REPUBLIC OF THE PHILIPPINES SUPREME COURT Manila

Transcription

1 REPUBLIC OF THE PHILIPPINES SUPREME COURT Manila VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS and REY CLARO C. CASAMBRE, Petitioners, G.R. No FOR: CERTIORARI and - versus - PROHIBITION with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR JOSELITA C. MENDOZA, SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ, STATE PROSECUTOR IRWIN A. MARAYA and STATE PROSECUTOR MERBA A. WAGA, in their capacity as Members of the Department of Justice Panel of Prosecutors Investigating I.S. Nos , and , JUSTICE SECRETARY RAUL M. GONZALEZ, DIRECTOR GENERAL ARTURO C. LOMIBAO, in his capacity as Chief, Philippine National Police, P/CSUPT. RODOLFO B. MENDOZA, JR. and P/SSUPT. YOLANDA G. TANIGUE, Respondents. x x P E T I T I O N Petitioners VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS and REY CLARO C. CASAMBRE, by counsel, respectfully state: Prefatory Statement Proclamation 1017 has given birth to a prosecutorial Frankenstein. Emboldened and enabled by the Presidential proclamation of a State of National

2 Page 2 Emergency, the government has encouraged the PNP s stalking of the political opposition and the overzealousness of the Department of Justice, at the price of fairness and process. The overreaching of the pillars of the criminal justice system is a problem that is growing the police resort to trumped-up charges using fabricated evidence, while the prosecutors aggressively flex prosecutorial muscle and abuse prosecutorial discretion even as they adopt newly minted procedure for vague and loose indictments. There are problems when the government oversteps its prosecutorial authority. The first is their targets. One would have thought that having decided to undercut and gut the constitutional processes, the government would have at least reserved their prosecutorial zeal and vigor for the worst offenders. Instead, charges are being filed against, if the PNP claim proves accurate, individuals whom their own witness could not directly allege personal participation in any specific crime. Then there is the problem with the charges. The PNP has had to put together amorphous, baseless, and conjured stories using dishonest witnesses who are not only intellectually disreputable, but barely comprehensible in their tall tales which require a tremendous stretch of credulity. Then, of course, there is the problem with the process. To play its role in the persecution process, the DOJ becomes duty-bound to make a finding of probable cause on the basis of the flimsiest, most absurd and inane lot of evidence, a mix and match of discredited and contrived witnesses and accused, by no means other than a runaway process which cannot produce the closest approximation of even the bare standards of fairness. Indeed, times of crisis call for special responses, and of course, fairness and process can give way in an emergency or when the matter concerns terrorists of the Jamal Islamia or the Al-Qaida. But persons who are merely known to be, or even just

3 Page 3 perceived to be, political dissenters, as in the case of the herein Petitioners, just don t come close. In reckless, malevolent and vindictive abandon of the established rules of fair play and with capricious, wanton and unrestrained disregard for the constitutional rights of individuals belonging to the political opposition, this case smacks of the very situation Justice Santiago Kapunan warned against in 1998, 1 wherein the Department of Justice allowed its noble office to be exploited, used and prostituted for political ends, subversive of the basic and fundamental objective of guaranteeing that the interest of justice be made to operate evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. We ask the Court to witness the litany of prosecutorial misdeeds -- a sham preliminary investigation being hastily undertaken by the Respondents with manifest bad faith and in glaring violation of their constitutional and procedural rights -- which may yet be the dramatic steps in the slide down a dangerous anti-constitutional spiral. (1) Based on mere letters-referral signed by Respondent Police Officers, not sworn before a person authorized to administer oaths as required by the Rules and existing jurisprudence, the herein Petitioners have been compelled by a specially-created DOJ Panel of Prosecutors to respond to the baseless charges and file a Counter-Affidavit in their defense; (2) The letters-referral are for two (2) different Rebellion cases: first, PNP- DIDM vs. Jose Ma. Sison (and 48 others), referring to alleged plans by the CPP/NPA to raise the level of the people s war and make all-around advances in the revolution docketed as I.S. No ; and second, PNP-DIDM vs. 1Lt Lawrence San Juan (and 16 others), referring to a 1 Duterte vs. Sandiganbayan, 289 SCRA 721.

