01 - revilla v. ombudsman - recent jp - prejudicial question

7/21/2019 01 - Revilla v. Ombudsman - Recent JP - Prejudicial Question

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ORIGINAL

m

3

REPUBLIC OF THE PHILIPPINES

2 0 1 ~ 1 1 A R

l AH

II:

58

SUPREME COURT

MANII

~ G Y : A ~ /

' IJ/ MAR 2 o /If

. . i -

SENATOR RAMON BONG

REVILLA, JR.,

Petitioner

1

G.R.

No.

211437 ~ s/

(OMB-C-C-13-0316

and OMB-C-C-13-

0395)

. .--- For Certiorari and

- v e r s u s , , - _ _ ' \ ~ \ )

. . . , ~ : . - 4 , . ~

t>J .

r o h i b i ~ i o n

under Rule

~ ~ ~ . f : r .: j ~ J - < l

.

65 With Prayer for

. 0 ; ; 7 ~ C(>ff\tS

Temporary Restraining

:J--_.,. .

Order

and/or

Writ of

, , _ ~ I i > Jd / )

Preliminary Injunction

OFFICE

OF

THE

OMBUDSMAN,

through

i ts

Special

Panel

of

Investigators, NATIONAL

BURAU

OF

INVESTIGATION,

LEVITO

D.

BALIGOD and FIELD

INVESTIGATION OFFICE,

OFFICE

OF

THE

OMBUDSMAN,

Respondents.

x---------------------------------------x

PETITION

FOR CERTIOR RI AND PROHIBITION

(With Prayer for Te1nporary

Restraining

Order

and/or Writ ofPreliminary

Injunction)

Petitioner SENATOR RAMON BONG REVILLA, JR.

( SENATOR REVILLA ), by counsel, respectfully states:

I

PREFATORY

Suspension of criminal proceedings on account of the existence

of a prejudicial question is settled in this jurisdiction, both under the

law and jurisprudence.


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filed in court for trial, the petition to suspend shall be

filed in the same criminal action at any time before

the prosecution rests. 3

A

prejudicial question is present where a civil action

and

a

criminal action are both p ~ n i n g

and

there exists

in

the former an

issue which 1nust

be

pre-emptively resolved before the criminal action

may proceed since howsoever the issue raised

in

the civil action is

resolved would

be

determinative juris t e jur of the guilt or

innocence of the accused in

the

criminal case. A prejudicial question

in

a civil action is one

that

is based on a fact distinct and separate

from the crime but so intimately connected with it

that

it determines

the guilt or innocence of

the

accused. s

It

is one which arises in a case,

the resolution of which is a logical antecedent of the issue involved

therein

and

the cognizance of which pertains

to

another tribunal.

6

Jurisprudential history? reveals that

the

Honorable Court has

consistently applied this provision. The reason is simple.

No

person

should

be

made

to

face

the

hassle

and

pain of a criminal prosecution

pending a civil case based on the saine facts and with intimately

related.issues determinative of the guilt or innocence of such person

until the civil case is finally i;esolved.

The rationale for

the

principle of prejudicial question is

that

although it does not conclusively resolve the guilt or innocence of the

accused, it tests the sufficiency of the allegations in the complaint or

information in order to sustain the further prosecution of

the

criminal

case.

8

Indeed, the purpose of suspension is to free the respondent or

the accused from going through the criminal proceedings, along with

the exhaustion of precious time and resources, only to find out later -

from the i n ~ l judgment in the civil case--that the case filed against

the

respondent or

the

accused is groundless

and

cannot

stand in

court. t is certainly prudent to first await the resolution of the civil

case.

3

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8

Emphasis and Underscoring supplied.

SyTiongShiou vs. SyChim 582 SCRA

517.

Donato

v.

Luna, G.R. No.L-53642,

15

April 1988, 160 SCRA 441, 445; Quiambao

v.

Osorio, G.R. No.L-48157, 16 March 1988, 158 SCRA 674, 677-678; Ras v. Rasul, G.R.

Nos.L-50441-42, 18 September 1980, 100 SCRA 125,

127.

Omictin vs. Court of Appeals 512 SCRA 70.

See Donato v. Luna, G.R. No. L-53642,

15

April 1988, 160 SCRA 441, 445; Quiambao

v.

Osorio, G.R. No.

L .'.48157, 16

March 1988, 158 SCRA 674, 677-678; Ras v. Rasul, G.R.

Nos. L-50441-42, 18 September 1980, 100

SCRA

125,

127;

Yap v. Paras, G.R. No. 101236,

30 January 1992, 205

SCRA

625, 631.

Philippine Agila Satellite, Inc. vs. Lichauco Osorio, G.R. No. L-48157, 16 March 1988, 158

SCRA 674, 677-678; Ras v. Rasul, G.R. Nos. L-50441-42, 18 September 1980, 100

SCRA

125, 127; Yap v. Paras, G.R. No. 101236, 30January1992 205 SCRA 625, 63i.496 SCRA

588. '

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(

However, the Public Respondent, Office of the Owbudsman,

through its Special Panel of Investigators ( OMBUDSMAN ), in its

First

Joint

Order dated 28

January

2014 ( FIRST

ASSAILED

ORDER ) and Second Joint

Order

dated 3 March 2014 ( SECOND

ASSAILED

ORDER ) (cqllectively, ASSAILED ORDERS ) issued in

OMB-C-C-13-0316, entitled National Bureau o Investigation and

Levito Baligod

v.

Ramon Bong Revilla, Jr., et al. and

in

OMB-C-C-

13-0395, entitled Field Investigation Office v. Ramon Bong

Revilla, Jr., et al. (collectively, the proceedings a quo ), gravely

abused its discretion when it blatantly disregarded the well

established principles in the application of the rule on prejudicial

question as upheld

in

numerous cases

by

the Honorable Court by

denying SENATOR REVILLA's

Motions to Suspend

Preliminary

Investigation both

dated

15 January

2014 ( Motions

to

Suspend )

and his

Motion

for

Reconsideration

dated 3 February 2014

( Motion for Reconsideration ).

s

will be shown hereunder, the elements of a prejudicial

question are present in this case, which, based on law,

the

Rules of

Court

and

jurisprudence, warrant

the

immediate suspension of the

preliminary investigation being conducted

by

respondent

OMBUDSMAN in the prqceedings a quo.

n

the

civil case instituted

by

SENATOR

REVILLA

entitled

Senator Ramon ''Bong Revilla, Jr. v. Benhur Luy, et al. docketed

as Civil Case

No.

BCV-2013-193, before the Regional Trial Court of

Bacoor, Cavite, which was filed prior to

the

filing of the Criminal

Complaints in

the

proceedings a quo, SENATOR

REVILLA

sought the

nullification of certain documents. Incidentally, these documents

sought to

be

nullified by SENATOR

REVILLA

in

the

prior civil case

are

the

same documents on which his involvement in

the

proceedings

a quo entirely depends.

Despite

the

clear presence of a prejudicial question, respondent

OMBUDSMAN pere1nptorily denied SENATOR REILLA's Motions to

Suspend, and resolved to continue with the proceedings a quo. Such

conduct of respondent OMBUDSMAN in disregarding the factual

circumstances surrounding SENATOR REVILLA's Motions to

Suspend, specifically t ~ pendency of the prior civil case concerning

intimately related issues, and the deliberate refusal to adhere to the

well-entrenched rule on prejudicial question, manifest an arbitrary,

capricious

and

whimsical exercise of discretion, which leads to no

other conclusion

than

that

respondent OMBUDSMAN was bereft of

jurisdiction in issuing its ASSAILED ORDERS.

SENATOR REVILLA comes at the portals of this Honorable

Court not only to seek for the protection of his rights but also and

more importantly, to respectfully plead with the Honorable Court to

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di,rect respondent

OMBUDSMAN

to act within the bounds of its

: jurisdiction

by

applying

the

law, rules and jurisprudence as they are,

regardless of whether the resulting decision is popular or not. Indeed,

respondent OMBUDSMAN should act with utinost impartiality and

not

be

swayed by public opinion

or

pressure.

I

Moreover, respondent OMBUDSMAN exhibited patent and

grave bias when it dis1nissed and refused to docket SENATOR

REVILLA

s Counter-Charge against certain individuals who are, as

the evidence reveals,

the

ones guilty of Plunder, on

the

mere basis

that entertaining such counter-charges would result in duplication of

functions and unduly burden respondent

OMBUDSMAN.

Respondent OMBUDSMAN also rejected outright SENATOR

REVILLA's Counter-Cha_rge against

the

individuals who have been

included in the Witness Protection Program ( WPP ) by the

Department of Justice ( DOJ''), which respondent OMBUDSMAN,

with evident bias

and

partiality, took as blanket immunity on all

charges against the said individuals.

