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VELASCO, JR., J.:

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

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

The Antecedents

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

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

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

1)	Ruby Tuason (Tuason) Two (2) Counter-Affidavits both dated February 21, 2014;
2)	GondelinaAmata (Amata) Counter-Affidavit dated December 26, 2013 to the OMB-FIO Complaint and Counter-Affidavit dated January 20, 2014 to the NBI Complaint;
3)	Gregoria Buenaventura (Buenaventura) Counter-Affidavit dated March 6, 2014;
4)	Alexis Sevidal (Sevidal) Counter-Affidavit dated January 15, 2014 to the NBI Complaint and Counter-Affidavit dated February 24, 2014 to the OMB-FIO Complaint;
5)	Sofia D. Cruz (Cruz) Counter-Affidavit dated January 31, 2014;
6)	Evelyn Sucgang (Sucgang) Counter-Affidavit dated February 11, 2014;
7)	Alan Javellana (Javellana) Two (2) Counter-Affidavits dated February 6, 2014;
8)	Victor Roman CojamcoCacal (Cacal) Counter-Affidavit dated December 11, 2013 to the OMB-FIO Complaint and Counter-Affidavit dated January 22, 2014 to the NBI Complaint;
9)	Ma. Julie A. Villaralvo-Johnson (Johnson) Two (2) Counter-Affidavits dated March 14, 2014;
10)	RhodoraBulatad Mendoza (Mendoza) Counter-Affidavit dated March 6, 2014;
11)	Maria Ninez P. Guañizo (Guañizo) Counter-Affidavit dated January 28, 2014;
12)	Dennis L. Cunanan (Cunanan) Two (2) Counter-Affidavits dated February 20, 2014;
13)	Marivic V. Jover (Jover) Two (2) Counter-Affidavits dated December 9, 2013;
14)	Francisco B. Figura (Figura) Counter-Affidavit dated January 8, 2014;
15)	Rosario Nuñez (Nuñez), LalainePaule (Paule) and Marilou Bare (Bare) Joint Counter-Affidavit dated December 13, 2013; and
16)	Mario L. Relampagos (Relampagos) Counter-Affidavit dated December 13, 2013.

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

a)	Affidavit of Ruby Tuason;
b)	Affidavit of Dennis L. Cunanan;
c)	Counter-Affidavit of Gondelina G. Amata;
d)	Counter-Affidavit of Mario L. Relampagos;
e)	Consolidated Reply of the NBI, if one had been filed; and
f)	Affidavit/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional witnesses for the Complainants.

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

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

1)	Sevidal's Counter-Affidavits dated January 15 and February 24, 2014;
2)	Cunanan's Counter-Affidavits both dated February 20, 2014;
3)	Figura's Counter-Affidavit dated January 8, 2014;
4)	Tuason's Affidavits both dated February 21, 2014;
5)	Buenaventura's Counter-Affidavit dated March 6, 2014; and
6)	Philippine Daily Inquirer Online Edition news article entitled "BenhurLuy upstages Napoles in Senate Hearing" by Norman Bordadora and TJ Borgonio, published on May 6, 2014.

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

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

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

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

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

Traversing petitioner's above posture, respondents aver in their respective comments^[2] to the first petition that Sen. Estrada was in fact furnished with the documents he requested per the May 7, 2014 Joint Order of the Ombudsman. Further, respondents contend that the present petition for certiorari filed by Sen. Estrada is procedurally infirm as he has a plain, speedy and adequate remedy the motion for reconsideration he filed to question the March 28, 2014 Joint Resolution of the Ombudsman. As a corollary point, the respondents add that Sen. Estrada's petition violates the rule against forum shopping, Sen. Estrada having presented the same arguments in his motion for reconsideration of the March 28, 2014 Joint Resolution filed with the Ombudsman.

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

The Issue

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

The Majority's Decision

The ponencia of Justice Carpio denies the petition on the following grounds:

1)	There is supposedly no law or rule which requires the Ombudsman to furnish a respondent with copies of the counter-affidavits of his co-respondents;
2)	Sen. Estrada's present recourse is allegedly premature; and
3)	Sen. Estrada's petition purportedly constitutes forum shopping that should be summarily dismissed.

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

Petitioner's motion for reconsideration against the Joint Resolution is not a plain, speedy, and adequate remedy.

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

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

Section 7.    Motion for Reconsideration xxx    xxx   xxx

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

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

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

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

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

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

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

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

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

The petition is not mooted by the May 7, 2014 Order. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xxx   xxx   xxx

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

Furthermore, a preliminary investigation is not a one-sided affair; it takes on adversarial quality^[17] where the due process rights of both the state and the respondents must be considered. It is not merely intended to serve the purpose of the prosecution. Rather, its purpose is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of public trial.^[18] At the same time, it is designed to protect the state from having to conduct useless and expensive trials.^[19] In Larranaga v. Court of Appeals,^[20] this Court elucidated, thus:

Fairness dictates that the request of petitioner for a chance to be heard in a capital offense case should have been granted by the Cebu City prosecutor. In Webb vs. de Leon, we emphasized that "attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial." As this Court emphasized in Rolito Go vs. Court of Appeals, "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." xxx^[21]

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

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

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

Sec. 4. Procedure. The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:

(a) If the complaint is not under oath or is based solely on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.

