
The Boiling Frog
Place a frog in boiling water, and
it will jump out ro save itself;
But place it in cold water
and slowly apply heat,
and the frog will boil to death[1]
BRION, J.:
I open this Dissenting and Concurring Opinion with the tale of the metaphorical "boiling frog" to warn the Court and the readers about the deeper implications of this case a case that involves a major breach of the Philippine Constitution where the frog stands for the independence of the Commission on Elections (COMELEC).
As one American article on the metaphor puts it,[2] "[I]f people become acclimated to some policy or state of affairs over a sufficient period of time, they come to accept the policy or state of affairs as normal. . .The Boiling Frog Syndrome explains how the American public has come to accept breaches of Constitutional government that would have provoked armed resistance a hundred years ago. The public has grown accustomed to these breaches, and to the federal government conducting myriad activities that are nowhere authorized by the Constitution and accepts them as normal."[3]
In the Philippine setting, the various Philippine Constitutions have expressly guaranteed independence to the Judiciary, to the Office of the Ombudsman, and to the Constitutional Commissions, one of which is the COMELEC. The independence is mainly against the intrusion of the Executive,[4] the government department that implements the laws passed by the Legislature and that administered and controlled the conduct of elections in the past.[5] The Judiciary has so far fully and zealously guarded the role of these institutions and their independence in the constitutional scheme, but the nation cannot rest on this record and must ever be vigilant.
While gross and patent violations of the guarantee of independence will not sit well with, and will not be accepted by, the people, particularly in this age of information and awareness, ways other than the gross and the patent, exist to subvert the constitutional guarantee of independence. The way is through small, gradual and incremental changes boiling the frog that people will not notice, but which, over time, will slowly and surely result in the subjugation of the independent institutions that the framers of the Constitution established to ensure balance and stability in a democratic state where the separation of powers among the three branches of government, and checks and balances, are the dominant rules.
This is what the present case is all about a subtle change that people will hardly notice except upon close and critical study, and until they look around them for other subtle changes in other areas of governance, all of them put into place with the best professed intentions but tending to subvert the structures that the framers of the Constitution very carefully and thoughtfully established. Unless utmost vigilance is observed and subtle subverting changes are immediately resisted, the people may never fully know how their cherished democratic institutions will come to naught; through slow and gradual weakening, these democratic institutions like the frog will end up dead. Sadly, this process of gradualism is what the Court allows in the present case.
It is in this context that I filed this Dissent from the majority's conclusion that COMELEC Resolution No. 9266 and Joint Order No. 001-2011 are valid and constitutional, although I ultimately concur with the majority's resulting conclusion, based on non-constitutional grounds, that the petitions should be dismissed. I maintain that these assailed issuances are fatally defective and should be struck down for violating the constitutionally guaranteed independence of COMELEC.
In its rulings, the majority held that the petitioners failed to establish any constitutional or legal impediment to the creation of the Joint Department of Justice (DOJ)-COMELEC Preliminary Investigation Committee (Joint Committee) and the Fact-Finding Team. It likewise held that the petitioners' issues relating to equal protection, due process, separation of powers, requirement of publication, and bias on the part of COMELEC Chairman Sixto Brillantes are unmeritorious.[6] The fountainhead of all these issues, however, is the validity of the creation of, and the exercise of their defined functions by, the DOJ-COMELEC committees; the issues the majority ruled upon all spring from the validity of this creation. On this point, I completely disagree with the majority and its ruling that the COMELEC did not abdicate its functions and independence in its joint efforts with the DOJ.
I submit that in the Resolutions creating the committees and providing for the exercise of their power to conduct fact-finding and preliminary investigation in the present case, the COMELEC unlawfully ceded its decisional independence by sharing it with the DOJ an agency under the supervision, control and influence of the President of the Philippines.
The discussions below fully explain the reasons for my conclusion.
I. The Independence of the COMELEC
a. Historical Roots
The establishment of the COMELEC traces its roots to an amendment of the 1935 Constitution in 1940, prompted by dissatisfaction with the manner elections were conducted then in the country.[7] Prior to this development, the supervision of elections was previously undertaken by the Department of Interior, pursuant to Section 2, Commonwealth Act No. 357 of the First National Assembly. The proposal to amend the Constitution was subsequently embodied in Resolution No. 73, Article III of the Second National Assembly, adopted on April 11, 1940, and was later approved on December 2, 1940 as Article X of the 1935 Constitution:[8]
This development was described as "a landmark event in Philippine political history"10 that put in place a "novel electoral device designed to have the entire charge of the electoral process of the nation."[11] A legal commentator noted:
Nine years later, the COMELEC's independence was tested in Nacionalista Party v. Bautista,[13] where the Court dealt with the question of whether the designation, by then President Elpidio Quirino, of Solicitor General Felix Angelo Bautista as Acting Member of the COMELEC pending the appointment of a permanent member to fill the vacancy caused by the retirement of Commissioner Francisco Enage was unlawful and unconstitutional. The Court ruled that the designation was repugnant to the Constitution which guarantees the independence of the COMELEC, and said:
Thus, as early as 1949, this Court has started to guard with zeal the COMELEC's independence, never losing sight of the crucial reality that its "independence [is] the principal justification for its creation."[15] The people's protectionist policy towards the COMELEC has likewise never since wavered and, in fact, has prevailed even after two amendments of our Constitution in 1973 and 1987 an enduring policy highlighted by then Associate Justice Reynato Puno in his concurring opinion in Atty. Macalintal v. COMELEC:[16]
At present, the 1987 Constitution (as has been the case since the amendment of the 1935 Constitution) now provides that the COMELEC, like all other Constitutional Commissions, shall be independent. It provides that:
The unbending doctrine laid down by the Court in Nationalista Party was reiterated in Brillantes, Jr. v. Yorac,[18] a 1990 case where no less than the present respondent COMELEC Chairman Brillantes challenged then President Corazon C. Aquino's designation of Associate Commissioner Haydee Yorac as Acting Chairman of the COMELEC, in place of Chairman Hilario Davide.
In ruling that the Constitutional Commissions, labeled as "independent" under the Constitution, are not under the control of the President even if they discharge functions that are executive in nature, the Court again vigorously denied "Presidential interference" in these constitutional bodies and held:
In 2003, Atty. Macalintal v. Commission on Elections[20] provided yet another opportunity for the Court to demonstrate how it ardently guards the independence of the COMELEC against unwarranted intrusions.
This time, the stakes were higher as Mme. Justice Austria-Martinez, writing for the majority, remarked: "Under xxx [the] situation, the Court is left with no option but to withdraw xxx its usual reticence in declaring a provision of law unconstitutional."[21] The Court ruled that Congress, a co equal branch of government, had no power to review the rules promulgated by the COMELEC for the implementation of Republic Act (RA) No. 9189 or The Overseas Absentee Voting Act of 2003, since it "trample[s] upon the constitutional mandate of independence of the COMELEC."[22] Thus, the Court invalidated Section 25(2) of RA No. 9189 and held:
Thus, from the perspective of history, any ruling from this Court as the ponencia now makes allowing the COMELEC to share its decisional independence with the Executive would be a first as well as a major retrogressive jurisprudential development. It is a turning back of the jurisprudential clock that started ticking in favor of the COMELEC's independence in 1940 or 72 years ago.
At the core of the present controversy is the COMELEC's exercise of its power to investigate and prosecute election offenses under Section 2, Article IX (C) of the 1987 Constitution. It states that the COMELEC shall exercise the following power and function:
In Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections,[24] the Court traced the legislative history of the COMELEC's power to investigate and prosecute election offenses, and concluded that the grant of such power was not exclusive:
As outlined in that case, Section 265 of Batas Pambansa Blg. 881 (BP 881) of the Omnibus Election Code granted the COMELEC the exclusive power to conduct preliminary investigations and prosecute election offenses. Looking then at the practical limitations arising from such broad grant of power, Congress also empowered the COMELEC to avail of the assistance of the prosecuting arms of the government.
Under the 1993 COMELEC Rules of Procedure, the Chief State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants were given continuing authority, as deputies of the COMELEC, to conduct preliminary investigation of complaints involving election offenses under election laws that may be filed directly with them, or that may be indorsed to them by the COMELEC or its duly authorized representatives and to prosecute the same.[26]
Under the same Rules, the Chief State Prosecutor, Provincial Fiscal or City Fiscal were authorized to receive complaints for election offenses and after which the investigation may be delegated to any of their assistants.[27] After the investigation, the investigating officer shall issue either a recommendation to dismiss the complaint or a resolution to file the case in the proper courts; this recommendation, however, was subject to the approval by the Chief State Prosecutor, Provincial or City Fiscal, and who shall also likewise approve the information prepared and immediately cause its filing with the proper court.[28] The Rule also provide that resolution of the Chief State Prosecutor or the Provincial or City Fiscal, could be appealed with the COMELEC within ten (10) days from receipt of the resolution, provided that the same does not divest the COMELEC of its power to motu proprio review, revise, modify or reverse the resolution of the Chief State Prosecutor and/or provincial/city prosecutors.[29]
In the recent case of Diño v. Olivarez,[30] the Court had the occasion to expound on the nature and consequences of the delegated authority of the Chief State Prosecutor, Provincial or City Fiscal and their assistants to conduct preliminary investigations and to prosecute election offenses, as follows:
In 2007, Congress enacted RA No. 9369, amending BP 881, among others, on the authority to preliminarily investigate and prosecute. Section 43 of RA No. 9369, amending Section 265 of BP 881, provides:
In 2009, the petitioner and the COMELEC in BANAT v. Commission on Election[32] questioned the constitutionality of Section 43 of RA No. 9369. They argued that the Constitution vests in the COMELEC the exclusive power to investigate and prosecute cases of violations of election laws. They also alleged that Section 43 of RA No. 9369 is unconstitutional because it gives the other prosecuting arms of the government concurrent power with the COMELEC to investigate and prosecute election offenses.
In ruling that Section 2, Article IX (C) of the Constitution did not give the COMELEC the exclusive power to investigate and prosecute cases of violations of election laws and, consequently, that Section 43 of RA No. 9369 is constitutional, the Court held:
Thus, as the law now stands, the COMELEC has concurrent jurisdiction with other prosecuting arms of the government, such as the DOJ, to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code, and to prosecute these offenses.
c. The COMELEC and the Supreme Court
Separately from the COMELEC's power to investigate and prosecute election offenses (but still pursuant to its terms) is the recognition by the Court that the COMELEC exercises considerable latitude and the widest discretion in adopting its chosen means and methods of discharging its tasks, particularly in its broad power "to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall."34 In the recent case of Bedol v. Commission on Elections,[35] the Court characterized the COMELEC's power to conduct investigations and prosecute elections offenses as "adjunct to its constitutional duty to enforce and administer all election laws."[36] For this reason, the Court concluded that the aforementioned power "should be construed broadly,"[37] i.e., "to give the COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections."[38]
In this regard, I agree with the majority that the COMELEC must be given considerable latitude in the fulfillment of its duty of ensuring the prompt investigation and prosecution of election offenses. I duly acknowledge that the COMELEC exercises considerable latitude and the widest discretion in adopting its chosen means and methods of discharging its tasks, particularly its broad power "to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall."[39] An expansive view of the powers of the COMELEC has already been emphasized by the Court as early as 1941 (under the 1935 Constitution) in Sumulong, President of the Pagkakaisa ng Bayan v. Commission on Elections,[40] where the Court held:
To place this view in constitutional perspective, the independence granted to the COMELEC is as broad as that granted to the Office of the Ombudsman, another constitutional entity engaged in the investigation and prosecution of offenses, this time with respect to those committed by public officers and employees in the performance of their duties. We have uniformly held that this Court shall fully respect the Office of the Ombudsman's independence in the performance of its functions, save only where it commits grave abuse of discretion;[42] in this eventuality it becomes the duty of this Court to intervene pursuant to Section 1, Article VIII of the Constitution.
As it has been with the Ombudsman, so should independence in investigative and prosecutory functions be with the COMELEC and its authority to investigate and prosecute election offenses. In the same manner, the broad discretion granted has its limits. Lest it be forgotten, in addition to its power to guard against grave abuse of discretion mentioned above, this Court, as the last resort tasked to guard the Constitution and our laws through interpretation and adjudication of justiciable controversies, possesses oversight powers to ensure conformity with the Constitution the ultimate instrument that safeguards and regulates our electoral processes and policies and which underlies all these laws and the COMELEC's regulations.[43]
In other words, while the Court acknowledges that the COMELEC "reigns supreme" in determining the means and methods by which it acts in the investigation and prosecution of election offenses, it cannot abdicate its duty to intervene when the COMELEC acts outside the contemplation of the Constitution and of the law,[44] such as when it sheds off its independence contrary to the Constitution by sharing its decision-making with the DOJ.
In the context of the present case, this constitutional safeguard gives rise to the question: Did the COMELEC gravely abuse its discretion in issuing COMELEC Resolution No. 9266 and Joint Order No. 001-2011? My answer is a resounding yes.
II. COMELEC Resolution No. 9266 and Joint Order No. 001-2011 Examined
COMELEC Resolution No. 9266 is merely a preparatory resolution reflecting the COMELEC en banc's approval of the creation of a committee with the DOJ to conduct preliminary investigation on the alleged election offenses and anomalies committed during the 2004 and 2007 elections.[45]
Joint Order No. 001-2011, on the other hand, creates two committees or teams to investigate and conduct preliminary investigation on the 2004 and 2007 National Elections Electoral Fraud and Manipulation case the Fact-Finding Team and the Joint DOJ-COMELEC Preliminary Investigation Committee (Joint Committee).[46]
Under Section 5 of the Joint Order, the Fact-Finding Team shall be chaired by an Assistant Secretary of the DOJ, and shall have six members: two (2) from the National Bureau of Investigation (NBI); two (2) from the DOJ and two (2) from the COMELEC. Thus, effectively, the COMELEC has ceded primacy in fact-finding functions to the Executive, given the composition of this team as the NBI is an executive investigation agency under the DOJ.
Under Section 4 of the Joint Order, the Fact-Finding Team is tasked to:
The Fact-Finding Team shall be under the supervision of the Secretary of the DOJ and the Chairman of the COMELEC or, in the latter's absence, a Senior Commissioner of the COMELEC. Under the Joint Order, the Fact-Finding Team shall have a Secretariat to provide it with legal, technical and administrative assistance. The Fact-Finding Team shall also have an office to be provided by either the DOJ or the COMELEC.[48]
Section 1 of the Joint Order provides that the Joint Committee is composed of three (3) officials coming from the DOJ and two (2) officials from the COMELEC. Prosecutor General Claro A. Arellano from the DOJ was designated as Chairperson, to be assisted by the following members:[49]
Section 2 of the Joint Order sets the mandate of the Joint Committee which is to "conduct the necessary preliminary investigation on the basis of the evidence gathered and the charges recommended by the Fact-Finding Team." Resolutions finding probable cause for election offenses, defined and penalized under BP 881 and other election laws, shall be approved by the COMELEC in accordance with the COMELEC Rules of Procedure.[50]
The procedure by which the resolutions finding probable cause is to be reviewed and/or approved by the COMELEC is clearly set forth in Sections 3, 4 and 5 of the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 Elections. Sections 3, 4 and 5 of the Rules state:
Finally, Section 9 of the Joint Order provides for the budget and financial support for the operation of the Joint Committee and the Fact- Finding Team which shall be sourced from funds of the DOJ and the COMELEC, as may be requested from the Office of the President.[52]
a. The Unconstitutional Distortion of the
Existing Legal Framework
Section 2, Article IX (C) of the Constitution specifically vests in the COMELEC the plenary power to "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices." To discharge its duty effectively, the Constitution endowed the COMELEC with special features which elevate it above other investigative and prosecutorial agencies of the government.
First and foremost, it extended independence to the COMELEC and insulated it from intrusion by outside influences, political pressures and partisan politics. In Atty. Macalintal v. COMELEC,[53] already cited above, then Associate Justice Puno enumerated these safeguards to protect the independence of the COMELEC, viz.:
Under the Constitution, the Executive is tasked with the enforcement of the laws that the Legislature shall pass. In the administration of justice, the Executive has the authority to investigate and prosecute crimes through the DOJ, constituted in accordance with the Administrative Code.[55] Under our current laws, the DOJ has general jurisdiction to conduct preliminary investigation of cases involving violations of the Revised Penal Code.[56]
With respect to the power to conduct preliminary investigation and to prosecute election offenses, Congress has mandated under Section 42 of RA No. 9369 that the COMELEC shall have the power concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code, and to prosecute these offenses. Concurrent jurisdiction has been defined as "equal jurisdiction to deal with the same subject matter."[57]
Thus, under the present legal framework, the COMELEC and the DOJ, and its prosecuting arms, have equal jurisdiction to conduct preliminary investigation and prosecute election offenses. Effectively, this means that the DOJ and its prosecuting arms can already conduct preliminary investigations and prosecute election offenses not merely as deputies, but independently of the COMELEC.
This concurrent jurisdiction mandated under Section 42 of RA No. 9369 must, however, be read together with and cannot be divorced from the provisions of the Constitution guaranteeing the COMELEC's independence as a Constitutional Commission, in particular, Sections 1, 2, 3 4, 5 and 6 of Article IX (A) of the 1987 Constitution. This constitutional guaranty of independence cannot be taken lightly as it goes into the very purpose for which the COMELEC was established as an independent Constitutional Commission.
To briefly recall and reiterate statutory and jurisprudential history, the COMELEC was deliberately constituted as a separate and independent body from the other branches of government in order to ensure the integrity of our electoral processes; it occupies a distinct place in our scheme of government as the constitutional body charged with the administration of our election laws. For this reason, the Constitution and our laws unselfishly granted it powers and independence in the exercise of its powers and the discharge of its responsibilities.[58]
The independence of the COMELEC is a core constitutional principle that is shared and is closely similar to the judicial independence that the Judiciary enjoys because they are both expressly and textually guaranteed by our Constitution. Judicial independence has been characterized as "a concept that expresses the ideal state of the judicial branch of government; it encompasses the idea that individual judges and the judicial branch as a whole should work free of ideological influence."[59]
The general concept of "judicial independence" can be "broken down into two distinct concepts: decisional independence and institutional, or branch, independence." Decisional independence "refers to a judge's ability to render decisions free from political or popular influence based solely on the individual facts and applicable law." On the other hand, institutional independence "describes the separation of the judicial branch from the executive and legislative branches of government." [60] "Decisional independence is the sine qua non of judicial independence."[61]
In the exercise of the COMELEC's power to investigate and prosecute election offenses, the "independence" that the Constitution guarantees the COMELEC should be understood in the context of the same "decisional independence" that the Judiciary enjoys since both bodies ascertain facts and apply the laws to these facts as part of their mandated duties.
In concrete terms, the "decisional independence" that the COMELEC should ideally have in the exercise of its power to investigate and prosecute election offenses, requires the capacity to exercise these functions according to its own discretion and independent consideration of the facts, the evidence and the applicable law, "free from attempts by the legislative or executive branches or even the public to influence the outcome of xxx [the] case."[62] And even if the power to investigate and prosecute election offences, upon determination of the existence of probable cause, are executive and not judicial functions, the rationale behind the constitutional independence of the Judiciary and the COMELEC is geared towards the same objective of de-politicization of these institutions which are and should remain as non-political spheres of government.
Tested under these considerations, the result cannot but be the unavoidable conclusion that what exists under Joint Order No. 001-2011 and the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections is not a scheme whereby the COMELEC exercises its power to conduct preliminary investigation and to prosecute elections offenses independently of other branches of government but a shared responsibility between the COMELEC and the Executive Branch through the DOJ.
This is the incremental change at issue in the present case, whose adoption weakens the independence of the COMELEC, opening it to further incremental changes on the basis of the ruling in this case. Under the ponencia's ruling allowing a shared responsibility, the independence of the COMELEC ends up a boiled frog; we effectively go back to the country's situation before 1940 with elections subject to intrusion by the Executive.
Significantly, the Solicitor General admitted during the oral arguments that the reports and or recommendations of the Fact-Finding Team and Joint Committee were a shared responsibility between the DOJ and the COMELEC members, viz.:
To point out the obvious, the Fact-Finding Team, on the one hand, is composed of five members from the DOJ and two members from the COMELEC. This team is, in fact, chaired by a DOJ Assistant Secretary. Worse, the Fact-Finding Team is under the supervision of the Secretary of DOJ and the Chairman of the COMELEC or, in the latter's absence, a Senior Commissioner of the COMELEC.
On the other hand, the Joint DOJ-COMELEC Preliminary Investigation Committee is composed of three (3) officials coming from the DOJ and two (2) officials from the COMELEC. Prosecutor General Claro A. Arellano from the DOJ is also designated as Chairperson of the Committee. Not to be forgotten also is that budget and financial support for the operation of the Committee and the Fact-Finding Team shall be sourced from funds of the DOJ and the COMELEC, as may be requested from the Office of the President. This, again, is a perfect example of an incremental change that the Executive can exploit.
What appears to be the arrangement in this case is a novel one, whereby the COMELEC supposedly an independent Constitutional body - has been fused with the prosecutorial arm of the Executive branch in order to conduct preliminary investigation and prosecute election offenses in the 2004 and 2007 National Elections. To my mind, this fusion or shared responsibility between the COMELEC and the DOJ completely negates the COMELEC's "decisional independence" so jealously guarded by the framers of our Constitution who intended it to be insulated from any form of political pressure.
To illustrate, Justice Presbitero J. Velasco raised during the oral arguments the prejudicial effects (to the COMELEC's decisional independence) of the joint supervision by the DOJ and the COMELEC over the composite Fact-Finding Team and the Preliminary Investigation Committee, viz.:
Given that the membership of the composite Fact-Finding Team and Preliminary Investigation Committee is numerically tilted in favor of the DOJ, plus the fact that a member of the DOJ exercises supervision over the representatives of the COMELEC, it cannot be discounted that the latter runs the risk of being pressured into bending their analyses of the evidence to reach results (a finding of probable cause, in this case) more pleasing or tailor-fitted to the outcomes desired by their DOJ supervisors who belong to the majority. In this situation, the COMELEC's independent consideration of the facts, evidence and applicable law with respect to the complaints for electoral sabotage filed against the respondents cannot but be severely compromised. The following exchanges during the oral arguments are also very instructive:
Considering the terms of the COMELEC-DOJ resolutions and exchanges and admissions from no less than the Solicitor General, the resulting arrangement involving as it does a joint or shared responsibility between the DOJ and the COMELEC cannot but be an arrangement that the Constitution and the law cannot allow, however practical the arrangement may be from the standpoint of efficiency. To put it bluntly, the joint or shared arrangement directly goes against the rationale that justifies the grant of independence to the COMELEC to insulate it, particularly its role in the country's electoral exercise, from political pressures and partisan politics.
As a qualification to the above views, I acknowledge as the Court did in People v. Hon. Basilla[66] that "the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible without the assistance of provincial and city fiscals and their assistants and staff members, and of the state prosecutors of the [DOJ]."[67] That the practice of delegation of authority by the COMELEC, otherwise known as deputation, has long been upheld by this Court is not without significance, as it is the only means by which its constitutionally guaranteed independence can remain unfettered.
In other words, the only arrangement constitutionally possible, given the independence of the COMELEC and despite Section 42 of RA 9369, is for the DOJ to be a mere deputy or delegate of the COMELEC and not a co-equal partner in the investigation and prosecution of election offenses WHENEVER THE COMELEC ITSELF DIRECTLY ACTS. While the COMELEC and the DOJ have equal jurisdiction to investigate and prosecute election offenses (subject to the rule that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others),[68] the COMELEC whenever it directly acts in the fact-finding and preliminary investigation of elections offences can still work with the DOJ and seek its assistance without violating its constitutionally guaranteed independence, but it can only do so as the principal in a principal-delegate relationship with the DOJ where the latter acts as the delegate.