By turning a blind eye to the evidence and even confession of

guilt of these individuals, and

by

adainantly proceeding to

preliminary investigation despite clear. presence of a prejudicial

question, respondent OMBDSMAN has violated and continues to

violate SENATOR REVILLA's constitutional rights to due process of

law and equal protection of the laws.

Thus, SENATOR REVILLA respectfully ~ k s the Honorable

Court's issuance of a writ of

certiorari

to annul

the

ASSAILED

ORDERS, as well as a writ of prohibition to direct the respondent

OMBUDSMAN to desist from further proceeding with the

proceedings a quo on account of a prejudicial question.

In

the

interim, SENATOR REViLLA respectfully pleads for

the

intervention

of this Honorable Court, by the issuance of a writ of preliminary

injunction and/or a temporary restraining order, to enjoin

respondent OMBUDSMAN

and

all other person

or

persons acting on

its behalf, from proceeding with proceedings a quo so as not to

prejudice the rights of SENATOR REVILLA pending resolution of the

instant Petition and so as not to render

the

instant Petition moot.

N TURE OF TH PETITION

2.1. This is a Petition for Certiorari

and

Prohibition filed

pursuant to Sections 1

and

2, Rule 65 of the Rules of Court, to annul,

reverse

and

set aside the ASSAILED ORDERS issued by respondent

OMBUDSMAN

in the proceedings a quo for having been issued with

grave abuse of discretion amounting to lack or excess of its

jurisdiction and to comm3:nd respondent OMBUDSMAN to desist


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I

fro1ll

further proceeding

i

the proceedings a quo on

accou.11t

of the

existence of a prejudicial question.

SENATOR REVILLA has formajJy

r e q l e ~ 1 . : e d

respondent

OMBUDSMAN

for

certified

true

copy

of

the

ASSAILED

ORDERS as

the last paragraph of Section

1

Rule

65 of

the

Revised

Rules of

Court

requires that such certified

copy should

be

attached to the Petition-only to

be told

that

his

request

is

still

under

study

and

consideration

and he

will accordingly be informed when such certified copy is

issued

by respondent OMBUDSMAN.9

Considering

the

urgency of

the

instant Petition and

pending issuance

by

respondent

OMBUDSMAN

of

a

certified copy of the: ASSAILED ORDERS, SENATOR

REVILLA

is constrained

to

attach hereto

and

make integral

parts

hereof as

Annexes

A and B, respectively,

the

duplicate originals that were

served

on him of the

ASSAILED ORDERS.

In Paras et al. v.

Paras

et

al.

1

the

Honorable Court

held

that attachment of duplicate original of the Assailed

Order,

instead of

the certified true copy

thereof,

is

sufficient

compliance

with

the requirement

under

Section

1,

Rule 65 of the

Rules

of

Court. Even

then,

SENATOR

REVILLA

undertakes to submit

to the

Honorable Court

the

~ e r o f i e c l ~ p y of the ASSAlLED R E ~

as

may respondent

OMBUDSMAN later

issue

as formally requested

by

him.

2.2 .

The FIRST

ASSAILED

ORDER, ANNEX

A

hereof,

denied SENATOR REVILLA s Motions to Suspend

11

despite the clear

and indubitable presence of a prejudicial question, considering that

the resolution of

the

issue on the genuineness and due execution of

the

documents raised

in

the

previously instituted civil case necessarily

determines whether or not the proceedings a quo before respondent

OMBUDSMAN

should proceed.

2_.3.

The FIRST

ASSAILED

ORDER also perfunctorily

dismissed SENATOR REVILLA s Plunder charges against certain

individuals either b e c a ~ s e per respondent

OMBUDSMAN,

said

9

10

11

A copy of SENATOR REVILLA s letter request

dated

10 March 2013, duly

stamped

received by respondent OMBUDSMAN, is

attached

and made integral part

hereof as

Special Annex.

G.R. No. 140713, 8 March

2011.

Copies of SENATOR REVILLA s Motions to Suspend both dated 15 January 2014

are

attached hereto as

Annexes C

and

D

and

made integral

parts hereof

.

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charges will cat1se administrative inconvenience

on

its

part

or

the

individuals indicted are covered

by the

DOJ's WPP.

2.4. The SECOND ASSAILED ORDER, Annex B hereof,

denied SENATOR REVILLA's Motion for Reconsideration

12

without

considering

the

errors raised therein.

2.5.

The ASSAILED ORDERS of respondent OMBUDSMAN

are contrary

to

law, rules and_ prevailing Jl1risprtJ.c1ence. Considering

that the

existence of

the

grounds raised

by

SENATOR REVILLA in

support of his Motions to Suspend are clear

and

unmistakable,

the

refusal of respondent OMBUDSMAN

to suspend the

proceedings a

quo is clearly

attended

with grave abuse of discretion which is

tantamount

to

lack

or

excess of jurisdiction. Further, considering

that

respondent OMBUDSMAN is duty-bound

to

prosecute

the

individuals subject of SENATOR REVILLA's Plunder charges, its

dismissal of these charges -

at

the first instance

and on

flimsy

grounds - amounts to grave abuse of discretion amounting

to

lack

or

excess of jurisdiction.

TIMELINESS OF THE

PETITION ND

ST TEMENT

OF

M TERI L

D TES

3.1.

On

~ January 2014,

SENATOR REVILLA

r e c e i v ~ d _ the

FIRST ASSAILED ORDER issued

by

respondent OMBUDSMAN in

the proceedings a quo denying his Motions

to

Suspend. On 3

February

2014,

or five (5) days after such receipt, SENATOR

REVILLA filed

the

Motion for Reconsideration of the FIRST

ASSAILED ORDER.

3.2.

On 7 March

2014,

SENATOR REVILLA received

the

SECOND ASSAILED ORDER denying his Motion for

Reconsideration.

3.3.

Pursuant

to

Section 4, Rule 65 of

the

Rules of Court,

SENATOR ~ V I L L has sixty 60) days fro1n notice of

the

denial of

its Motion for Reconsideration,

or

until 6 May

2014,

within which to

file a Petition for Certiorari

and

Prohibition.

3-4 Thus, this Petition is timely filed.

12

A copy of SENATOR REVILLA's Motion for Reconsideration dated 3 February

2014

is

attached hereto as Annex

E

and made an integral part hereof.

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the signatu,res of

the

law1nakers

and

their representatives. The

whistleblowers also confessed to having withdrawn the money from

each of the PDAF availment, albeit they claimed to have turned over

the money to Napoles and

on

instructions of the latter, they delivered

to the lawmakers

or

their staff

or

representatives their share or

commission or kickback. Among the lawinakers alleged by these

whistleblowers to have had a

part in

the PDAF scam was SENATOR

REVILLA whose signature and

the

signature of his staff, Atty.

Richard Cambe ( Atty. Cambe ), they confessed

to

have forged.

5.3. According to these whistle blowers, SENATOR

REVILLA authorized

the

release of his PDAF allocations to Napoles

related NGOs in order to misappropriate and convert them into his

and co-conspirators' personal use, by taking

part

in

the

said amounts

that were supposedly allocated for fake government projects. The

whistleblowers supported these statements by admitting their direct

participation in the process, as well as through documents

purportedly showing

that

SENATOR REVILLA approved the

carrying-out of the said scheme.

5-4 When

the

said PDAF scam came out in the media early

last year, SENATOR REVILLA immediately denied any involve1nent

therein

and

declared his willingness to join in the investigation and

his conducting his own investigation into the alleged scam towards

ferreting out the truth, prosecuting all those responsible for it,

and

clearing his name.

5.5. Based

on SENATOR REVILLA's own independent

investigation that included his referring all

the

PDAF

Documents for

expert examination, SENATOR REVILLA filed the Civil Case against

the whistleblowers and others who appear

to

have taken

part in

the

alleged scam. The Complaint13 was filed with the Regional Trial Court

of Bacoor City ( RTC Bacoor )

on

13

eptember

2 1 3

in

Civil

Case

BCV-2013-193 praying for the nullification of

the

PDAF Documents,

for accounting and for the defendants therein to return to the

Government the amount stolen by the1n, in

the

total amount of

P502.89 million ( Civil Complaint or Civil Case ).

5.6. On

:t6

September 20:13

t t y ~

Cambe filed a Motion for

Leave to File Complaint-in-Intervention in

Civil

Case No. BCV-2013-

193. In his Complaint-in-Intervention, Atty. Cambe vehemently

denied: (a) signing the PDAF Documents,

b)

having any knowledge

or participation in their preparation

or

use,

and

(c) having gained any

1 :3 A copy

of

SENATOR REVILLA's Complaint filed before

RTC

Bacoor is attached hereto as

Annex F '

and

made an integral part hereof.