(b) After such affidavit have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainants may file reply affidavits within (10) days after service of the counter-affidavits.

(c) If the respondent does not file a counter-affidavit. The investigating officer may consider the comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall have access to the evidence on record.^[25]

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

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

xxx   xxx   xxx

It is to be noted that there is no provision under this Office's Rules of Procedure which entitles respondent to be furnished all the filings by the other parties, eg. the respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L. Relampagos themselves are all respondents in these cases. Under the Rules of Court as well as the Rules of Procedure of the Office of the Ombudsman, the respondents are only required to furnish their counter-affidavits and controverting evidence to the complainant, and not to the other respondents.

Unfortunately, the majority has subscribed to the Ombudsman's position maintaining that Sections 3 and 4 of Rule 112 of the Rules of Court^[26] only require that a respondent be furnished with the copies of the affidavits of the complainant and the complainant's supporting witnesses, and not the affidavits of his co-respondents.

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

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

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

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

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

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

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

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

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (Interstate Commerce Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them.xxx^[30]

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

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

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

On this point, the Court finds merit in Reyes' contention.

xxx   xxx   xxx

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

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

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

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

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

In fact, this Court in Uy v. Office of Ombudsman^[35] applied the standards of "administrative" due process outlined in AngTibayto the conduct of preliminary investigation by the Ombudsman. Wrote this Court in Uy:

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

xxx   xxx   xxx

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

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

It must be emphasized that, despite the variance in the quanta of evidence required, a uniform observance of the singular concept of due process is indispensable in all proceedings. In Garcia v. Molina,^[37] this Court held, thus:

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

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

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

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

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

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

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

The right to the disclosure of the evidence against a party prior to the issuance of a judgment against him is, to reiterate, a vital component of the due process of law, a clear disregard of such right constitutes grave abuse of discretion. As this Court has held, grave abuse of discretion exists when a tribunal violates the Constitution or grossly disregards the law or existing jurisprudence.^[45] In other words, once a deprivation of a constitutional right is shown to exist, the tribunal that rendered the decision or resolution is deemed ousted of jurisdiction.^[46] As the Court held in Montoya v. Varilla^[47]--

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

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

Effect of irregularity of preliminary investigation. 

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

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

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

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

On the other hand, it is erroneous to simply disregard the violation of the due process of law during the preliminary investigation as irrelevant and without any significant effect. Such stance will only serve to "legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively dilute important rights of accused persons well-nigh to the vanishing point."^[52] Thus, I submit that the proper recourse to be taken under the premises is the suspension of the proceedings in the Sandiganbayan and the immediate remand of the case to the Office of the Ombudsman^[53] so that Sen. Estrada, if he opts to, can file his counter-affidavit and controverting evidence to all the counter-affidavits containing incriminating allegations against him.

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

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

It is settled that the preliminary investigation proper, i.e., the determination of whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be subjected to the expense, rigors and embarrassment of trial, is the function of the prosecution.

….Accordingly, finding that petitioner was not given the chance to fully present his evidence on the amended information which contained a substantial amendment, a new preliminary investigation is in order.

xxx   xxx   xxx

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

A similar disposition was made in Torralba v. Sandiganbayan^[57] where the Court held:

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

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

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

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

xxx   xxx   xxx

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

In the case of J. Salonga v. Cruz Paño, We point out:

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

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

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

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

---

^[1] Specifically, Sen. Estrada was charged with violation of Section 3(e) of RA 3019 which penalizes the following:

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

^[2] Public respondents Office of the Ombudsman and its Field Office Investigation Office, and the National Bureau of Investigation filed their Comment dated May 30, 2014 on June 2, 2014. Meanwhile, respondent Atty. Levito D. Baligod filed his Comment dated June 5, 2014 on June 6, 2014.

^[3] For perspective, it is proper to lay stress on two critical issuances of the Office of the Ombudsman: (1) March 27, 2014 Order in OMB-C-C-13-0313 denying Sen. Estrada's Request to be furnished with copies of his co-respondents' counter-affidavits; and (2) Joint Resolution dated March 28, 2014 in OMB-C-C-13-0313 and OMB-C-C-13-0397 finding probable cause to indict him for plunder and graft and corrupt practices.

^[4] Okada v. Security Pacific Assurance Corporation, G.R. No. 164344, December 23, 2008, 575 SCRA 124, 142 citing Conti v. Court of Appeals, G.R. No. 134441, May 19, 1999, 307 SCRA 486, 195; underscoring supplied.