This arrangement preserves the COMELEC's independence as "being mere deputies or agents of the COMELEC, provincial or city prosecutors deputized . . . are expected to act in accord with and not contrary to or in derogation of its resolutions, directives or orders xxx in relation to election cases that such prosecutors are deputized to investigate and prosecute. Being mere deputies, provincial and city prosecutors, acting on behalf of the COMELEC, [shall also] proceed within the lawful scope of their delegated authority."[69]
III. The Consequences of Unconstitutionality
In the usual course, the unconstitutionality of the process undertaken in conducting the preliminary investigation would result in its nullity and the absence of the necessary preliminary investigation that a criminal information requires. Three important considerations taken together, however, frustrate the petitioners' bid to achieve this result so that the petitions ultimately have to be dismissed.
First, separate from the COMELEC's decisional independence, it also has the attribute of institutional independence, rendered necessary by its key role in safeguarding our electoral processes; the Constitution's general grant of independence entitles it not only to the discretion to act as its own wisdom may dictate, but the independence to act on its own separately and without interference from the other branches of the government.
Thus, these other branches of government, including the Judiciary, cannot interfere with COMELEC decisions made in the performance of its duties, save only if the COMELEC abuses the exercise of its discretion[70] a very high threshold of review from the Court's point of view. Any such review must start from the premise that the COMELEC is an independent body whose official actions carry the presumption of legality, and any doubt on whether the COMELEC acted within its constitutionally allowable sphere should be resolved in its favor.
In the context of the present case, the petitioners' allegations and evidence on the infirmity of the COMELEC's determination of probable cause should clearly be established; where the petitioners' case does not rise above the level of doubt as in this case the petition should fail.
Second and taking off from where the first above consideration ended, Section 2 of Joint Order No. 001-2011 grants the COMELEC the final say in determining whether probable cause exists. Section 2 reads:
While the fact-finding and the preliminary investigation stages, as envisioned in the various COMELEC-DOJ instruments, may have resulted in a constitutionally impermissible arrangement between the COMELEC and the DOJ, Section 2 of Joint Order No. 001-2011 shows that it is the COMELEC that must still solely act and its actions can be constitutionally valid if made in a process that is free from any attendant participation by the Executive.
From the petitioners' perspective, while the disputed resolutions involved a fact-finding and a preliminary investigation phases that are constitutionally objectionable, the petitioners still have to show that indeed the COMELEC had left the matter of determining probable cause ultimately to the Fact-Finding Team and the Joint Committee. It is on this point that the petitioners' case is sadly deficient. In contrast with this deficiency, the records show that the COMELEC did indeed meet, on its own, to determine probable cause based on the evidence presented by its own representatives.
Third, since the corresponding informations have already been filed in court, claims of absence of, or irregularity in, the preliminary investigation are matters which appropriately pertain to the lower court in the exercise of its jurisdiction.[71] After the lower court has effectively assumed jurisdiction, what is left for this Court to act upon is solely the issue of the constitutionality of the creation and operation of the Fact-Finding Team and the Joint Committee for being violative of the COMELEC's independence. Other constitutional issues (equal protection, due process, and separation of powers) simply arose as incidents of the shared COMELEC-DOJ efforts, and need not be discussed after the determination of the unconstitutionality of the shared COMELEC-DOJ arrangements for violation of the COMELEC's independence.
In sum, while the DOJ-COMELEC arrangements compromised the COMELEC's independence, the filing of the informations in court, upon the COMELEC's own determination of probable cause, effectively limited not only the prosecution's discretion (for example, on whether to proceed or not), but also the Court's jurisdiction to pass upon the entire plaint of the petitioners. Crespo v. Judge Mogul[72] teaches us that
To reiterate, except for the resolution of the issue of the constitutionality of creating a Joint Committee and a Fact-Finding Team and of the incidental issues bearing on this constitutional interpretation matters which only this Court may authoritatively determine[73] this Court should now refrain from making any pronouncement relative to the disposition of the criminal cases now before the lower court.
Based on these considerations particularly, on the lack of a factual showing that the COMELEC did not determine the existence of probable cause by itself and relied solely on its unconstitutional arrangements with the DOJ I support the dismissal of the petitions save for the ruling that the shared COMELEC-DOJ investigatory and prosecutory arrangements, as envisioned in the disputed resolutions, are unconstitutional.
Lest this opinion be misconstrued and for greater emphasis, while I ultimately sustain the COMELEC's finding of probable cause based on the collective considerations stated above, the constitutionally objectionable arrangement of a shared responsibility between the COMELEC and the DOJ was not necessarily saved by the existence of Section 2 of Joint Order No. 001-2011. I sustain the COMELEC's finding of probable cause under the unique facts and developments in this case, based on the institutional independence the COMELEC is entitled to; the lack of proof that the COMELEC did not act independently; and the adduced fact that the COMELEC did indeed meet to consider the findings presented to it by its representatives. I make this conclusion without prejudice to proof of other facts that, although bearing on the COMELEC's independence but are not here decided, may yet be submitted by the petitioners before the trial court if they are appropriate for that court's consideration on the issues properly raised.
For greater certainty for the COMELEC in its future actions in enforcing and administering election-related laws, let me advise that what I highlighted regarding the nature and breadth of the constitutionally guaranteed independence of lhe COMELEC should ahvays be seriously considered as guiding lights.
For the Court en banc's consideration.
[1] See Euegene Volokh, The MEchanism of the Slippery Slope, Harvard Law Review, Vol. 116, Feburary 2003, available online at SSRN: http://ssrn.com/abstract=343640 or http://dx.doi.org/10.2139/ssrn.343640 (last visited September 17, 2012).
Volokh notes: "Libertarians often tell of the parable ofthe frog. If a frog is dropped into hot water, it supposedly jumps out. If a frog is put into cold water that is then heated, the frog doesn't notice the gradual temperature change, and dies. Likewise, the theory goes, with liberty: People resists attempts to take rights away outright, but not if the rights are eroded slowly."
[2] See Steven Yates, The Boiling Frog Syndrome, August 11, 2001, available online at http://www.lewrockwell.com/yates/yates38.html (last visited September 17, 2012).
[3] The cited article further explains: But there are other ways of changing one kind of socioeconomic system to a fundamentally different kind of system that minimize or localize abrupt, destabilizing change. Gramscian "revolutionaries" have learned this lesson well although they do not speak the vocabulary of systems theory, of course. They have learned to get what they want by pursuing their goals gradually, one step at a time, through infiltrating and modifying existing institutions and other systems rather than overthrowing them and trying to create new ones from scratch. Clearly, a central-government initiative calling for abolishing the U.S. Constitution would have provoked an armed upheaval at any time in U.S. history, and it is at least possible that anything this abrupt still would. U.S. citizens, that is, would jump out immediately if thrown into that pot of boiling water. But if the haters of Constitutional government proceed in small increments, they eventually gut the Constitution almost unnoticed particularly if they carry out their initiatives in multiple components of U.S. society (so-called public schools, the banking system, the major news media, the legal system, etc.). Moreover, Gramscians have found that the road to centralization is much easier if "paved with good intentions," expressed in pseudo-moral language and portrayed as a source of stability to come. Myriad small disruptions in the lives of individuals and local communities can be rationalized as the price to be paid for the utopia just over the horizon. "You can't make an omelet," so the saying goes, "without breaking a few eggs." So systems accommodate and incorporate these small steps, absorbing the disruptions as best they can and not allowing them to threaten the system's overall stability. But when a system absorbs these small steps instead of repelling them, it incorporates them into its basic functioning and its transformation to a different kind of system with entirely different arrangements between its components has begun. Or in terms of the Boiling Frog Syndrome, the frog is in the pot, and the temperature of the water has begun, very slowly, to rise. Ibid. (emphasis supplied)
[4] As the discussion of the leading cases, discussed below, will show.
[5] Under the Department of the Interior, the executive department that administered elections before the COMELEC, which was first established in 1940, infra note 6.
[6] The ponencia holds that:
[7] Bartolome C. Fernandez, Jr., On the Power of the Commission on Elections To Annul Illegal Registration of Voters, Philippine Law Journal 428, http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2026/PLJ%20volume%2026%20number%204%20 -06 %20Bartolome%20C.%20Fernandez%20%20On%20the%20Power%20of%20the%20Commission%20on %2 Elections%20to%20Annul%20Illegal%20Registration%20of%20Voters.pdf, last visited January 15, 2012.
[8] Ibid.
[9] Id.
[10] Id.
[11] Id. at 429.
[12] Id. at 428-429.
[13] 85 Phil. 101 (1949).
[14] Id. at 106-109.
[15] Emmanuel Flores, The Commission on Elections and the Right to seek a public office, citing Jose P. Laurel, Observations of the Philippine Constitutional Amendments (June 13, 1940), published in The Commercial and Industrial Manual of the Philippines, 1940-1941, pp. 93-96.
[16] 453 Phil. 586.
[17] Id. at 765-767.
[18] G.R. No. 93867, December 18, 1990, 192 SCRA 358.
[19] Id. at 360-361.
[20] Supra note 16.
[21] Id. at 660.
[22] Ibid.
[23] Id. at 658-661.
[24] G.R. No. 177508, August 7, 2009, 595 SCRA 477.
[25] Id. at 493-496.
[26] Section 2, Rule 34 of the COMELEC Rules of Procedure.
[27] Section 4(b), Rule 34 of the COMELEC Rules of Procedure.
[28] Section 9(c), Rule 34 of the COMELEC Rules of Procedure.
[29] Section 10, Rule 34 of the COMELEC Rules of Procedure.
[30] G.R. No. 170447, December 4, 2009, 607 SCRA 251.
[31] Id. at 262-263.
[32] Supra note 24.
[33] Id. at 493-497.
[34] See Dissenting Opinion of Justice Arturo D. Brion in Roque, Jr. v. Commission on Elections, G.R. No. 188456, September 10, 2009, 599 SCRA 69, 299, citing CONSTITUTION, Article IX (C), Section 2(1).
[35] G.R. No. 179830, December 3, 2009, 606 SCRA 554.
[36] Id. at 569.
[37] Ibid.
[38] Ibid.
[39] See Dissenting Opinion, supra note 32 at 299.
[40] 73 Phil. 288 (1941).
[41] Id. at 294-295.
[42] Quiambao v. Desierto, 482 Phil. 154 (2004); Espinosa v. Office of the Ombudsman, 397 Phil. 829 (2000) and Office of the Ombudsman v. Civil Service Commission, G.R. No. 162215, July 30, 2007, 528 SCRA 537.
[43] See Dissenting Opinion, supra note 32.
[44] Id. at 300-301.
[45] Rollo (G.R. No. 199118), p. 47. 46 Annex A, Petition of Petitioner Arroyo in G.R. No. 199082.
[48] Id.
[49] Id.
[50] Id.
[51] Annex C, Petition of Petitioner Arroyo in G.R. No. 199082.
[52] Annex A, Petition of Petitioner Arroyo in G.R. No. 199082.
[53] Supra note 16.
[54] Id. at 767-768.
[55] See Separate Opinion of Justice Arturo D. Brion in Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA 78, 330-331.
[56] The DOJ's power to conduct preliminary investigation is based on Section 5 (2) of RA 10071, which states:
and Section 3 (2), Chapter 1, Title III, Book IV of the Administrative Code, which states:
[37]Dept. of Justice v. Hon. Liwag, 491 Phil. 270, 285 (2005).
[58] Atty. Macalintal v. Comelec, supra note 16, at 770-771.
[59] Joseph M. Hood, Judicial Independence, 23 J. Nat'l Ass'n Admin. L. Judges 137, 138 (2003) citing American Judicature Society, What is Judicial Independence? (Nov. 27, 2002), at http://www.ajs.org/cji/cji_whatisji.asp (last visited Apr. 14, 2003).
[60] Id.
[61] Gordon Bermant, Federal Judges And The Judicial Branch: Their Independence And Accountability, 46 Mercer L. Rev. 835, 836 (1995).
[62] Stephen H. Legomsky, Deportation And The War On Independence, 91 Cornell L. Rev. 369, 386 (2006).
[63]TSN (December 8, 2011), pp. 230-237.
[64] TSN (November 29, 2011), pp. 80-84.
[65] TSN (December 8, 2011), pp. 86-99.
[66] 258-A Phil. 656 (1989).
[67] Id. at 663.
[68] Dept. of Justice v. Hon. Liwag, supra note 57, at 285,
[69] Diño v. Olivarez, supra note 30 at 262-263.
[70] CONSTITUTION, Article VIII, Section 1, par. 2.
[71] Doromal v. Sandiganbayan, 258 Phil. 146 (1989).
[72] 235 Phil. 465, 474-476, cited in Galvez v. Court of Appeals, G.R. No. 114046, October 24, 1994, 237 SCRA 685, 699, and Velasquez v. Undersecretary of Justice, G.R. No. 88442, February 15, 1990, 182 SCRA 388, 391.
[73] Civil Service Commission v. Department of Budget and Management, 502 Phil. 372 (2005).
Before the Court are three (3) consolidated petitions and supplemental petitions for Certiorari and Prohibition under Rule 65 of the Rules of Court filed by Jose Miguel T. Arroyo (Mike Arroyo) in G.R. No. 199082, Benjamin S. Abalos, Sr. (Abalos) in G.R. No. 199085 and Gloria Macapagal Arroyo (GMA) in G.R. No. 199118 assailing the following: (1) Commission on Elections (Comelec) Resolution No. 9266 "In the Matter of the Commission on Elections and Department of Justice Joint Investigation on the Alleged Election Offenses Committed during the 2004 and 2007 Elections Pursuant to Law"[1] dated August 2, 2011; (2) Joint Order No. 0012011 (Joint Order) "Creating and Constituting a Joint DOJ-Comelec Preliminary Investigation Committee [Joint Committee] and Fact-Finding Team on the 2004 and 2007 National Elections Electoral Fraud and Manipulation Cases"[2] dated August 15, 2011; (3) Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections (Joint Committee Rules of Procedure)[3] dated August 23, 2011; and (4) Initial Report of the Fact-Finding Team dated October 20, 2011.[4] The consolidated petitions and supplemental petitions likewise assail the validity of the proceedings undertaken pursuant to the aforesaid issuances.
Acting on the discovery of alleged new evidence and the surfacing of new witnesses indicating the occurrence of massive electoral fraud and manipulation of election results in the 2004 and 2007 National Elections, on August 2, 2011, the Comelec issued Resolution No. 9266 approving the creation of a committee jointly with the Department of Justice (DOJ), which shall conduct preliminary investigation on the alleged election offenses and anomalies committed during the 2004 and 2007 elections.5
On August 4, 2011, the Secretary of Justice issued Department Order No. 6406 naming three (3) of its prosecutors to the Joint Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections electoral fraud and manipulation cases. The Joint Committee and the Fact-Finding Team are composed of officials from the DOJ and the Comelec. Section 2 of the Joint Order lays down the mandate of the Joint Committee, to wit:
Section 2. Mandate. The Committee shall conduct the necessary preliminary investigation on the basis of the evidence gathered and the charges recommended by the Fact-Finding Team created and referred to in Section 4 hereof. Resolutions finding probable cause for election offenses, defined and penalized under the Omnibus Election Code and other election laws shall be approved by the Comelec in accordance with the Comelec Rules of Procedure. For other offenses, or those not covered by the Omnibus Election Code and other election laws, the corresponding criminal information may be filed directly with the appropriate courts.[7]
The Fact-Finding Team,[8] on the other hand, was created for the purpose of gathering real, documentary, and testimonial evidence which can be utilized in the preliminary investigation to be conducted by the Joint Committee. Its specific duties and functions as enumerated in Section 4 of the Joint Order are as follows:
Pursuant to Section 7[10] of the Joint Order, on August 23, 2011, the Joint Committee promulgated its Rules of Procedure.
The members of the Fact-Finding Team unanimously agreed that the subject of the Initial Report would be the electoral fraud and manipulation of election results allegedly committed during the May 14, 2007 elections. Thus, in its Initial Report[11] dated October 20, 2011, the Fact-Finding Team concluded that manipulation of the results in the May 14, 2007 senatorial elections in the provinces of North and South Cotabato and Maguindanao were indeed perpetrated.[12] The Fact-Finding Team recommended that petitioner Abalos and ten (10) others[13] be subjected to preliminary investigation for electoral sabotage for conspiring to manipulate the election results in North and South Cotabato. Twenty-six (26)[14] persons, including petitioners GMA and Abalos, were likewise recommended for preliminary investigation for electoral sabotage for manipulating the election results in Maguindanao.[15] Several persons were also recommended to be charged administratively, while others,[16] including petitioner Mike Arroyo, were recommended to be subjected to further investigation.[17] The case resulting from the investigation of the Fact-Finding Team was docketed as DOJ- Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III (Senator Pimentel) filed a Complaint-Affidavit[18] for Electoral Sabotage against petitioners and twelve others[19] and several John Does and Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011.[20] On November 3, 2011, petitioners, through counsel, appeared before the Joint Committee.[21] On that preliminary hearing, the Joint Committee consolidated the two DOJ-Comelec cases. Respondents therein were likewise ordered to submit their Counter-Affidavits by November 14, 2011.[22]
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing the creation of the Joint Panel.[23] The petitions were eventually consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer Proceedings[24] before the Joint Committee, in view of the pendency of his petition before the Court. On the same day, petitioner GMA filed before the Joint Committee an Omnibus Motion Ad Cautelam[25] to require Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for the production of election documents as basis for the charge of electoral sabotage. GMA contended that for the crime of electoral sabotage to be established, there is a need to present election documents allegedly tampered which resulted in the increase or decrease in the number of votes of local and national candidates.[26] GMA prayed that she be allowed to file her counter-affidavit within ten (10) days from receipt of the requested documents.[27] Petitioner Abalos, for his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad Cautelam),[28] in view of the pendency of his petition brought before the Court.
In an Order[29] dated November 15, 2011, the Joint Committee denied the aforesaid motions of petitioners. GMA subsequently filed a motion for reconsideration.[30]
On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later indorsed to the Comelec.[31] On November 18, 2011, after conducting a special session, the Comelec en banc issued a Resolution[32] approving and adopting the Joint Resolution subject to modifications. The dispositive portion of the Comelec Resolution reads:
WHEREFORE, premises considered, the Resolution of the Joint DOJ-COMELEC Preliminary Investigation Committee in DOJ-COMELEC Case No. 001-2011 and DOJ-COMELEC Case No. 002-2011, upon the recommendation of the COMELEC's own representatives in the Committee, is hereby APPROVED and ADOPTED, subject to the following MODIFICATIONS:
- That information/s for the crime of ELECTORAL SABOTAGE under Section 42 (b) of R.A. 9369, amending Section 27 (b) of R.A. 6646, be filed against GLORIA MACAPAGAL-ARROYO, BENJAMIN ABALOS, SR., LINTANG H. BEDOL, DATU ANDAL AMPATUAN, SR. and PETER REYES;
- That the charges against MICHAEL C. ABAS, NICODEMO FERRER, REUBEN BASIAO, JAIME PAZ and NORIE K. UNAS be subjected to further investigation;
- That the charges against JOSE MIGUEL T. ARROYO, BONG SERRANO, ALBERTO AGRA, ANDREI BON TAGUM, GABBY CLAUDIO, ROMY DAYDAY, JEREMY JAVIER, JOHN DOE a.k.a BUTCH, be DISMISSED for insufficiency of evidence to establish probable cause;
- That the recommendation that ESTELITA B. ORBASE, ELIZA A. GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA, MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA, RAGAH D. AYUNAN, SUSAN U. CANANBAN, RUSSAM H. MABANG, ASUNCION CORAZON P. RENIEDO, NENA A. ALID, MA. SUSAN L. ALBANO, ROHAIDA T. KHALID, ARAW M. CAO, JEEHAN S. NUR, ALICE A. LIM, NORIJEAN P. HANGKAL, CHRISTINA ROAN M. DALOPE, and MACEDA L. ABO be administratively charged be subjected to further review by this Commission to determine the appropriate charge/s that may be filed against them;
- That the findings of lack of probable cause against LILIAN S. SUAN-RADAM and YOGIE G. MARTIRIZAR be REJECTED by reason of the pendency of their respective cases before the Regional Trial Court of Pasay (Branch 114) and this Commission for the same offense under consideration.
In the higher interest of justice and by reason of manifest attempts to frustrate the government's right to prosecute and to obtain speedy disposition of the present case pending before the Commission, the Law Department and/or any COMELEC legal officers as may be authorized by this Commission is hereby ORDERED to IMMEDIATELY PREPARE and FILE the necessary Information/s before the appropriate court/s
SO ORDERED.[33] (Emphasis supplied.)
On even date, pursuant to the above Resolution, the Comelec's Law Department filed with the Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42 (b)(3) of Republic Act (R.A.) No. 9369, amending Section 27 (b) of R.A. No. 6646, docketed as Criminal Case No. RPSY-11-04432-CR.[34] The case was raffled to Branch 112 and the corresponding Warrant of Arrest was issued which was served on GMA on the same day.[35]
On November 18, 2011, petitioner GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam[36] with leave to allow the Joint Committee to resolve the motion for reconsideration filed by GMA, to defer issuance of a warrant of arrest and a Hold Departure Order, and to proceed to judicial determination of probable cause. She, likewise, filed with the Comelec a Motion to Vacate Ad Cautelam[37] praying that its Resolution be vacated for being null and void. The RTC nonetheless issued a warrant for her arrest which was duly served. GMA thereafter filed a Motion for Bail which was granted.
In G.R. No. 199082, petitioner Arroyo relies on the following grounds:
- THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT ORDER IS AT WAR WITH THE DUE PROCESS AND EQUAL PROTECTION CLAUSE OF THE CONSTITUTION, HAVING BEEN CREATED WITH THE SOLE END IN VIEW OF INVESTIGATING AND PROSECUTING CERTAIN PERSONS AND INCIDENTS ONLY, SPECIFICALLY THOSE INVOLVING THE 2004 AND 2007 ELECTIONS TO THE EXCLUSION OF OTHERS, IN VIOLATION OF THE DOCTRINE IN BIRAOGO V. TRUTH COMMISSION AND COMPANION CASE.
- NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO CONDUCT PRELIMINARY INVESTIGATION.
- THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES THE COMMISSION ON ELECTIONS - A CONSTITUTIONALLY INDEPENDENT BODY - WITH THE DEPARTMENT OF JUSTICE A POLITICAL AGENT OF THE EXECUTIVE DEMOLISHES THE INDEPENDENCE OF THE COMMISSION ON ELECTIONS AS PROVIDED IN ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C) OF THE CONSTITUTION.
- IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC PRONOUNCEMENTS OF THE PRESIDENT, HIS SPOKESPERSONS, THE HEADS OF THE DOJ AND THE COMELEC, AND MEMBERS OF THE JOINT COMMITTEE THAT CASES SHOULD BE FILED AGAINST PETITIONER AND HIS FAMILY AND ALLEGED ASSOCIATES BY THE END OF 2011, THE PROCEEDINGS THEREOF SHOULD BE ENJOINED FOR BEING PERSECUTORY, PURSUANT TO ALLADO V. DIOKNO AND RELATED CASES.
- THE CREATION AND CONSTITUTION OF THE JOINT COMMITTEE TRAMPLES UPON PETITIONER'S RIGHT TO A FAIR PROCEEDING BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL.
- THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY CITY, HAVE ASSUMED JURISDICTION OVER THE SUBJECT MATTER SOUGHT TO BE INVESTIGATED BY THE JOINT COMMITTEE, TO THE EXCLUSION OF ANY BODY, INCLUDING THE JOINT COMMITTEE.[38]
In G.R. No. 199085, petitioner Abalos raises the following issues:
I.
DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATON COMMITTEE VIOLATE PETITIONER'S CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW?
II.
DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION COMMITTEE VIOLATE PETITIONER'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW?
III.
DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF SEPARATION OF POWERS BY CREATING THE JOINT DOJCOMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION COMMITTEE WHICH ENCROACHED UPON THE POWERS OF THE LEGISLATURE AND THE REGIONAL TRIAL COURT?
IV.
DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION COMMITTEE HAVE THE POWER AND LEGAL AUTHORITY TO CONDUCT A PRELIMINARY INVESTIGATION OF THE SAME ELECTORAL SABOTAGE CASES WHICH THE COMELEC HAD ALREADY TAKEN COGNIZANCE OF?[39]
In G.R. No. 199118, petitioner GMA anchors her petition on the following grounds:
- THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ, OSTENSIBLY ACTING "JOINTLY" WITH THE COMELEC, HAS ACTED BEYOND THE LIMITS OF THE CONSTITUTION, IN THAT IT HAS COMPROMISED THE INDEPENDENCE OF THE COMELEC.
- THE COMELEC HAS EFFECTIVELY ABDICATED ITS CONSTITUTIONAL MANDATE "TO INVESTIGATE AND, WHERE APPROPRIATE, PROSECUTE CASES OF VIOLATIONS OF ELECTION LAWS, INCLUDING ACTS OR OMISSIONS CONSTITUTING ELECTION FRAUDS, OFFENSES, AND MALPRACTICES" (ARTICLE IX-C, SECTION 2[6], 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES) IN FAVOR OF THE EXECUTIVE DEPARTMENT, ACTING THROUGH RESPONDENT JUSTICE SECRETARY DE LIMA.
- DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE JOINT COMMITTEE RULES HAVE NOT BEEN PUBLISHED PURSUANT TO TAÑADA V. TUVERA, G.R. No. L-63915 (29 DECEMBER 1986). AFTER ALL, AS THE HONORABLE COURT LIKEWISE DECLARED IN REPUBLIC V. PILIPINAS SHELL PETROLEUM CORPORATION, G.R. No. 173918 (08 APRIL 2008), (SIC)[40]
We deferred the resolution of petitioners' Motion for the Issuance of a TRO and, instead, required the respondents to comment on the petitions.41 We likewise scheduled the consolidated cases for oral argument for which the parties were directed to limit their respective discussions to the following issues:
I. Whether or not Joint Order No. 001-2011 "Creating and Constituting a Joint DOJ-COMELEC Preliminary Investigation Committee and Fact-Finding Team on the 2004 and 2007 National Elections Electoral Fraud and Manipulation Cases" is constitutional in light of the following:
- The due process clause of the 1987 Constitution
- The equal protection clause of the 1987 Constitution
- The principle of separation of powers
- The independence of the COMELEC as a constitutional body
II. Whether or not the COMELEC has jurisdiction under the law to conduct preliminary investigation jointly with the DOJ.
- Whether or not due process was observed by the Joint DOJ-COMELEC Fact-Finding Team and Preliminary Investigation Committee, and the COMELEC in the conduct of the preliminary investigation and approval of the Joint Panel's Resolution.[42]
The Court, thereafter, required the parties to submit their respective Memoranda.[43]
Respondents claim that Mike Arroyo's petition is moot and that of GMA is moot and academic. They explain that the Mike Arroyo petition presents no actual controversy that necessitates the exercise by the Court of its power of judicial review, considering that he was not among those indicted for electoral sabotage in the 2007 national elections as the Comelec dismissed the case against him for insufficiency of evidence.[44] Anent the 2004 national elections, the Fact-Finding Team is yet to complete its investigation so Mike Arroyo's apprehensions are merely speculative and anticipatory.[45] As to the GMA petition, respondents aver that any judgment of the Court will have no practical legal effect because an Information has already been filed against her in Branch 112, RTC of Pasay City.[46] With the filing of the Information, the RTC has already acquired jurisdiction over the case, including all issues relating to the constitutionality or legality of her preliminary investigation.[47] Respondents also claim that the issues relating to the constitutionality and validity of the conduct of the preliminary investigation of GMA are best left to the trial court, considering that it involves questions of fact.[48] Respondents add that considering that the RTC has concurrent jurisdiction to determine a constitutional issue, it will be practical for the Court to allow the RTC to determine the constitutional issues in this case.[49]
We do not agree.
Mootness
It cannot be gainsaid that for a court to exercise its power of adjudication, there must be an actual case or controversy, that is, one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution.[50] The case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice.[51]
A case becomes moot and academic when it ceases to present a justiciable controversy so that a declaration on the issue would be of no practical use or value.[52] However, a case should not be dismissed simply because one of the issues raised therein had become moot and academic by the onset of a supervening event, whether intended or incidental, if there are other causes which need to be resolved after trial.[53]
Here, the consolidated cases are not rendered moot and academic by the promulgation of the Joint Resolution by the Joint Committee and the approval thereof by the Comelec. It must be recalled that the main issues in the three petitions before us are the constitutionality and legality of the creation of the Joint Committee and the Fact-Finding Team as well as the proceedings undertaken pursuant thereto. The assailed Joint Order specifically provides that the Joint Committee was created for purposes of investigating the alleged massive electoral fraud during the 2004 and 2007 national elections. However, in the Fact-Finding Team's Initial Report, the team specifically agreed that the report would focus on the irregularities during the 2007 elections. Also, in its November 18, 2011 Resolution, the Comelec, while directing the filing of information against petitioners Abalos and GMA, ordered that further investigations be conducted against the other respondents therein. Apparently, the Fact-Finding Team's and Joint Committee's respective mandates have not been fulfilled and they are, therefore, bound to continue discharging their duties set forth in the assailed Joint Order. Moreover, petitioners question the validity of the proceedings undertaken by the Fact-Finding Team and the Joint Committee leading to the filing of information, on constitutional grounds. We are not, therefore, barred from deciding on the petitions simply by the occurrence of the supervening events of filing an information and dismissal of the charges.
Jurisdiction over the validity of the
conduct of the preliminary investigation
This is not the first time that the Court is confronted with the issue of jurisdiction to conduct preliminary investigation and at the same time with the propriety of the conduct of preliminary investigation. In Cojuangco, Jr. v. Presidential Commission on Good Government [PCGG],[54] the Court resolved two issues, namely: (1) whether or not the PCGG has the power to conduct a preliminary investigation of the anti-graft and corruption cases filed by the Solicitor General against Eduardo Conjuangco, Jr. and other respondents for the alleged misuse of coconut levy funds; and (2) on the assumption that it has jurisdiction to conduct such a preliminary investigation, whether or not its conduct constitutes a violation of petitioner's right to due process and equal protection of the law.[55] The Court decided these issues notwithstanding the fact that Informations had already been filed with the trial court.
In Allado v. Diokno,[56] in a petition for certiorari assailing the propriety of the issuance of a warrant of arrest, the Court could not ignore the undue haste in the filing of the information and the inordinate interest of the government in filing the same. Thus, this Court took time to determine whether or not there was, indeed, probable cause to warrant the filing of information. This, notwithstanding the fact that information had been filed and a warrant of arrest had been issued. Petitioners therein came directly to this Court and sought relief to rectify the injustice that they suffered.
Hierarchy of courts
Neither can the petitions be dismissed solely because of violation of the principle of hierarchy of courts. This principle requires that recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with a higher court.[57] The Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. While this jurisdiction is shared with the Court of Appeals and the RTC, a direct invocation of this Court's jurisdiction is allowed when there are special and important reasons therefor, clearly and especially set out in the petition, as in the present case.[58] In the consolidated petitions, petitioners invoke exemption from the observance of the rule on hierarchy of courts in keeping with the Court's duty to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws, and that they have not abused the discretion given to them.[59]
It is noteworthy that the consolidated petitions assail the constitutionality of issuances and resolutions of the DOJ and the Comelec. The general rule is that this Court shall exercise only appellate jurisdiction over cases involving the constitutionality of a statute, treaty or regulation. However, such rule is subject to exception, that is, in circumstances where the Court believes that resolving the issue of constitutionality of a law or regulation at the first instance is of paramount importance and immediately affects the social, economic, and moral well-being of the people.[60] This case falls within the exception. An expeditious resolution of the issues raised in the petitions is necessary. Besides, the Court has entertained a direct resort to the Court without the requisite motion for reconsideration filed below or without exhaustion of administrative remedies where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or of the petitioners and when there is an alleged violation of due process, as in the present case.[61] We apply the same relaxation of the Rules in the present case and, thus, entertain direct resort to this Court.
Bases for the Creation of the
Fact-Finding Team and Joint Committee
Section 2, Article IX-C of the 1987 Constitution enumerates the powers and functions of the Comelec. Paragraph (6) thereof vests in the Comelec the power to:
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices.
This was an important innovation introduced by the 1987 Constitution, because the above-quoted provision was not in the 1935 and 1973 Constitutions.[62]
The grant to the Comelec of the power to investigate and prosecute election offenses as an adjunct to the enforcement and administration of all election laws is intended to enable the Comelec to effectively insure to the people the free, orderly, and honest conduct of elections. The failure of the Comelec to exercise this power could result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote.[63]
The constitutional grant of prosecutorial power in the Comelec was reflected in Section 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, to wit:
Section 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal [public prosecutor], or with the Ministry [Department] of Justice for proper investigation and prosecution, if warranted.
Under the above provision of law, the power to conduct preliminary investigation is vested exclusively with the Comelec. The latter, however, was given by the same provision of law the authority to avail itself of the assistance of other prosecuting arms of the government.64 Thus, under Section 2,65 Rule 34 of the Comelec Rules of Procedure, provincial and city prosecutors and their assistants are given continuing authority as deputies to conduct preliminary investigation of complaints involving election offenses under election laws and to prosecute the same. The complaints may be filed directly with them or may be indorsed to them by the petitioner or its duly authorized representatives.66
Thus, under the Omnibus Election Code, while the exclusive jurisdiction to conduct preliminary investigation had been lodged with the Comelec, the prosecutors had been conducting preliminary investigations pursuant to the continuing delegated authority given by the Comelec. The reason for this delegation of authority has been explained in Commission on Elections v. Español:[67]
The deputation of the Provincial and City Prosecutors is necessitated by the need for prompt investigation and dispensation of election cases as an indispensable part of the task of securing fine, orderly, honest, peaceful and credible elections. Enfeebled by lack of funds and the magnitude of its workload, the petitioner does not have a sufficient number of legal officers to conduct such investigation and to prosecute such cases.[68]
Moreover, as we acknowledged in People v. Basilla,[69] the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible without the assistance of provincial and city fiscals [prosecutors] and their assistants and staff members, and of the state prosecutors of the DOJ.[70]
Section 265 of the Omnibus Election Code was amended by Section 43 of R.A. No. 9369,[71] which reads:
Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follows:
SEC. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same.[72]
As clearly set forth above, instead of a mere delegated authority, the other prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction with the Comelec to conduct preliminary investigation of all election offenses and to prosecute the same.
It is, therefore, not only the power but the duty of both the Comelec and the DOJ to perform any act necessary to ensure the prompt and fair investigation and prosecution of election offenses. Pursuant to the above constitutional and statutory provisions, and as will be explained further below, we find no impediment for the Comelec and the DOJ to create the Joint Committee and Fact-Finding Team for the purpose of conducting a thorough investigation of the alleged massive electoral fraud and the manipulation of election results in the 2004 and 2007 national elections relating in particular to the presidential and senatorial elections.[73]
Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee and Fact- Finding Team is in violation of the equal protection clause of the Constitution because its sole purpose is the investigation and prosecution of certain persons and incidents. They argue that there is no substantial distinction between the allegations of massive electoral fraud in 2004 and 2007, on the one hand, and previous and subsequent national elections, on the other hand; and no substantial distinction between petitioners and the other persons or public officials who might have been involved in previous election offenses. They insist that the Joint Panel was created to target only the Arroyo Administration as well as public officials linked to the Arroyo Administration. To bolster their claim, petitioners explain that Joint Order No. 001-2011 is similar to Executive Order No. 1 (creating the Philippine Truth Commission) which this Court had already nullified for being violative of the equal protection clause.
Respondents, however, refute the above contentions and argue that the wide array of the possible election offenses and broad spectrum of individuals who may have committed them, if any, immediately negate the assertion that the assailed orders are aimed only at the officials of the Arroyo Administration.
We agree with the respondents.
The equal protection clause is enshrined in Section 1, Article III of the Constitution which reads:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.[74]
The concept of equal protection has been laid down in Biraogo v. Philippine Truth Commission of 2010:[75]
One of the basic principles on which this government was founded is that of the equality of right which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in and general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.
According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. It requires public bodies and institutions to treat similarly-situated individuals in a similar manner. The purpose of the equal protection clause is to secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper execution through the state's duly-constituted authorities. In other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.[76]
Unlike the matter addressed by the Court's ruling in Biraogo v. Philippine Truth Commission of 2010, Joint Order No. 001-2011 cannot be nullified on the ground that it singles out the officials of the Arroyo Administration and, therefore, it infringes the equal protection clause. The Philippine Truth Commission of 2010 was expressly created for the purpose of investigating alleged graft and corruption during the Arroyo Administration since Executive Order No. 1[77] specifically referred to the "previous administration"; while the Joint Committee was created for the purpose of conducting preliminary investigation of election offenses during the 2004 and 2007 elections. While GMA and Mike Arroyo were among those subjected to preliminary investigation, not all respondents therein were linked to GMA as there were public officers who were investigated upon in connection with their acts in the performance of their official duties. Private individuals were also subjected to the investigation by the Joint Committee.
The equal protection guarantee exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real differences among men, it does not demand absolute equality. It merely requires that all persons under like circumstances and conditions shall be treated alike both as to privileges conferred and liabilities enforced.[78]
We once held that the Office of the Ombudsman is granted virtually plenary investigatory powers by the Constitution and by law and thus may, for every particular investigation, whether commenced by complaint or on its own initiative, decide how best to pursue each investigation. Since the Office of the Ombudsman is granted such latitude, its varying treatment of similarly situated investigations cannot by itself be considered a violation of any of the parties' rights to the equal protection of the laws.[79] This same doctrine should likewise apply in the present case.
Thus, as the constitutional body granted with the broad power of enforcing and administering all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall,[80] and tasked to ensure free, orderly, honest, peaceful, and credible elections,[81] the Comelec has the authority to determine how best to perform such constitutional mandate. Pursuant to this authority, the Comelec issues various resolutions prior to every local or national elections setting forth the guidelines to be observed in the conduct of the elections. This shows that every election is distinct and requires different guidelines in order to ensure that the rules are updated to respond to existing circumstances.
Moreover, as has been practiced in the past, complaints for violations of election laws may be filed either with the Comelec or with the DOJ. The Comelec may even initiate, motu proprio, complaints for election offenses.[82] Pursuant to law and the Comelec's own Rules, investigations may be conducted either by the Comelec itself through its law department or through the prosecutors of the DOJ. These varying procedures and treatment do not, however, mean that respondents are not treated alike. Thus, petitioners' insistence of infringement of their constitutional right to equal protection of the law is misplaced.
B. Due Process
Petitioners claim that the Joint Panel does not possess the required cold neutrality of an impartial judge because it is all at once the evidence- gatherer, prosecutor and judge. They explain that since the Fact-Finding Team has found probable cause to subject them to preliminary investigation, it is impossible for the Joint Committee to arrive at an opposite conclusion. Petitioners likewise express doubts of any possibility that the Joint Committee will be fair and impartial to them as Secretary De Lima and Chairman Brillantes had repeatedly expressed prejudgment against petitioners through their statements captured by the media.
For their part, respondents contend that petitioners failed to present proof that the President of the Philippines, Secretary of Justice, and Chairman of the Comelec actually made the statements allegedly prejudging their case and in the context in which they interpreted them. They likewise contend that assuming that said statements were made, there was no showing that Secretary De Lima had tried to intervene in the investigation to influence its outcome nor was it proven that the Joint Committee itself had prejudged the case. Lastly, they point out that Joint Order No. 001-2011 created two bodies, the Fact-Finding Team and the Joint Committee, with their respective mandates. Hence, they cannot be considered as one.
We find for respondents.
It is settled that the conduct of preliminary investigation is, like court proceedings, subject to the requirements of both substantive and procedural due process.[83] Preliminary investigation is considered as a judicial proceeding wherein the prosecutor or investigating officer, by the nature of his functions, acts as a quasi-judicial officer.[84] The authority of a prosecutor or investigating officer duly empowered to preside over or to conduct a preliminary investigation is no less than that of a municipal judge or even an RTC Judge.[85] Thus, as emphasized by the Court in Ladlad v. Velasco:[86]
x x x We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective of serving the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may public's perception of the impartiality of the prosecutor be enhanced.[87]
In this case, as correctly pointed out by respondents, there was no showing that the statements claimed to have prejudged the case against petitioners were made by Secretary De Lima and Chairman Brillantes or were in the prejudicial context in which petitioners claimed the statements were made. A reading of the statements allegedly made by them reveals that they were just responding to hypothetical questions in the event that probable cause would eventually be found by the Joint Committee.
More importantly, there was no proof or even an allegation that the Joint Committee itself, tasked to conduct the requisite preliminary investigation against petitioners, made biased statements that would convey to the public that the members were favoring a particular party. Neither did the petitioners show that the President of the Philippines, the Secretary of Justice or the Chairman of the Comelec intervened in the conduct of the preliminary investigation or exerted undue pressure on their subordinates to tailor their decision with their public declarations and adhere to a predetermined result.[88] Moreover, insofar as the Comelec is concerned, it must be emphasized that the constitutional body is collegial. The act of the head of a collegial body cannot be considered as that of the entire body itself.[89] In equating the alleged bias of the above-named officials with that of the Joint Committee, there would be no arm of the government credible enough to conduct a preliminary investigation.[90]
It must also be emphasized that Joint Order No. 001-2011 created two bodies, namely: (1) the Fact-Finding Team tasked to gather real, documentary and testimonial evidence which can be utilized in the preliminary investigation to be conducted by the Joint Committee; and (2) the Joint Committee mandated to conduct preliminary investigation. It is, therefore, inaccurate to say that there is only one body which acted as evidence-gatherer, prosecutor and judge.
C. Separation of powers
Petitioners claim that the Joint Panel is a new public office as shown by its composition, the creation of its own Rules of Procedure, and the source of funding for its operation. It is their position that the power of the DOJ to investigate the commission of crimes and the Comelec's constitutional mandate to investigate and prosecute violations of election laws do not include the power to create a new public office in the guise of a joint committee. Thus, in creating the Joint Panel, the DOJ and the Comelec encroached upon the power of the Legislature to create public office.
Respondents dispute this and contend that the Joint Committee and Fact-Finding Team are not new public offices, but merely collaborations between two existing government agencies sharing concurrent jurisdiction. This is shown by the fact that the members of the Joint Panel are existing officers of the DOJ and the Comelec who exercise duties and functions that are already vested in them.
Again, we agree with respondents.
As clearly explained above, the Comelec is granted the power to investigate, and where appropriate, prosecute cases of election offenses. This is necessary in ensuring free, orderly, honest, peaceful and credible elections. On the other hand, the DOJ is mandated to administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system.[91] It is specifically empowered to "investigate the commission of crimes, prosecute offenders and administer the probation and correction system."[92] Also, the provincial or city prosecutors and their assistants, as well as the national and regional state prosecutors, are specifically named as the officers authorized to conduct preliminary investigation.[93] Recently, the Comelec, through its duly authorized legal offices, is given the power, concurrent with the other prosecuting arms of the government such as the DOJ, to conduct preliminary investigation of all election offenses.[94]
Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the assailed Joint Order which give the DOJ and the Comelec the power to conduct preliminary investigation. No new power is given to them by virtue of the assailed order. As to the members of the Joint Committee and Fact-Finding Team, they perform such functions that they already perform by virtue of their current positions as prosecutors of the DOJ and legal officers of the Comelec. Thus, in no way can we consider the Joint Committee as a new public office.
D. Independence of the Comelec
Petitioners claim that in creating the Joint Panel, the Comelec has effectively abdicated its constitutional mandate to investigate and, where appropriate, to prosecute cases of violation of election laws including acts or omissions constituting election frauds, offenses, and malpractices in favor of the Executive Department acting through the DOJ Secretary. Under the set-up, the Comelec personnel is placed under the supervision and control of the DOJ. The chairperson is a DOJ official. Thus, the Comelec has willingly surrendered its independence to the DOJ and has acceded to share its exercise of judgment and discretion with the Executive Branch.
We do not agree.
Section 1,[95] Article IX-A of the 1987 Constitution expressly describes all the Constitutional Commissions as independent. Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions.[96] The Constitution envisions a truly independent Comelec committed to ensure free, orderly, honest, peaceful, and credible elections and to serve as the guardian of the people's sacred right of suffrage the citizenry's vital weapon in effecting a peaceful change of government and in achieving and promoting political stability.[97]
Prior to the amendment of Section 265 of the Omnibus Election Code, the Comelec had the exclusive authority to investigate and prosecute election offenses. In the discharge of this exclusive power, the Comelec was given the right to avail and, in fact, availed of the assistance of other prosecuting arms of the government such as the prosecutors of the DOJ. By virtue of this continuing authority, the state prosecutors and the provincial or city prosecutors were authorized to receive the complaint for election offense and delegate the conduct of investigation to any of their assistants. The investigating prosecutor, in turn, would make a recommendation either to dismiss the complaint or to file the information. This recommendation is subject to the approval of the state, provincial or city prosecutor, who himself may file the information with the proper court if he finds sufficient cause to do so, subject, however, to the accused's right to appeal to the Comelec.[98]
Moreover, during the past national and local elections, the Comelec issued Resolutions[99] requesting the Secretary of Justice to assign prosecutors as members of Special Task Forces to assist the Comelec in the investigation and prosecution of election offenses. These Special Task Forces were created because of the need for additional lawyers to handle the investigation and prosecution of election offenses.
Clearly, the Comelec recognizes the need to delegate to the prosecutors the power to conduct preliminary investigation. Otherwise, the prompt resolution of alleged election offenses will not be attained. This delegation of power, otherwise known as deputation, has long been recognized and, in fact, been utilized as an effective means of disposing of various election offense cases. Apparently, as mere deputies, the prosecutors played a vital role in the conduct of preliminary investigation, in the resolution of complaints filed before them, and in the filing of the informations with the proper court.
As pointed out by the Court in Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections,[100] the grant of exclusive power to investigate and prosecute cases of election offenses to the Comelec was not by virtue of the Constitution but by the Omnibus Election Code which was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ now conducts preliminary investigation of election offenses concurrently with the Comelec and no longer as mere deputies. If the prosecutors had been allowed to conduct preliminary investigation and file the necessary information by virtue only of a delegated authority, they now have better grounds to perform such function by virtue of the statutory grant of authority. If deputation was justified because of lack of funds and legal officers to ensure prompt and fair investigation and prosecution of election offenses, the same justification should be cited to justify the grant to the other prosecuting arms of the government of such concurrent jurisdiction.
In view of the foregoing disquisition, we find no impediment for the creation of a Joint Committee. While the composition of the Joint Committee and Fact-Finding Team is dominated by DOJ officials, it does not necessarily follow that the Comelec is inferior. Under the Joint Order, resolutions of the Joint Committee finding probable cause for election offenses shall still be approved by the Comelec in accordance with the Comelec Rules of Procedure. This shows that the Comelec, though it acts jointly with the DOJ, remains in control of the proceedings. In no way can we say that the Comelec has thereby abdicated its independence to the executive department.
The text and intent of the constitutional provision granting the Comelec the authority to investigate and prosecute election offenses is to give the Comelec all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections.[101] The Comelec should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created.[102] We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this Court should not interfere.[103] Thus, Comelec Resolution No. 9266, approving the creation of the Joint Committee and Fact-Finding Team, should be viewed not as an abdication of the constitutional body's independence but as a means to fulfill its duty of ensuring the prompt investigation and prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest, peaceful and credible elections.
Although it belongs to the executive department, as the agency tasked to investigate crimes, prosecute offenders, and administer the correctional system, the DOJ is likewise not barred from acting jointly with the Comelec. It must be emphasized that the DOJ and the Comelec exercise concurrent jurisdiction in conducting preliminary investigation of election offenses. The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter.[104] Contrary to the contention of the petitioners, there is no prohibition on simultaneous exercise of power between two coordinate bodies. What is prohibited is the situation where one files a complaint against a respondent initially with one office (such as the Comelec) for preliminary investigation which was immediately acted upon by said office and the re-filing of substantially the same complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction by the second office over the cases filed will not be allowed. Indeed, it is a settled rule that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others.[105] As cogently held by the Court in Department of Justice v. Hon. Liwag:[106]
To allow the same complaint to be filed successively before two or more investigative bodies would promote multiplicity of proceedings. It would also cause undue difficulties to the respondent who would have to appear and defend his position before every agency or body where the same complaint was filed. This would lead hapless litigants at a loss as to where to appear and plead their cause or defense.