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. benefit therefrom. Atty. Cambe prayed tbat tbe PP AF

Docl1_me11ts be

declared by

the

court as null and void b initio.

4

5.

7

On 2 September 2013,

the

RTC Bacoor issued an Order

: granting Atty. Cambe's Motion for Leave

to

File Complaint-in

Intervention.15

5.8. The main thrust of the Civil Case is the nullification of the

PDAF

Documents as these PDAF Docunients were executed without

SENATOR REVILLA's (or Atty. Cambe's) knowledge and iuthority,

and the return

to

the govern1nent by the defendants of the PDAF

moneys they confessed to have taken and appropriated for

themselves.

5.9.

SENATOR

REVILLA

seeks their nullification as he

determined, upon his own investigation and in consultation with

handwriting expert and an expert in signature verification, Mr. Roger

Azores, and likewise confirmed by the other whistleblowers'' that

such signatures are products of forgery or made without their

authority.

5.10.

As

found by Mr. Azores,

the

signatures appearing in the

PDAF

Documents (which support

the

Criminal Complaints of

Complainants in the proceedings

quo

and serve as the only direct

link to SENATOR

REVILLA

in

the

alleged scheme) are all forged.

16

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5.11.

More particularly, as presented in the Civil Co1nplaint,

Mr. Azores concluded that the signatures of SENATOR

REVILLA

in

the following documents are forgeries:

14

15

16

Letter addressed to Mr. Antonio

Y

Ortiz,

Director Ge_neral Technology

and

Livelihood

Resource Center dated 27 Nov. 2 7

Letter addressed

to

Hon. Arthur

C

Yap,

Secretary Department of Agriculture dated 27

Nov

2007.

Letter addressed to Hon. Gondelina G Amata,

President, National Livelihood Development

Co oration dated 27 Feb.

2 9

Letter addressed

to

Hon. Gondelina

G

Alnata,

A copy of Atty. Richard's Cambe's Complaint-in-Intervention is attached hereto as

Annex

G and made an integral par t hereof.

A copy the 2 September

2013

Order is attached hereto as Annex H and made an

integral

part

hereof.

Copies of the results

of

the examination conducted by Mr Azores are attached as Annexes

I

to

I-7

and made an integral parts hereof.

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;indirect participation

or

knowledge of SENATOR REVILLA. Hence,

one of the prayers in the. Civil Complaint is

the

declaration of nullity

-of the PDAF Documents:

PRAYER

WHEREFORE, Plaintiff Revilla respectfully prays that, after due

and proper trial on the merits, the Honorable Court render

judgment:

1

Under the First

~ u s e

of Action, declaring

the

PDAF

Documents null

and

void;

xx xx

Plaintiff Revilla further prays for such other relief as may be

deemed

just

and equitable

in

the premises.

5.13. In

his Civil Complaint, SENATOR

REVILLA

invoked

Articles 1346 and 1409

of

the New Civil Code, which provide

that

simulated and fictitious contracts are inexistent

and

void from the

beginning:

Art. 1346.

An absolutely

simulated

or fictitious

contract

void.

A relative simulation, when it does

not

prejudice a third

person and is not intended for any purpose contrary to law, morals,

good customs, public order or public policy binds the parties to

their real agreement.

Art. 1409. The

following contracts

are inexistent and void

from

the beginning: i

a. Those whose cause, object or purpose is contrary to law,

morals, good customs, public order or public policy;

b.

Those

which

are absolutely

simulated or fictitious;

c.

Those whose cause or object did

not

exist at the time of the

transaction;

d. Those whose object is outside the commerce of men;

e.

Those which contemplate an impossible service;

f. Those where . ;h.e intention of the parties relative to the

principal object of the contract cannot

be

ascertained;

g. Those expressly prohibited or declared void by law.

These contracts cannot

be

ratified. Neither can the right to

set up the defense of illegality be waived.

5.14. SENATOR

REVILLA

cited therein several cases decided

by

the

Honorable Court

to

support his theory, among them, is

Valerio

v. Refresca 17 where

the

Honorable Court held

that

a contract is null

and void if parties thereto :do not intend to be bound at all by its

stipulations, thus:

1

7 G.R. No. 163687, March 28, 2006 485 SCRA 494, 500-501; citing Loyola v. Court of

Appeals, 383 Phil. 171 (2000), and Balite v. Lim, 487 Phil. 281 (2004).

13

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5.19. The Criminal Complaints charge SENATOR REVILLA

'th the crime of Plunder

under

Republic Act No. 7080, otherwise

. own as

An

Act Defining and Penalizing the Crime of Plunder

.jPlunder Act ), who, while being a Senator of

the

Republic of

the

hilippines, allegedly designated

or

endorsed bogus NGOs controlled

y Napoles

to

be the recipients of his PDAF for

the

purpose of

implementing projects authorized

in

the DBM Project Menu. Per

the

,Criminal Complaints, these projects, however, are alleged to be either

:.unimplemented or under implemented, so that

the

proceeds of

the

PDAF supposed

to be

allocated therefor are misappropriated

and

converted

to

the personal use of SENATOR

REVILLA,

Napoles, and

.other

implicated individuals by having divided among them the

amount in accordance with

the

alleged scheme initially agreed upon.

5.20. The Criminal Complaints, outline, describe

and

narrate

such scheme (with lawmakers,

in

general) on

the

basis of interviews

and sworn statements submitted to the NBI by Benhur Luy, Merlina

Sufias, Gertrudes

L.

Luy, Nova Kay Batal-Macalintal, Elena S.

Abdundo

and

Avelina C. Lingo. Through such scheme,

the

Criminal

Complaints allege that, SENATOR REVILLA, abusing his public

position as such, exceeded his authority by designating

or

endorsing

NGOs, and amassed and accumulated ill-gotten wealth in

the

total

amount of P224,512,500.oo, purportedly representing the

commission or rebate received from his PDAF from

2 6

to 2010, in

conspiracy with Napoles and Implementing Agencies.

5.21. In support of their allegations, the respondents herein,

namely

the

NBI and Atty. Baligod,

and the

FIO submitted

documentary evidence, which are mainly, the PDAF Documents

attached

to the

Commission on Audit's Letter ( COA Letter ) dated

8 July

2011,

which letter requested SENATOR REVILLA

to

confirm

whether

the

signatures appearing

on the

PDAF documents are those

of SENATOR REVILLA or of one of his staff, Atty. Cambe. The PDAF

Documents consist of SAROs, MOAs,

NCAs,

endorsement letters,

project proposals, project activity reports, project profiles, inspection

and acceptance reports, disbursement reports, disburse1nent

vouchers, c c o m p l i s h ~ e n t reports, acknowledgement receipts,

delivery reports, and certificates of acceptance.

5.22. Considering

that the

respondents are using in

the

proceedings

quo

before the respondent OMBUDSMAN the same

PDAF Documents, which as earlier mentioned,

the

whistleblowers

themselves admitted to have falsified

and the

signatures thereon

forged by them, which forgery was confinned by two handwriting

experts and which documents, were and continue to be subject of a

Civil Case for nullification,

to

link SENATOR

REVILLA

to

an

alleged

conspiracy of converting, misappropriating,

and

misusing his PDAF

15

1 r \


16/83

allocation, SENATOR REVILLA filed on

16

January

2014,

Motions to

Suspend the Preliminary Investigation in the proceedings

a quo

5.22.1

In his Motions to Suspend, SENATOR REVILLA

prayed for

the

immediate suspension of

the

proceedings

a

quo

before the respondent OMBUDSMAN, on the ground that the

previously instituted Civil Case presents a prejudicial question

that

must first be resolved. The Civil Case is particularly

relevant as the PDAF Documents, subject of the Civil Case for

nullification, appear to

be

the only direct link of SENATOR

REVILLA to

the

crime of Plunder as defined

and

punished

under Republic Act

No

7080 Indeed, the existence of the

PDAF

Documents, particularly those appearing to be signed by

him (or his purported representative, Atty. Cambe) is being

utilized to bridge a link between the alleged scheme and

SENATOR REVILLA On

the

other hand, as advanced

in

his

Civil

Complaint, SENATOR REVILLA did not intend to be

bound by

the

stipulations

in the

PDAF Documents supporting

the Criminal Complaints as he is absolutely not a party to any of

them as his or Atty. Cambe's purported signatures appearing on

the PDAF Documents ,are forgeries.

I

5.23.