^[5] Emphasis supplied.

^[6] Municipality of Taguig v. Court of Appeals, G.R. NO.142619, September 13, 2005, 506 Phil. 567 (2005).

^[7] Sps. Marasigan and Leal v. Chevron Phils., Inc., G.R. No. 184015, February 08, 2012, 665 SCRA 499, 511.

^[8] G.R. No. 165012, September 16, 2008, 565 SCRA 324.

^[9] Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), G.R. No. 183591, October 14, 2008, 568 SCRA 402, 460.

^[10] David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160 citing Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736; Lacson v. Perez, 410 Phil. 78 (2001); Albaña v. Comelec, 478 Phil. 941 (2004); Chief Supt. Acop v. Guingona Jr., 433 Phil. 62 (2002); SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482 (2004).

^[11] G.R. No. 199082,199085, and 199118, September 18, 2012, 681 SCRA 181.

^[12] G.R. Nos. 156399-400, June 27, 2008, 556 SCRA 73.

^[13] Ibid at pp. 93-94. Emphasis supplied.

^[14] Ibid citing Ladlad v. Velasco, G.R. Nos. 170270-72, June 1, 2007, 523 SCRA 318, 344. See also Duterte v. Sandiganbayan, G.R. No. 130191, April 27, 1998.

^[15] G.R. No. 138859-60, February 22, 2001.

^[16] Emphasis and underscoring supplied.

^[17] Duterte v. Sandiganbayan, G.R. No. 130191, April 27, 1998.

^[18] Ibid citingTandoc v. Resultan, 175 SCRA 37 (1989).

^[19] Id. citing Doromal v. Sandiganbayan, 177 SCRA 354 (1980); Go v. Court of Appeals, 206 SCRA 138 (1992).

^[20] G.R. No. 130644, October 27, 1997 citing Webb v. De Leon, 247 SCRA 652, 687 and Rolito Go v. Court of Appeals, G.R. No. 101837 February 11, 1992.

^[21] Citing Webb

^[22] Sales v. Sandiganbayan, G.R. No. 143802, November 16, 2001, 369 SCRA 293, 302.

^[23] A.M. No.MTJ-02-1441, July 31, 2002, 386 SCRA 520.

^[24] Emphasis supplied.

^[25] Emphasis supplied.

^[26] Sec.3.Procedure. The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavit of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavit shall be subscribed and sworn to before any prosecutor or government official authorized under oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence 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 shall not be furnished a party but shall be made available for examination, copying or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of counter-affidavit.


Sec. 4. Resolution of investigating prosecutor and its review. If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complaint and his 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 an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

^[27] Emphasis supplied.

^[28] Section 1, Article III of the 1987 Constitution.

^[29] 69 Phil. 635 (1940).

^[30] Emphasis supplied.

^[31] G.R. No. 170512, October 5, 2011, 658 SCRA 626.

^[32] Ibid at pp. 639-641; emphasis and italicization supplied.

^[33] Dissenting Opinion, p. 13.

^[34] Secretary of Lantion, infra.

^[35] G.R. Nos. 156399-400, June 27, 2008.

^[36] Emphasis supplied.

^[37] G.R. Nos. 157383 and 174137, August 10, 2010, 627 SCRA 540.

^[38] Ibid at p. 554. Emphasis and underscoring supplied.

^[39] Republic v. Caguioa, G.R. No. 174385, February 20, 2013, 691 SCRA 306, 319.

^[40] Joint Resolution, pp. 57-58, 69, 79-80.

^[41] Joint Resolution, pp. 58, 82-83, 85-86.

^[42] Joint Resolution, p. 85.

^[43] Joint Resolution, pp. 86-87.

^[44] Joint Resolution, p. 87.

^[45] Fernandez v. COMELEC, 535 Phil. 122, 126 (2006); Republic v. Caguioa, G.R. No. 174385, February 20, 2013, 691 SCRA 306.

^[46] Gumabon v. Director of the Bureau of Prisons, G.R. No.L-30026, January 30, 1971, 37 SCRA 420, 427; Aducayen v. Flores, G.R. No.L-30370, May 25, 1973, 51 SCRA 78, 79.

^[47] G.R. No. 180146, December 18, 2008, 574 SCRA 831.

^[48] Ibid at p. 843 citing State Prosecutors v. Muro, Adm. Matter No. RTJ-92-876, 19 September 1994, 236 SCRA 505, 522-523; see also Paulin v. Gimenez, G.R. No. 103323, 21 January 1993, 217 SCRA 386, 39. Emphasis supplied.

^[49] See Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993, 221 SCRA 349 and Tagayuma v. Lastrilla, G.R. No. L-17801, August 30, 1962, 5 SCRA 937.

^[50] Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993, 221 SCRA 349.

^[51] Ibid at pp. 355-35.

^[52] Go v. Court of Appeals, G.R. No. 101837, February 11, 1992, 206 SCRA 138, 162. See also Yusop v. Sandiganbayan, G.R. Nos. 138859-60, February 22, 2001.

