J.A.B. Bulao & Associates

CASE 2016-0016: MARY ROSE A. BOTO VS. SENIOR ASSISTANT CITY PROSECUTOR VINCENT L. VILLENA, CITY PROSECUTOR ARCHIMEDESV.MANABAT AND ASSISTANT CITY PROSECUTOR PATRICK NOEL P. DE DIOS  (A.C. NO. 9684, 16 MARCH 2016, MENDOZA, J.) (SUBJECT/S: PENALTY REDUCED FROM FINE TO REPRIMAND) (BRIEF TITLE: BOTO VS. VILLENA ET AL)

DISPOSITIVE:

“WHEREFORE, the Motion for Reconsideration of respondent Vincent L. Villena is PARTIALLY GRANTED. The penalty imposed upon him is reduced from paying a fine of PI0,000.00 to REPRIMAND.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

“Penalties, such as disbarment, are imposed not to punish but to correct offenders. While the Court is ever mindful of its duty to discipline its erring officers, it also knows how to show compassion when the penalty imposed has already served its purpose.”6

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SCD-2016-0016-BOTO 

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CASE 2016-0015: REPUBLIC OF THE PHILIPPINES VS. NILDA B. TAMPUS (G.R. NO. 214243, 16 MARCH 2016, PERLAS-BERNABE, J.) (SUBJECT/S: JUDICIAL DECLARATION OF PRESUMPTIVE DEATH) (BRIEF TITLE: REPLUBLIC VS. TAMPUS)

DISPOSITIVE:

“WHEREFORE, the petition is GRANTED. Accordingly, the Decision dated June 17, 2013 and the Resolution dated September 2, 2014 rendered by the Court of Appeals in CA-G.R. SP No. 04588 are hereby REVERSED and SET ASIDE. The petition of respondent Nilda B. Tampus to have her husband, Dante L. Del Mundo, declared presumptively dead is DENIED.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

WHAT MUST BE PROVEN BEFORE A JUDICIAL DECLARATION OF PRESUMPTIVE DEATH CAN BE OBTAINED?

IT MUST BE SHOWN THAT: A) THE PRIOR SPOUSE HAS BEEN ABSENT FOR FOUR CONSECUTIVE YEARS AND B) THE PRESENT SPOUSE HAD A WELL-FOUNDED BELIEF THAT THE  PRIOR SPOUSE WAS ALREADY DEAD.

WHAT IS THE LEGAL BASIS IN LAW?

ART 41 OF THE FAMILY CODE  WHICH PROVIDES: A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

WHO HAS THE BURDEN OF PROOF TO SHOW THAT ALL THE REQUISITES UNDER ART. 41 OF THE FAMILY CODE EXIST?

THE PRESENT SPOUSE. BECAUSE HE/SHE IS THE ONE WHO ASSERTS THE AFFIRMATIVE OF THE ISSUE. HE WHO ALLEGED A FACT HAS THE BURDEN OF PROVING IT AND MERE ALLEGATION IS NOT EVIDENCE.

WHAT DOES “WELL-FOUNDED BELIEF” MEANS?

IT MEANS THAT THE PRESENT SPOUSE MUST PROVE THAT HIS/HER BELIEF WAS THE RESULT OF DILIGENT AND REASONABLE EFFORTS TO LOCATE THE ABSENT SPOUSE AND THAT BASED ON THESE EFFORTS AND INQUIRIES, HE/SHE BELIEVES THAT UNDER THE CIRCUMSTANCES, THE ABSENT SPOUSE IS ALREADY DEAD. IT NECESSITATES EXERTION OF ACTIVE EFFORT, NOT A PASSIVE ONE. AS SUCH, THE MERE ABSENCE OF THE SPOUSE FOR SUCH PERIODS PRESCRIBED UNDER THE LAW, LACK OF ANY NEWS THAT SUCH ABSENTEE SPOUSE IS STILL ALIVE, FAILURE TO COMMUNICATE, OR GENERAL PRESUMPTION OF ABSENCE UNDER THE CIVIL CODE WOULD NOT SUFFICE.22 THE PREMISE IS THAT ARTICLE 41 OF THE FAMILY CODE PLACES UPON THE PRESENT SPOUSE THE BURDEN OF COMPLYING WITH THE STRINGENT REQUIREMENT OF “WELL-FOUNDED BELIEF’ WHICH CAN ONLY BE DISCHARGED UPON A SHOWING OF PROPER AND HONEST-TO-GOODNESS INQUIRIES AND EFFORTS TO ASCERTAIN NOT ONLY THE ABSENT SPOUSE’S WHEREABOUTS, BUT MORE IMPORTANTLY, WHETHER THE LATTER IS STILL ALIVE OR IS ALREADY DEAD.

WHY WAS RESPONDENTS’ EVIDENCE NOT SUFFICIENT?