There is yet another undesirable consequence. There is the distinct possibility that the two bodies exercising jurisdiction at the same time would come up with conflicting resolutions regarding the guilt of the respondents.
Finally, the second investigation would entail an unnecessary expenditure of public funds, and the use of valuable and limited resources of Government, in a duplication of proceedings already started with the Ombudsman.[107]
None of these problems would likely arise in the present case. The Comelec and the DOJ themselves agreed that they would exercise their concurrent jurisdiction jointly. Although the preliminary investigation was conducted on the basis of two complaints the initial report of the Fact-Finding Team and the complaint of Senator Pimentel both complaints were filed with the Joint Committee. Consequently, the complaints were filed with and the preliminary investigation was conducted by only one investigative body. Thus, we find no reason to disallow the exercise of concurrent jurisdiction jointly by those given such authority. This is especially true in this case given the magnitude of the crimes allegedly committed by petitioners. The joint preliminary investigation also serves to maximize the resources and manpower of both the Comelec and the DOJ for the prompt disposition of the cases.
Citing the principle of concurrent jurisdiction, petitioners insist that the investigation conducted by the Comelec involving Radam and Martirizar bars the creation of the Joint Committee for purposes of conducting another preliminary investigation. In short, they claim that the exercise by the Comelec of its jurisdiction to investigate excludes other bodies such as the DOJ and the Joint Committee from taking cognizance of the case. Petitioners add that the investigation should have been conducted also by the Comelec as the 2007 cases of Radam and Martirizar include several John Does and Jane Does.
We do not agree.
While the Comelec conducted the preliminary investigation against Radam, Martirizar and other unidentified persons, it only pertains to election offenses allegedly committed in North and South Cotabato. On the other hand, the preliminary investigation conducted by the Joint Committee (involving GMA) pertains to election offenses supposedly committed in Maguindanao. More importantly, considering the broad power of the Comelec to choose the means of fulfilling its duty of ensuring the prompt investigation and prosecution of election offenses as discussed earlier, there is nothing wrong if the Comelec chooses to work jointly with the DOJ in the conduct of said investigation. To reiterate, in no way can we consider this as an act abdicating the independence of the Comelec.
Publication Requirement
In the conduct of preliminary investigation, the DOJ is governed by the Rules of Court, while the Comelec is governed by the 1993 Comelec Rules of Procedure. There is, therefore, no need to promulgate new Rules as may be complementary to the DOJ and Comelec Rules.
As earlier discussed, considering that Joint Order No. 001-2011 only enables the Comelec and the DOJ to exercise powers which are already vested in them by the Constitution and other existing laws, it need not be published for it to be valid and effective. A close examination of the Joint Committee's Rules of Procedure, however, would show that its provisions affect the public. Specifically, the following provisions of the Rules either restrict the rights of or provide remedies to the affected parties, to wit: (1) Section 1 provides that "the Joint Committee will no longer entertain complaints from the public as soon as the Fact-Finding Team submits its final report, except for such complaints involving offenses mentioned in the Fact-Finding Team's Final Report"; (2) Section 2 states that "the Joint Committee shall not entertain a Motion to Dismiss"; and (3) Section 5 provides that a Motion for Reconsideration may be availed of by the aggrieved parties against the Joint Committee's Resolution. Consequently, publication of the Rules is necessary.
The publication requirement covers not only statutes but administrative regulations and issuances, as clearly outlined in Tañada v. Tuvera:[108]
We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.[109]
As opposed to Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice,[110] where the Court held that OMB-DOJ Joint Circular No. 95-001 is only an internal arrangement between the DOJ and the Office of the Ombudsman outlining the authority and responsibilities among prosecutors of both offices in the conduct of preliminary investigation, the assailed Joint Committee's Rules of Procedure regulate not only the prosecutors of the DOJ and the Comelec but also the conduct and rights of persons, or the public in general. The publication requirement should, therefore, not be ignored.
Publication is a necessary component of procedural due process to give as wide publicity as possible so that all persons having an interest in the proceedings may be notified thereof.[111] The requirement of publication is intended to satisfy the basic requirements of due process. It is imperative for it will be the height of injustice to punish or otherwise burden a citizen for the transgressions of a law or rule of which he had no notice whatsoever.[112]
Nevertheless, even if the Joint Committee's Rules of Procedure is ineffective for lack of publication, the proceedings undertaken by the Joint Committee are not rendered null and void for that reason, because the preliminary investigation was conducted by the Joint Committee pursuant to the procedures laid down in Rule 112 of the Rules on Criminal Procedure and the 1993 Comelec Rules of Procedure.
Validity of the Conduct of
Preliminary Investigation
In her Supplemental Petition,[113] GMA outlines the incidents that took place after the filing of the instant petition, specifically the issuance by the Joint Committee of the Joint Resolution, the approval with modification of such resolution by the Comelec and the filing of information and the issuance of a warrant of arrest by the RTC. With these supervening events, GMA further assails the validity of the proceedings that took place based on the following additional grounds: (1) the undue and unbelievable haste attending the Joint Committee's conduct of the preliminary investigation, its resolution of the case, and its referral to and approval by the Comelec, taken in conjunction with the statements from the Office of the President, demonstrate a deliberate and reprehensible pattern of abuse of inalienable rights and a blatant disregard of the envisioned integrity and independence of the Comelec; (2) as it stands, the creation of the Joint Committee was for the singular purpose of railroading the proceedings in the prosecution of the petitioner and in flagrant violation of her right to due process and equal protection of the laws; (3) the proceedings of the Joint Committee cannot be considered impartial and fair, considering that respondents have acted as law enforcers, who conducted the criminal investigation, gathered evidence and thereafter ordered the filing of complaints, and at the same time authorized preliminary investigation based on the complaints they caused to be filed; (4) the Comelec became an instrument of oppression when it hastily approved the resolution of the Joint Committee even if two of its members were in no position to cast their votes as they admitted to not having yet read the voluminous records of the cases; and (5) flagrant and repeated violations of her right to due process at every stage of the proceedings demonstrate a deliberate attempt to single out petitioner through the creation of the Joint Committee.[114]
In their Supplement to the Consolidated Comment,[115] respondents accuse petitioners of violating the rule against forum shopping. They contend that in filing the Supplemental Petition before the Court, the Urgent Omnibus Motion Ad Cautelam with the RTC, and the Motion to Vacate Ad Cautelam with the Comelec, GMA raises the common issue of whether or not the proceedings before the Joint Committee and the Comelec are null and void for violating the Constitution. Respondents likewise claim that the issues raised in the supplemental petition are factual which is beyond the power of this Court to decide.
We cannot dismiss the cases before us on the ground of forum shopping.
Forum shopping is the act of a party against whom an adverse judgment has been rendered in one forum, of seeking another and possibly favorable opinion in another forum other than by appeal or the special civil action of certiorari.[116] There can also be forum shopping when a party institutes two or more suits in different courts, either simultaneously or successively, in order to ask the courts to rule on the same and related causes and/or to grant the same or substantially the same reliefs on the supposition that one or the other court would make a favorable disposition or increase a party's chances of obtaining a favorable decision or action.[117]
Indeed, petitioner GMA filed a Supplemental Petition before the Court, an Urgent Omnibus Motion Ad Cautelam before the RTC, and a Motion to Vacate Ad Cautelam before the Comelec, emphasizing the unbelievable haste committed by the Joint Committee and the Comelec in disposing of the cases before them. However, a plain reading of the allegations in GMA's motion before the RTC would show that GMA raised the issue of undue haste in issuing the Joint Resolution only in support of her prayer for the trial court to hold in abeyance the issuance of the warrant of arrest, considering that her motion for reconsideration of the denial of her motion to be furnished copies of documents was not yet acted upon by the Joint Committee. If at all the constitutional issue of violation of due process was raised, it was merely incidental. More importantly, GMA raised in her motion with the RTC the finding of probable cause as she sought the judicial determination of probable cause which is not an issue in the petitions before us. GMA's ultimate prayer is actually for the court to defer the issuance of the warrant of arrest. Clearly, the reliefs sought in the RTC are different from the reliefs sought in this case. Thus, there is no forum shopping.
With respect to the Motion to Vacate Ad Cautelam filed with the Comelec, while the issues raised therein are substantially similar to the issues in the supplemental petition which, therefore, strictly speaking, warrants outright dismissal on the ground of forum shopping, we cannot do so in this case in light of the due process issues raised by GMA.[118] It is worthy to note that the main issues in the present petitions are the constitutionality of the creation of the Joint Panel and the validity of the proceedings undertaken pursuant thereto for alleged violation of the constitutional right to due process. In questioning the propriety of the conduct of the preliminary investigation in her Supplemental Petition, GMA only raises her continuing objection to the exercise of jurisdiction of the Joint Committee and the Comelec. There is, therefore, no impediment for the Court to rule on the validity of the conduct of preliminary investigation.
In Uy v. Office of the Ombudsman,[119] the Court explained the nature of preliminary investigation, to wit:
A preliminary investigation is held before an accused is placed on trial to secure the innocent against hasty, malicious, and oppressive prosecution; to protect him from an open and public accusation of a crime, as well as from the trouble, expenses, and anxiety of a public trial. It is also intended to protect the state from having to conduct useless and expensive trials. While the right is statutory rather than constitutional, it is a component of due process in administering criminal justice. The right to have a preliminary investigation conducted before being bound for trial and before being exposed to the risk of incarceration and penalty is not a mere formal or technical right; it is a substantive right. To deny the accused's claim to a preliminary investigation is to deprive him of the full measure of his right to due process.[120]
A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not a mere formal or technical right but a substantive one, forming part of due process in criminal justice. [121]
In a preliminary investigation, the Rules of Court guarantee the petitioners basic due process rights such as the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits, and other supporting documents in her defense.[122] Admittedly, GMA received the notice requiring her to submit her counter-affidavit. Yet, she did not comply, allegedly because she could not prepare her counter-affidavit. She claimed that she was not furnished by Senator Pimentel pertinent documents that she needed to adequately prepare her counter-affidavit.
In her Omnibus Motion Ad Cautelam[123] to require Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for production of election documents as basis for the charge of electoral sabotage, GMA prayed that the Joint Committee issue an Order directing the Fact-Finding Team and Senator Pimentel to furnish her with copies of the following documents:
- Complaint-affidavit and other relevant documents of Senator Aquilino Pimentel III filed before the Commission on Elections against Attys. Lilia Suan-Radam and Yogie Martirizar, as well as the Informations filed in the Regional Trial Court of Pasay City, Branch 114 in Criminal Case Nos. R-PSU-11-03190-CR to R-PSU-11-03200-CR.
- Records in the petitions filed by complainant Pimentel before the National Board of Canvassers, specifically in NBC Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161 and 07-163.
- Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Maguindanao."
- Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Lanao del Norte."
- Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Shariff Kabunsuan."
- Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Lanao del Sur."
- Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Sulu."
- Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Basilan."
- Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Sultan Kudarat."[124]
GMA likewise requested the production of election documents used in the Provinces of South and North Cotabato and Maguindanao.[125]
The Joint Committee, however, denied GMA's motion which carried with it the denial to extend the filing of her counter-affidavit. Consequently, the cases were submitted for resolution sans GMA's and the other petitioners' counter-affidavits. This, according to GMA, violates her right to due process of law.
We do not agree.
GMA's insistence of her right to be furnished the above-enumerated documents is based on Section 3 (b), Rule 112 of the Rules on Criminal Procedure, which reads:
(b) x x x
The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense,
Objects as evidence need not be furnished a party but shall be made available for examination, copying or photographing at the expense of the requesting party.[126]
Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants the respondent such right of examination, to wit:
Sec. 6. Conduct of preliminary investigation. (a) If on the basis of the complaint, affidavits and other supporting evidence, the investigating officer finds no ground to continue with the inquiry, he shall recommend the dismissal of the complaint and shall follow the procedure prescribed in Sec. 8 (c) of this Rule. Otherwise, he shall issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents giving said respondent ten (10) days from receipt within which to submit counter-affidavits and other supporting documents. The respondent shall have the right to examine all other evidence submitted by the complainant.[127]
Clearly from the above-quoted provisions, the subpoena issued against respondent [therein] should be accompanied by a copy of the complaint and the supporting affidavits and documents. GMA also has the right to examine documents but such right of examination is limited only to the documents or evidence submitted by the complainants (Senator Pimentel and the Fact-Finding Team) which she may not have been furnished and to copy them at her expense.
While it is true that Senator Pimentel referred to certain election documents which served as bases in the allegations of significant findings specific to the protested municipalities involved, there were no annexes or attachments to the complaint filed.[128] As stated in the Joint Committee's Order dated November 15, 2011 denying GMA's Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to furnish petitioners with all the supporting evidence.[129] However, Senator Pimentel manifested that he was adopting all the affidavits attached to the Fact-Finding Team's Initial Report.[130] Therefore, when GMA was furnished with the documents attached to the Initial Report, she was already granted the right to examine as guaranteed by the Comelec Rules of Procedure and the Rules on Criminal Procedure. Those were the only documents submitted by the complainants to the Committee. If there are other documents that were referred to in Senator Pimentel's complaint but were not submitted to the Joint Committee, the latter considered those documents unnecessary at that point (without foreclosing the relevance of other evidence that may later be presented during the trial)[131] as the evidence submitted before it were considered adequate to find probable cause against her.[132] Anyway, the failure of the complainant to submit documents supporting his allegations in the complaint may only weaken his claims and eventually works for the benefit of the respondent as these merely are allegations unsupported by independent evidence.
We must, however, emphasize at this point that during the preliminary investigation, the complainants are not obliged to prove their cause beyond reasonable doubt. It would be unfair to expect them to present the entire evidence needed to secure the conviction of the accused prior to the filing of information.[133] A preliminary investigation is not the occasion for the full and exhaustive display of the parties' respective evidence but the presentation only of such evidence as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof and should be held for trial.[134] Precisely there is a trial to allow the reception of evidence for the prosecution in support of the charge.[135]
With the denial of GMA's motion to be furnished with and examine the documents referred to in Senator Pimentel's complaint, GMA's motion to extend the filing of her counter-affidavit and countervailing evidence was consequently denied. Indeed, considering the nature of the crime for which GMA was subjected to preliminary investigation and the documents attached to the complaint, it is incumbent upon the Joint Committee to afford her ample time to examine the documents submitted to [the Joint Committee] in order that she would be able to prepare her counter-affidavit. She cannot, however, insist to examine documents not in the possession and custody of the Joint Committee nor submitted by the complainants. Otherwise, it might cause undue and unnecessary delay in the disposition of the cases. This undue delay might result in the violation of the right to a speedy disposition of cases as enshrined in Section 16, Article III of the Constitution which states that "all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." The constitutional right to speedy disposition of cases is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings.[136] Any party to a case has the right to demand on all officials tasked with the administration of justice to expedite its disposition.[137] Society has a particular interest in bringing swift prosecutions, and the society's representatives are the ones who should protect that interest.[138]
Even assuming for the sake of argument that the denial of GMA's motion to be furnished with and examine the documents referred to in Senator Pimentel's complaint carried with it the denial to extend the filing of her counter-affidavit and other countervailing evidence rendering the preliminary investigation irregular, such irregularity would not divest the RTC of jurisdiction over the case and would not nullify the warrant of arrest issued in connection therewith, considering that Informations had already been filed against petitioners, except Mike Arroyo. This would only compel us to suspend the proceedings in the RTC and remand the case to the Joint Committee so that GMA could submit her counter-affidavit and other countervailing evidence if she still opts to. However, to do so would hold back the progress of the case which is anathema to the accused's right to speedy disposition of cases.
It is well settled that the absence [or irregularity] of preliminary investigation does not affect the court's jurisdiction over the case. Nor does it impair the validity of the criminal information or render it defective. Dismissal is not the remedy.[139] Neither is it a ground to quash the information or nullify the order of arrest issued against the accused or justify the release of the accused from detention.[140] The proper course of action that should be taken is to hold in abeyance the proceedings upon such information and to remand the case for the conduct of preliminary investigation.[141]
In the landmark cases of Cojuangco, Jr. v. Presidential Commission on Good Government [PCGG][142] and Allado v. Diokno,[143] we dismissed the criminal cases and set aside the informations and warrants of arrest. In Cojuangco, we dismissed the criminal case because the information was filed by the PCGG which we declared to be unauthorized to conduct the preliminary investigation and, consequently, file the information as it did not possess the cold neutrality of an impartial judge. In Allado, we set aside the warrant of arrest issued against petitioners therein and enjoined the trial court from proceeding further for lack of probable cause. For one, there was serious doubt on the reported death of the victim in that case since the corpus delicti had not been established nor had his remains been recovered; and based on the evidence submitted, there was nothing to incriminate petitioners therein. In this case, we cannot reach the same conclusion because the Information filed before the RTC of Pasay City was filed by the Comelec en banc which had the authority to file the information for electoral sabotage and because the presence or absence of probable cause is not an issue herein. As can be gleaned from their assignment of errors/issues, petitioners did not question the finding of probable cause in any of their supplemental petitions. It was only in GMA's memorandum where she belatedly included a discussion on the "insufficiency" of the evidence supporting the finding of probable cause for the filing of the Information for electoral sabotage against her.[144] A closer look at her arguments, however, would show that they were included only to highlight the necessity of examining the election documents GMA requested to see before she could file her counter-affidavit. At any rate, since GMA failed to submit her counter-affidavit and other countervailing evidence within the period required by the Joint Committee, we cannot excuse her from noncompliance.
There might have been overzealousness on the part of the Joint Committee in terminating the investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the information in court. However, speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an injudicious performance of functions.[145] The orderly administration of justice remains the paramount consideration with particular regard to the peculiar circumstances of each case.[146] To be sure, petitioners were given the opportunity to present countervailing evidence. Instead of complying with the Joint Committee's directive, several motions were filed but were denied by the Joint Committee. Consequently, petitioners' right to submit counter-affidavit and countervailing evidence was forfeited. Taking into account the constitutional right to speedy disposition of cases and following the procedures set forth in the Rules on Criminal Procedure and the Comelec Rules of Procedure, the Joint Committee finally reached its conclusion and referred the case to the Comelec. The latter, in turn, performed its task and filed the information in court. Indeed, petitioners were given the opportunity to be heard. They even actively participated in the proceedings and in fact filed several motions before the Joint Committee. Consistent with the constitutional mandate of speedy disposition of cases, unnecessary delays should be avoided.
Finally, we take judicial notice that on February 23, 2012, GMA was already arraigned and entered a plea of "not guilty" to the charge against her and thereafter filed a Motion for Bail which has been granted. Considering that the constitutionality of the creation of the Joint Panel is sustained, the actions of the Joint Committee and Fact-Finding Team are valid and effective. As the information was filed by the Commission authorized to do so, its validity is sustained. Thus, we consider said entry of plea and the Petition for Bail waiver on the part of GMA of her right to submit counter- affidavit and countervailing evidence before the Joint Committee, and recognition of the validity of the information against her. Her act indicates that she opts to avail of judicial remedies instead of the executive remedy of going back to the Joint Committee for the submission of the counter- affidavit and countervailing evidence. Besides, as discussed earlier, the absence [or irregularity] of preliminary investigation does not affect the court's jurisdiction over the case nor does it impair the validity of the criminal information or render it defective.
It must be stressed, however, that this supervening event does not render the cases before the Court moot and academic as the main issues raised by petitioners are the constitutionality of the creation of the Joint Committee and the Fact-Finding Team and the validity of the proceedings undertaken pursuant to their respective mandates.
The Court notes that the Joint Committee and the Comelec have not disposed of the cases of the other respondents subjects of the preliminary investigation as some of them were subjected to further investigation. In order to remove the cloud of doubt that pervades that petitioners are being singled out, it is to the best interest of all the parties concerned that the Joint Committee and the Comelec terminate the proceedings as to the other respondents therein and not make a piecemeal disposition of the cases.
A peripheral issue which nonetheless deserves our attention is the question about the credibility of the Comelec brought about by the alleged professional relationship between Comelec Chairman Brillantes on one hand and the complainant Senator Pimentel and Fernando Poe, Jr. (FPJ), GMA's rival in the 2004 elections, on the other hand; and by the other Commissioners'[147] reasons for their partial inhibition. To be sure, Chairman Brillantes' relationship with FPJ and Senator Pimentel is not one of the grounds for the mandatory disqualification of a Commissioner. At its most expansive, it may be considered a ground for voluntary inhibition which is indeed discretionary as the same was primarily a matter of conscience and sound discretion on the part of the Commissioner judge based on his or her rational and logical assessment of the case.[148] Bare allegations of bias and prejudice are not enough in the absence of clear and convincing evidence to overcome the presumption that a judge will undertake his noble role to dispense justice according to law and evidence without fear or favor.[149] It being discretionary and since Commissioner Brillantes was in the best position to determine whether or not there was a need to inhibit from the case, his decision to participate in the proceedings, in view of higher interest of justice, equity and public interest, should be respected. While a party has the right to seek the inhibition or disqualification of a judge (or prosecutor or Commissioner) who does not appear to be wholly free, disinterested, impartial, and independent in handling the case, this right must be weighed with his duty to decide cases without fear of repression.[150]
Indeed, in Javier v. Comelec,[151] the Court set aside the Comelec's decision against Javier when it was disclosed that one of the Commissioners who had decided the case was a law partner of Javier's opponent and who had refused to excuse himself from hearing the case. Javier, however, is not applicable in this case. First, the cited case involves the Comelec's exercise of its adjudicatory function as it was called upon to resolve the propriety of the proclamation of the winner in the May 1984 elections for Batasang Pambansa of Antique. Clearly, the grounds for inhibition/disqualification were applicable. Second, the case arose at the time where the purity of suffrage has been defiled and the popular will scorned through the confabulation of those in authority.[152] In other words, the controversy arose at the time when the public confidence in the Comelec was practically nil because of its transparent bias in favor of the administration.[153] Lastly, in determining the propriety of the decision rendered by the Comelec, the Court took into consideration not only the relationship (being former partners in the law firm) between private respondents therein, Arturo F. Pacificador, and then Comelec Commissioner Jaime Opinion (Commissioner Opinion) but also the general attitude of the Comelec toward the party in power at that time. Moreover, the questioned Comelec decision was rendered only by a division of the Comelec. The Court thus concluded in Javier that Commissioner Opinion's refusal to inhibit himself divested the Comelec's Second Division of the necessary vote for the questioned decision and rendered the proceedings null and void.[154]
On the contrary, the present case involves only the conduct of preliminary investigation and the questioned resolution is an act of the Comelec En Banc where all the Commissioners participated and more than a majority (even if Chairman Brillantes is excluded) voted in favor of the assailed Comelec resolution. Unlike in 1986, public confidence in the Comelec remains. The Commissioners have already taken their positions in light of the claim of "bias and partiality" and the causes of their partial inhibition. Their positions should be respected confident that in doing so, they had the end in view of ensuring that the credibility of the Commission is not seriously affected.
To recapitulate, we find and so hold that petitioners failed to establish any constitutional or legal impediment to the creation of the Joint DOJ- Comelec Preliminary Investigation Committee and Fact-Finding Team.
First, while GMA and Mike Arroyo were among those subjected to preliminary investigation, not all respondents therein were linked to GMA; thus, Joint Order No. 001-2011 does not violate the equal protection clause of the Constitution.
Second, the due process clause is likewise not infringed upon by the alleged prejudgment of the case as petitioners failed to prove that the Joint Panel itself showed such bias and partiality against them. Neither was it shown that the Justice Secretary herself actually intervened in the conduct of the preliminary investigation. More importantly, considering that the Comelec is a collegial body, the perceived prejudgment of Chairman Brillantes as head of the Comelec cannot be considered an act of the body itself.
Third, the assailed Joint Order did not create new offices because the Joint Committee and Fact-Finding Team perform functions that they already perform by virtue of the Constitution, the statutes, and the Rules of Court.