^[53] See Arroyo v. Department of Justice, G.R. No. 199082, 199085, and 199118, September 18, 2012, 681 SCRA 181 citing 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.

^[54] G.R. No. L-53373, June 30, 1987.

^[55] G.R. No. 165751, April 12, 2005.

^[56] Emphasis supplied.

^[57]G.R. No. 101421 February 10, 1994.

^[58] G.R. No. 101837, February 11, 1992, 206 SCRA 138, 162.

^[59] G.R. Nos. 138859-60, February 22, 2001.

^[60] G.R. Nos. 71404-09 October 26, 1988.

^[61] G.R. No. 158211, August 31, 2004.

^[62] Ibid citing Uy v. Adriano, G.R. No. 159098, October 27, 2006, 505 SCRA 625, 647.

^[63] G.R. No. 69863-65, December 10, 1990, 192 SCRA 183.

^[64] Ibid at pp. 189-190.

---

BRION, J.:

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

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

Factual Antecedents

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

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

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

Estrada received his copy of each of the two complaints, in OMB-C-C-13-0313 and OMB-C-C-13-0397, on November 25, 2013 and December 3, 2013, respectively. In compliance with the Ombudsman's directive, Estrada filed his Counter-Affidavits on January 8 and 16, 2014.^[3]

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

1. Marivic V. Jover Two (2) Counter-Affidavits dated December 9, 2013;
   
   
2. Victor Roman Cojamco Cacal Counter-Affidavit dated December 11, 2013 (to the FIO Complaint) and Counter-Affidavit dated January 22, 2014 (to the NBI Complaint);
   
   
3. Rosario Nuñez, Lalaine Paule and Marilou Bare Joint Counter-Affidavit dated December 13, 2013;
   
   
4. Mario L. Relampagos Counter-Affidavit dated December 13, 2013;
   
   
5. Gondelina G. Amata Counter-Affidavit dated December 26, 2013 (to the FIO Complaint) and Counter-Affidavit dated January 20, 2014 (to the NBI Complaint);
   
   
6. Francisco B. Figura Counter-Affidavit dated January 8, 2014;
   
   
7. Alexis Sevidal Counter-Affidavit dated January 15, 2014 (to the NBI Complaint) and Counter-Affidavit dated February 24, 2014 (to the FIO Complaint);
   
   
8. Maria Niñez P. Guañizo Counter-Affidavit dated January 28, 2014;
   
   
9. Sofia D. Cruz Counter-Affidavit dated January 31, 2014;
   
   
10. Allan Javellana Two (2) Counter-Affidavits dated February 6, 2014;
    
    
11. Evelyn Sucgang Counter-Affidavit dated February 11, 2014;
    
    
12. Dennis L. Cunanan Two (2) Counter-Affidavits dated February 20, 2014;
    
    
13. Ruby Tuason Two (2) Counter-Affidavits both dated February 21, 2014;
    
    
14. Gregoria Buenaventura Counter-Affidavit dated March 6, 2014;
    
    
15. Rhodora Bulatad Mendoza Counter-Affidavit dated March 6, 2014; and
    
    
16. Ma. Julie A. Villaralvo-Johnson Two (2) Counter-Affidavits dated March 14, 2014.
    

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

1. Counter-affidavit of Ruby Tuason;
   
   
2. Counter-affidavit of Dennis L. Cunanan;
   
   
3. Counter-Affidavit of Gondelina G. Amata;
   
   
4. Counter-Affidavit of Mario L. Relampagos;
   
   
5. Consolidated Reply of the NBI, if one had been filed; and
   
   
6. Affidavit/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional witnesses for the Complainants.
   

The Ombudsman's March 27, 2014 Order ("Denial of Request Order")

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

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

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

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

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

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

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

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

Estrada's Petition

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

He prays that the Court declares: (1) that he has been denied due process as a consequence of the March 27, 2014 Denial of Request Order; and (2) the nullity of the March 27, 2014 Denial of Request Order, as well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 (subsequent to and affected by the issuance of the March 27, 2014 Denial of Request Order). He likewise asks the Court for a temporary restraining order (TRO) and/or preliminary injunction to restrain the Ombudsman from further proceeding in the case.

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

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

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

The Ombudsman's Comment

The Ombudsman, in defense, contends that:

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

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

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

My Conclusion and Reasons

Preliminary Considerations

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

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

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

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

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

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

A. On the procedural objections

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

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

I support these conclusions with the following reasons.