4 Page 4 tactical alliance or linking up of the Partidong Komunista ng Pilipinas and the Makabayang Kawal ng Pilipinas, docketed as I.S. No ; (3) Despite the marked difference in the acts complained of, the period covered by the said acts, the varying identities of the Respondents being charged in the cases, and the list of witnesses named in the two (2) letters-referral, I.S. Nos and are undergoing a consolidated preliminary investigation by the DOJ Panel of Prosecutors; together with a third charge of Rebellion, entitled PNP-CIDG vs. Hon. Satur Ocampo, (and 4 other Party- List Representatives), which is docketed as I.S. No ; (4) Petitioners herein are charged only in I.S. No ; however, due to the baseless and unprocedural consolidation of the preliminary investigations of the three (3) cases referred to the DOJ, they are in peril of being made to answer not only for the charge leveled against them by the PNP, but also for those which refer to the other cases; (5) The confusion of the three (3) cases is deliberate and intentional on the part of the Panel of Prosecutors, inasmuch as during the consolidated preliminary investigation, upon instruction by the Respondent Prosecutors, the herein Petitioners were handed voluminous documents by the PNP without any indication whatsoever what these piles of documents represent or what case/s they pertain to - the copious papers were literally dumped in their laps in total disregard for the herein Petitioners constitutional right to be informed of the charges against them; (6) Worse, the curious turn-over of the numerous affidavits forming part of the voluminous evidences (sic) by the PNP to the herein Petitioners was staged by the Panel of Prosecutors at the DOJ Multi-Purpose Hall, not so much to give space to the Respondents lawyers, but more to accommodate the media,

5 Page 5 who were allowed to cover the proceedings live on national radio and television an obvious ploy to make a spectacle of the situation and create a public perception that the PNP has an overflow of evidence against the herein Petitioners. Clearly, this media play was in violation of the herein Petitioner s right to a fair trial; (7) On the other hand, the PNP s palpable disparagement of the Constitutional rights of the herein Petitioners to confront the witnesses against them is demonstrated by the fact that of all the 96 witnesses named by the PNP in the letter-referral for I.S. No , not one appeared before the Investigating Panel of Prosecutors to subscribe to their affidavit. That the Panel of Prosecutors allowed it is an atrocious disrespect for the herein Petitioners rights, to say the least; (8) The lone witness that appeared before the Investigating Panel of Prosecutors during the preliminary investigation was a masked man claiming to be one Jaime Beltran Fuentes, who was displayed and paraded before the media by the PNP; and was allowed by the Investigating Panel of Prosecutors to subscribe to his affidavit without first requiring him to remove his mask so that the Respondent Prosecutors could see his face and ascertain his true identity; (9) The fact that this masked man s Salaysay was actually transmitted to the DOJ by the PNP for inclusion to I.S. No did not stop the Respondent Prosecutors from distributing copies thereof to the press and to those who were not charged under the said case, including the herein Petitioners. Indeed, this calculated muddling of cases and evidence is a barefaced and shameless violation of the Petitioners right to be informed of the nature and cause of the charges against them and to confront the witnesses for the purpose;

6 Page 6 (10) By not dismissing the charges below despite the fact they are fatally wanting of the required affidavit of complainant, and by not requiring the appearance of witnesses before them to enable them to ascertain their existence and identities and for said witnesses to subscribe and swear to their respective affidavits, the Investigating Panel of Prosecutors imprudently ignored the rules of procedure on preliminary investigation; (11) Appalling is the fact that of the 96 witnesses named by the PNP in its letterreferral for I.S. No , the name of herein Petitioners LADLAD and SANTIAGO were only mentioned in one affidavit, that of a certain Raul Cachuela; while the names of Petitioners ECHANIS and CASAMBRE were not even mentioned in any! Worse, Cachuela confesses in the Affidavit only knowing of the names of the said Petitioners but admits not having seen them personally during the Plenum he was describing. This only underscores the serious blunder of requiring the herein Petitioners to present controverting evidence by means of a Counter-Affidavit; (12) By all indications, the Investigating Panel of Prosecutors are hurriedly proceeding with the sham preliminary investigating below despite knowing very well that they could not possibly comply with the rule that when the the investigating prosecutor finds cause to hold the respondent for trial, he is required to certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; (13) It has become apparent that the Prosecutors are hell-bent on charging the Respondents in Court at whatever cost, after the sham preliminary investigation of the Petitioners herein, as shown in their deliberate effort to correct the fatal defects of the instant charges by specifying in the questioned