Hence, SENATOR REVILLA moved for the suspension of

the preliminary investigation

and

any proceeding before respondent

OMBUDSMAN in the proceedings a quo until after the

Civil

Case has

been resolved with finality, pursuant to Section 6 of Rule

111

of the

Rules of Court. To reiterate, the Civil Case and the proceedings a quo

involve

the

same facts

and

intimately connected issues necessitating

the resolution of the Civil Case before the criminal case in the

proceedings

a quo

may proceed.

5.24.

Likewise, on the same day of

16

January

2014,

SENATOR

REVILLA

filed two separate Counter-Affidavits.

2

In

his Counter

Affidavits, aside from refuting the allegations against him

in

the

Criminal Complaints, SENATOR REVILLA filed Counter-Charges for

Plunder against his co-Respondents

in

the Cri1ninal Coin plaints for

their acts in relation to the

PDAF

scam ( Counter-Charge ) and

against the whistleblowers, led by Benhur Luy.

I

5.25. On 28 January 2014, the respondent

OMBUDSMAN

issued its FIRST ASSAILED ORDER denying SENATOR REVILLA's

Motions to Suspend, reasoning, among others,

that

no prejudicial

question exists since forgery

or

falsification, which is subject of

the

Civil Case, is not a necessary element of Plunder, Malversation and

27

Copies of

the

SENATOR REVILLA's Counter-Affidavits are attached as Annexes M

to

M-1

and

made integral parts hereof.

16


17/83


18/83


19/83


20/83


21/83

. LLA s Counter-Charge against obviously guilty individuals

it the undeniable presence of evidence against them. Such

AILED ORDERS must be reversed, annulled

and

set aside by the

orable Court.

A

RESPONDENT

OMBUDSMAN

COMMITIED

GRAVE

ERROR AND

ACTED

WITH GRAVE

ABUSE. OF

DISCRETION

WHEN

IT CAfRICIOUSLY, WHIMSICALLY,

AND ARBITRARILY DENIED

SENATOR

REVILLA'S MOTIONS

TO SUSPEND

UPON

ITS ERRONEOUS RULING

THAT

NO

PREJUDICIAL

QUESTION

EXISTS TO

JUSTIFY THE

SUSPENSION

OF

PRELIMINARY INVESTIGATION IN

THE

PROCEEDINGS A

QUO

ON

SENATOR

REVILLA.

, Respondent . OMBUDSMAN denied SENATOR REVILLA's

:}

Motions

to

Suspend upon its erroneous ruling that there exists no

.prejudicial question warranting

the

suspension of

the

proceedings

a

quo.34 Respondent OMBUDSMAN's reasoning is without any basis

and doctrinally infirm.

a

The elements

o a

prejudicial

question are

present in these cases;

hence,

the


should have immediately

suspended

the preliminary investigation on

SENATOR REVILLA

84. Section 7 of Rule 111 of

the

Rules of Court on prejudicial

question states:

Sec. 7.

Elements of prejudicial question.

-

The elements of a

prejudicial questions are: (a) the previously instituted

civil

action involves

an issue

similar

or intimately related

to

the issue raised

in

the

subsequent criminal

action.

and

(b)

the resolution

of

such issue determines

whether

or

not

the

criminal action may

proceed.

8.5. Thus, for a civil action (such as

the

Civil Case in Bacoor)

to be considered prejudicial to a crhninal case (such as

the

Criminal

Complaints subject of

the

proceedings quo to warrant the

suspension of the criminal proceedings until the final resolution of

the civil action, the following requisites must be present:

4 Joint Order dated 28

January

2014, pp. 5-10.

21

3


22/83


23/83

e

but so intimate connected with i t

that it

etermines

the uilt or innocence of the accused.

t

must

ppear not only that the civil case involves facts upon which the

.minal

action is based,

but

also that the resolution of the issues

aised in the civil action would necessarily be determinative of the

riminal case. Consequently, the defense must involve an issue

~ m i l a r

or intimately related to the same issue raised

in

the criminal

a.ction

and its resolution determinative of whether or not the latter

action may proceed."36

/ Rio. On one hand, the main thrust of the Civil Case is the

1 fication of documents supposedly signed by SENATOR REVILLA

.Atty. Cambe,

and

other related documents ("PDAF Documents"),

..Jhrespect to the

PDAF

allocation of SENATOR REVILLA's office.

PDAF Documents consist, among others, of SAROs, MOAs,

QAs, endorsement letters, project proposals, project activity reports,

~ o j e t

profiles, inspection and acceptance reports, disbursement

~ p o r t s ,

disbursement vouchers, accomplishment reports,

tknowledgement receipts, delivery reports, and certificates of

acceptance. These PDAF Documents contain forged signatures of

~ N T O R REVILLA (and of Atty. Cam be), a conclusion supported by

Xpert testimonies. Thus, the Civil Case of SENATOR REVILLA seeks,

among others, to obtain a judicial declaration that the said PDAF

'Documents are null and void because SENATOR

REVILLA (and Atty.

1Cambe

had

no participation

in

their execution,

and

hence, have no

iiH91owledge of the underlying transactions, other related documents,

i\vhich while not containing their signatures are related to those that

1}bore

their purported signatures, and the actual existence of all these

. documents. :

8.11.

On the other hand, in the Criminal Complaints, these

PDAF Documents appear to be herein respondents' main pieces of

evidence, and are the

sol

basis to create a direct link (albeit

ineffectual) between SENATOR REVILLA and

the

alleged

PDAF

8.12.

Further, one of the reliefs sought in

the

Civil Complaint is

to compel the respondents therein to return

the

amount of money

they received through the use of the falsified PDAF Documents, thus:

PRAYER

WHEREFORE, Plaintiff Revilla respectfully prays that, after

due and proper trial on the merits, the Honorable Court render

judgment:

xxx:

Ibid,

at 751

to

752; emphasis

and underscor ing supplied.

23

25


24/83


25/83

ation that

SEN TOR REVILL took

no art

himself

or

throu h a

re resentative

in the

t6n of the crime of Plunder or an

other

crime

'.the

Criminal Com laints

-Simply stated,

the

declaration

that

the PDAF Documents

the criminal complaints against SENATOR REVILLA are

fforgeries would render the proceedings

quo

against him

unmeritorious,

and

false,

and

bereft

in

evidentiary

hich would warrant its outright dismissal.

1 9 ~

Fourth the jurisdiction to

try

the prejudicial question,

ther

the

documents now supporting the Criminal Complaints

uine

or not, is lodged with the Regional Trial Court as

the

. th jurisdiction to declare contracts or documents null and

found that they are absolutely simulated or fictitious.

s.20. The issue arising from the Civil Case is currently, and

.erly, lodged with another tribunal - RTC Bacoor, Cavite - which

~ p r n p e t e n t j u r i s d i c t i o n to declare null

and

void fictitious contracts

ocuments. More importantly, the determination of whether the

rported signatures of SENATOR REVILLA (and Atty. Cambe) are

,, geries, thereby making

the

PDAF Documents null and void, falls

fhin the exclusive original jurisdiction.of the Regional Trial Court,

dt

is a case that is incapable of pecuniary estimation.

8 21

Jurisprudence has settled

that

the rationale behind

the

,linciple of prejudicial question is to avoid two conflicting decisionS.37

he Motions to Suspend precisely seek to achieve this purpose. t

ould be futile for respondent OMBUDSMAN to continue with the

proceedings

quo

only to be presented with facts, affirmed by a court

;

1

ofcompetent jurisdiction, which will necessarily put all its efforts in

\the present preliminary investigation

in

vain.

8 22

As

will be further expounded below, undeniably, all the

requisites of a prejudicial question are present. Consequently,

.respondent

OMBUDSMAN

gravely abused its discretion amounting

to lack or excess of jurisdiction in disregarding these facts and

refusing to immediately suspend

the

proceedings

quo

against

SENATOR

REVILLA pending a full

and

final determination of the

Civil Case.

b. The finding

o

respondent

OMBUDSMAN that

there

is no

prejudicial question since forgery or

falsijication is not n e ~ e s s a r y element

37 Beltran v. People of the Philippines, G.R. No. 137567, 20

June

2000 334SCRA106, 110.

25

} P. ,I

;.


26/83

r,

Malversation3

8

and

Section

/ +R.A. No

3019

is patently

iJs

and

not in any way

jative o the

erl:stence or

l f

a

prejudicialjquestion

:23.

In

its

ASSAILED

ORDERS, respondent OMBUDSMAN

that since forgery

and

falsification are not necessary

ts

of

Plunder and Section 3 (e) of R.A. No. 3019, then these

i t

cases are not intimately related to the Civil

Case.39

11dent

OMBUDSMAN

is gravely inistaken.

1

8 ~ 2 4

t does not follow that since forgery and falsification are

~ l e m e n t s

of

the

crime charged, prejudicial question could no

er

arise. One to

one

correspondence of the

elements

of

e'.crime charged and the

cause

of action in

the

civil

case is

. .trequired.