Fourth, in acting jointly with the DOJ, the Comelec cannot be considered to have abdicated its independence in favor of the executive branch of government. Resolution No. 9266 was validly issued by the Comelec as a means to fulfill its duty of ensuring the prompt investigation and prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest, peaceful, and credible elections. The role of the DOJ in the conduct of preliminary investigation of election offenses has long been recognized by the Comelec because of its lack of funds and legal officers to conduct investigations and to prosecute such cases on its own. This is especially true after R.A. No. 9369 vested in the Comelec and the DOJ the concurrent jurisdiction to conduct preliminary investigation of all election offenses. While we uphold the validity of Comelec Resolution No. 9266 and Joint Order No. 001-2011, we declare the Joint Committee's Rules of Procedure infirm for failure to comply with the publication requirement. Consequently, Rule 112 of the Rules on Criminal Procedure and the 1993 Comelec Rules of Procedure govern.
Fifth, petitioners were given the opportunity to be heard. They were furnished a copy of the complaint, the affidavits, and other supporting documents submitted to the Joint Committee and they were required to submit their counter-affidavit and countervailing evidence. As to petitioners Mike Arroyo and Abalos, the pendency of the cases before the Court does not automatically suspend the proceedings before the Joint Committee nor excuse them from their failure to file the required counter-affidavits. With the foregoing disquisitions, we find no reason to nullify the proceedings undertaken by the Joint Committee and the Comelec in the electoral sabotage cases against petitioners.
WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the Fact- Finding Team's Initial Report dated October 20, 2011, are declared VALID. However, the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of publication.
In view of the constitutionality of the Joint Panel and the proceedings having been conducted in accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases for electoral sabotage against petitioners GMA and Abalos are pending, proceed with dispatch.
SO ORDERED.
Velasco, Jr., Bersamin, Del Castillo, Perez, Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.
Sereno, C.J., I concur, except for the part where J. Carpio dissents.
Carpio, J., see separate concurring and dissenting opinion.
Leonardo-De Castro, J., join the dissenting and concurring opinion of Justice Brion.
Brion, J., see my dissenting opinion.
Abad, J., join Justice A.D. Brion in his dissent.
Villarama, Jr., J., on official leave.
[1] Rollo (G.R. No. 199118), pp. 47-48.
[2] Id. at 49-53.
[3] Id. at 54-57.
[4] Id. at 58-139.
[5] Id. at 47.
[6] Id. at 50.
[7] Id. at 50-51.
[8] Composed of the following:
- Asec. Zabedin M. Azis Chairman;
- CP Edward M. Togonon DOJ Member;
- CP Jorge G. Catalan, Jr. DOJ Member;
- Atty. Cesar A. Bacani NBI Member;
- Atty. Dante C. Jacinto NBI Member;
- Atty. Emmanuel E. Ignacio Comelec Member; and
- Atty. Arnulfo P. Sorreda Comelec Member.
[10] Section 7. Rules of Procedure. Within forty-eight (48) hours from the issuance of this Joint Order, the Committee shall meet and craft its rules of procedure as may be complementary to the respective rules of DOJ and Comelec, and submit the same to the Secretary of Justice and the Comelec En Banc for approval within five (5) days from such initial meeting.
[11] Rollo (G.R. No. 199118), pp. 58-143.
[12] Id. at 124.
[13] Michael C. Abas; Col. Reuben Basiao; John Doe Alias Major Joey Leaban; John Doe alias Capt. Peter Reyes; Atty. Jaime Paz; Atty. Alberto Agra; Romy Dayday; Jeremy Javier; Atty. Lilian A. Suan-Radam and Atty. Yogie G. Martirizar.
[14] Gloria Macapagal Arroyo; Datu Andal Ampatuan, Sr.; Lintang H. Bedol; Norie K. Unas; John Doe alias Butch; Benjamin Abalos, [Sr.]; Nicodemo Ferrer; Estelita B. Orbase; Elisa A. Gasmin; Elsa Z. Atinen;. Saliao S. Amba; Magsaysay B. Mohamad; Salonga K. Adzela; Ragah D. Ayunan; Susan U. Cabanban; Russam H. Mabang; Asuncion Corazon P. Reniedo; Nena A. Alid;. Ma. Susan L. Albano; Rohaida T. Khalid; Araw M. Cao; Jeehan S. Nur; Alice A. Lim; Norijean P. Hangkal; Christina Roan M. Dalope; Maceda L. Abo
[15] Rollo (G.R. No. 199118), pp. 132-134.
[16] Former First Gentleman Miguel Arroyo; Bong Serrano; Salonga K. Edzela; Election Assistant Gani Maliga; Members of the SPBOC of Maguindanao Atty. Emilio Santos, Atty. Manuel Lucero and Atty. Dinah Valencia; PES Faisal Tanjili; RED for Region XI Remlani Tambuang; RED for ARMM Ray Sumalipao; Boboy Magbutay from the Visayas; and certain Pobe from the Caraga Region.
[17] Rollo (G.R. No. 199118), p. 137.
[18] Rollo (G.R. No. 199085), pp. 163-194.
[19] Bong Serrano; Gabby Claudio; Nicodemo Ferrer; Michael C. Abas; Ben Basiao; John Oliver Leaban; Peter Reyes; Jaime Paz; Alberto Agra; Andrei Bon Tagum; Romy Dayday; Jeremy Javier.
[20] Rollo (G.R. No. 199118), p. 316.
[21] Id. at 17.
[22] Rollo (G.R. No. 199082), p. 21.
[23] Refers to the Joint Committee and Fact-Finding Team.
[24] Rollo (G.R. No. 199082), pp. 158-161.
[25] Rollo (G.R. No. 199118), pp. 250-259.
[26] Id. at 254.
[27] Id. at 257.
[28] Rollo (G.R. No. 199085), pp. 302-306.
[29] Rollo (G.R. No. 199118), pp. 260-264.
[30] Id. at 224.
[31] Id. at 319.
[32] Id. at 265-273.
[33] Id. at 271-272.
[34] Id. at 321.
[35] Id. at 226.
[36] Id. at 274-280.
[37] Id. at 439-451.
[38] Rollo (G.R. No. 199082), pp. 21-23.
[39] Rollo (G.R. No. 199085), pp. 23-24.
[40] Rollo (G.R. No. 199118), pp. 18-19.
[41] Id. at 281-282.
[42] Id. at 291-292.
[43] Id. at 576-577.
[44] Id. at 326-327.
[45] Id. at 238.
[46] Id. at 330.
[47] Id. at 331.
[48] Id. at 333.
[49] Id. at 335.
[50] Mattel, Inc. v. Francisco, G.R. No. 166886, July 30, 2008, 560 SCRA 504, 514.
[51] Id.
[52] Garayblas v. Atienza, Jr., G.R. No. 149493, June 22, 2006, 492 SCRA 202, 216; See: Tantoy, Sr. v. Abrogar, G.R. No. 156128, May 9, 2005, 458 SCRA 301, 305.
[53] Garayblas v. Atienza, Jr., supra, at 216-217.
[54] 268 Phil. 235 (1990).
[55] Id. at 241.
[56] G.R. No. 113630, May 5, 1994, 232 SCRA 192.
[57] Bagabuyo v. Commission on Elections, G.R. No. 176970, December 8, 2008, 573 SCRA 290, 296.
[58] Id.
[59] Rollo (G.R. No. 199082), p. 6; rollo (G.R. No. 199085), p. 5; rollo (G.R. No. 199118), p. 9.
[60] Moldex Realty, Inc. v. Housing and Land Use Regulatory Board, G.R. No. 149719, June 21, 2007, 525 SCRA 198, 206.
[61] Chua v. Ang, G.R. No. 156164, September 4, 2009, 598 SCRA 229, 237-238.
[62] Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections, G.R. No. 177508, August 7, 2009, 595 SCRA 477, 493-494.
[63] Baytan v. Comelec, 444 Phil. 812, 817-818 (2003); Pimentel, Jr. v. Comelec, 352 Phil. 424, 439 (1998).
[64] Diño v. Olivarez, G.R. No. 170447, December 4, 2009, 607 SCRA 251, 261; Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections, supra note 62, at 495-496; Commission on Elections v. Español, G.R. Nos. 149164-73, December 10, 2003, 417 SCRA 554, 565.
[65] Section 2. Continuing Delegation of Authority to Other Prosecution Arms of the Government. The Chief State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants are hereby given continuing authority, as deputies of the Commission, to conduct preliminary investigation of complaints involving election offenses under the election laws which may be filed directly with them, or which may be indorsed to them by the Commission or its duly authorized representatives and to prosecute the same. Such authority may be revoked or withdrawn anytime by the Commission whenever in its judgment such revocation or withdrawal is necessary to protect the integrity of the Commission, promote the common good, or when it believes that successful prosecution of the case can be done by the Commission.
[66] Commission on Elections v. Español, supra note 64, at 565.
[67] Id.
[68] Id. at 565-566.
[69] G.R. Nos. 83938-40, November 6, 1989, 179 SCRA 190.
[70] People v. Basilia, supra, cited in Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections, supra note 62, at 496.
[71] An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending for the purpose Batas Pambansa Blg. 881, As Amended, Republic Act No. 7166 and Other Related Election Laws, Providing Funds Therefor and for Other Purposes."
[72] Emphasis supplied.
[73] Rollo (G.R. No. 199118), pp. 49-50.
[74] Emphasis supplied.
[75] G.R. Nos. 192935 and 193036, December 7, 2010, 637 SCRA 78.
[76] Id. at 166-167.
[77] Creating the Philippine Truth Commission.
[78] Santos v. People, G.R. No. 173176, August 26, 2008, 563 SCRA 341, 369.
[79] Dimayuga v. Office of the Ombudsman, G.R. No. 129099, July 20, 2006, 495 SCRA 461, 469.
[80] 1987 Constitution, Article IX (C), Section 2 (l).
[81] 1987 Constitution, Article IX (C), Section 2 (4).
[82] 1993 Comelec Rules of Procedure, Sec. 3.
[83] Cruz, Jr. v. People, G.R. No. 110436, June 27, 1994, 233 SCRA 439, 449.
[84] Id.
[85] Id. at 450, citing Cojuangco, Jr. v. PCGG, et al., supra note 54.
[86] G.R. Nos. 170270-72, June 1, 2007, 523 SCRA 318.
[87] Id. at 345, citing Tatad v. Sandiganbayan, G.R. No. L-72335-39, March 21, 1998, 159 SCRA 70.
[88] Santos-Concio v. Department of Justice, G.R. No. 175057, January 29, 2008, 543 SCRA 70, 90.
[89] Gutierrez v. House of Representatives Committee on Justice, G.R. No. 193459, February 15, 2011, 643 SCRA 198, 234.
[90] Santos-Concio v. Department of Justice, supra note 88.
[91] Section 1, Chapter I, Title III, Book IV of the Administrative Code of 1987.
[92] Section 3 (2), Chapter 1, Title III, Book IV, Administrative Code of 1987.
[93] Rules of Criminal Procedure, Rule 112, Section 1.
[94] R.A. 9369, Sec. 43.
[95] Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.
[96] Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18, 1990, 192 SCRA 358, 360.
[97] Gallardo v. Tabamo, Jr., G.R. No. 104848, January 29, 1993, 218 SCRA 253, 264.
[98] Comelec Rules of Procedure, Rule 34.
[99] Comelec Resolution No. 3467 "In the Matter of Requesting the Honorable Secretary of Justice to Assign Prosecutors as Members of a Special Task Force to Assist the Commission in the Investigation and Prosecution of Election Offenses in the May 14, 2001 National and Local Elections and reiterating the Continuing Deputation of Prosecutors under Rule 34 of the Comelec Rules of Procedure"; Resolution No. 8733 "In the Matter of Requesting the Honorable Secretary of Justice to Assign Prosecutors as Members of a Special Task Force Created by the Commission to Conduct the Investigation and Prosecution of Election Offenses in Connection with the May 10, 2010 National and Local Elections"; Resolution No. 9057 "In the Matter of Requesting the Honorable Secretary of Justice to Assign Prosecutors as Members of a Special Task Force to Assist the Commission in the Investigation and Prosecution of Election Offenses in Connection with the October 25, 2010 Barangay and Sanguniang Kabataan Elections." (Emphasis supplied.)
[100] Supra note 62.
[101] Bedol v. Commission on Elections, G.R. No. 179830, December 3, 2009, 606 SCRA 554, 569, citing Loong v. Commission on Elections, G.R. No. 133676, April 14, 1999, 305 SCRA 832.
[102] Tolentino v. Comelec, G.R. No. 148334, January 21, 2004, 465 SCRA 385, 416.
[103] Id., citing Pungutan v. Abubakar, 150 Phil. 1 (1972).
[104] Department of Justice v. Hon. Liwag, 491 Phil. 270, 285 (2005).
[105] Id. at 287.
[106] Id.
[107] Id. at 287-288.
[108] 230 Phil. 528 (1986).
[109] Id. at 535.
[110] G.R. No. 159747, April 13, 2004, 427 SCRA 46.
[111] National Association of Electricity Consumers for Reforms (NASECORE) v. Energy Regulatory Commission (ERC), G.R. No. 163935, August 16, 2006, 499 SCRA 103, 125.
[112] Garcillano v. House of Representatives Committees on Public Information, Public Order and Safety, National Defense and Security, Information and Communication Technology, and Suffrage and Electoral Reforms, G.R. No. 170338, December 23, 2008, 575 SCRA 170, 190.
[113] Rollo (G.R. No. 199118), pp. 222-249.
[114] Id. at 226-227.
[115] Id. at 472-488.
[116] Philippine Radiant Products, Inc. v. Metropolitan Bank & Trust Company, Inc., 513 Phil. 414, 428 (2005).
[117] Huibonhoa v. Concepcion, G.R. No. 153785, August 3, 2006, 497 SCRA 562, 569-570.
[118] See: Disini v. Sandiganbayan, G.R. No. 175730, July 5, 2010, 623 SCRA 354, 377.
[119] G.R. Nos. 156399-400, June 27, 2008, 556 SCRA 73.
[120] Id. at 93-94.
[121] Ladlad v. Velasco, supra note 86, at 344.
[122] Estandarte v. People, G.R. Nos. 156851-55, February 18, 2008, 546 SCRA 130, 144.
[123] Rollo (G.R. No. 199118), pp. 250-259.
[124] Id. at 251-253.
[125] Id. at 255.
[126] Emphasis supplied.
[127] Emphasis supplied.
[128] Rollo (G.R. No. 199085), p. 747.
[129] Rollo (G.R. No. 199118), p. 262.
[130] Rollo (G.R. No. 199085), p. 748.
[131] Id. at 763.
[132] Id. at 763-770.
[133] PCGG v. Hon. Desierto, 445 Phil. 154, 192 (2003).
[134] Id. at 193; Raro v. Sandiganbayan, 390 Phil. 917, 945 (2000).
[135] PCGG v. Hon. Desierto, supra note 133, at 193.
[136] Ombudsman v. Jurado, G.R. No. 154155, August 6, 2008, 561 SCRA 135, 146.
[137] Id. ; Yulo v. People, G.R. No. 142762, March 4, 2005, 452 SCRA 705, 710.
[138] Uy v. Adriano, G.R. No. 159098, October 27, 2006, 505 SCRA 625, 647.
[139] Raro v. Sandiganbayan, G.R. No. 108431, July 14, 2000, 335 SCRA 581; Socrates v. Sandiganbayan, G.R. Nos. 116259-60, February 20, 1996, 253 SCRA 773, 792; Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993, 221 SCRA 349, 355, citing Doromal v. Sandiganbayan, G.R. No. 85468, September 7, 1989, 177 SCRA 354.
[140] San Agustin v. People, G.R. No. 158211, August 31, 2004, 437 SCRA 392, 401.
[141] Raro v. Sandiganbayan, supra note 139; Socrates v. Sandiganbayan, supra note 139; Pilapil v. Sandiganbayan, supra note 139.
[142] Supra note 54.
[143] Supra note 56.
[144] Memorandum of GMA, rollo (G.R. No. 199118), pp. 74-84.
[145] Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA 575, 606, citing Santos-Concio v. Department of Justice, G.R. No. 175057, January 29, 2008, 543 SCRA 70.
[146] Id.
[147] Commissioners Elias R. Yusoph and Christian Robert S. Lim.
[148] Dipatuan v. Mangotara, A.M. No. RTJ-09-2190, April 23, 2010, 619 SCRA 48, 53; Argana v. Republic of the Philippines, 485 Phil 565, 591-592 (2004).
[149] Kilosbayan Foundation v. Janolo, Jr., G.R. No. 180543, July 27, 2010, 625 SCRA 684, 697-698.
[150] Philippine Commercial International Bank v. Dy Hong Pi, G.R. No. 171137, June 5, 2009, 588 SCRA 612, 632.
[151] Nos. L-68379-81, September 22, 1986, 144 SCRA 194.
[152] Javier v. Commission on Elections, Nos. L-68379-81, September 22, 1986, 144 SCRA 194, 196.
[153] Id. at 199.
[154] Id. at 207.
CARPIO, J.:
I concur with the ponencia in its conclusion that (I) there is no violation of the Due Process and Equal Protection Clause in the creation, composition, and proceedings of the Joint Department of Justice ( DOJ) Commission on Elections (COMELEC) Preliminary Investigation Committee (Committee) and the Fact--Finding Team; (2) petitiou0r Gloria Macapagal-Arroyo (Macapagal-Arroyo) in Ci.R. No. 1991 J8 was not lknied oppotiunity to be heard in the course of the Committee's preliminary investigation proceedings; and (3) the preliminary investigation against petitioners, which followed Rule 112 of the Rules on Criminal Procedure and Rule 34 of the COMELEC Rules of Procedure, is valid.
Petitioners' attack against the impartiality of the Committee and the Fact-Finding Team because of their composition and source of tlmding is negated by (1) the express statutory authority fiJr the DO.J and the COMELEC to conduct concurrently preliminary investigations on electionrelated offenses, (2) the separate tlmding for the Committee and FactFinding Team's personnel, and (3) the failure of petitioners to rebut the presumption of regularity in the performance of official functions. Similarly, the equal protection attack against Joint Order 001-2011 for its alleged underinclusivity fails as jurisprudence is clear that underinclusivity of classification, by itself, does not offend the Equal Protection Clause.[1]
Nor is there merit in petitioner Macapagal-Arroyo's claim that the Committee's denial of her request for time to file her counter-affidavit and for copies of documents relating to the complaint of Aquilino Pimentel III (Pimentel) and the Fact-Finding's partial investigation report robbed her of opportunity to be heard. Petitioner Macapagal-Arroyo was furnished with all the documents the Committee had in its possession. Further, the documents relating to Pimentel's complaint,[2] all based on an election protest he filed with the Senate Electoral Tribunal,[3] are not indispensable for petitioner Macapagal-Arroyo to prepare her counter-affidavit to answer the charge that she acted as principal by conspiracy, not by direct participation, to commit electoral sabotage in Maguindanao in the 2007 elections.
I am, however, unable to join the ponencia in its conclusion that the rules of procedure adopted by the Committee (Committee Rules) must be published.
Section 7 of the Joint Order provides that the "Committee shall meet and craft its rules of procedure as may be complementary to the respective rules of DOJ and COMELEC x x x." Section 2 of the Committee Rules provides that the "preliminary investigation shall be conducted in the following manner as may be complementary to Rule 112 of the Rules on Criminal Procedure and Rule 34 of the COMELEC Rules of Procedure." This means that the Committee Rules will apply only if they complement Rule 112 or Rule 34. If the Committee Rules do not complement Rule 112 or Rule 34 because the Committee Rules conflict with Rule 112 or Rule 34, the Committee Rules will not apply and what will apply will either be Rule 112 or Rule 34. Clearly, the Committee Rules do not amend or revoke Rule 112 or Rule 34, but only complement Rule 112 or Rule 34 if possible. "Complementary" means an addition so as to complete or perfect.[4] The Committee Rules apply only to the extent that they "may be complementary to" Rule 112 or Rule 34. In short, despite the adoption of the Committee Rules, Rule 112 of the Rules on Criminal Procedure and Rule 34 of the COMELEC Rules of Procedure indisputably remain in full force and effect.
Assuming, for the sake of argument, that the Committee Rules amend Rule 112 and Rule 34, the lack of publication of the Committee Rules renders them void, as correctly claimed by petitioners. In such a case, Rule 112 and Rule 34 remain in full force and effect unaffected by the void Committee Rules. The preliminary investigation in the present case was conducted in accordance with Rule 112 and Rule 34. Petitioners do not claim that any of their rights under Rule 112 or Rule 34 was violated because of the adoption of the Committee Rules. In short, petitioners cannot impugn the validity of the preliminary investigation because of the adoption of the Committee Rules, whether the adoption was void or not.
As shown in the matrix drawn by public respondents in their Comment,[5] of the ten paragraphs in Section 2 (Procedure) of the Committee Rules, only one paragraph is not found in Rule 112 of the Rules on Criminal Procedure and this relates to an internal procedure on the treatment of referrals by other government agencies or the Fact-Finding Team to the Committee.[6] In Honasan II v. Panel of Prosecutors of the DOJ,[7] the Court quoted and adopted the following argument of the Ombudsman:
OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the DOJ and the Office of the Ombudsman, outlining authority and responsibilities among prosecutors of the DOJ and of the Office of the Ombudsman in the conduct of preliminary investigation. OMB-DOJ Joint Circular No. 95-001 DOES NOT regulate the conduct of persons or the public, in general.
Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint Circular No. 95-001 has to be published. (Emphasis supplied)
In addition, Section 3 of the Committee Rules (Resolution of the Committee) is a substantial reproduction of the first paragraph of Section 4 of Rule 112, save for language replacing "investigating prosecutor" with "Committee." Section 4 of the Committee Rules (Approval of Resolution), while not appearing in Rule 112, is an internal automatic review mechanism (for the COMELEC en banc to review the Committee's findings) not affecting petitioners' rights.[8] Thus, save for ancillary internal rules, the Committee Rules merely reiterate the procedure embodied in Rule 112.
Nevertheless, the ponencia finds publication (and filing of the Committee Rules with the U.P. Law Center9) "necessary" because three provisions of the Committee Rules "either restrict the rights or provide remedies to the affected parties," namely:
(1) Section 1 [which] provides that "the Joint Committee will no longer entertain complaints from the public as soon as the Fact-Finding Team submits its final Report, except for such complaints involving offenses mentioned in the Fact-Finding Team's Final Report"; (2) Section 2 [which] states that the "Joint Committee shall not entertain a Motion to Dismiss"; and (3) Section 5 [which] provides that a Motion for Reconsideration may be availed of by the aggrieved parties against the Joint Committee's Resolution.[10]
None of these provisions justify placing the Committee Rules within the ambit of Tañada v. Tuvera.[11]
Section 1 of the Committee Rules allows the Committee, after the submission by the Fact-Finding Team of its Final Report, to entertain complaints mentioned in the Final Report and disallows the Committee to entertain complaints unrelated to the offenses mentioned in the Final Report. This is still part of the fact-finding stage and the Committee has the discretion to require the Fact-Finding Team to take into account new complaints relating to offenses mentioned in the Final Report. At this stage, there is still no preliminary investigation. Section 1 refers solely to the fact- finding stage, not the preliminary investigation. Thus, Section 1 cannot in any way amend, revoke or even clarify Rule 112 or Rule 34 which governs the preliminary investigation and not the fact-finding stage. Section 1 is merely an internal rule governing the fact-finding stage. To repeat, Section 1 does not have the force and effect of law that affects and binds the public in relation to the preliminary investigation. In short, there is no need to publish Section 1 because it deals solely with fact-finding, not with the preliminary investigation.
In barring acceptance of new complaints after the submission of the Fact-Finding Team's Final Report to the Committee, save for complaints on offenses covered in the Final Report, Section 1 merely states a commonsensical rule founded on logic. If the Final Report is with the Committee, it makes no sense to re-open the investigation for the Fact- Finding Team to investigate offenses wholly unrelated to the Final Report. For such new offenses, the Fact-Finding Team will have to open a new investigation. On the other hand, it makes eminent sense for the Fact- Finding Team to re-open investigation (and thus revise its Final Report) if the new complaints "involv[e] offenses mentioned in the Fact-Finding Team's Final Report," allowing the Fact-Finding Team to submit as thorough and comprehensive a Report as possible on the offenses subject of the Final Report. Far from "restrict[ing] the rights" of the "affected parties," Section 1 favors the petitioners by letting the Fact-Finding Team parse as much evidence available, some of which may be exculpatory, even after the Final Report has been submitted to the Committee, provided they relate to offenses subject of the Final Report.