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

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

Ø Estrada filed with the Ombudsman his Request for copies of his co-respondents' affidavits and submissions on March 20, 2014;

Ø the Ombudsman denied his Request thru the March 27, 2014 Denial of Request Order;

Ø on March 28, 2014, the Ombudsman issued its Probable Cause Resolution;

Ø Estrada received a copy of the March 27, 2014 Denial of Request Order only on April 1, 2014;

Ø also on April 1, 2014, Estrada received his copy of the March 28, 2014 Probable Cause Resolution;

Ø on April 7, 2014, Estrada moved for the reconsideration of the Ombudsman's March 28, 2014 Probable Cause Resolution;

Ø on May 7, 2014, Estrada filed the present petition to question the Denial of Request Order of March 27, 2014;

Ø also on May 7, 2014, the Ombudsman furnished Estrada, albeit partially, with copy of the requested documents; and

Ø on June 6, 2014, Information Nos. SB-14-CRM-0239 and SB-14-CRM-0256 to SB-14-CRM-0266 against Estrada, among others, were filed with the Sandiganbayan.

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

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

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

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

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

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

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

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

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

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

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

Likewise clear from the series of events in this case is the conclusion that a motion for reconsideration from the March 27, 2014 Denial of Request Order would have been useless anyway given that the Ombudsman already found probable cause to indict him on March 28, 2014 or four (4) days before Estrada even learned of the Ombudsman's denial of his Request.

Thus, even if he had filed a motion for reconsideration from the March 27, 2014 Denial of Request Order and awaited its resolution by the Ombudsman, the Ombudsman's finding of probable cause would still have stood and Information Nos. SB-14-CRM-0239 and SB-14-CRM-0256 to SB-14-CRM-0266 would still have been filed before the Sandiganbayan.

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

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

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

I likewise find that Estrada did not commit forum shopping when he filed the present petition.

Forum shopping exists when the elements of litis pendentia are present. To determine whether prohibited forum shopping transpired, the existence of litis pendentia is imperative, i.e., an action must already be pending when a second action is filed. This pendency requires the identity of parties in both actions; identity, likewise of the rights asserted and the reliefs prayed for, as the reliefs are founded on the same facts; and the resulting judgment, regardless of which party is successful, would amount to res judicata in the other case.^[7]

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

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

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

A resolution of Estrada's motion for reconsideration goes into the probable cause findings of the Ombudsman or on the existence (or absence) of such facts and circumstances sufficient to engender a well-founded belief that Estrada committed the charges against him and thus should be held for trial. A resolution of the present petition, in contrast, goes into the validity, viewed from the accepted due process standards, of the Ombudsman's denial of Estrada's Request.

Based on these reasons, I find that Estrada's motion for reconsideration did not and could not have constituted res judicata to the present petition as to preclude the Court from resolving the issues to their full conclusion.

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

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

The Ombudsman's argument on this point would have been correct had it furnished, via the May 7, 2014 Order, Estrada with copies of all the documents subject of his Request. An issue or a case becomes moot and academic when it ceases to present a justiciable controversy so that a determination thereof would be without practical use and value. In such cases, there is no actual substantial relief to which the petitioner would be entitled and which would be negated by the dismissal of the petition.^[8] The furnishing of all the requested documents would have achieved precisely what Estrada sought for in this petition.

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

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

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

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

B. On the petition's merits

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

(1) without or in excess of jurisdiction in issuing the March 27, 2014 Denial of Request Order; and

(2) irregularly, subsequent to its March 27, 2014 Denial of Request Order, in proceeding in OMB-C-C-13-0313 and OMB-C-C-13-0397.

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

1. Preliminary Investigation: Nature and Purpose

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

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

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

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

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

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

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

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

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

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

In between the police custodial investigation (or its substitute proceeding) and the trial itself, is the intermediate preliminary investigation stage where the proceedings are already accusatory and the individual must show that the State claim that probable cause exists has no basis. This stage, to be sure, is not spelled out in the Constitution and both the process and the guarantees are provided only by statutes.^[14] Nevertheless, the protection afforded if indeed the individual is to be afforded protection from State action should be real so that its denial is no less an infringement of the constitutional due process clause.^[15]

This consequence must necessarily follow because the due process right during preliminary investigation is substantive, not merely formal or technical, and is a component part of the due process rights in the criminal justice system^[16] that begins at the accusatory police investigation level. To be sure, criminal justice rights cannot be substantive at the custodial investigation stage, only to be less than this at preliminary investigation, and then return to its substantive character when criminal trial starts.

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

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

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

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

2. Governing rules on the conduct of preliminary investigation proceedings

At present, the right to preliminary investigation is provided, in the main, by Rule 112 of the Rules of Court, and, in particular, as applied to proceedings conducted by the Ombudsman, by Section 4, Rule II of the Ombudsman Rules in relation with R.A. No. 6770 (the Ombudsman Law).^[23]

The provisions of the Rules of Court pertinent to the issue in the present case are Section 3(b) and (c), of Rule 112^[24] which provide:

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence 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.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

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

Sec. 4. PROCEDURE. Preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.