I t

is sufficient

that the

issues

in both

cases

are

tricately related which is

the

case

here

.8.25. Respondent OMBUDSMAN stubbornly refused,

mounting to grave abuse of discretion, to consider

that

the

nullification of

the

PDAF Documents

in

the Civil Case will render the

Criminal Complaints absolutely bereft of any evidence

that

would

::seemingly link SENATOR

REVILLA

(and Atty. Cambe) to

the

alleged

:PDAF scheme. The determination of nullity of the PDAF Docu1nents

will

not only remove

the

elements of Plunder

and

Corrupt Practices

.:funder Section 3 (e) of R.A. No. 3019 in the present criminal

complaints,

but

will, in fact, make them dismissible on their face.

8.26. Absent the PDAF Documents, the element of acts by

himself or in connivance in the crime of Plunder will be absent in

relation to SENATOR REVILLA because his supposed operative act of

endorsement

and

appoint1nent of representative will cease

to

exist.

8.27. Likewise, without

the

PDAF Documents, the

appropriation or taking through consent or through abandonment or

negligence will likewise not

be

present since there will

be

no evidence

to show that SENATOR REVILLA participated through an act or

omission, in such misappropriation.

8.28. With regard to Section 3(e) of R.A. No. 3019, without the

PDAF Documents, there would be no evidence of act of manifest

partiality, evident bad faith or inexcusable negligence since

SENATOR REVILLA would not have acted at all.

3

8

The N ~ Complaint charges only the crime of Plunder while the FIO Complaint charges

the cnme of Plunder and Violation of Section 3 (e) of R.A. 3019. Malversation is not

among the charges

in

any

of the

complaints.

39 Joint Order dated 8 January

2014

p. 7.

26


27/83

The falsifi ed

PDAF

. ents are

the

only

evidence

fl SENATOR REVILLA to t he

ed

PDAF

scam

and the only basis

h

alleged whistleblowers

in

~ t i n g

him

to the

said scam

>8 29 Respondent OMBUDSMAN stated in its

ASSALIED

.ERS

that even assuming that the RTC Bacoor declares the PDAF

uments to be null and void and the signatures therein as forged, it

''Id

only affect the probative value

of

these documents

and

not the

'inal charges, since there are still other pieces of evidence

i ~ e n t e by the prosecution to ~ u p p o r t its case.4 With due respect,

ti.

.

' sis a patently erroneous appreciation of the legal situation.

: : I

I

8.30. As discussed, the

PDAF

Documents are the only pieces of


28/83


29/83


30/83

S: Ang totoo po niyan ay ayon kay Madame JANET LIM NAPOLES

ay kausap

na

niya ang mga abogadong nagnonotaryo. Mayroong

dry

seal, stamp,

at

notarial book ang mga attorney

sa

opisina

para

kami

na ang pumirma at maglagay ng n ~ r y

sa

notarial logbook.

T:

Maaari

mo bang

sabihin kung sinu-sino itong mga tinutukoy

mong notary public

na

inyong ipinipirma

at

nagpapagamit ng dry

seal

sa

JLN Corporation? .

S: Opo, sina Atty.

1

MARK OLIVEROS, Atty. EDITHA

TALABOC

Atty.

RAYMUND

TANSIP

at

Atty. JOSHUA LAPUZ.

8.38.

In her aragdagang Sinumpaang Salaysay dated 12

tember 2013 ,

44

Marina Sula admitted the following acts, which

w

her direct participation in the commission of her own crimes:

.

t

was she who established

the

following

NGOs/foundations. (Answer to Question No. 29)

The foundations she established from

2 8

to 2010

were not registered with the Bureau of Internal

Revenue, and they issued fake receipts. (Answers to

Questions No. 35 and 36)

.

8.39.

In

her Sinumpaang Salaysay dated 5 November 2013,4s

Merlina

Sufi.as

admitted

that

she

and her

group invented

the

names

/appearing in the PDAF I)ocuments and forged the signatures

.?'appearing on the documents:

15. Tanong: Paano at sino ang mga nagproseso at lumagda sa mga

Certificates of Acceptance, Delivery Receipts, Acknowledgment

Receipts

at

Lists of Beneficiaries?

Sagot: Sa liquidation na po ginagawa ang mga papeles na ito. Sa

utos ni Ma'am Jenny, kami-kami na ring mga employees sa JLN

Corp. ang

pumipirma sa

mga pangalan ng mga taong involved pati

na

ng mga beneficiaries

sa

liquidation papers. Kami-kami

na

rin

ang nag-imbento o nag-fabricate

ng

mga pangalan tapos

pinipirmahan na rin po naming opposite sa mga pangalan nila.

16. Tanong: Sino

at

paano ang PFOseso ng pagliliquidate ng mga

proyekto

na

ipinatupad ng NGO gamit ang PDAF ni Sen. Revilla?

Sagot: Kami-kami

na rin

po ang gumagawa ng liquidation reports tapos

pinapapirma na lang namin sa mga president ng mga NGO's.

44 A copy Annex VVWVVWVVVVVVV, FIO Complaint is attached as Annex P

and

made an integral

part

hereof.

4

s A copy Annex WWWWWWWWWWWWWWW, FIO Complaint is attached as Annex

Q and

made an integral

part

hereof.

30

il

/


31/83

8-40.

Clearly, Benhur

Luy,

Marina Sula,

and

Merlina Sufias are

self-confessed criminals who conspired with one another in the

commission of the so-called PDAF scam.

8.41.

Section

30

Rule

130

requires

that

before the acts or

declarations of Benhur

Luy, Marina Sula, and Merlina Sufias may be

given in evidence against SENATOR REVILLA and against Atty.

Cambe) - who they accused as their co-conspirators - it is essential

that

the

conspiracy is shown by evidence other than such acts or

declarations.

8-42. However, the PDAF Documents were falsified as admitted

by Merlina Sufias herself see Annex

of the FIO Complaint). These

PDAF

Documents are subject of

the

Civil Case where there is a pending

prejudicial question to the charges of Plunder and Corrupt Practices.

8-43 With the existence of a prejudicial question, respondent

OMBUDSMAN cannot take into account the acts and declarations of

Benhur Luy, Marina Sula, and Merlina Sufias in resolving whether

probable cause exists to charge SENATOR REVILLA with Plunder

and Corrupt Practices without violating the rules on prejudicial

question, and without preempting the RTC Bacoor on

the

Civil Case.

8-44

Without independent and credible evidence on SENATOR

REVILLA s supposed participation as co-conspirator, which the

PDAF

Documents seem to provide, only the unsubstantiated acts

or

declarations of Benhur

Luy,

Marina Sula, and Merlina Sufi.as drag

him into the alleged conspiracy.

8-45 Verily, respondent OMBUDSMAN arbitrarily failed to

conduct an objective evaluation. of the evidence presented by the

herein Respondents. Otherwise, it should have been indubitable that

without the falsified

PDAF

Documents, there is absolutely no case

against SENATOR REVILLA. Hence, there exists a prejudicial

question warranting the suspension of the preliminary investigation

against SENATOR REVILLA.

d.

The

non-inclusion of

the

alleged 2

July

20:1.:1. Commission

on

Audit ( COA ) Confirmation letter n

the

Civil

Case does not make the

actions

of

SENATOR

REVILLA

highly

suspect,

much

less change

the

fact

that there

exists

a prejudicial

question

to warrant the suspension of.

the


32/83

inary

investigation

as against

OR REVILLA

.46.

Respondent OMBUDSMAN stated in its FIRST

LED

ORDER

that

the

commencement of

the

Civil Case is

uspect as SENATOR REVILLA and Atty. Cambe already knew

y as July 2011 of the existence of the PDAF Documents.4

6

This

:rroneous statement and constitutes prejudgment on the part of

rident OMBUDSMAN,1aside from the fact that it is a c01npletely

vant and invalid justification for denying

the

Motions to

~ r i d . This is reflective of the respondent OMBUDSMAN's grave

e

of

discretion.

i

8-47

At

the

time

the

Civil Case was filed

on

13

September

3

SENATOR REVILLA was not yet in possession of a copy of the

ified20 July 2011 confirmation letter to COA. s soon as the news

'e out that SENATOR REVILLA supposedly has a confirmation

~ e r to COA, SENATOR REVILLA immediately tried to secure a

C.QPY thereof. Unfortunately, it was only after the Civil Case was. filed

j;it

SENATOR REVILLA

was able to secure a copy

and

submit the

'ine to handwriting experts for analysis. Hence,

the

falsified 2 July

o

COA

Confirmation Letter was not. included in the Civil Case

.e\Tertheless, its non-inclusion in the

Civil

Case is not an indication,

'uchless

an

evidence, of afterthought.