On Section 2 and Section 5 of the Committee Rules, these provisions merely reiterate extant rules found in the Rules of Court and relevant administrative rules, duly published and filed with the U.P. Law Center. Thus, Section 2's proscription against the filing of a motion to dismiss is already provided in Section 3(c) of Rule 112 which states that "[t]he respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit."[12] Similarly, the right to seek reconsideration from an adverse Committee Resolution under Section 5, again favoring petitioners, has long been recognized and practiced in the preliminary investigations undertaken by the DOJ.[13] DOJ Order No. 223, dated 1 August 1993, as amended by DOJ Department Circular No. 70, dated 1 September 2000, grants to the aggrieved party the right to file "one motion for reconsideration" and reckons the period for the filing of appeal to the DOJ Secretary from the receipt of the order denying reconsideration.[14]
Tañada v. Tuvera requires publication of administrative rules that have the force and effect of law and the Revised Administrative Code requires the filing of such rules with the U.P. Law Center as facets of the constitutional guarantee of procedural due process, to prevent surprise and prejudice to the public who are legally presumed to know the law.[15] As the Committee Rules merely complement and even reiterate Rule 112 of the Rules on Criminal Procedure, I do not see how their non-publication and non-filing caused surprise or prejudice to petitioners. Petitioners' claim of denial of due process would carry persuasive weight if the Committee Rules amended, superseded or revoked existing applicable procedural rules or contained original rules found nowhere in the corpus of procedural rules of the COMELEC or in the Rules of Court, rendering publication and filing imperative.[16] Significantly, petitioner Macapagal-Arroyo encountered no trouble in availing of Rule 112 to file a motion with the Committee praying for several reliefs.[17]
Lastly, the complementary nature of the Committee Rules necessarily means that the proceedings of the Committee would have continued and no prejudice would have been caused to petitioners even if the Committee Rules were non-existent. The procedure provided in Rule 112 of the Rules on Criminal Procedure and Rule 34 of the COMELEC Rules of Procedure would have ipso facto applied since the Committee Rules merely reiterate Rule 112 and Rule 34. The ponencia concedes as much when it refused to invalidate the Committee's proceedings, observing that "the prelimenary investigation was conducted by the Joint Committee pursuant to the procedures laid down in Rule 112 of the Rules on Criminal Procedure and the 1993 COMELEC Rules of Procedure."[18]
Accordingly, I vote to DISMISS the petitions.
[1] See e.g. Quinto v. Commission on Elections, G.R. No. 189698, 22 February 2010, 613 SCRA 385 (reversing the earlier ruling of the Court striking down a law for its underinclusivity).
[2] Numerous election forms and 201,855 ballots from 1,078 precincts in Maguindanao.
[3] SET Case No. 001-07 (Aquilino Pimentel III v. Juan Miguel F. Zubiri).
[4] Merriam-Webster Dictionary, Version 3 (2003).
[5] Consolidated Comment, pp. 78-82.
[6] Section 2(a), second paragraph which provides: "The Committee shall treat a referral made by a government agency authorized to enforce the law or the referral, report or recommendation of the Fact-Finding Team for the prosecution of an offense as a complaint to initiate preliminary investigation. In any of these instances, the referral, report or recommendation must be supported by affidavits, documentary, and such other evidence to establish probable cause."
[7] G.R. No. 159747, 13 April 2004, 427 SCRA 46.
[8] The Committee Rules omit that portion of Section 3(b), Rule 112 which provides that "[I]f the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense." This, however, does not work prejudice to petitioner Macapagal- Arroyo because she was furnished with all the documents the Committee had in its possession relating to the two cases under investigation.
[9] Under Executive Order No. 292, Book VII, Chapter 2, Sections 3-4.
[10] Decision, p. 37.
[11] G.R. No. L-63915, 24 April 1985, 136 SCRA 27 (Decision); 29 December 1986, 146 SCRA 446 (Resolution).
[12] Section 3(c) provides in full: "Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit." (Emphasis supplied)
[13] See, e.g. Adamson v. Court of Appeals, G.R. No. 120935, 21 May 2009, 588 SCRA 27 (where the DOJ denied reconsideration of its Resolution for probable cause for violation of several provisions of the National Internal Revenue Code); People v. Potot, 432 Phil. 1028 (2002) (where a provincial prosecutor denied reconsideration to a finding of probable cause for Homicide.)
[14] Section 3 of DOJ Department Circular No. 70 provides in full: "Period to Appeal. The appeal shall be taken within fifteen (15) days from receipt of the resolution or of the denial of the motion for reconsideration/reinvestigation if one has been filed within fifteen (15) days from receipt of the assailed resolution. Only one motion for reconsideration shall be allowed." This amends Section 2 of DOJ Order No. 223 which provides: "When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel."
[15] Civil Code, Article 3.
[16] See e.g. Republic v. Express Telecommunications, Inc., G.R. No. 147096, 15 January 2002, 373 SCRA 316; GMA Network, Inc. v. MTRCB, G.R. No. 148579, 5 February 2007, 514 SCRA 191.
[17] On 8 November 2011, petitioner Macapagal-Arroyo filed an "Omnibus Motion Ad Cautelam" requesting copies of documents relating to DOJ-COMELEC Case No. 001-2011 and DOJCOMELEC Case No. 002-2011. In her motion, petitioner invoked Section 3, Rule 112 of the Rules on Criminal Procedure (Annex "A," Supplemental Petition, G.R. No. 199118).
[18] Decision, pp. 38-39. Emphasis supplied.
Place a frog in boiling water, and
it will jump out ro save itself;
But place it in cold water
and slowly apply heat,
and the frog will boil to death[1]
BRION, J.:
I open this Dissenting and Concurring Opinion with the tale of the metaphorical "boiling frog" to warn the Court and the readers about the deeper implications of this case a case that involves a major breach of the Philippine Constitution where the frog stands for the independence of the Commission on Elections (COMELEC).
As one American article on the metaphor puts it,[2] "[I]f people become acclimated to some policy or state of affairs over a sufficient period of time, they come to accept the policy or state of affairs as normal. . .The Boiling Frog Syndrome explains how the American public has come to accept breaches of Constitutional government that would have provoked armed resistance a hundred years ago. The public has grown accustomed to these breaches, and to the federal government conducting myriad activities that are nowhere authorized by the Constitution and accepts them as normal."[3]
In the Philippine setting, the various Philippine Constitutions have expressly guaranteed independence to the Judiciary, to the Office of the Ombudsman, and to the Constitutional Commissions, one of which is the COMELEC. The independence is mainly against the intrusion of the Executive,[4] the government department that implements the laws passed by the Legislature and that administered and controlled the conduct of elections in the past.[5] The Judiciary has so far fully and zealously guarded the role of these institutions and their independence in the constitutional scheme, but the nation cannot rest on this record and must ever be vigilant.
While gross and patent violations of the guarantee of independence will not sit well with, and will not be accepted by, the people, particularly in this age of information and awareness, ways other than the gross and the patent, exist to subvert the constitutional guarantee of independence. The way is through small, gradual and incremental changes boiling the frog that people will not notice, but which, over time, will slowly and surely result in the subjugation of the independent institutions that the framers of the Constitution established to ensure balance and stability in a democratic state where the separation of powers among the three branches of government, and checks and balances, are the dominant rules.
This is what the present case is all about a subtle change that people will hardly notice except upon close and critical study, and until they look around them for other subtle changes in other areas of governance, all of them put into place with the best professed intentions but tending to subvert the structures that the framers of the Constitution very carefully and thoughtfully established. Unless utmost vigilance is observed and subtle subverting changes are immediately resisted, the people may never fully know how their cherished democratic institutions will come to naught; through slow and gradual weakening, these democratic institutions like the frog will end up dead. Sadly, this process of gradualism is what the Court allows in the present case.
It is in this context that I filed this Dissent from the majority's conclusion that COMELEC Resolution No. 9266 and Joint Order No. 001-2011 are valid and constitutional, although I ultimately concur with the majority's resulting conclusion, based on non-constitutional grounds, that the petitions should be dismissed. I maintain that these assailed issuances are fatally defective and should be struck down for violating the constitutionally guaranteed independence of COMELEC.
In its rulings, the majority held that the petitioners failed to establish any constitutional or legal impediment to the creation of the Joint Department of Justice (DOJ)-COMELEC Preliminary Investigation Committee (Joint Committee) and the Fact-Finding Team. It likewise held that the petitioners' issues relating to equal protection, due process, separation of powers, requirement of publication, and bias on the part of COMELEC Chairman Sixto Brillantes are unmeritorious.[6] The fountainhead of all these issues, however, is the validity of the creation of, and the exercise of their defined functions by, the DOJ-COMELEC committees; the issues the majority ruled upon all spring from the validity of this creation. On this point, I completely disagree with the majority and its ruling that the COMELEC did not abdicate its functions and independence in its joint efforts with the DOJ.
I submit that in the Resolutions creating the committees and providing for the exercise of their power to conduct fact-finding and preliminary investigation in the present case, the COMELEC unlawfully ceded its decisional independence by sharing it with the DOJ an agency under the supervision, control and influence of the President of the Philippines.
The discussions below fully explain the reasons for my conclusion.
I. The Independence of the COMELEC
a. Historical Roots
The establishment of the COMELEC traces its roots to an amendment of the 1935 Constitution in 1940, prompted by dissatisfaction with the manner elections were conducted then in the country.[7] Prior to this development, the supervision of elections was previously undertaken by the Department of Interior, pursuant to Section 2, Commonwealth Act No. 357 of the First National Assembly. The proposal to amend the Constitution was subsequently embodied in Resolution No. 73, Article III of the Second National Assembly, adopted on April 11, 1940, and was later approved on December 2, 1940 as Article X of the 1935 Constitution:[8]
The administrative control of elections now exercised by the Secretary of Interior is what is sought to be transferred to the Commission on Elections by the proposed constitutional amendment now under discussion. The courts and the existing Electoral Commission (electoral tribunal) retain their original powers over contested elections.[9]
This development was described as "a landmark event in Philippine political history"10 that put in place a "novel electoral device designed to have the entire charge of the electoral process of the nation."[11] A legal commentator noted:
The proposition was to entrust the conduct of our elections to an independent entity whose sole work is to administer and enforce the laws on elections, protect the purity of the ballot and safeguard the free exercise of the right of suffrage. The Commission on Elections was really existing before 1940 as a creation of a statute passed by the National Assembly; but it necessitated a constitutional amendment to place it outside the influence of political parties and the control of the legislative, executive and judicial departments of the government. It was intended to be an independent administrative tribunal, co-equal with other departments of the government in respect to the powers vested in it.[12] [emphasis and underscoring supplied]
Nine years later, the COMELEC's independence was tested in Nacionalista Party v. Bautista,[13] where the Court dealt with the question of whether the designation, by then President Elpidio Quirino, of Solicitor General Felix Angelo Bautista as Acting Member of the COMELEC pending the appointment of a permanent member to fill the vacancy caused by the retirement of Commissioner Francisco Enage was unlawful and unconstitutional. The Court ruled that the designation was repugnant to the Constitution which guarantees the independence of the COMELEC, and said:
Under the Constitution, the Commission on Elections is an independent body or institution (Article X of the Constitution), just as the General Auditing Office is an independent office (Article XI of the Constitution). Whatever may be the nature of the functions of the Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent from the other departments of the Government. xxx
By the very nature of their functions, the members of the Commission on Elections must be independent. They must be made to feel that they are secured in the tenure of their office and entitled to fixed emoluments during their incumbency (economic security), so as to make them impartial in the performance of their functions their powers and duties. They are not allowed to do certain things, such as to engage in the practice of a profession; to intervene, directly or indirectly, in the management or control of any private enterprise; or to be financially interested in any contract with the Government or any subdivision or instrumentality thereof (sec. 3, Article X, of the Constitution). These safeguards are all conducive or tend to create or bring about a condition or state of mind that will lead the members of the Commission to perform with impartiality their great and important task and functions. That independence and impartiality may be shaken and destroyed by a designation of a person or officer to act temporarily in the Commission on Elections. And, although Commonwealth Act No. 588 provides that such temporary designation "shall in no case continue beyond the date of the adjournment of the regular session of the National Assembly (Congress) following such designation," still such limit to the designation does not remove the cause for the impairment of the independence of one designated in a temporary capacity to the Commission on Elections. It would be more in keeping with the intent, purpose and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily. Moreover, the permanent office of the respondent may not, from the strict legal point of view, be incompatible with the temporary one to which he has been designated, tested by the nature and character of the functions he has to perform in both offices, but in a broad sense there is an incompatibility, because his duties and functions as Solicitor General require that all his time be devoted to their efficient performance. Nothing short of that is required and expected of him.[14] [emphasis ours]
Thus, as early as 1949, this Court has started to guard with zeal the COMELEC's independence, never losing sight of the crucial reality that its "independence [is] the principal justification for its creation."[15] The people's protectionist policy towards the COMELEC has likewise never since wavered and, in fact, has prevailed even after two amendments of our Constitution in 1973 and 1987 an enduring policy highlighted by then Associate Justice Reynato Puno in his concurring opinion in Atty. Macalintal v. COMELEC:[16]
The Commission on Elections (COMELEC) is a constitutional body exclusively charged with the enforcement and administration of "all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall," and is invested with the power to decide all questions affecting elections save those involving the right to vote.
Given its important role in preserving the sanctity of the right of suffrage, the COMELEC was purposely constituted as a body separate from the executive, legislative, and judicial branches of government. Originally, the power to enforce our election laws was vested with the President and exercised through the Department of the Interior. According to Dean Sinco, however, the view ultimately emerged that an independent body could better protect the right of suffrage of our people. Hence, the enforcement of our election laws, while an executive power, was transferred to the COMELEC.
The shift to a modified parliamentary system with the adoption of the 1973 Constitution did not alter the character of COMELEC as an independent body. Indeed, a "definite tendency to enhance and invigorate the role of the Commission on Elections as the independent constitutional body charged with the safeguarding of free, peaceful and honest elections" has been observed. The 1973 Constitution broadened the power of the COMELEC by making it the sole judge of all election contests relating to the election, returns and qualifications of members of the national legislature and elective provincial and city officials. Thus, the COMELEC was given judicial power aside from its traditional administrative and executive functions.
The trend towards strengthening the COMELEC continued with the 1987 Constitution. Today, the COMELEC enforces and administers all laws and regulations relative to the conduct of elections, plebiscites, initiatives, referenda and recalls. Election contests involving regional, provincial and city elective officials are under its exclusive original jurisdiction while all contests involving elective municipal and barangay officials are under its appellate jurisdiction.[17] (citations omitted)
At present, the 1987 Constitution (as has been the case since the amendment of the 1935 Constitution) now provides that the COMELEC, like all other Constitutional Commissions, shall be independent. It provides that:
Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit. [emphasis ours]
The unbending doctrine laid down by the Court in Nationalista Party was reiterated in Brillantes, Jr. v. Yorac,[18] a 1990 case where no less than the present respondent COMELEC Chairman Brillantes challenged then President Corazon C. Aquino's designation of Associate Commissioner Haydee Yorac as Acting Chairman of the COMELEC, in place of Chairman Hilario Davide.
In ruling that the Constitutional Commissions, labeled as "independent" under the Constitution, are not under the control of the President even if they discharge functions that are executive in nature, the Court again vigorously denied "Presidential interference" in these constitutional bodies and held:
Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as "independent." Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions. Each of these Commissions conducts its own proceedings under the applicable laws and its own rules and in the exercise of its own discretion. Its decisions, orders and rulings are subject only to review on certiorari by this Court as provided by the Constitution in Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That discretion cannot be exercised for it, even with its consent, by the President of the Philippines.
x x x x
The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to fill the void by extending the temporary designation in favor of the respondent. This is still a government of laws and not of men. The problem allegedly sought to be corrected, if it existed at all, did not call for presidential action. The situation could have been handled by the members of the Commission on Elections themselves without the participation of the President, however well-meaning.
x x x
The Court has not the slightest doubt that the President of the Philippines was moved only by the best of motives when she issued the challenged designation. But while conceding her goodwill, we cannot sustain her act because it conflicts with the Constitution. Hence, even as this Court revoked the designation in the Bautista case, so too must it annul the designation in the case at bar.[19]
In 2003, Atty. Macalintal v. Commission on Elections[20] provided yet another opportunity for the Court to demonstrate how it ardently guards the independence of the COMELEC against unwarranted intrusions.
This time, the stakes were higher as Mme. Justice Austria-Martinez, writing for the majority, remarked: "Under xxx [the] situation, the Court is left with no option but to withdraw xxx its usual reticence in declaring a provision of law unconstitutional."[21] The Court ruled that Congress, a co equal branch of government, had no power to review the rules promulgated by the COMELEC for the implementation of Republic Act (RA) No. 9189 or The Overseas Absentee Voting Act of 2003, since it "trample[s] upon the constitutional mandate of independence of the COMELEC."[22] Thus, the Court invalidated Section 25(2) of RA No. 9189 and held:
The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional commissions such as the COMELEC shall be "independent."
Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an independent COMELEC, the Court has held that "[w]hatever may be the nature of the functions of the Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent from the other departments of the Government." In an earlier case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so may this court also. It should be allowed considerable latitude in devising means and methods that will [e]nsure the accomplishment of the great objective for which it was created free, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions. (italics supplied)
The Court has no general powers of supervision over COMELEC which is an independent body "except those specifically granted by the Constitution," that is, to review its decisions, orders and rulings. In the same vein, it is not correct to hold that because of its recognized extensive legislative power to enact election laws, Congress may intrude into the independence of the COMELEC by exercising supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the necessary rules and regulations to effectively implement the provisions of this Act within sixty days from the effectivity of this Act." This provision of law follows the usual procedure in drafting rules and regulations to implement a law the legislature grants an administrative agency the authority to craft the rules and regulations implementing the law it has enacted, in recognition of the administrative expertise of that agency in its particular field of operation. Once a law is enacted and approved, the legislative function is deemed accomplished and complete. The legislative function may spring back to Congress relative to the same law only if that body deems it proper to review, amend and revise the law, but certainly not to approve, review, revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of the COMELEC. Under such a situation, the Court is left with no option but to withdraw from its usual reticence in declaring a provision of law unconstitutional.
The second sentence of the first paragraph of Section 19 stating that "[t]he Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval," and the second sentence of the second paragraph of Section 25 stating that "[i]t shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission," whereby Congress, in both provisions, arrogates unto itself a function not specifically vested by the Constitution, should be stricken out of the subject statute for constitutional infirmity. Both provisions brazenly violate the mandate on the independence of the COMELEC.
Similarly, the phrase, "subject to the approval of the Congressional Oversight Committee" in the first sentence of Section 17.1 which empowers the Commission to authorize voting by mail in not more than three countries for the May, 2004 elections; and the phrase, "only upon review and approval of the Joint Congressional Oversight Committee" found in the second paragraph of the same section are unconstitutional as they require review and approval of voting by mail in any country after the 2004 elections. Congress may not confer upon itself the authority to approve or disapprove the countries wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the conditions provided for in Section 17.1 of R.A. No. 9189. Otherwise, Congress would overstep the bounds of its constitutional mandate and intrude into the independence of the COMELEC.[23] [citations omitted, emphases ours]
Thus, from the perspective of history, any ruling from this Court as the ponencia now makes allowing the COMELEC to share its decisional independence with the Executive would be a first as well as a major retrogressive jurisprudential development. It is a turning back of the jurisprudential clock that started ticking in favor of the COMELEC's independence in 1940 or 72 years ago.
b. The COMELEC's Power to Investigate and Prosecute Election Offenses
At the core of the present controversy is the COMELEC's exercise of its power to investigate and prosecute election offenses under Section 2, Article IX (C) of the 1987 Constitution. It states that the COMELEC shall exercise the following power and function:
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offences and malpractices. [emphasis supplied]
In Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections,[24] the Court traced the legislative history of the COMELEC's power to investigate and prosecute election offenses, and concluded that the grant of such power was not exclusive:
Section 2(6), Article IX-C of the Constitution vests in the COMELEC the power to "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices." This was an important innovation introduced by the Constitution because this provision was not in the 1935 or 1973 Constitutions. The phrase "[w]here appropriate" leaves to the legislature the power to determine the kind of election offenses that the COMELEC shall prosecute exclusively or concurrently with other prosecuting arms of the government.
The grant of the "exclusive power" to the COMELEC can be found in Section 265 of BP 881 [Omnibus Election Code], which provides:
Sec. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. (Emphasis supplied)
This was also an innovation introduced by BP 881. The history of election laws shows that prior to BP 881, no such "exclusive power" was ever bestowed on the COMELEC.
We also note that while Section 265 of BP 881 vests in the COMELEC the "exclusive power" to conduct preliminary investigations and prosecute election offenses, it likewise authorizes the COMELEC to avail itself of the assistance of other prosecuting arms of the government. In the 1993 COMELEC Rules of Procedure, the authority of the COMELEC was subsequently qualified and explained. The 1993 COMELEC Rules of Procedure provides:
Rule 34 - Prosecution of Election Offenses
Sec. 1. Authority of the Commission to Prosecute Election Offenses. - The Commission shall have the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law.25 (citations omitted, emphases ours)
As outlined in that case, Section 265 of Batas Pambansa Blg. 881 (BP 881) of the Omnibus Election Code granted the COMELEC the exclusive power to conduct preliminary investigations and prosecute election offenses. Looking then at the practical limitations arising from such broad grant of power, Congress also empowered the COMELEC to avail of the assistance of the prosecuting arms of the government.
Under the 1993 COMELEC Rules of Procedure, the Chief State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants were given continuing authority, as deputies of the COMELEC, to conduct preliminary investigation of complaints involving election offenses under election laws that may be filed directly with them, or that may be indorsed to them by the COMELEC or its duly authorized representatives and to prosecute the same.[26]
Under the same Rules, the Chief State Prosecutor, Provincial Fiscal or City Fiscal were authorized to receive complaints for election offenses and after which the investigation may be delegated to any of their assistants.[27] After the investigation, the investigating officer shall issue either a recommendation to dismiss the complaint or a resolution to file the case in the proper courts; this recommendation, however, was subject to the approval by the Chief State Prosecutor, Provincial or City Fiscal, and who shall also likewise approve the information prepared and immediately cause its filing with the proper court.[28] The Rule also provide that resolution of the Chief State Prosecutor or the Provincial or City Fiscal, could be appealed with the COMELEC within ten (10) days from receipt of the resolution, provided that the same does not divest the COMELEC of its power to motu proprio review, revise, modify or reverse the resolution of the Chief State Prosecutor and/or provincial/city prosecutors.[29]
In the recent case of Diño v. Olivarez,[30] the Court had the occasion to expound on the nature and consequences of the delegated authority of the Chief State Prosecutor, Provincial or City Fiscal and their assistants to conduct preliminary investigations and to prosecute election offenses, as follows:
From the foregoing, it is clear that the Chief State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants have been given continuing authority, as deputies of the Commission, to conduct a preliminary investigation of complaints involving election offenses under the election laws and to prosecute the same. Such authority may be revoked or withdrawn anytime by the COMELEC, either expressly or impliedly, when in its judgment such revocation or withdrawal is necessary to protect the integrity of the process to promote the common good, or where it believes that successful prosecution of the case can be done by the COMELEC. Moreover, being mere deputies or agents of the COMELEC, provincial or city prosecutors deputized by the Comelec are expected to act in accord with and not contrary to or in derogation of its resolutions, directives or orders of the Comelec in relation to election cases that such prosecutors are deputized to investigate and prosecute. Being mere deputies, provincial and city prosecutors, acting on behalf of the COMELEC, must proceed within the lawful scope of their delegated authority.[31] [citations omitted, emphasis ours]
In 2007, Congress enacted RA No. 9369, amending BP 881, among others, on the authority to preliminarily investigate and prosecute. Section 43 of RA No. 9369, amending Section 265 of BP 881, provides:
SEC. 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follow[s]:
"SEC. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and prosecute the same." [emphases and underscoring ours]
In 2009, the petitioner and the COMELEC in BANAT v. Commission on Election[32] questioned the constitutionality of Section 43 of RA No. 9369. They argued that the Constitution vests in the COMELEC the exclusive power to investigate and prosecute cases of violations of election laws. They also alleged that Section 43 of RA No. 9369 is unconstitutional because it gives the other prosecuting arms of the government concurrent power with the COMELEC to investigate and prosecute election offenses.