7 Page 7 4 April 2004 Order that the Counter-Affidavits of the Respondents may be (s)ubscribed before any government official authorized to administer oath or before a notary public. This is clearly a clever ploy to place the Counter- Affidavits of the Respondents in the same footing as the Affidavits of the socalled witnesses presented by the PNP. However, this is clearly violative of the rule that the Affidavits of the Complainant and his witnesses, as well as the Counter-Affidavits of the Respondent and his witnesses, shall be sworn to before any prosecutor or government official authorized to administer oath and it is only in their absence or unavailability that said affidavits may be sworn to before a notary public; (14) Consistent with the methodical confusion being perpetuated by the DOJ, the Panel of Prosecutors and the Secretary of Justice have refused to show and disclose the order designating the prosecutors tasked with conducting the consolidated preliminary investigation below. And yet, the records of the sham preliminary investigation will show that there are actually several panels conducting preliminary investigation, in addition to the Investigating Panel of Prosecutors composed of public respondents VELASCO, MENDOZA, GUTIERREZ, MARAYA and WAGA, who issued the questioned 4 April 2006 Order, to wit: (a) a panel composed of Chief State Prosecutor Jovencito R. Zuño, Senior State Prosecutor Edwin Dayog and State Prosecutors Melvin Abad and Respondent Maraya, who issued the subpoena in I.S. No ; (b) another panel composed of Respondents Velasco, Gutierrez and Maraya, and Senior State Prosecutor Rosalina P. Aquino and State Prosecutor Ma. Cristina P. Rilloraza, who issued the subpoena in I.S. No ; and, (c) yet another panel composed of Senior State Prosecutors Deanna P. Perez and Edwin S. Dayog, State Prosecutor Melvin J. Abad and Public Respondent WAGA, who issued the subpoena in I.S. No ;

8 Page 8 (15) Despite what appears to be the three (3) Panels of Investigating Prosecutors handling the cases, however, Respondent VELASCO issued the questioned 22 March 2006 Order all by his lonesome self, and not as a member of any of the above investigating panels of prosecutors but as Chairman, Task Force on Rebellion ; and, (16) More deplorable is the fact that this Respondent VELASCO refused to inhibit himself from the sham proceedings below despite the fact that he is already prosecuting 1Lt Lawrence San Juan and Anakpawis Representative Crispin Beltran in Criminal Case No for Rebellion before the RTC-Makati City, which stemmed from I.S. No Public Respondents VELASCO, GUTIERREZ and MARAYA were also part of the Inquest Panel of Prosecutors which earlier found probable cause against Lt. San Juan and Representative Beltran for the crime of Rebellion in I.S. No , and should have recused from any involvement in the preliminary investigation of the other respondents therein. Unless restrained by the Honorable Court, the Public Respondents will continue using the strong arm of the law, and abusing the criminal process, to deprive Petitioners of their constitutional and procedural rights. The perversion of the State of National Emergency as constituting an unbridled right for the Police to methodically fabricate evidence against political activists and for Prosecutors to mock their due process rights must be stopped, before this prosecutorial Frankenstein devours the entire gamut of our citizens fundamental liberties into oblivion. I. NATURE OF THE PETITION 1. This is a petition under Rule 65 of the 1997 Revised Rules of Civil Procedure for: (A) Certiorari, to nullify the following