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

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

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

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

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

The Court explained in Spouses Dacudao, et al. v. Secretary of Justice^[26] that this quasi-judicial characterization of the public prosecutor's power to conduct preliminary investigation is true only to the extent that the public prosecutor, like a quasi-judicial body, is an officer of the executive department exercising powers akin to those of a court of law. In Paderanga v. Drilon, et al.,^[27] the Court, while admitting the inquisitorial nature of the preliminary investigation, also ruled that the institution of a criminal action depends on the sound discretion of the fiscal; he has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court.

Under this quasi-judicial characterization (albeit a limited one as above explained), the due process standards that at the very least should be considered in the public prosecutor's conduct of a preliminary investigation are those that this Court first articulated in Ang Tibay v. Court of Industrial Relations.^[28]

The basic due process safeguards in administrative proceedings established in Ang Tibay are: (1) the respondents' right to a hearing, which includes the right to present one's case and submit supporting evidence; (2) the tribunal must consider the evidence presented; (3) the decision must have some basis to support itself; (4) there must be substantial evidence; (5) the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) in arriving at a decision, the tribunal must have acted on its own conclusions of the law and the facts of the controversy and must not have simply accepted the views of a subordinate; and (7) the decision must be rendered in such manner that respondents would know the reasons for it and the various issues involved.^[29]

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

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

The Court must likewise consider that:

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

Second, immediately after it issued the March 27, 2014 Order that denied Estrada's Request (or on March 28, 2014), the Ombudsman issued the Joint Resolution finding probable cause to indict him for violation of the Anti-Graft Law and the Plunder Law. Significantly, the Ombudsman, to a considerable extent, based its findings of probable cause on the affidavits of his co-respondents.

Third, belatedly realizing perhaps the flaw in its refusal to grant Estrada's Request and the accompanying due process implications, the Ombudsman eventually acceded to the Request on May 7, 2014. Compliance, however, with Estrada's Request, as I pointed out above, was only partial, as the Ombudsman did not furnish Estrada with copies of the affidavits of the other nine co-respondents from where the conclusion that probable cause existed, was drawn. In short, it still failed to fully furnish Estrada with copy of all the requested documents.

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

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

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

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

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

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

For the grave abuse of discretion committed by the Ombudsman in the manner by which it proceeded in OMB-C-C-13-0313 and OMB-C-C-13-0397, I vote to partially grant his petition.

Some final points: Consequence of the grave irregularity in the preliminary investigation

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

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

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

As has also been mentioned, the conduct of preliminary investigation is governed generally by Rule 112 of the Rules of Court, and Rule II of Administrative Order No. 7or the Ombudsman Rules. In terms of particular rules relevant to the present case, these are Section 3 of Rule 112^[34] and Section 4 of Rule II.^[35]

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

The filing of the Information in court initiates the criminal action. The court acquires jurisdiction and the accompanying authority to hear, control and decide the case up to its full disposition.

After an Information is filed, the exercise of discretion and authority of the investigating officer over the criminal complaint ends; he loses control and discretion regarding its disposition. Should the investigating officer find the need to re-investigate the case so that the objectives of a preliminary investigation may be served, he may do so, provided he first secures the permission of the court, following the rule that the court now has control and disposition of the case.^[36]

Should a reinvestigation be allowed, the investigating officer, after the reinvestigation and consistent with the court's jurisdiction over the case, must submit his findings and recommendation to the court for the court's disposition.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a)	That the facts charged do not constitute an offense;
(b)	That the court trying the case has no jurisdiction over the offense charged;
(c)	That the court trying the case has no jurisdiction over the person of the accused;
(d)	That the officer who filed the information had no authority to do so;
(e)	That it does not conform substantially to the prescribed form;
(f)	That more than one offense is charged except when a single punishment for various offenses is prescribed by law;
(g)	That the criminal action or liability has been extinguished;
(h)	That it contains averments which, if true, would constitute a legal excuse or justification; and
(i)	That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.

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

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

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

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

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

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

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

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

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

To sum up these distinctions:

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

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

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

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

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

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

My review of the cases where the Court granted this "radical relief" tells me that this approach has been reserved for special circumstances and situations where the violation of the accused's constitutional rights extended beyond the lack of due process that transpired in the present case.

In other words, while I find the Ombudsman's conduct of the preliminary investigation proceedings gravely irregular, to the point of affecting Estrada's right to due process in a manner completely outside the contemplation of law, such grave irregularity, by itself, does not sufficiently justify a "radical relief" approach.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) remand the case to the Ombudsman for the conduct of another preliminary investigation with dispatch, this time furnishing Estrada first with copies of all the requested documents and giving him a reasonable time to submit his counter-affidavits, comment and controverting evidence; and

(2) order the Sandiganbayan to suspend the proceedings in Information Nos. SB-14-CRM-0239 and SB-14-CRM-0256 to SB-14-CRM-0266, but this suspension shall not, and should not, affect the arrest warrant that the Sandiganbayan has acted upon.

In sum, I vote to PARTIALLY GRANT the petition.