In ruling that Section 2, Article IX (C) of the Constitution did not give the COMELEC the exclusive power to investigate and prosecute cases of violations of election laws and, consequently, that Section 43 of RA No. 9369 is constitutional, the Court held:
We do not agree with petitioner and the COMELEC that the Constitution gave the COMELEC the "exclusive power" to investigate and prosecute cases of violations of election laws.
x x x x
It is clear that the grant of the "exclusive power" to investigate and prosecute election offenses to the COMELEC was not by virtue of the Constitution but by BP 881, a legislative enactment. If the intention of the framers of the Constitution were to give the COMELEC the "exclusive power" to investigate and prosecute election offenses, the framers would have expressly so stated in the Constitution. They did not.
In People v. Basilla, we acknowledged that without the assistance of provincial and city fiscals and their assistants and staff members, and of the state prosecutors of the Department of Justice, the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible. In COMELEC v. Español, we also stated that enfeebled by lack of funds and the magnitude of its workload, the COMELEC did not have a sufficient number of legal officers to conduct such investigation and to prosecute such cases. The prompt investigation, prosecution, and disposition of election offenses constitute an indispensable part of the task of securing free, orderly, honest, peaceful, and credible elections. Thus, given the plenary power of the legislature to amend or repeal laws, if Congress passes a law amending Section 265 of BP 881, such law does not violate the Constitution.[33] [citations omitted; italics supplied]
Thus, as the law now stands, the COMELEC has concurrent jurisdiction with other prosecuting arms of the government, such as the DOJ, to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code, and to prosecute these offenses.
c. The COMELEC and the Supreme Court
Separately from the COMELEC's power to investigate and prosecute election offenses (but still pursuant to its terms) is the recognition by the Court that the COMELEC exercises considerable latitude and the widest discretion in adopting its chosen means and methods of discharging its tasks, particularly in its broad power "to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall."34 In the recent case of Bedol v. Commission on Elections,[35] the Court characterized the COMELEC's power to conduct investigations and prosecute elections offenses as "adjunct to its constitutional duty to enforce and administer all election laws."[36] For this reason, the Court concluded that the aforementioned power "should be construed broadly,"[37] i.e., "to give the COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections."[38]
In this regard, I agree with the majority that the COMELEC must be given considerable latitude in the fulfillment of its duty of ensuring the prompt investigation and prosecution of election offenses. I duly acknowledge that the COMELEC exercises considerable latitude and the widest discretion in adopting its chosen means and methods of discharging its tasks, particularly its broad power "to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall."[39] An expansive view of the powers of the COMELEC has already been emphasized by the Court as early as 1941 (under the 1935 Constitution) in Sumulong, President of the Pagkakaisa ng Bayan v. Commission on Elections,[40] where the Court held:
The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so may this court also. It should be allowed considerable latitude in devising means and methods that will [e]nsure the accomplishment of the great objective for which it was created free, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions.[41] [emphasis ours]
To place this view in constitutional perspective, the independence granted to the COMELEC is as broad as that granted to the Office of the Ombudsman, another constitutional entity engaged in the investigation and prosecution of offenses, this time with respect to those committed by public officers and employees in the performance of their duties. We have uniformly held that this Court shall fully respect the Office of the Ombudsman's independence in the performance of its functions, save only where it commits grave abuse of discretion;[42] in this eventuality it becomes the duty of this Court to intervene pursuant to Section 1, Article VIII of the Constitution.
As it has been with the Ombudsman, so should independence in investigative and prosecutory functions be with the COMELEC and its authority to investigate and prosecute election offenses. In the same manner, the broad discretion granted has its limits. Lest it be forgotten, in addition to its power to guard against grave abuse of discretion mentioned above, this Court, as the last resort tasked to guard the Constitution and our laws through interpretation and adjudication of justiciable controversies, possesses oversight powers to ensure conformity with the Constitution the ultimate instrument that safeguards and regulates our electoral processes and policies and which underlies all these laws and the COMELEC's regulations.[43]
In other words, while the Court acknowledges that the COMELEC "reigns supreme" in determining the means and methods by which it acts in the investigation and prosecution of election offenses, it cannot abdicate its duty to intervene when the COMELEC acts outside the contemplation of the Constitution and of the law,[44] such as when it sheds off its independence contrary to the Constitution by sharing its decision-making with the DOJ.
In the context of the present case, this constitutional safeguard gives rise to the question: Did the COMELEC gravely abuse its discretion in issuing COMELEC Resolution No. 9266 and Joint Order No. 001-2011? My answer is a resounding yes.
II. COMELEC Resolution No. 9266 and Joint Order No. 001-2011 Examined
COMELEC Resolution No. 9266 is merely a preparatory resolution reflecting the COMELEC en banc's approval of the creation of a committee with the DOJ to conduct preliminary investigation on the alleged election offenses and anomalies committed during the 2004 and 2007 elections.[45]
Joint Order No. 001-2011, on the other hand, creates two committees or teams to investigate and conduct preliminary investigation on the 2004 and 2007 National Elections Electoral Fraud and Manipulation case the Fact-Finding Team and the Joint DOJ-COMELEC Preliminary Investigation Committee (Joint Committee).[46]
Under Section 5 of the Joint Order, the Fact-Finding Team shall be chaired by an Assistant Secretary of the DOJ, and shall have six members: two (2) from the National Bureau of Investigation (NBI); two (2) from the DOJ and two (2) from the COMELEC. Thus, effectively, the COMELEC has ceded primacy in fact-finding functions to the Executive, given the composition of this team as the NBI is an executive investigation agency under the DOJ.
Under Section 4 of the Joint Order, the Fact-Finding Team is tasked to:
The Fact-Finding Team shall be under the supervision of the Secretary of the DOJ and the Chairman of the COMELEC or, in the latter's absence, a Senior Commissioner of the COMELEC. Under the Joint Order, the Fact-Finding Team shall have a Secretariat to provide it with legal, technical and administrative assistance. The Fact-Finding Team shall also have an office to be provided by either the DOJ or the COMELEC.[48]
Section 1 of the Joint Order provides that the Joint Committee is composed of three (3) officials coming from the DOJ and two (2) officials from the COMELEC. Prosecutor General Claro A. Arellano from the DOJ was designated as Chairperson, to be assisted by the following members:[49]
1) Provincial Prosecutor George C. Dee, DOJ
2) City Prosecutor Jacinto G. Ang, DOJ
3) Director IV Ferdinand T. Rafanan, COMELEC
4) Atty. Michael D. Villaret, COMELEC
Section 2 of the Joint Order sets the mandate of the Joint Committee which is to "conduct the necessary preliminary investigation on the basis of the evidence gathered and the charges recommended by the Fact-Finding Team." Resolutions finding probable cause for election offenses, defined and penalized under BP 881 and other election laws, shall be approved by the COMELEC in accordance with the COMELEC Rules of Procedure.[50]
The procedure by which the resolutions finding probable cause is to be reviewed and/or approved by the COMELEC is clearly set forth in Sections 3, 4 and 5 of the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 Elections. Sections 3, 4 and 5 of the Rules state:
Section 3. Resolution of the Committee. If the Committee finds cause to hold respondent for trial, it shall prepare the resolution and information. The Committee shall certify under oath in the information that it, or as shown by the record, has personally examined the complainant and the witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof, that the accused was informed of the complaint and of the evidence submitted against him; and that he was given the opportunity to submit controverting evidence. Otherwise, the Committee shall recommend the dismissal of the complaint.
Section 4. Approval of the Resolution. Resolutions of the Committee relating to election offenses, defined and penalized under the Omnibus Election Code, and other election laws shall be approved by the COMELEC in accordance with the Comelec Rules of Procedure.
For other offenses, or those not covered by the Omnibus Election Code and other election laws, resolutions of the Committee shall be approved by the Prosecutor General except in cases cognizable by the Sandiganbayan, where the same shall be approved by the Ombudsman.
Section 5. Motion for Reconsideration. Motions for Reconsideration on resolutions of the Committee involving violations of [the] Omnibus Election Code and other election laws shall be resolved by the COMELEC in accordance with its Rules.
For other cases not covered by the Omnibus Election Code, the Motion for Reconsideration shall be resolved by the Committee in accordance with the Rules of Criminal Procedure.[51] (emphasis ours)
Finally, Section 9 of the Joint Order provides for the budget and financial support for the operation of the Joint Committee and the Fact- Finding Team which shall be sourced from funds of the DOJ and the COMELEC, as may be requested from the Office of the President.[52]
a. The Unconstitutional Distortion of the
Existing Legal Framework
Section 2, Article IX (C) of the Constitution specifically vests in the COMELEC the plenary power to "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices." To discharge its duty effectively, the Constitution endowed the COMELEC with special features which elevate it above other investigative and prosecutorial agencies of the government.
First and foremost, it extended independence to the COMELEC and insulated it from intrusion by outside influences, political pressures and partisan politics. In Atty. Macalintal v. COMELEC,[53] already cited above, then Associate Justice Puno enumerated these safeguards to protect the independence of the COMELEC, viz.:
Several safeguards have been put in place to protect the independence of the COMELEC from unwarranted encroachment by the other branches of government. While the President appoints the Commissioners with the concurrence of the Commission on Appointments, the Commissioners are not accountable to the President in the discharge of their functions. They have a fixed tenure and are removable only by impeachment. To ensure that not all Commissioners are appointed by the same President at any one time, a staggered system of appointment was devised. Thus, of the Commissioners first appointed, three shall hold office for seven years, three for five years, and the last three for three years. Reappointment and temporary designation or appointment is prohibited. In case of vacancy, the appointee shall only serve the unexpired term of the predecessor. The COMELEC is likewise granted the power to promulgate its own rules of procedure, and to appoint its own officials and employees in accordance with Civil Service laws.
The COMELEC exercises quasi-judicial powers but it is not part of the judiciary. This Court has no general power of supervision over the Commission on Elections except those specifically granted by the Constitution. As such, the Rules of Court are not applicable to the Commission on Elections. In addition, the decisions of the COMELEC are reviewable only by petition for certiorari on grounds of grave abuse of discretion[.][54] [emphasis ours, citations omitted]
Under the Constitution, the Executive is tasked with the enforcement of the laws that the Legislature shall pass. In the administration of justice, the Executive has the authority to investigate and prosecute crimes through the DOJ, constituted in accordance with the Administrative Code.[55] Under our current laws, the DOJ has general jurisdiction to conduct preliminary investigation of cases involving violations of the Revised Penal Code.[56]
With respect to the power to conduct preliminary investigation and to prosecute election offenses, Congress has mandated under Section 42 of RA No. 9369 that the COMELEC shall have the power concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code, and to prosecute these offenses. Concurrent jurisdiction has been defined as "equal jurisdiction to deal with the same subject matter."[57]
Thus, under the present legal framework, the COMELEC and the DOJ, and its prosecuting arms, have equal jurisdiction to conduct preliminary investigation and prosecute election offenses. Effectively, this means that the DOJ and its prosecuting arms can already conduct preliminary investigations and prosecute election offenses not merely as deputies, but independently of the COMELEC.
This concurrent jurisdiction mandated under Section 42 of RA No. 9369 must, however, be read together with and cannot be divorced from the provisions of the Constitution guaranteeing the COMELEC's independence as a Constitutional Commission, in particular, Sections 1, 2, 3 4, 5 and 6 of Article IX (A) of the 1987 Constitution. This constitutional guaranty of independence cannot be taken lightly as it goes into the very purpose for which the COMELEC was established as an independent Constitutional Commission.
To briefly recall and reiterate statutory and jurisprudential history, the COMELEC was deliberately constituted as a separate and independent body from the other branches of government in order to ensure the integrity of our electoral processes; it occupies a distinct place in our scheme of government as the constitutional body charged with the administration of our election laws. For this reason, the Constitution and our laws unselfishly granted it powers and independence in the exercise of its powers and the discharge of its responsibilities.[58]
The independence of the COMELEC is a core constitutional principle that is shared and is closely similar to the judicial independence that the Judiciary enjoys because they are both expressly and textually guaranteed by our Constitution. Judicial independence has been characterized as "a concept that expresses the ideal state of the judicial branch of government; it encompasses the idea that individual judges and the judicial branch as a whole should work free of ideological influence."[59]
The general concept of "judicial independence" can be "broken down into two distinct concepts: decisional independence and institutional, or branch, independence." Decisional independence "refers to a judge's ability to render decisions free from political or popular influence based solely on the individual facts and applicable law." On the other hand, institutional independence "describes the separation of the judicial branch from the executive and legislative branches of government." [60] "Decisional independence is the sine qua non of judicial independence."[61]
In the exercise of the COMELEC's power to investigate and prosecute election offenses, the "independence" that the Constitution guarantees the COMELEC should be understood in the context of the same "decisional independence" that the Judiciary enjoys since both bodies ascertain facts and apply the laws to these facts as part of their mandated duties.
In concrete terms, the "decisional independence" that the COMELEC should ideally have in the exercise of its power to investigate and prosecute election offenses, requires the capacity to exercise these functions according to its own discretion and independent consideration of the facts, the evidence and the applicable law, "free from attempts by the legislative or executive branches or even the public to influence the outcome of xxx [the] case."[62] And even if the power to investigate and prosecute election offences, upon determination of the existence of probable cause, are executive and not judicial functions, the rationale behind the constitutional independence of the Judiciary and the COMELEC is geared towards the same objective of de-politicization of these institutions which are and should remain as non-political spheres of government.
Tested under these considerations, the result cannot but be the unavoidable conclusion that what exists under Joint Order No. 001-2011 and the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections is not a scheme whereby the COMELEC exercises its power to conduct preliminary investigation and to prosecute elections offenses independently of other branches of government but a shared responsibility between the COMELEC and the Executive Branch through the DOJ.
This is the incremental change at issue in the present case, whose adoption weakens the independence of the COMELEC, opening it to further incremental changes on the basis of the ruling in this case. Under the ponencia's ruling allowing a shared responsibility, the independence of the COMELEC ends up a boiled frog; we effectively go back to the country's situation before 1940 with elections subject to intrusion by the Executive.
Significantly, the Solicitor General admitted during the oral arguments that the reports and or recommendations of the Fact-Finding Team and Joint Committee were a shared responsibility between the DOJ and the COMELEC members, viz.:
JUSTICE BRION: With that agreement perhaps we have laid down the basis for the constitutional hierarchy in this case. So that here we recognize that the Bill of Rights is very important, the due process clause is very important as against the police power of the State, particularly in criminal prosecutions. Okay. Let me go now to a very, very small point. The investigating team that was created by the COMELEC-DOJ resolution, can you tell me how it operates?
SOLGEN CADIZ: Your Honor, there are two (2) bodies created, collaborative effort most of them. One is the fact-finding team and the other one is the preliminary investigation committee.
JUSTICE BRION: In the fact-finding team, what is the composition?
SOLGEN CADIZ: DOJ, COMELEC and NBI.
JUSTICE BRION: Two (2) members each?
SOLGEN CADIZ: That is my recollection also, your Honor.
xxx
JUSTICE BRION: So effectively the DOJ has four (4) representatives in that investigating team, right?
SOLGEN CADIZ: If that is the perspective, Your Honor, but the NBI of course, has a vastly different function from the prosecutors of the DOJ.
JUSTICE BRION: Who has supervision over this investigation team?
SOLGEN CADIZ: Your Honor, it is a collaborative effort. There is no one head of this panel. Likewise, as regards the preliminary investigation team which was collaborative effort.
xxx
JUSTICE BRION: What do the rules say? My question is as simple as that. Who has supervision over the investigating team?
SOLGEN CADIZ: The Preliminary Investigation Committee, Your Honor, the Fact-Finding Team.
xxx
SOLGEN CADIZ: Your Honor, it's here. Both the Secretary of Justice and the COMELEC Chairman as I previously stated.
xxx
JUSTICE BRION: And I heard from you before that the decision here was unanimous among the members. They have no problem.
SOLGEN CADIZ: In fact, Your Honor, the resolution of the COMELEC en banc says that it gave great weight to the assent of the two COMELEC representatives in the preliminary investigation team.
JUSTICE BRION: Of the preliminary investigation, we are not there yet. We are only in the fact-finding team. SOLGEN CADIZ: There was no dissension, Your Honor.
xxx
JUSTICE BRION: They were unanimous. They agreed, they consulted with one another and they agreed as their decision on what to send to their superiors, right?
xxx
SOLGEN CADIZ: There was a report to the preliminary investigation committee…
JUSTICE BRION: So the report was unanimous?
SOLGEN CADIZ: Yes, Your Honor.
JUSTICE BRION: So this was a shared report?
JUSTICE BRION: Okay. A shared understanding between the COMELEC and the DOJ.
SOLGEN CADIZ: But maintaining their own identities, your Honor.
JUSTICE BRION: Now, let's go to the preliminary investigation team. What was the membership?
SOLGEN CADIZ: Three (3) from DOJ and two (2) from COMELEC.
JUSTICE BRION: Three (3) from DOJ and two (2) from COMELEC. They also came out with their recommendations, right?
SOLGEN CADIZ: Yes, Your Honor.
JUSTICE BRION: Were they also unanimous?
SOLGEN CADIZ: Yes, Your Honor.
JUSTICE BRION: So again this was a shared decision between the DOJ members and the COMELEC members, right?
SOLGEN CADIZ: Yes, your Honor.
JUSTICE BRION: Okay. Thank you very much for that admission…[63] [emphasis supplied]
To point out the obvious, the Fact-Finding Team, on the one hand, is composed of five members from the DOJ and two members from the COMELEC. This team is, in fact, chaired by a DOJ Assistant Secretary. Worse, the Fact-Finding Team is under the supervision of the Secretary of DOJ and the Chairman of the COMELEC or, in the latter's absence, a Senior Commissioner of the COMELEC.
On the other hand, the Joint DOJ-COMELEC Preliminary Investigation Committee is composed of three (3) officials coming from the DOJ and two (2) officials from the COMELEC. Prosecutor General Claro A. Arellano from the DOJ is also designated as Chairperson of the Committee. Not to be forgotten also is that budget and financial support for the operation of the Committee and the Fact-Finding Team shall be sourced from funds of the DOJ and the COMELEC, as may be requested from the Office of the President. This, again, is a perfect example of an incremental change that the Executive can exploit.
What appears to be the arrangement in this case is a novel one, whereby the COMELEC supposedly an independent Constitutional body - has been fused with the prosecutorial arm of the Executive branch in order to conduct preliminary investigation and prosecute election offenses in the 2004 and 2007 National Elections. To my mind, this fusion or shared responsibility between the COMELEC and the DOJ completely negates the COMELEC's "decisional independence" so jealously guarded by the framers of our Constitution who intended it to be insulated from any form of political pressure.
To illustrate, Justice Presbitero J. Velasco raised during the oral arguments the prejudicial effects (to the COMELEC's decisional independence) of the joint supervision by the DOJ and the COMELEC over the composite Fact-Finding Team and the Preliminary Investigation Committee, viz.:
JUSTICE VELASCO: Counsel, would you agree that it was actually DOJ and COMELEC that initially acted as complainant in this case?
ATTY. DULAY: No, Your Honor, that is not our understanding, Your Honor.
JUSTICE VELASCO: What precipitated the creation of the Preliminary Investigating Committee and the fact-finding team under Joint Order No. 001-2011?
ATTY. DULAY: Well, if you were to take it, Your Honor, based on their Joint Circular, it would be due to the recent discovery of new evidence and the surfacing of new witnesses, Your Honor.
JUSTICE VELASCO: Correct. So motu proprio, they initiated the investigation into possible breach of election laws because of this new evidence discovered and the surfacing of new witnesses, is that correct?
ATTY. DULAY: Yes, Your Honor.
xxx
JUSTICE VELASCO: Okay. So initially DOJ and COMELEC were the complainants in this election matter. Now, the fact finding committee under Section 4 of Joint Order 001-2011 is under the supervision of the Secretary of Justice and COMELEC Chairman, correct?
ATTY. DULAY: Yes, Your Honor.
JUSTICE VELASCO: What does it mean, what does it mean if these two heads of two powerful branches of government have supervision over the activities of the fact-finding team? What can it do?
ATTY. DULAY: Well, Your Honor our contention is that the merger of the powers of the … an independent constitutional commission and an executive department, the executive branch, Your Honor, is a violation of the principle of separation of powers, Your Honor. Because while the law may provide that each body or entity the COMELEC or the DOJ have concurrent jurisdiction over election offenses, this does not mean that this can be exercised jointly, Your Honor. And what we are really objecting, Your Honor, is the fact that when they join, it is now a… it constitutes a violation of that principle of separation of powers, Your Honor.
JUSTICE VELASCO: Okay, as two branches or one department and a constitutional body supervising the fact finding, so under the Joint Order 001-2011 it can give instructions to the fact-finding team as to how to go about in performing its functions under Section 4 of said joint order, is that correct?
ATTY. DULAY: Yes, Your Honor.
JUSTICE VELASCO: So they can issue instruction and orders to the fact-finding team in gathering reports, conducting interviews, assessing affidavits and the other functions of the fact-finding team, okay?
ATTY. DULAY: Yes, Your Honor.
JUSTICE VELASCO: And Preliminary Investigation Committee is composed of representatives from the same, DOJ and COMELEC also, correct?
ATTY. DULAY: Yes, Your Honor.
JUSTICE VELASCO: Now the reports of the fact finding team are submitted also to the Secretary of Justice and Chairman of COMELEC, is that correct?
ATTY. DULAY: Yes, under the order, Your Honor.
JUSTICE VELASCO: Okay. So in short the investigation, the investigator actually is also the complainant in this electoral matter? What's your view on that?
ATTY. DULAY: Yes, Your Honor, and the judge also, Your Honor, because the same body. That's why our contention, Your Honor, is that the fact-finding team and the Preliminary Investigation Committee, is one and the same creature, Your Honor. They are both created by… jointly by the COMELEC and the DOJ.
JUSTICE VELASCO: And the resolutions of the Preliminary Investigation Committee will have to be submitted first to whom?
ATTY. DULAY: If it is an election offense, Your Honor, to the COMELEC, if it is a non-election offense to the Department of Justice, Your Honor.
JUSTICE VELASCO: So the resolution of the criminal complaint will have to be done by one of the agencies over which has supervision and control over two members of the Preliminary Investigation Committee, is that correct?
ATTY. DULAY: Yes, Your Honor. If, your Honor please, the supervision of the Secretary of Justice and the COMELEC Chairman refers to the fact-finding team as well as to the Preliminary Investigation Committee which are composed… it's a composite team, really, Your Honor, as far as the fact finding team, there's the DOJ, there's the NBI, they are the two representatives from the COMELEC. So if we were to take the line that they would be under the supervision of one of the other heads, then it would be a head of an executive department supervising the work of a representative from an independent constitutional commission and vice versa, Your Honor. So there is in that sense a diminution, Your Honor, of the power and authority of the COMELEC which it should have in the first place exercised solely or singularly in the same way that the DOJ under its concurrent jurisdiction could have exercised separately, Your Honor.[64] [emphasis supplied]
Given that the membership of the composite Fact-Finding Team and Preliminary Investigation Committee is numerically tilted in favor of the DOJ, plus the fact that a member of the DOJ exercises supervision over the representatives of the COMELEC, it cannot be discounted that the latter runs the risk of being pressured into bending their analyses of the evidence to reach results (a finding of probable cause, in this case) more pleasing or tailor-fitted to the outcomes desired by their DOJ supervisors who belong to the majority. In this situation, the COMELEC's independent consideration of the facts, evidence and applicable law with respect to the complaints for electoral sabotage filed against the respondents cannot but be severely compromised. The following exchanges during the oral arguments are also very instructive:
ASSOCIATE JUSTICE ABAD: Now here, the Election Code grants the COMELEC and the other prosecution arms of the government concurrent authority to conduct preliminary investigation of election offenses, is that correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE ABAD: But your theory is that, given their concurrent authority they can conduct preliminary investigation of election offenses.