9 Page 9 a. Order dated 22 March 2006 issued by public respondent Senior State Prosecutor Emmanuel Y. Velasco as Chairman, Task Force on Rebellion in I.S. Nos , 226 and 234, and b. Order dated 4 April 2006 issued by the Investigating Panel of Prosecutors composed of public respondents Senior State Prosecutors Emmanuel Y. Velasco, Joselita C. Mendoza and Aileen Marie S. Gutierrez, and State Prosecutors Irwin A. Maraya and Merba A. Waga, in the sham preliminary investigation in Consolidated I.S. Nos , and , for being violative of the constitutional right of the Petitioners to due process of law and having been issued without authority of law and/or with grave abuse of discretion amounting to lack and/or excess of jurisdiction; (B) Prohibition, to stop further actions and proceedings made and are being made in the sham preliminary investigation in Consolidated I.S. Nos , and , likewise for being violative of the Revised Rules on Criminal Procedure, particularly Rule 112 on Preliminary Investigation, and the constitutional right of petitioners to due process of law and for having been issued/carried out without authority of law and/or with grave abuse of discretion amounting to lack and/or excess of jurisdiction; and (C) Temporary Restraining Order and/or Preliminary Injunction, to immediately enjoin the further continuance of the sham preliminary investigation/court prosecution of the herein Petitioners, pending the resolution of the main issues presented. 2. There being a very urgent need to resolve the issues presented herein and considering that Public Respondents are hell bent on proceeding with a sham preliminary investigation and charging petitioners with the crime of Rebellion, which is a nonbailable offense, and having no other plain, speedy and adequate remedy in the ordinary course of the law, Petitioners have come to the Honorable Court for relief. 3. Certiorari and prohibition are applicable to the instant case pursuant to Article VIII, Section 1 of the 1987 Philippine Constitution.

10 Page 10 Timeliness 4. Petitioners received a copy of the questioned 22 March Order on 23 March A certified true copy of the same is hereto attached as Annex A. 5. Petitioners immediately moved for the reconsideration thereof, however, Public Respondent Prosecutors, in the questioned 4 April 2006 Order, denied the said Motion for Reconsideration, as well as Petitioners Omnibus Motion (to dismiss for lack of affidavits of the complainant, etc., to exclude witness/strike out affidavits and inadmissible evidence, etc.). 6. For unknown reasons, the Panel of Prosecutors attempted to have the said 4 April 2006 Order served on Petitioners LADLAD and SANTIAGO at an office other than that given by their respective lawyers during the 23 March 2006 preliminary investigation hearing. The herein Petitioners thus took it upon themselves to secure a copy of the said Order on their own, on 5 April A certified true copy of the same is hereto attached as Annex B. 7. Petitioners did not deem it fit to file a Motion For Reconsideration of the questioned 4 April 2006 Order because, in the said Order, they were given until 10 April 2006 within which to file their Counter-Affidavits, which deadline was expressly stated as non-extendible, to wit: (t)his five-day period is non-extendible, with the word nonextendible both in bold letters and underscored. Thus, any Motion For Reconsideration will be an exercise in futility because it will surely be rendered moot and academic by the resolution of the sham preliminary investigation right after the non-extendible deadline for the submission of Petitioners Counter-Affidavits. 8. Besides, as will be shown below, the questioned Orders are patently illegal. II. PARTIES 9. Petitioners may be served with summons, notices, court papers and the like through undersigned counsel Petitioner Vicente P. Ladlad (hereinafter, LADLAD) is of legal age, Filipino, and with postal address c/o FLAG Office,

11 Page 11 Room 116, UP Alumni Center, Magsaysay Avenue, UP Campus Diliman, QC; 9.2. Petitioner Nathanael S. Santiago (hereinafter, SANTIAGO) is likewise of legal age, Filipino, and with postal address c/o PILC Office, KAIJA Bldg., 7836 Makati Avenue corner Valdez Street, Makati; 9.3. Petitioner Randall B. Echanis (hereinafter, ECHANIS) is likewise of legal age, Filipino, and with postal address c/o Sanidad Law Office, 2/F Eastside Building, 77 Malakas Street, Barangay Pinyahan QC; and 9.4. Petitioner Rey Claro C. Casambre (hereinafter, CASAMBRE) is likewise of legal age, Filipino and with postal address c/o PILC Office, KAIJA Bldg., 7836 Makati Avenue corner Valdez Street, Makati. 10. Public Respondent Senior State Prosecutor Emmanuel Y. Velasco (hereinafter, VELASCO) is of legal age, Filipino, and with office address at the Department of Justice, Padre Faura, Manila, where he may be served with the orders and other processes of the Honorable Court. He presides over the sham preliminary investigation hearings and issued the questioned 22 March 2006 Order on the claim of being Chairman, Task Force on Rebellion. 11. Public Respondents Senior State Prosecutor Joselita C. Mendoza (hereinafter, MENDOZA), Senior State Prosecutor Aileen Marie S. Gutierrez (hereinafter, GUTIERREZ), State Prosecutor Irwin A. Maraya (hereinafter, MARAYA) and State Prosecutor Merba A. Waga (hereinafter, WAGA) are all of legal age, Filipinos, and with office address at the Department of Justice, Padre Faura, Manila, where they may be served with the orders and other processes of the Honorable Court. They are members of the INVESTIGATING PANEL OF PROSECUTORS which is conducting the sham preliminary investigation hearings and issued the questioned 4 April 2006 Order herein.