8.48. Indeed, as shown

in

the Counter-Affidavits of SENATOR

;vJLLA,

the alleged 20 July 2011

COA

Confinnation Letter was

alsified.

8.49.

In

any case, the absence of the alleged COA confirmation

Jetter in

the

Civil Case does not affect

the

presence of a prejudicial

question, which warrants the suspension of the proceedings

quo

.against SENATOR

REVILLA.

Respondent OMBUDSMAN gravely

.:abused its discretion when

it

unduly gave weight and significance to

the alleged

COA

confirmation letter since, as explained in the

Counter-Affidavits and supported by the findings of handwriting

experts,

the

purported signature of SENATOR REVILLA therein was

forged. The falsified PDAF Documents cannot become authentic just

because there exists a COA confirmation letter (which, as stated, was

also falsified).

8.50. There is no basis for respondent OMBUDSMAN to find

that

the

Civil

Case is meant to delay

the

crhninal proceedings.

t

bears

reiterating that the Civil Case was filed before the.criminal co1nplaints

were instituted. That, in itself, is an indication that the Civil Case was

4

6

Joint

Order dated

28 January 2014,

pp.

8-9.

32

34

l

II

11


33/83

:si

Moreover, respondent OMBUDSMAN erred in justifying

,:al

of the Motions to Suspend

and

Motion for Reconsideration

llegation

that the filing of

the

Civil Case was suspicious based

(Supposed actual or constructive knowledge of SENATOR

LA of the impending filing of the Criminal Complaints as

the

./reports prior to

t ~ e

commencement of the Civil Case already

ted that charges will be pressed against the legislators

. ~ a t e d

in the alleged PDAF scam. This reasoning blatantly

. ,, gards the rule on prejudicial question, which requires

in

basic

~ ; t h a t the civil action must have been instituted prior to the

~ : : 1 n a l

action. Respondent OMBUDSMAN thus cannot arrogate

Ii''.#

itself the power to amend the law, rules and jurisprudential

Ilouncements of this Honorable Court by .stating

that

actual

or

s:tructive knowledge of an impen ing filing of a criminal charge

~ y p r e e m p t

the existence 9f the institution of a civil case. Indeed, at

~ ; t i m e

that the Criminal Cases in the proceedings quo were

:, .stituted, the Civil Case was already pending before the

RTC

Bacoor.

espondent OMBUDSMAN s feigning ignorance of

the

settled law,

les

and jurisprudence,

and

stubborn insistence

that

there exists no

reviously instituted Civil Case intimately related to

the

Criminal

ases subject of the prelhninary investigation amounts to grave abuse

o discretion constituting lack

or

excess of its jurisdiction.

e. SENATOR REVILLA's

Motions

to Suspend the

preliminary

investigation were not

prematurely

:'filed.

Contrary to

respondent

::/OMBUDSMAN's finding, SENA.TOR

>REVILLA

need not wait

for a

formal

;charge

against

him to

befiled

in court

>

so he can seek

the

nullification of the

.f PDAF

Documents

in

t ~ Civil

Case, and

move

for

the

suspension

o

he

criminal

proceedings on

the

ground of

prejudicial question.

8.52. Respondent OMBUDSMAN opined that it is premature

for SENATOR

REVILLA

to question the authenticity of

the PDAF

Documents at

the

stage of

the

preliminary investigation as

it

is a mere

evidentiary matter best raised during trial proper. 7

8.53. Such observation blindly disregards the fact

that

..

SENATOR

REVILLA is merely moving for the suspension of the

47 Joint Order dated 28 January 2014 p. 10.

33

5

I

'I


34/83


35/83

B. RESPONDENT

OMBUDSMAN

GRAVELY

ERRED AND

ACTED WITHOUT OR IN

EXCESS

OF

JURISDICTION

AND WITH

GRAVE ABUSE

OF

DISCRETION. IN DISMISSING

OUTRIGHT

SENATOR REVILLA S COUNTER-CHARGE

AGAINST

DENNIS L. CUNANAN, ANTONIO Y.

ORTIZ, ALAN A. JAVELLANA, GONDELINA G.

AMATA,

SALVADOR

SALAC:UP, MYLENE

T.

ENCARNACION, NEMESIO PABLO, EVELYN

DE

LEON, JOCELYN PIORATO,

JOHN

RAYMUND

DE

ASIS AND RONALDO

JOHN

LIM, BENHUR K.

LUY, MERLINA P. SuNAS AND MARINA SULA.

I '

f

8.56. Respondent OMBUDSMAN likewise committed grave

error and acted without or in excess of its jurisdiction

and

with grave

. abuse of its discretion when it dismissed outright SENATOR

,

.REVILIA s criminal co1nplaint against respondents Dennis L.

Cunanan, Antonio Y. Ortiz, Alan A. Javellana, Gondelina

G.

Amata,

Salvador Salacup, Mylene T. Encarnacion, Nemesio Pablo, Evelyn

De

Leon, Jocelyn Piorato, John Raymund de Asis and Ronaldo John Liln

merely

on the basis that .the factual allegations of the counter-charge

are identical to those already contained

in

the NBI and FIO Criminal

. Complaints against them.so

8.57. According to respondent OMBUDSMAN, the Counter

Charge of SENATOR REVILIA will result in duplication of functions

and unduly burden its office.s

1

t

is a source of wonder, therefore, why

the FIO Criminal Complaint

g ~ i n s t

SENATOR REVILLA was not

dismissed despite the fact that when such was filed, an NBI coin plaint

. I .

against SENATOR

REVILLA.

was already pending. The FIO Criminal

. Complaint, like SENATOR REVILIA s Counter-Charge, has factual

allegations that are identical to those in

the

NBI Criminal

Complaint.s

2

8.58. Thus, respondent OMBUDSMAN effectively ignored the

equal protection rights of SENATOR REVILIA and the fundamental

rules

on

fairness when it failed to consolidate SENATOR REVILIA s

counter-charge to the proceedings quo or,

in

the alternative, dismiss

the FIO Criminal Complaint against him.

8.59. As regards Complainants-Respondents witnesses Benhur

K.

Luy

Merlina P.

Sufi.as

and Marina Sula, respondent

OMBUDSMAN arbitrarily used their inclusion

in

the

DOJ s WPP as

its sole basis

in

denying SENATOR REVILIA s Counter-Charge for

plunder against them. This constitutes patent reversible error,

50

51

52

See Joint Order dated

28 a n u ~ c y

2014,

p. 10.

Joint Order dated 28 January 2014, p.

10.

Ibid.

35

"

3 ( \


36/83

1:i to grave abuse of discretion; on the part of respondent

for three

(3)

reasons.

r8.59.1. First

under

R.A.

No.

6981,

or the "Witness

ection, Security iand Benefit. Act", the certification of

ission into the WPP by the DOJ is binding only upon the

. \i Vincial

or city prosecutor.

Expressio unius est exclusio

lterius,

the express inclusion of one implies the exclusion of all

ers.s3 The law expressly provides:

SEC. 12. Effect ofAdmission ofa State Witness into

the Program. -

The certification into the Program by the

Department shall

be

given full faith and credit

by

the

provincial

or city

prosecutor who is required not to

include Witness

in

the criminal complaint

or

information

and if included therein, to petition the court for his discharge

and exclusion of the accused from the information.

xxx S4

8.59.2. Under

the

law, the provincial or city prosecutor is

Fr>duty-bound

to exclude a State witness from the criminal

i

complaint or information

~

the inere certification of the DOJ

.stems from the statutory grant of control and supervision upon

..the

latter over the for ner.

R.A.

o ~

10071,

or the "Prosecution

Service Act of

2010",

provides:

SEC. 3.

Creation

of

the National Prosecution Service.

-

There is hereby created and established a National

Prosecution Service to be composed of the prosecution staff

in the Office of the Secretary of Justice and such number of

regional prosecution offices, offices of the provincial

prosecutor and offices of the city prosecutor as are

hereinafter provided, which shall be primarily responsible

for the preliminary investigation and prosecution of all cases

involving violations of penal laws under the supervision of

the Secretary of Justice, subject to the provisions of Sections

4, 5 and 7 hereof.

xxx .

SEC. 5. The Prosecution taff and its Functions. -

There

shall be

in

the Office of the Secretary of Justice a prosecution

staff that shall be composed of prosecuting officers in such

number as hereinqelow determined.

t

shall be headed by a

Prosecutor General who shall be as.sisted by the following:

xxx

The

Prosecution

Staff, which

shall

be under

the

control

and

supervision of

the

Secretary of

Justice,

shall have the following functions:

xx x

53 See Commissioner of Internal Revenue v . Michel

J

Lhuillier Pawnshop Inc. G.R. No.