---

^[1] Dated September 16, 2013; attached as Annex""B" to the Petition. The complaint also recommended for prosecution the following individuals: Janet Lim Napoles, Pauline Labayen, Ruby Tuazon, Alan A. Javellana, Gondelina G. Amata, Antonio Y. Ortiz, Mylene T. Encarnacion, John Raymund S. De Asis, Dennis L. Cunanan, Victor Roman Cacal, Romulo M. Relevo, Maria Ninez P. Guañizo, Ma. Julie A. Villaralvo-Johnson, Rhodora B. Mendoza, Gregoria G. Buenaventura, Alexis G. Sevidal, Sofia D. Cruz, Chita C. Jalandoni, Francisco B. Figura and Marivic V. Jover.

^[2] Dated November 18, 2013; attached as Annex "C" to the petition. Specifically, the FIO complaint charged Estrada for violation of Section 3(e) of R.A. No. 3019 which penalizes the act of:

(e) causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant or licenses or permits or other concessions.

^[3] Attached as Annexes "D" and "E" to the petition.

^[4] The date when the Informations were filed before the Sandiganbayan was obtained from media reports: http://www.manilatimes.net/plunder-filed-against-enrile-jinggoy-bong/102255/; http://www.rappler.com/nation/59826-enrile-jpe-jinggoy-charged-plunder-pdaf-scam; http://www.interaksyon.com/article/88515/pork-plunder-case-filed--employees-of-ombudsmans-office-go-to-sandiganbayan-carrying-reams-of-paper

^[5] Uy v. Office of the Ombudsman, 578 Phil. 635, 654-655 (2008).

^[6] See Medado v. Heirs of the Late Antonio Consing, G.R. No. 186720, February 8, 2012, 665 SCRA 534, 547-548.

The other exceptions, as provided by jurisprudence, are:

(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;

(b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;

(c) 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 petitioner or the subject matter of the petition is perishable;

(d) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;

(e) where the proceedings in the lower court are a nullity for lack of due process;

(f) where the proceeding was ex parte or in which the petitioner had no opportunity to object; and,

(g) where the issue raised is one purely of law or public interest is involved.

^[7] See Chavez v. Court of Appeals, G.R. No. 174356, January 20, 2010, 610 SCRA 399, 403, citing Cruz v. Caraos, G.R. No. 138208, April 23, 2007, 521 SCRA 510, 522; and Spouses Melo v. Court of Appeals, 376 Phil. 204, 211 (1999).

^[8] See Philippine Savings Bank v. Senate Impeachment Court, G.R. No. 200238, November 20, 2012, 686 SCRA 35, 38, where the Court dismissed the petition on mootness grounds. The Court ruled that the "main issue of whether the Impeachment Court acted arbitrarily when it issued the assailed subpoena to obtain information concerning the subject foreign currency deposits notwithstanding the confidentiality of such deposits under RA 6426 has been overtaken by x x x [t]he supervening conviction of Chief Justice Corona x x x as well as his execution of a waiver against the confidentiality of all his bank accounts."

See also Mendoza v. Villas, G.R. No. 187256, February 23, 2011, 644 SCRA 347, 357, where the Court, denying the petition likewise on the ground of mootness, reasoned that "with the conduct of the 2010 barangay elections, a supervening event has transpired that has rendered this case moot and academic and subject to dismissal x x x Mendoza's term of office has expired with the conduct of last year's elections."

The present petition, contrasted with these cited cases, does not involve a situation a supervening event that could have rendered the issue and Estrada's prayers moot and academic. Note that the Ombudsman's compliance was only partial; hence, the relief sought for in this petition has not at all been achieved.

^[9] Section 1, Rule 112, Rules of Court.

^[10] Sales v. Sandiganbayan, 421 Phil. 176, 186-187 (2001); Uy v. Office of the Ombudsman, supra note 5, at 655. See also Yusop v. Sandiganbayan, 405 Phil. 233, 239 (2001).

^[11] Riano, Criminal Procedure (The Bar Lecture Series), 2011, p. 149.

^[12] Id.

^[13] See People v. Salonga, 411 Phil. 845 (2001); People v. Ayson, 256 Phil. 671 (1989); People v. Canton, 442 Phil. 743 (2002).

^[14] Section 4, Rule II of the Ombudsman Rules in relation to Section 18 of R.A. No. 6770 (or the Ombudsman Law), and Section 3, Rule 112 of the Rules of Court.

^[15] See Go v. Court of Appeals, G.R. No. 101837, February 11, 1992, 206 SCRA 138, 153. Under Section 1, Article III of the Constitution, "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."

^[16] See Doromal v. Sandiganbayan, 258 Phil. 146, 152-153 (1989); Torralba v. Lim, G.R. No. 101421, February 10, 1994, 230 SCRA 33, 41; Uy v. Office of the Ombudsman, supra note 5, at 655; Ladlad v. Senior State Prosecutor Velasco, 551 Phil. 313, 336 (2007).