12 Page Respondent Justice Secretary Raul M. Gonzalez (hereinafter, GONZALEZ) is likewise of legal age, Filipino, and with office address also at the Department of Justice, Padre Faura, Manila, where he may be served with the orders and other processes of the Honorable Court. He is impleaded herein in his personal capacity and as the incumbent Secretary of Justice. 13. Respondent Police Director General Arturo C. Lomibao (hereinafter, LOMIBAO) is likewise of legal age, Filipino, and with office address also at the PNP Headquarters, Camp Crame, Quezon City, where he may be served with the orders and other processes of the Honorable Court. He is impleaded herein in his personal capacity and as Chief of the Philippine National Police, complainant in the questioned proceedings. 14. Respondents P/CSupt. Rodolfo B. Mendoza, Jr. (hereinafter, MENDOZA) and P/SSupt. Yolanda G. Tanigue (hereinafter, TANIGUE) are likewise of legal age, Filipinos, and with office address at the PNP Directorate for Investigation and Detective Management, Camp Crame, Quezon City, where they may be served with the orders and other processes of the Honorable Court. They are impleaded herein in their personal capacity and as Acting Deputy Director and Acting Executive Officer, respectively, of the PNP-DIDM, in which capacities they signed the letters-referral dated 27 February III.STATEMENT OF FACTS 15. On 8 March 2006, Petitioners learned of a "Subpoena to Respondents" in the case entitled "Phil. National Police Directorate for Investigation and Detective Management, Complainant, versus Jose Maria Sison, et al.," docketed as I.S. No The subpoena listed twenty-nine (29) Respondents by name, including herein Petitioners, and eight (8) John and Jane Does. It indicated the offense charged as, "(v)iolation of Art. 134 in relation to Art. 135 of the Revised Penal Code." A copy of the subpoena is attached to this Petition as Annex "C." 16. The subpoena came without the complaint and supporting documents required by the Revised Rules of Criminal Procedure. Instead, it directed the Petitioners to appear at

13 Page 13 the DOJ on 13 March 2006 at 2:00 p.m., " to secure copies of the complaint and its attachments." 17. On 13 March 2006, Petitioners appeared at the preliminary investigation through their respective counsels. Instead of the usual simple and brief proceedings in the quiet of the investigating prosecutor s room, Respondent VELASCO chose to conduct the preliminary investigation at the large hall on the third floor of the Department of Justice (DOJ) Multi-Purpose Building. At the time Petitioners counsels arrived at the hall, the same was already full of members of the press. 18. It was only at that 13 March 2006 preliminary investigation hearing that the herein Petitioners came to know that the preliminary investigation of their case has been consolidated with that of two other cases, specifically, I.S. No (PNP- DIDM vs. 1 st Lt Lawrence San Juan and 15 others) and I.S. No (PNP- CIDG vs. Hon. Satur Ocampo, and 4 other Party-List Representatives), in which none of the herein Petitioners were impleaded or charged. 19. To the surprise of counsels present then, instead of being furnished with a copy of the complaint and its attachments, the following proceedings took place: Amidst much fanfare, Respondent VELASCO called upon the PNP to bring out a masked man who, while claiming to be a certain Jaime Beltran Fuentes, and without being required to remove his mask, was allowed by VELASCO to affirm his affidavit "under oath" before Respondent GUTIERREZ. "D." A copy of the masked-man s Affidavit is attached to this Petition as Annex Throughout the proceedings, the man refused to show his face and kept it hidden behind a shirt wrapped around his head. None of the Respondents were allowed to see the face of the masked man, and hence had no way of verifying his identity or confirming if he was, in fact, really Jaime Beltran Fuentes. Respondent VELASCO allowed it.