150947,

July

15,

2003.

5 Emphasis and underscoring supplied.

36

38


37/83

,;.B.59.3. R.A. No. 10071 is

not

a revolutionary piece of

$lation insofar as

the

control and supervision of

the

DOJ

. f, .the National Prosecution Service is concerned. Its

, i


38/83

functions shall be vested

in

the Ombudsman, who shall have

supervision and control of the office. xx x

SEC.

13. Mandate.

- The Ombudsman

and

his Deputies, as

protectors of the people, shall act promptly

on

complaints

filed

in

any form

or manner

against officers

or

employees of

the Government,.

or

of any subdivision, agency or

instrumentality thereof, including government-owned or

controlled corporations, and enforce their administrative,

civil and criminal liability in every case where the evidence

warrants in order to promote efficient service by the

Government to the people.

8.59.

7. In

Perez v. Sandiganbayan 55 the Honorable

Court held

that

control means the power of an officer

to

alter

or modify

or

nullify

or

set aside what a subordinate officer

had

done

in the

perfonnance of his duties

and to

substitute

the

judgment of the former for that of

the

latter. Applied to the

proceedings a quo respondent OMBUDSMAN could not have

been easily bound by

the

mere certification of

the

DOJ without

compromising its own control a S to how it deems fit to

discharge its powers

and

functions. Interestingly, among the

powers vested

in


under R.A.

No.

6770

is

the

power to grant im1nunity to a prospective State

witness, thus:

SEC. 17. Immunities.

- In all hearings, inqmnes, and

proceedings of the Ombudsman, including preliminary

investigations of offenses, nor person subpoenaed to testify

as a witness shall be excused from attending and testifying or

from producing books, papers, correspondence, memoranda

and/

or other records on the ground that the testimony or

evidence, documentary or otherwise, required of him, may

tend to incriminate him or subject him to prosecution:

Provided Tharno person shall be prosecuted criminally for

or on account of any matter concerning which

he

is

compelled, after having claimed the privilege against self

incrimination, to testify and produce evidence, documentary

or

otherwise.

Under such terms and conditions as it may determine, taking

into account the pertinent provisions of the Rules of Court,

the Ombudsman may

grant

immunity

from

criminal

prosecution to any person whose testimony

or

whose possession

and

production

of documents or

other

evidence 1nay

be necessary to

determine the

truth

in any hearing inquiry

or

proceeding being

conducted by

the

Ombudsman

or

under

its

authority in

the performance

or in the

furtherance

of its constitutional functions and statutory

objectives. The immunity granted under this and the

immediately preceding paragraph shall

not

exempt the

55

G.R. No. 166062, September 26,

2006.

38

. I

- J

\ ._

11\11


39/83

witness from criminal prosecution for perjury or false

.testimony nor shall he be exempt from demotion or removal

from office.

Any refusal to appear or testify pursuant to the foregoing

provisions shall be subject to punishment for contempt and

removal of the immunity from criminal prosecution.

8.59.8. Clearly, under constitutional and statutory law,

respondent OMBUDSMAN is not bound in any way by

the

,

certification issued by the DOJ. On the contrazy, having been

.:vested with supervision and control over her own affairs,

it

is

mandated to investigate and detennine on its own the existence

of probable cause against complainants' witnesses Benhur K.

,

Luy,

Merlina P.

Sufi.as

and

Marina Sula independent of any

prior certification or arion made ~ the DOJ .

8.59.9. Third respondent OMBUDSMAN is not only

autonomous from, but is even superior over the DOJ with

. respect to the proceedings

a quo. To recall,

the

Counter-Charge

of SENATOR

REVILLA

against Complainants' witnesses

Benhur K. Luy, Merlina P. Sufi.as

and

Marina Sula is for

Plunder, a case cognizable by the Sandiganbayan.s

6

Hence,

respondent OMBUDSMAN has primary jurisdiction over the

same, as provided in

R.A.

No.

6770:

SEC.

15.

Powers Functions

and

Duties. - The Office of the

Ombudsman shall have the following powers, functions and

duties:

1)

Investigate and prosecute

on

its own or

on

complaint

by any person, any act or omission of any public officer or

employee, office or agency, when such act or omission

appears to be illegal, unjust,

i m p ~ o p e r

or inefficient.

t

has

primary j u r i s d i ~ t i o n over cases cognizable by the

Sandiganbayan

and,

in

the exercise of this primary

jurisdiction, it may take over, at any stage, from any

investigatory agency of Government, the investigation of

such cases;

8.59.10.

In Deparhnent

o

Justice v.

Liwag s7 the

Honorable Court emphatically described the supreme position

held by respondent OMBUDSMAN relative to the DOJ, to wit:

Section

13,

Article XI of the Constitution specifically vests in

the Office of the Ombudsman the plenary power to

investigate any malfeasance, misfeasance or non-feasance of

public officers or employees. To

d i ~ c h a r g e

its duty effectively,

the

Constitution

endowed

the

Office

of the

5

6

Sec

3,

R.A.

No. 7080.

57 G.R. No. 149311,

February 11,

2005

39

41


40/83


41/83

I

certainly does not tie

1

the hands { respondent

OMBUDSMAN

from investigating the existence of probable cause for plunder

filed against them by SENATOR

REVILLA.

Respondent

OMBUDSMAN s

conduct in dismissing outright the Counter

Charges filed by SENATOR REVILLA amounts

to

grave abuse

of discretion

. 8.60.

Ultimately, ~ h t SENATOR REVILLA simply prays is for

spondent OMBUDSMAN to perform, rather

than

skirt, its

.011stitutional duty to prosecute complainants' witnesses Benhur

K.

uy,

Merlina P Sufi.as and Marina Sula

. 8.61. Furthermore, ASSUMING WITHOlIT GRANTING that

.there

is a need for

the

admission of a whistleblower into Witness

,:.Protection

Security

and

Benefit Program ( Program )

in

relation to

hhe proceedings

a quo

there is a clear showing

that

admitting all

}:three

of Benhur

K

Luy, Merlina P

Sufi.as.

and Marina Sula constitute

: grave abuse of discretion.

t

should be noted that, according to

Section 10 of R.A. 6981, the following circumstances, a1nong others,

must be present:

1)

there is absolute necessity for his testimony; and

(2) he does not appear to be the most guilty.

8.62.

A close reading of the affidavits of Benhur K. Luy,

Merlina P.

Sufi.as

and

Marina Sula would show

that

all three concoct

he same fabricated story. Indeed, their version of the events that

transpired in relation to the alleged PDAF scam does not become true

because three of them say so.

Once

one whistleblower

has

.already

been

granted admission into the Program and has

already executed

an affidavit

dete tlling

the

alleged crime

committed, there should no longer

be an

absolute

necessity for the

testimony

of the

other

whistleblowers.

Well-settled is the rule that the testiinony of a lone prosecution

witness, as long as

it

is credible

and

positive, can prove

the

guilt of

the

accused beyond reasonable Cloubt.59

8.63. Here, the testimony of one should be sufficient to support

the intrinsically weak Criminal Complaints. The testiinonies of the

other two do not add value

or

credibility to the charges against

SENATOR REVILLA.

There is no absolute necessity for their

testimonies and consequently, their admission to the program.

8.64.

In

fact, the DOJ, as shown by the Certificate of Admission

dated

23

January

2014

also admitted Simonette

R.

Briones and Mary

Arlene B. Baltazar. The blanket

and

liberal adinission to the Program

stifles the prosecution of those who are clearly guilty, and undermines

the integrity of

the

Program itself, not to mention the people's faith in

59 People v. Gonzales, G.R. No. 105689, 23 February 1994.

41

43

J


42/83

',}:probity

and trustwo'rthiness of the people who administer

the

g r m ~

. 8.65. Based on records, the whistleblowers are the only ones

ho

are

guilty of

the

crimes charged. Thus,

the

require1nent

under

RA

8

that the witnesses should not be the most guilty is not and

nnot

be complied with.

8.66.

In

addition to t];ie foregoing, .assu1ning

that

all witnesses

ay be admitted to

the

program,

they

are only immunized with

espect to the cases filed by the DOJ - and not with respect to the

'cases filed by

the

FIO and SENATOR REVILLA.

8.67. At present, there are two separate Criminal Co1nplaints

>filed before respondent OMBUDSMAN. One was filed by the NBI

and

>the other, by the FIO of respondent OMBUDSMAN. These Criminal

Complaints remain to be separate. despite their consolidation. Thus,

when


stated that

it gives full faith and

credit to

the

Certification issued by Secretary De Lima,

60

it should

have found that while the whistleblowers have immunity with

respect to the cases filed by the NBI, they do not have such immunity

from prosecution with regard

to the

FIO Criminal Complaint, much

less on the counter-charge of SENATOR REVILLA against them. This

is

evident

on the

face

of the

Certificate

of

Admission.

