3-minute summary of the Estrada v. Bersamin case

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits and documents, fully complied with Sections 3 and 4 of Rule 112 of the Revised Rules of Criminal Procedure, and Section 4, Rule II of the Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7. Both the Revised Rules of Criminal Procedure and the Rules of Procedure of the Office of the Ombudsman require the investigating officer to furnish the respondent with copies of the affidavits of the complainant and affidavits of his supporting witnesses. Neither of these Rules require the investigating officer to furnish the respondent with copies of the affidavits of his co-respondents. The right of the respondent is only “to examine the evidence submitted by the complainant,” as expressly stated in Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure.

The Supreme Court unequivocally ruled in the Paderanga case that “Section 3, Rule 112 of the Revised Rules of Criminal Procedure expressly provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine.” Moreover, Section 4 (a, b and c) of Rule II of the Ombudsman’s Rule of Procedure, read together, only require the investigating officer to furnish the respondent with copies of the affidavits of the complainant and his supporting witnesses. There is no law or rule requiring the investigating officer to furnish the respondent with copies of the affidavits of his co-respondents. (G.R. Nos. 212140-41, January 21, 2015)

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even furnished Sen. Estrada with copies of the counter-affidavits of his co-respondents whom he specifically named, as well as the counter-affidavits of some of other co-respondents. In the 4 June 2014 Joint Order, the Ombudsman even held in abeyance the disposition of the motions for reconsideration because the Ombudsman granted Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to formally respond to the claims made by his co-respondents. The Ombudsman faithfully complied with the existing Rules on preliminary investigation and even accommodated Sen. Estrada beyond what the Rules required. Thus, the Ombudsman could not be faulted with grave abuse of discretion. Since this is a Petition for Certiorari under Rule 65, the Petition fails in the absence of grave abuse of discretion on the part of the Ombudsman. (G.R. Nos. 212140-41, January 21, 2015)

The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are not applicable to preliminary investigations which are creations of statutory law giving rise to mere statutory rights. A law can abolish preliminary investigations without running afoul with the constitutional requirements of due process as prescribed in Ang Tibay, as amplified in GSIS. The present procedures for preliminary investigations do not comply, and were never intended to comply, with Ang Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate with finality rights and obligations of parties, while administrative investigations governed by Ang Tibay, as amplified in GSIS, so adjudicate. Ang Tibay, as amplified in GSIS, requires substantial evidence for a decision against the respondent in the administrative case. In preliminary investigations, only likelihood or probability of guilt is required. To apply Ang Tibay, as amplified in GSIS, to preliminary investigations will change the quantum of evidence required to establish probable cause. The respondent in an administrative case governed by Ang Tibay, as amplified in GSIS, has the right to an actual hearing and to cross-examine the witnesses against him. In preliminary investigations, the respondent has no such rights. (G.R. Nos. 212140-41, January 21, 2015)

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer must be impartial and cannot be the fact-finder, investigator, and hearing officer at the same time. In preliminary investigations, the same public officer may be the investigator and hearing officer at the same time, or the fact-finder, investigator and hearing officer may be under the control and supervision of the same public officer, like the Ombudsman or Secretary of Justice. This explains why Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations. To now declare that the guidelines in Ang Tibay, as amplified in GSIS, are fundamental and essential requirements in preliminary investigations will render all past and present preliminary investigations invalid for violation of constitutional due process. This will mean remanding for reinvestigation all criminal cases now pending in all courts throughout the country. No preliminary investigation can proceed until a new law designates a public officer, outside of the prosecution service, to determine probable cause. Moreover, those serving sentences by final judgment would have to be released from prison because their conviction violated constitutional due process. (G.R. Nos. 212140-41, January 21, 2015)

Sen. Estrada did not file a Motion for Reconsideration of the 27 March 2014 Order in OMB-C-C-13-0313 denying his Request, which is the subject of the present Petition. He should have filed a Motion for Reconsideration, in the same manner that he filed a Motion for Reconsideration of the 15 May 2014 Order denying his motion to suspend proceedings. The unquestioned rule in this jurisdiction is that certiorari will lie only if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law against the acts of the public respondent.[56] The plain, speedy and adequate remedy expressly provided by law is a Motion for Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen. Estrada’s failure to file a Motion for Reconsideration renders this Petition premature. (G.R. Nos. 212140-41, January 21, 2015)
Sen. Estrada also raised in this Petition the same issue he raised in his Motion for Reconsideration of the 28 March 2014 Joint Resolution of the Ombudsman finding probable cause. While his Motion for Reconsideration of the 28 March 2014 Joint Resolution was pending, Sen. Estrada did not wait for the resolution of the Ombudsman and instead proceeded to file the present Petition for Certiorari. The Ombudsman issued a Joint Order on 4 June 2014 and specifically addressed the issue that Sen. Estrada is raising in this Petition. Thus, Sen. Estrada’s present Petition for Certiorari is not only premature, it also constitutes forum shopping. (G.R. Nos. 212140-41, January 21, 2015)