^[17] Yusop v. Sandiganbayan, supra note 10, at 242; Uy v. Office of the Ombudsman, supra note 5, at 655.

^[18] Signed on June 19 (or 15), 1215 at Runnymede between the barons of Medieval England and King John. It was the first formal document that guaranteed the rights of the individuals against the wishes of the King.

http://www.bbc.co.uk/schools/primaryhistory/british_history/magna_carta/

http://britishlibrary.typepad.co.uk/digitisedmanuscripts/2013/06/15-june-1215-a-significant-date-in-history.html

^[19] Supra note 16, at 41.

^[20] Supra note 15, at 153.

^[21] Supra note 5, at 94.

^[22] Id. at 95.

^[23] Approved November 17, 1989. See Section 18 of R.A. No. 6770. It states in part:

Section 18. Rules of Procedure. (1) The Office of the Ombudsman shall promulgate its rules of procedure for the effective exercise or performance of its powers, functions, and duties.

(2) The rules of procedure shall include a provision whereby the Rules of Court are made suppletory.

x x x x

^[24] Section 3, Rule 112 of the Rules of Court reads in full:

Section 3. Procedure. The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence 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.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

^[25] Atty. Macalintal v. Comelec, 453 Phil. 586, 631 (2003); In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon, 535 Phil. 687, 709-710 (2006); Manila Prince Hotel v. Government Service Insurance System, G.R. No. 122156, February 3, 1997, 267 SCRA 408, 430-431.

^[26] G.R. No. 188056, January 8, 2013.

^[27] G.R. No. 96080, April 19, 1991, 196 SCRA 86.

^[28] 69 Phil. 635 (1960).

^[29] Id. at 642.

^[30] Supra note 5, at 95.

^[31] Id.

^[32] Id.

^[33] Id.

^[34] Supra note 24.

^[35] See Section 4(a) and (b), Rule II of the Ombudsman Rules.

^[36] See Crespo v. Judge Mogul, 235 Phil. 465 (1987).

^[37] Id.

^[38] 111 Phil. 73 (1961).

^[39] See Crespo v. Judge Mogul, supra note 36.

^[40] G.R. No. L-29086, September 30, 1982, 117 SCRA 72, 77-78.

^[41] Supra note 16.

^[42] G.R. No. L-29715, March 31, 1971, 38 SCRA 324.

^[43] 380 Phil. 673 (2000).

^[44] 402 Phil. 222 (2001).

^[45] See also Atty. Serapio v. Sandiganbayan, 444 Phil. 499, 531 (2003); and Budiongan, Jr. v. De la Cruz, Jr., 534 Phil. 47, 55 (2006) where the Court reiterated the ruling that the absence of a preliminary investigation will not affect the jurisdiction of the court. While in these cases, the Court dismissed the accused's certiorari petition assailing: (1) the Ombudsman's memorandum finding probable cause and denying the motion for reconsideration in Budiongan for failure of the accused to timely invoke the right to preliminary investigation tantamount to its waiver; and (2) the Sandiganbayan's resolution denying the accused's motion for reinvestigation in Serapio for failure to show arbitrariness in the Ombudsman's conduct of the preliminary investigation, the principle nevertheless still holds true.

^[46] Supra note 16, at 41.

^[47] Doromal v. Sandiganbayan, supra note 16, at 153-154. See also Budiongan, Jr. v. De la Cruz, Jr., supra note 45; and Atty. Serapio v. Sandiganbayan, supra note 45, at 531.

^[48] Supra note 44. The Court in this case reversed the order of the Regional Trial Court that dismissed the criminal cases against respondent Dindo Vivar on the ground that the public prosecutor had failed to conduct a preliminary investigation. The Court observed that contrary to the RTC's ruling, the prosecutor had in fact previously conducted a preliminary investigation and that a new preliminary investigation was not warranted under the circumstances as the change made by the prosecutor to the Information was merely formal, not substantial as to require a reinvestigation. The difference in the factual situation between Villaflor and the present petition, however, cannot invalidate nor weaken the force of the Casiano ruling that absence of a preliminary investigation does not impair the validity of the information or affect the court's jurisdiction.

^[49] Herrera, Remedial Law IV, 2001 edition, p. 271.

^[50] Section 2, Article III of the Constitution reads:

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

^[51] 360 Phil. 559, 578-579 (1998).

^[52] 345 Phil. 597 (1997).

^[53] See People v. Tan, G.R. No. 182310, December 9, 2009, 608 SCRA 85, 95.

^[54] 352 Phil. 557 (1998).

^[55] G.R. No. L-72335-39, March 21, 1988, 159 SCRA 70.

^[56] 219 Phil. 402 (1985).

^[57] 200 Phil. 650 (1982).

^[58] 89 Phil. 752 (1951).

^[59] 243 Phil. 988 (1988).

^[60] Supra note 10.