8.68. The Certificate bf Admission purportedly issued by the

DOJ and was attached to the Joint Order clearly stated that Benhur

K. Luy, Merlina P. Sufi.as and Marina Sula (together with Simonette

R.

Briones

and

Mary Arlene

B.

Baltazar) were granted ilnmunity only

with respect to the cases filed by the NBI, thus:

60

CERTIFICATE OF

ADMISSION

This is to certify that: .

Naine

ofWitnesses

1. BENHURK. LUY

2. MARINA SULA

3. SIMONETTE R BRIONES

4.

MARY

ARLENE B.

BALTAZAR

5. MERLINA P SuNAS

have

been

granted regular admission. to

the

Program

on 01

December 2013,

pursuant

to

the

provisions of Sections

1 2,

Title

of

the

Implementing Rules

and

Regulations

of

R.A.

6981 (Witness

Protection Security

and

Benefits Act)

for

the following

c ses

Joint

Order dated 28

January

2014,

p. 11.

42


43/83


44/83

violation of

the

rights of

the

applicant respecting the

subject of

the action or

proceeding

and tending to render

the judgment

ineffectual.

9.3.

In

Manila International Airport Authority vs. Rivera

illage Lessee Homeowners Association Incorporated

62

the

Honorable

Court further explained

the

nature of this writ, thus:

Injunction is a preservative remedy aimed at protecting

substantive rights and interests The writ

of

preliminary injunction

is

issued by the court to prevent threatened

or

continuous

irreparable injury to parties before their -claims can be thoroughly

studied and adjudicated. Its sole objective is to preserve the status

quo until the merits of the case can be heard fully. The writ is issued

upon the satisfaction of two requisites, namely:

1)

the existence of

a right to be protected;

and

2)

acts which are violative

of

said right.

In the absence of a clear legal right, the issuance of the injunctive

relief constitutes grave abuse of discretion. Injunction is not

designed to protect contingent or future rights. Where the

complainant's right is doubtful

or

disputed, injunction is not

proper. The possibility of irreparable damage without proof of

actual existing right is not a ground for an injunction.

6

3

9-4. In Medina v. Greenfield Develop1nent Corporation

6

4

the

Honorable Court enu1nerated

the

requisites for

the

proper issuance of

an

injunctive writ, thus:

The purpose of a preliminary injunction is to prevent

threatened

or

continuous irremediable injury to some of the parties

before their claims can ~ thoroughly studied

and

adjudicated. Its

sole aim is to preserve the

1

status qu until the merits of the case can

be heard fully. Thus, to be entitled to an injunctive writ, the

petitioner has the burden to establish the following requisites:

1) a right in esse or a clear

and

unmistakable right to be

protected;

2)

a violation of that right;

(3) that there is an urgent and permanent act

and

urgent

necessity for the writ to prevent serious damage.

6

5

9.5. The Honorable Court elucidated

on the

purpose of

an

injunctive relief as follows:

It is a well-settled rule that the sole object of a preliminary

injunction, whether prohibitory or mandatory, is to preserve the

status quo until the merits of the case can be heard.

It

is usually

granted when it is made to appear that there is a substantial

controversy between the parties

and

one of

them

is committing

an

act or threatening the immediate commission of an act that will

G.R. No. 143870,

30

September 2005,

471 SCRA

358.

Ibid.

at 379-380; emphasis and underscoring supplied.

G R

No. 140228,

19

November

2004,

443

SCRA

150.

Ibid. at 159.

44

G

11


45/83


46/83

5) VVhere the prosecution is

under

an invalid law, ordinance

regulation;

;;:

(6) When double jeopardy is clearly apparent;

7)

Where the court has no jurisdiction over the offense;

(8) Where

i t is

case of persecution rather than

prosecution;

(9) Where the charges are manifestly false and motivated by

lust for vengeance;

(10) When there is clearly no prima facie case against the

accused and a motion to qtiash on that ground has been denied;

(11)

Preliminary injunction

has

been

issued by

the

Supreme

Court to prevent the threatened unlawful arrest of petitioners.

7

; .. 9.8. As applied to the facts of this case,

the

foregoing legal

ackdrop clearly demands that this Honorable Court issue a TRO

'rtd/or a Writ of Preliminary Injunction to stop any further criminal

,prosecution proceedings before the respondent OMBUDSMAN or the

courts.

he grounds for the issuance

o

a

preliminary

injunction

as outlined

in

. Section 3

Rule

58

o he

Rules o

Court

;.are present in this case

. 9.9. As pointed out, ;Section 3, Rule 58 of the Rules of Court

lays

down the grounds or instances which call for the issuance of a

. preliminary injunction. All of the three (3) grounds are present in this

case.

9 10

First

The applicant is entitled to

the

relief demanded,

and the whole

or

part of such relief consists in restraining the

continuance of the act complained of.

9 11 The primary relief de1nanded

in

this Petition is the

annulment, reversal

and

setting aside of the ASSAILED ORDERS

which denied the Motions to Suspend and effectively allowed the

criminal proceedings before respondent OMBUDSMAN to proceed

despite the presence of a prejudicial question. As conclusively

established above, there is a prejudicial question in the Civil Case

which demands the suspension of the proceedings

a quo.

SENATOR

REVILIA, herein applicant of the remedy of TRO and/or preliininary

injunction, is therefore entitled to

the

reli_ef de1nanded.

70 Brocka v. Enrile, G.R. No. 69863-65, 10 December 1990, 192 SCRA 183; citations

omitted; emphasis

and

underscoring supplied.

46


47/83

;

/ 9.12. Second The continuance of

the

acts complained of

ld probably work injustice to the applicant.

:

9.13.

s discussed e a r ~ i e r the ratiopale

behind

the principle of

ejudicial

question is

to

avoid two conflicting decisions.

1

s

it

. ~ a n d s , SENATOR REVILLA is currently involved in litigating three

p r t e cases,

the

Civil Case before

RTC

Bacoor, and

the

FIO

omplaint and

the

NBI Complaint pending before respondent

MBUDSMAN.

t would work as an injustice

to

drag SENATOR

REVILLA to spend a great ainount of tilne, and

an

enorinous amount

f money in order to pursue the Civil Case while at the same time

.defending and subjecting himself

to

the hassle and pain of the two

criminal cases pending before respondent OMBUDSMAN, when a

.decision

in

the

Civil Case could possibly conflict with

the

outcome of

the

cases pending before respondent 0 MBUDSMAN.

9.14. The Honorable Court should restrain

the

proceedings

before

respondent OMBUDSMAN, on account of prejudicial question,

as it

is

unfair and would result to inanifest injustice for SENATOR

REVILLA to continue defending hhnself on several fronts when

the


48/83

ceeding to conduct the proceedings a quo respondent

,BUDSMAN

continuously violates SENATOR REVILLA's right

ted to him by law, rules and jurisprudence.

the

criininal proceedings before respondent

MBUDSMAN are not enjoined, the Constitutional rights of

ENATOR REVILLA will likewise

be

violated. Hence,

an

urgent

~ r o t e t i o n by the preservative remedy of a TRO and / or Prelhninary

junction is absolutely necessary. '

9.20.

SENATOR REVILLA will suffer grave injustice and

, rreparable and far-reaching injury should

the

proceedings before

respondent OMBUDSMAN, :and any u s ~ q u e n t criminal prosecution

arising

from the same,

be

not enjoined.

By

the

time a decision in this

. Petition, which decision, SENATOR REVILLA believes, will reverse

the

ASSAILED

ORDERS, is pro1nulgated without the injunctive relief

being applied for herein being issued in

the

interim, a similar reversal

of the injustice and injury already sustained by SENATOR REVILLA

.would no longer be possible. Considering that the circumstances of

. this case fulfil all of the three (3) requisites laid down in Section 3,

Rule 58 of the Rules of Court, this Honorable Court must issue a TRO

and/or a writ of preliminary injunction to suspend

the

proceedings a

qu pending resolution of this Petition.

The circumst nces 1 hat

justify the

issu nce of n injunctive relief g inst-

crimin l proceeding

re present

in

this case

9.21. At the outset,

it

1

inust

be

emphasized that

the

Honorable

Court may interfere with

the

discretion of respondent OMBUDSMAN

in cases where the latter acted with grave abuse of discretion. In fact,

even

the

power to determine whether

or

not probable cause exists

may be interfered with

by

the Honorable Court i grave abuse of

discretion is evident. This doctrine is expressed in Tetangco v.

Ombudsman 7

2

where

the

Honorable Court held, thus:

It is well-set