THE COURT RULED:

“In this case, Nilda testified that after Dante’s disappearance, she tried to locate him by making inquiries with his parents, relatives, and neighbors as to his whereabouts, but unfortunately, they also did not know where to find him. Other than making said inquiries, however, Nilda made no further efforts to find her husband. She could have called or proceeded to the AFP headquarters to request information about her husband, but failed to do so. She did not even seek the help of the authorities or the AFP itself in finding him. Considering her own pronouncement that Dante was sent by the AFP on a combat mission to Jolo, Sulu at the time of his disappearance, she could have inquired from the AFP on the status of the said mission, or from the members of the AFP who were assigned thereto. To the Court’s mind, therefore, Nilda failed to actively look for her missing husband, and her purported earnest efforts to find him by asking Dante’s parents, relatives, and friends did not satisfy the strict standard and degree of diligence required to create a “well-founded belief’ of his death.

Furthermore, Nilda did not present Dante’s family, relatives, or neighbors as witnesses who could have corroborated her asseverations that she earnestly looked for Dante. These resource persons were not even ~ named. In Republic v. Nolasco,24 it was held that the present spouse’s bare assertion that he inquired from his friends about his absent spouse’s whereabouts was found insufficient as the names of said friends were not identified in the testimony nor presented as witnesses.25

Finally, other than Nilda’s bare testimony, no other corroborative evidence had been offered to support her allegation that she exerted efforts to find him but was unsuccessful. What appears from the facts as. established in this case was that Nilda simply allowed the passage of time without actively and diligently searching for her husband, which the Court cannot accept as constituting a “well-founded belief’ that her husband is dead. Whether or not the spouse present acted on a well-founded belief of death of the absent spouse depends upon the inquiries to be drawn from a great many circumstances occurring before and after the disappearance of the absent spouse and the nature and extent of the inquiries made by the present spouse.”

IN EFFECT WHAT WAS THE CONCLUSION OF THE COURT?

RESPONDENT FALL SHORT OF THE STRINGENT STANDARD AND DEGREE OF DUE DILIGENCE REQUIRED BY JURISPRUDENCE TO SUPPORT HER CLAIM OF A “WELL-FOUNDED BELIEF’ THAT HER HUSBAND DANTE IS ALREADY DEAD.

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SCD-2016-0015-TAMPUS

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CASE 2016-0014: JESSICA LUCILA G. REYES VS. THE HONORABLE OBMUDSMAN (G.R. NOS; 212593-94, 15 MARCH 2016, PERLAS-BERNABE J.) (AND OTHER CASES: GR NO. 213163-78; G.R. NOS. 213540-41; G.R. NOS. 213542-43; G.R. NOS. 215880-94; G.R. NOS. 213475-76)

DISPOSITIVE:

“WHEREFORE, the petitions are DISMISSED for lack of merit. Accordingly,  the assailed Resolutions and Orders of the Office of the Ombudsman  and the Sandiganbayan are hereby AFFIRMED.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

“Their arguments fail to persuade.

Once the public prosecutor (or the Ombudsman) determines probable cause and thus, elevates the case to the trial court (or the Sandiganbayan), a judicial determination of probable cause is made in order to determine if a warrant of arrest should be issued ordering the detention of the accused. The Court, in People v. Castillo,242 delineated the functions and purposes of a determination of probable cause made by the public prosecutor, on the one hand, and the trial court, on the other:

There are two kinds of determination of probable case: executive and judicial. The executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant. 243 (Emphasis and underscoring supplied)

As above-articulated, the executive determination of probable cause concerns itself with whether there is enough evidence to suppot1 an Information being filed. The judicial determination of probable cause~ on the other hand, determines whether a warrant of arrest should be issued. 24~ ‘

This notwithstanding, the Court in Mendoza v. People245 (Mendoza) clarified that the trial court (or the Sandiganbayan) is given three (3) distinct options upon the filing of a criminal information before it, narriely to1: (a) dismiss the case if the evidence on record clearly failed to establish probable cause; ( b) issue a warrant of arrest if it finds probable cause; and ( c) order the prosecutor to present additional evidence in case of doubt as to the existence of probable cause.246 The Court went on to elabqrate that “the option to order the prosecutor to present additional evidence is not mandatory” and reiterated that “the court’s first option x x x is·. for it to ‘immediately dismiss the case if the evidence on record clearly fails to establish probable cause. “‘247 ·

Verily, when a criminal Information is filed before the trial court, the judge, motu proprio or upon motion of the accused, is entitldd to make his own assessment of the evidence on record to determine whether there is probable cause to order the arrest of the accused and proceed:with the trial; or in the absence thereof, to order the immediate dismissal df the criminal case.248 This is in line with the fundamental doctrine that “once a complaint or information is filed in court, any disposition of the case, whether as to its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court.”249 Nevertheless, the Court, in Mendoza cautions the trial courts in proceeding with dismissals of this nature:

Although jurisprudence and procedural rules allow it, a judge must always proceed with caution in dismissing cases due to lack o( probable cause, considering the preliminary nature of the evidence before it. It is only when he or she finds that the evidence on hand absolutely fails to support a finding of probable cause that he or she can dismiss th~ case. On ‘ . the other hand, if a judge finds probable cause, he or she must not hesitate I to’ proceed with arraignment and trial in order that justice may be served.250 I

A careful study of the records yields the conclusion that the ~eci,uirement to personally evaluate the report of the Ombudsman, and its supporting documents, was discharged by the Sandiganbayan when it explicitly declared in its Resolution251 dated July 3, 2014 that it had “p~rson~lly [read] and [evaluated] the Information, the Joint Resolution f “, ‘ dated March 28, 2013 and Joint Order dated June 4, 2013 of the f ‘ ‘ ·. [0?.1budsman ], together with the a~ove-enumerated documents, including ·the,1~ annexes and attachments, which are all part of the records of the pteliminary investigation x x x. “252 A similar pronouncement was made by the Sandiganbayan in its Resolution253 dated September 29, 2014, wherein it was said that “[a]fter further considering the records of these cases and due deliberations, the Court finds the existence of probable cause against the said accused xx x.”254 Later on, in a Resolution255 dated November 14, 2014, the Sandiganbayan affirmed its earlier findings when it held that the presence of probabl~ cause against all the accused “was already unequivocally settled x x x in its [Resolution] dated July 3, 2014 x x x.”256 Besides, the ‘Sandiganbayan should be accorded with the presumption of regularity in the perfomiance of its official duties. 257 This presumption was not convincingly overcome by either Reyes or the Napoles siblings through clear and convirn~ing evidence, and hence, should prevail. 258 As such, the Ombudsman’s finding of probable cause against, inter alia, Reyes and the Napoles siblings was judicially confirmed by the Sandiganbayan when it examined the evidence, found probable cause, and issued warrants of arrest . against them. 259

Also, the Court cannot lend any credence to Reyes’s protestations of haste qn the part of the Sandiganbayan in issuing the assailed Resolutions, absent any clear showing that the presumed regularity of the proceedings has been breached. Reyes would do well to be reminded of the Court’s ruling in Leviste v. Alameda260 wherein it was instructed that “[s]peed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an injudicious performance of functions. For one’s prompt dispatch may be another’s undue haste. The orderly administration of justice remains as the paramount and constant consideration, with particular regard of the circumstances peculiar to each case.” 261 i : :’

 Finally, no grave abuse of discretion may be imputed bn the~ part of the andiganbayan in denying Reyes ‘s motion to suspend prdceedings against her in view of her filing of a petition for certiorari qhestioning the Ombudsman’s issuances before the Court, i.e., G.R. Nos. 212593-94′. Under Section 7, Rule 65262 of the Rules of Court, a mere pendendy of a. special civil action for certiorari in relation to a case pending before *1e ~emit a’ quo does not ipso facto stay the proceedings therein, unless the higher· court issues a temporary restraining order or a writ of preliminary 1 ibjunction against the conduct of such proceedings. Otherwise stated, I a petition for certiorari does not divest the lower courts of jurisdiction vdlidly acquired over the case pending before them. Unlike an appeal, a petition for certiorari is an original action; it is not a continuation of the proceedin~s in the lower court. It is designed to correct only errors of jurisdiction, i*cluding grave abuse of discretion amounting to lack or excess of jurisdictitjn. Thus, under. Section 7 of Rule 65, the higher court should issue against the public respondent a temporary restraining order or a writ of prelimi~ary injunction in order to interrupt the course of the principal case. The peti~oner in a Rule 65 petition has the burden of proof to show that there is a meritorious ground for the issuance of an injunctive writ or order to suspend the proceedings before the public respondent. She should show the existende .of an urgent necessity for the writ or order, so that serious damage may ~e prevented.263 In this case, since the Court did not issue any temporary rdstraining order and/or a writ of preliminary injunction in G.R. Nos. 212593-94, then the Sandiganbayan cannot be faulted for continuing with the pro6eedings before I it. I

Hence, overall, the Sandiganbayan did not gravely abuse its discretion in judicially determining the existence of probable cause against Reyes and the Napoles siblings; and in denying Reyes’s Urgent Mot1on to Suspend Proceedings. Perforce, the dismissal of G.R. Nos. 213163-78 and G.R. Nos. 215880-94 is in order.

The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or trib nal, absent a temporary restraining order or a preliminary injunction, or upon its expiratjon. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge. 1 263 Trajano v. Uniwide Sales Warehouse Club, G.R. No. 190253, June 11, 2014, 726 SCRA 298, 312.”

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 SCD-2016-0014-JESSICA LUCILA G. REYES

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