SOLICITOR GENERAL CADIZ: That was COMELEC and DOJ decided in this particular matter, Your Honor.
xxx
ASSOCIATE JUSTICE ABAD: No, I'm asking you if you adopt that position or not, that they concurrently conduct a joint investigation, concurrent?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE ABAD: Alright. Now, the prosecution arm of the government are under the Secretary of Justice, do you agree?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE ABAD: And the Secretary of Justice is the alter ego of the President, do you agree?
SOLICITOR GENERAL CADIZ: I think that is true.
ASSOCIATE JUSTICE ABAD: The President is essentially a politician belonging to a political party, will you agree?
SOLICITOR GENERAL CADIZ: He is the President of the people, Your Honor.
ASSOCIATE JUSTICE ABAD: Oh yes.
xxx
ASSOCIATE JUSTICE ABAD: As a matter of fact, he is also the titular President of the Liberal Party, is that correct?
SOLICITOR GENERAL CADIZ: Yes, but he is the President of a hundred million Filipinos.
xxx
ASSOCIATE JUSTICE ABAD: Has the COMELEC which is an independent constitutional body any business doing work assigned to it by law hand-in-hand with an agency under the direct control of a politician?
SOLICITOR GENERAL CADIZ: I think that's a wrong premise, Your Honor.
ASSOCIATE JUSTICE ABAD: Explain to me. Where is the error in my premise?
xxx
SOLICITOR GENERAL CADIZ: Thank you very much, Your Honor. Thank you very much, thank you, Your Honor. COMELEC and DOJ they decided to have a Fact-Finding Team and the Preliminary Investigating Committee. The Fact-Finding Team is composed of COMELEC personnel, DOJ personnel, and NBI personnel. The Preliminary Investigating Committee is composed to COMELEC people and DOJ personnel. Your Honor, they have, the Fact-Finding Team, made a report, submitted it both to COMELEC, to the Secretary of Justice, and to the Preliminary Investigating Committee. The Preliminary Investigating Committee had a unanimous finding and they made a report to the COMELEC En Banc. It is the COMELEC En Banc, Your Honor, which had the final say on the findings of Preliminary Investigating Committee. So, I think, Your Honor, the premise is wrong, that the independent of the COMELEC has been compromised in this particular matter because, in fact, the COMELEC En Banc, Your Honor did not adopt in toto the findings of the Preliminary Investigating Committee. And You Honor, there is a dimension here that not only election offenses are being investigated but also common crimes under the Revised Penal Code. So, in the collaboration between DOJ and the COMELEC, what was sought to be made, or what was sought to be achieved was efficiency, and what was sought to be avoided was redundancy, Your Honor. And again, if I may reiterate, Your Honor please, to your question about compromising the independence of the COMELEC, I respectfully beg to disagree with that premise, Your Honor, because at the end of the day it was the COMELEC En Banc who decided to file an Information or to have a Resolution asking the Law Department to file an information against the three (3) accused in this case Gloria Macapagal-Arroyo, Lintang Bedol, and former Governor Zaldy Ampatuan, Sr.
ASSOCIATE JUSTICE ABAD: Acting on the findings of a Committee dominated by representatives of the DOJ, is that correct?
SOLICITOR GENERAL CADIZ: There was a unanimity, Your Honor.
ASSOCIATE JUSTICE ABAD: Yes, yes. Well, the Committee dominated ….
SOLICITOR GENERAL CADIZ: I think the numbers are…..
ASSOCIATE JUSTICE ABAD: 3-2.
SOLICITOR GENERAL CADIZ: 3-2?
ASSOCIATE JUSTICE ABAD: Yes.
SOLICITOR GENERAL CADIZ: There was no dissention, there was a unanimity in finding and at the end of the day there were only recommendatory to the COMELEC En Banc.
ASSOCIATE JUSTICE ABAD: Well, that is true but the COMELEC did not make an investigation. It was not the one that denied the respondents the right to ask for time to file counter- affidavit. These rulings were made by that Committee dominated by representatives of the DOJ. Anyway, you just answered it, although not exactly to my satisfaction but you answered it. Do you know if under the Election Code, tell me if I'm exceeded my time already, do you know if under the Election Code, the COMELEC must directly conduct the preliminary investigation of election offenses? Does it have to conduct directly by itself preliminary investigation of election offenses, the COMELEC?
SOLICITOR GENERAL CADIZ: The Law Department can do that, Your Honor.
ASSOCIATE JUSTICE ABAD: Well, so I will read to you Section 43 of Republic Act 9369, it says that, and I quote, "That the COMELEC shall, through it's duly authorized legal officers, have the power concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses." Now, since the law specifically provides that the COMELEC is to exercise its power to conduct preliminary investigation through its legal officers, by what authority did the COMELEC delegate that power to a joint committee dominated by strangers to its organization?
SOLICITOR GENERAL CADIZ: Your Honor, the power of the COMELEC to investigate and prosecute election related offenses is not exclusive. It is concurrent with prosecuting arms of the government, that is the Department of Justice. In other words, Your Honor, the Department of Justice under the amended law has the power to investigate and prosecute election related offenses likewise, so there was no undue delegation as premises in your question, Your Honor, but this is a concurrent jurisdiction with the DOJ.
ASSOCIATE JUSTICE ABAD: So, that's what made the COMELEC disregard what the law says, "shall'" which is, as you say, you know in law "shall" means a command, "Shall, through its duly authorized legal officers, have the power to conduct preliminary investigation of all election offenses." At any rate, I think, you've have answered.
SOLICITOR GENERAL CADIZ: It is not exclusive, Your Honor.
ASSOCIATE JUSTICE ABAD: You've given your answer.
SOLICITOR GENERAL CADIZ: It is not exclusive, Your Honor, the law states its power.
ASSOCIATE JUSTICE ABAD: No, the method is exclusive. The power to investigate is not exclusive, if the law expressly says "through its fully authorized legal officers" precisely because this is in consonance with the policy laid down by the Constitution that the COMELEC shall enjoy autonomy, independent of any branch of government. It should not be working with the political branch of the government to conduct its investigation. It should try to maintain its independence. At any rate, I understand that…Can I continue Chief? [65][emphasis supplied]
Considering the terms of the COMELEC-DOJ resolutions and exchanges and admissions from no less than the Solicitor General, the resulting arrangement involving as it does a joint or shared responsibility between the DOJ and the COMELEC cannot but be an arrangement that the Constitution and the law cannot allow, however practical the arrangement may be from the standpoint of efficiency. To put it bluntly, the joint or shared arrangement directly goes against the rationale that justifies the grant of independence to the COMELEC to insulate it, particularly its role in the country's electoral exercise, from political pressures and partisan politics.
As a qualification to the above views, I acknowledge as the Court did in People v. Hon. Basilla[66] that "the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible without the assistance of provincial and city fiscals and their assistants and staff members, and of the state prosecutors of the [DOJ]."[67] That the practice of delegation of authority by the COMELEC, otherwise known as deputation, has long been upheld by this Court is not without significance, as it is the only means by which its constitutionally guaranteed independence can remain unfettered.
In other words, the only arrangement constitutionally possible, given the independence of the COMELEC and despite Section 42 of RA 9369, is for the DOJ to be a mere deputy or delegate of the COMELEC and not a co-equal partner in the investigation and prosecution of election offenses WHENEVER THE COMELEC ITSELF DIRECTLY ACTS. While the COMELEC and the DOJ have equal jurisdiction to investigate and prosecute election offenses (subject to the rule that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others),[68] the COMELEC whenever it directly acts in the fact-finding and preliminary investigation of elections offences can still work with the DOJ and seek its assistance without violating its constitutionally guaranteed independence, but it can only do so as the principal in a principal-delegate relationship with the DOJ where the latter acts as the delegate.
This arrangement preserves the COMELEC's independence as "being mere deputies or agents of the COMELEC, provincial or city prosecutors deputized . . . are expected to act in accord with and not contrary to or in derogation of its resolutions, directives or orders xxx in relation to election cases that such prosecutors are deputized to investigate and prosecute. Being mere deputies, provincial and city prosecutors, acting on behalf of the COMELEC, [shall also] proceed within the lawful scope of their delegated authority."[69]
III. The Consequences of Unconstitutionality
In the usual course, the unconstitutionality of the process undertaken in conducting the preliminary investigation would result in its nullity and the absence of the necessary preliminary investigation that a criminal information requires. Three important considerations taken together, however, frustrate the petitioners' bid to achieve this result so that the petitions ultimately have to be dismissed.
First, separate from the COMELEC's decisional independence, it also has the attribute of institutional independence, rendered necessary by its key role in safeguarding our electoral processes; the Constitution's general grant of independence entitles it not only to the discretion to act as its own wisdom may dictate, but the independence to act on its own separately and without interference from the other branches of the government.
Thus, these other branches of government, including the Judiciary, cannot interfere with COMELEC decisions made in the performance of its duties, save only if the COMELEC abuses the exercise of its discretion[70] a very high threshold of review from the Court's point of view. Any such review must start from the premise that the COMELEC is an independent body whose official actions carry the presumption of legality, and any doubt on whether the COMELEC acted within its constitutionally allowable sphere should be resolved in its favor.
In the context of the present case, the petitioners' allegations and evidence on the infirmity of the COMELEC's determination of probable cause should clearly be established; where the petitioners' case does not rise above the level of doubt as in this case the petition should fail.
Second and taking off from where the first above consideration ended, Section 2 of Joint Order No. 001-2011 grants the COMELEC the final say in determining whether probable cause exists. Section 2 reads:
Section 2. Mandate. The Committee shall conduct the necessary preliminary investigation on the basis of the evidence gathered and the charges recommended by the Fact-Finding Team create and referred to in Section 4 hereof. Resolutions finding probable cause for election offenses, defined and penalized under the Omnibus Election Code and other election laws shall be approved by the COMELEC in accordance with the COMELEC Rules of Procedure. For other offenses, or those not covered by the Omnibus Election Code and other election laws, the corresponding criminal information may be filed directly with the appropriate courts.
While the fact-finding and the preliminary investigation stages, as envisioned in the various COMELEC-DOJ instruments, may have resulted in a constitutionally impermissible arrangement between the COMELEC and the DOJ, Section 2 of Joint Order No. 001-2011 shows that it is the COMELEC that must still solely act and its actions can be constitutionally valid if made in a process that is free from any attendant participation by the Executive.
From the petitioners' perspective, while the disputed resolutions involved a fact-finding and a preliminary investigation phases that are constitutionally objectionable, the petitioners still have to show that indeed the COMELEC had left the matter of determining probable cause ultimately to the Fact-Finding Team and the Joint Committee. It is on this point that the petitioners' case is sadly deficient. In contrast with this deficiency, the records show that the COMELEC did indeed meet, on its own, to determine probable cause based on the evidence presented by its own representatives.
Third, since the corresponding informations have already been filed in court, claims of absence of, or irregularity in, the preliminary investigation are matters which appropriately pertain to the lower court in the exercise of its jurisdiction.[71] After the lower court has effectively assumed jurisdiction, what is left for this Court to act upon is solely the issue of the constitutionality of the creation and operation of the Fact-Finding Team and the Joint Committee for being violative of the COMELEC's independence. Other constitutional issues (equal protection, due process, and separation of powers) simply arose as incidents of the shared COMELEC-DOJ efforts, and need not be discussed after the determination of the unconstitutionality of the shared COMELEC-DOJ arrangements for violation of the COMELEC's independence.
In sum, while the DOJ-COMELEC arrangements compromised the COMELEC's independence, the filing of the informations in court, upon the COMELEC's own determination of probable cause, effectively limited not only the prosecution's discretion (for example, on whether to proceed or not), but also the Court's jurisdiction to pass upon the entire plaint of the petitioners. Crespo v. Judge Mogul[72] teaches us that
The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. x x x.
x x x x
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. [emphases ours, citations omitted]
To reiterate, except for the resolution of the issue of the constitutionality of creating a Joint Committee and a Fact-Finding Team and of the incidental issues bearing on this constitutional interpretation matters which only this Court may authoritatively determine[73] this Court should now refrain from making any pronouncement relative to the disposition of the criminal cases now before the lower court.
Based on these considerations particularly, on the lack of a factual showing that the COMELEC did not determine the existence of probable cause by itself and relied solely on its unconstitutional arrangements with the DOJ I support the dismissal of the petitions save for the ruling that the shared COMELEC-DOJ investigatory and prosecutory arrangements, as envisioned in the disputed resolutions, are unconstitutional.
Lest this opinion be misconstrued and for greater emphasis, while I ultimately sustain the COMELEC's finding of probable cause based on the collective considerations stated above, the constitutionally objectionable arrangement of a shared responsibility between the COMELEC and the DOJ was not necessarily saved by the existence of Section 2 of Joint Order No. 001-2011. I sustain the COMELEC's finding of probable cause under the unique facts and developments in this case, based on the institutional independence the COMELEC is entitled to; the lack of proof that the COMELEC did not act independently; and the adduced fact that the COMELEC did indeed meet to consider the findings presented to it by its representatives. I make this conclusion without prejudice to proof of other facts that, although bearing on the COMELEC's independence but are not here decided, may yet be submitted by the petitioners before the trial court if they are appropriate for that court's consideration on the issues properly raised.
For greater certainty for the COMELEC in its future actions in enforcing and administering election-related laws, let me advise that what I highlighted regarding the nature and breadth of the constitutionally guaranteed independence of lhe COMELEC should ahvays be seriously considered as guiding lights.
For the Court en banc's consideration.
[1] See Euegene Volokh, The MEchanism of the Slippery Slope, Harvard Law Review, Vol. 116, Feburary 2003, available online at SSRN: http://ssrn.com/abstract=343640 or http://dx.doi.org/10.2139/ssrn.343640 (last visited September 17, 2012).
Volokh notes: "Libertarians often tell of the parable ofthe frog. If a frog is dropped into hot water, it supposedly jumps out. If a frog is put into cold water that is then heated, the frog doesn't notice the gradual temperature change, and dies. Likewise, the theory goes, with liberty: People resists attempts to take rights away outright, but not if the rights are eroded slowly."
[2] See Steven Yates, The Boiling Frog Syndrome, August 11, 2001, available online at http://www.lewrockwell.com/yates/yates38.html (last visited September 17, 2012).
[3] The cited article further explains: But there are other ways of changing one kind of socioeconomic system to a fundamentally different kind of system that minimize or localize abrupt, destabilizing change. Gramscian "revolutionaries" have learned this lesson well although they do not speak the vocabulary of systems theory, of course. They have learned to get what they want by pursuing their goals gradually, one step at a time, through infiltrating and modifying existing institutions and other systems rather than overthrowing them and trying to create new ones from scratch. Clearly, a central-government initiative calling for abolishing the U.S. Constitution would have provoked an armed upheaval at any time in U.S. history, and it is at least possible that anything this abrupt still would. U.S. citizens, that is, would jump out immediately if thrown into that pot of boiling water. But if the haters of Constitutional government proceed in small increments, they eventually gut the Constitution almost unnoticed particularly if they carry out their initiatives in multiple components of U.S. society (so-called public schools, the banking system, the major news media, the legal system, etc.). Moreover, Gramscians have found that the road to centralization is much easier if "paved with good intentions," expressed in pseudo-moral language and portrayed as a source of stability to come. Myriad small disruptions in the lives of individuals and local communities can be rationalized as the price to be paid for the utopia just over the horizon. "You can't make an omelet," so the saying goes, "without breaking a few eggs." So systems accommodate and incorporate these small steps, absorbing the disruptions as best they can and not allowing them to threaten the system's overall stability. But when a system absorbs these small steps instead of repelling them, it incorporates them into its basic functioning and its transformation to a different kind of system with entirely different arrangements between its components has begun. Or in terms of the Boiling Frog Syndrome, the frog is in the pot, and the temperature of the water has begun, very slowly, to rise. Ibid. (emphasis supplied)
[4] As the discussion of the leading cases, discussed below, will show.
[5] Under the Department of the Interior, the executive department that administered elections before the COMELEC, which was first established in 1940, infra note 6.
[6] The ponencia holds that:
- Joint Order No. 001-2011 does not violate the equal protection clause of the Constitution because not all respondents were linked to former President Gloria Arroyo Macapagal (GMA);
- The due process clause is not infringed on the basis of prejudgment of the case since the petitioners failed to prove that the Joint Panel showed bias and partiality against them; neither was it shown that DOJ Secretary Leila De Lima actually intervened in the preliminary
investigation and that the perceived prejudgment by COMELEC Chairman Sixto Brillantes, Jr. cannot be attributed to the COMELEC which acts as a collegial body;
- Joint Order No. 001-2011 does not violate the principle of separation of powers since it did not create new offices - the Joint Committee and the Fact-Finding Team perform functions that they already perform under the law;
- The COMELEC cannot be considered to have abdicated its independence from the executive branch of government by acting jointly with the DOJ; COMELEC validly issued Resolution No. 9266 as a means to fulfill its duty of investigating and prosecuting election offenses; the role
of the DOJ in the conduct of preliminary investigation of election offenses has long been recognized by the COMELEC and is pursuant to Republic Act No. (RA) 9369 which vested the COMELEC and the DOJ the concurrent jurisdiction to conduct preliminary investigation of all
election offenses;
- The Joint Committee's Rules of Procedure are infirm for failure to comply with the publication requirement; thus, the Rules of Criminal Procedure and the COMELEC Rules of Procedure govern;
- The petitioners were given the opportunity to be heard. They were furnished copies of the complaint, affidavits, and other supporting documents submitted to the Joint Committee, and were required to submit their counter-affidavit and countervailing evidence; thus, there is
no reason to nullify the proceedings undertaken by the Joint Committee and the COMELEC;
- As to petitioners Jose Miguel Arroyo and Benjamin Abalos, Sr., the pendency of the cases before the Court does not automatically suspend the proceedings before the Joint Committee, nor excuse them from their failure to file the required counter-affidavits; and
- With respect to the issue of the credibility of COMELEC Chairman Brillantes, who had a previous professional relationship with complainant Aquilino Pimentel III and Fernando Poe (GMA's rival, for presidency in 2004) and of other Commissioners, their positions should be respected since they had the objective of ensuring that the credibility of the COMELEC would not be seriously affected, ponencia, pp. 52-53.
[7] Bartolome C. Fernandez, Jr., On the Power of the Commission on Elections To Annul Illegal Registration of Voters, Philippine Law Journal 428, http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2026/PLJ%20volume%2026%20number%204%20 -06 %20Bartolome%20C.%20Fernandez%20%20On%20the%20Power%20of%20the%20Commission%20on %2 Elections%20to%20Annul%20Illegal%20Registration%20of%20Voters.pdf, last visited January 15, 2012.
[8] Ibid.
[9] Id.
[10] Id.
[11] Id. at 429.
[12] Id. at 428-429.
[13] 85 Phil. 101 (1949).
[14] Id. at 106-109.
[15] Emmanuel Flores, The Commission on Elections and the Right to seek a public office, citing Jose P. Laurel, Observations of the Philippine Constitutional Amendments (June 13, 1940), published in The Commercial and Industrial Manual of the Philippines, 1940-1941, pp. 93-96.
[16] 453 Phil. 586.
[17] Id. at 765-767.
[18] G.R. No. 93867, December 18, 1990, 192 SCRA 358.
[19] Id. at 360-361.
[20] Supra note 16.
[21] Id. at 660.
[22] Ibid.
[23] Id. at 658-661.
[24] G.R. No. 177508, August 7, 2009, 595 SCRA 477.
[25] Id. at 493-496.
[26] Section 2, Rule 34 of the COMELEC Rules of Procedure.
[27] Section 4(b), Rule 34 of the COMELEC Rules of Procedure.
[28] Section 9(c), Rule 34 of the COMELEC Rules of Procedure.
[29] Section 10, Rule 34 of the COMELEC Rules of Procedure.
[30] G.R. No. 170447, December 4, 2009, 607 SCRA 251.
[31] Id. at 262-263.
[32] Supra note 24.
[33] Id. at 493-497.
[34] See Dissenting Opinion of Justice Arturo D. Brion in Roque, Jr. v. Commission on Elections, G.R. No. 188456, September 10, 2009, 599 SCRA 69, 299, citing CONSTITUTION, Article IX (C), Section 2(1).
[35] G.R. No. 179830, December 3, 2009, 606 SCRA 554.
[36] Id. at 569.
[37] Ibid.
[38] Ibid.
[39] See Dissenting Opinion, supra note 32 at 299.
[40] 73 Phil. 288 (1941).
[41] Id. at 294-295.
[42] Quiambao v. Desierto, 482 Phil. 154 (2004); Espinosa v. Office of the Ombudsman, 397 Phil. 829 (2000) and Office of the Ombudsman v. Civil Service Commission, G.R. No. 162215, July 30, 2007, 528 SCRA 537.
[43] See Dissenting Opinion, supra note 32.
[44] Id. at 300-301.
[45] Rollo (G.R. No. 199118), p. 47. 46 Annex A, Petition of Petitioner Arroyo in G.R. No. 199082.
[48] Id.
[49] Id.
[50] Id.
[51] Annex C, Petition of Petitioner Arroyo in G.R. No. 199082.
[52] Annex A, Petition of Petitioner Arroyo in G.R. No. 199082.
[53] Supra note 16.
[54] Id. at 767-768.
[55] See Separate Opinion of Justice Arturo D. Brion in Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA 78, 330-331.
[56] The DOJ's power to conduct preliminary investigation is based on Section 5 (2) of RA 10071, which states:
(2) Conduct the preliminary investigation and prosecution of criminal cases involving national security, those for which task forces have been created and criminal cases whose venues are transferred to avoid miscarriage of justice, all when so directed by the Secretary of Justice as public interest may require[.]
and Section 3 (2), Chapter 1, Title III, Book IV of the Administrative Code, which states:
Sec. 3. Powers and Functions. To accomplish its mandate, the Department shall have the following powers and functions:
xxx
(2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system.
[37]Dept. of Justice v. Hon. Liwag, 491 Phil. 270, 285 (2005).
[58] Atty. Macalintal v. Comelec, supra note 16, at 770-771.
[59] Joseph M. Hood, Judicial Independence, 23 J. Nat'l Ass'n Admin. L. Judges 137, 138 (2003) citing American Judicature Society, What is Judicial Independence? (Nov. 27, 2002), at http://www.ajs.org/cji/cji_whatisji.asp (last visited Apr. 14, 2003).
[60] Id.
[61] Gordon Bermant, Federal Judges And The Judicial Branch: Their Independence And Accountability, 46 Mercer L. Rev. 835, 836 (1995).
[62] Stephen H. Legomsky, Deportation And The War On Independence, 91 Cornell L. Rev. 369, 386 (2006).
[63]TSN (December 8, 2011), pp. 230-237.
[64] TSN (November 29, 2011), pp. 80-84.
[65] TSN (December 8, 2011), pp. 86-99.
[66] 258-A Phil. 656 (1989).
[67] Id. at 663.
[68] Dept. of Justice v. Hon. Liwag, supra note 57, at 285,
[69] Diño v. Olivarez, supra note 30 at 262-263.
[70] CONSTITUTION, Article VIII, Section 1, par. 2.
[71] Doromal v. Sandiganbayan, 258 Phil. 146 (1989).
[72] 235 Phil. 465, 474-476, cited in Galvez v. Court of Appeals, G.R. No. 114046, October 24, 1994, 237 SCRA 685, 699, and Velasquez v. Undersecretary of Justice, G.R. No. 88442, February 15, 1990, 182 SCRA 388, 391.
[73] Civil Service Commission v. Department of Budget and Management, 502 Phil. 372 (2005).