14 Page Respondent VELASCO then caused the distribution of copies of the masked-man's Affidavit, not only to the counsels for the herein Petitioners, but also to the media. Worth mentioning is the fact that the Fuentes Affidavit was presented by the PNP for incorporation into the records of I.S. No , i.e., (PNP-CIDG vs. Hon. Satur Ocampo and 4 other Party-List Representatives), in which case none of the herein Petitioners were impleaded as Respondents Thereafter, a 4-inch thick bundle of documents containing a PNP-DIDM letter-referral to the DOJ dated 27 February 2006 and its voluminous attachments, but without any indication as to which I.S. case the documents were for, were then given to all the counsels present. Respondents were instructed by Respondent VELASCO to submit their counter-affidavits on the next scheduled preliminary investigation on 23 March The PNP-DIDM letter-referral to the DOJ dated 27 February 2006 which charges 41 individuals, 8 more named by mere aliases, and several other John and Jane Does, was signed by Respondent MENDOZA but was not subscribed or sworn to before any person authorized to administer oaths. It alleges that: Investigation disclosed that in its national plenum, JOSE MARIA SISON aka ARMANDO LIWANAG, the recognized Chairman of the Communist Party of the Philippines/New People's Army (CPP/NPA) in conspiracy with the above-named individuals, drew up a '3-year plan for ' to raise the level of the people's war and make all-round advances in the revolution. Foremost in their plan was the ousting of PGMA from the presidency by launching the three (3) stages of the people's war, to include setting up or (sic) armed city partisans and broadening its legal fronts. x x x This 3-year program for expanding and consolidating the NPA which was earlier decided, has been extended by its political bureau by one year to 2006 in order to provide ample time to the NPA and other revolutionary forces to fulfill the targets of their program. A copy of the letter-referral is attached to this Petition as Annex "E."

15 Page The enclosures to the letter-referral comprised of 161 evidences (sic), including 96 affidavits. Of the mass of documents, however, only one (1) -- that of a certain Raul Cachuela -- mentioned the names of Petitioners LADLAD and SANTIAGO. This Cachuela never appeared before the Investigating Panel to subscribe to his Affidavit. A closer look at the Affidavit, however, reveals that Cachuela only knows of the names of LADLAD and SANTIAGO, but admits not having actually seen them, or the other Petitioners herein, in the Plenum he was describing. Annex "F. A copy of the alleged Raul Cachuela Affidavit is attached to this Petition as 22. Despite the fact that the 10-day period to file Counter-Affidavits was already running, Respondent TANIGUE sent the herein Petitioners counsels on 20 March 2006, copies of a 14 March 2006 letter-request to the DOJ for the incorporation of nine (9) new Affidavits into the records of I.S. No (PNP-DIDM vs. 1 st Lt. Lawrence San Juan and 15 others). Again, while herein Petitioners are not charged in the said case, they were furnished copies of the said documents. 23. On 20 March 2006, the Respondents in the three (3) criminal cases undergoing preliminary investigation before the DOJ, including the herein Petitioners, filed a Motion for the Inhibition of Justice Secretary Gonzalez, Chief State Prosecutor Zuño, and the Panel of Prosecutors conducting the consolidated preliminary investigation of the three cases. The said Motion was anchored on the lack of impartiality and independence displayed by the Prosecutors in the conduct of the preliminary investigation and the pronouncements made by their Secretary of Justice confessing a prejudgment of the cases. 24. The second preliminary investigation hearing on 23 March 2006 again took place at the DOJ Multi-Purpose Hall, with as much fanfare and with even more media in attendance. A panel of five Prosecutors headed by Respondent VELASCO was there. VELASCO called the hearing to order after which the following took place: Undersigned counsel (Atty. Diokno), after pointing out the flaws in the entire proceedings of the preliminary investigation, beginning with the absence of a valid and sufficient complaint, filed Petitioner LADLAD's Counter-Affidavit;

16 Page 16 as Annex "G." A copy of Petitioner LADLAD s Counter-Affidavit is attached to this Petition Petitioner LADLAD s Counter-Affidavit incorporated an Omnibus Motion to: (1) dismiss the case, (2) expunge the affidavit of Jaime Beltran Fuentes, (3) exclude the unsubscribed Affidavits of witnesses, and (4) exclude incompetent, irrelevant, immaterial and hearsay evidence. The Omnibus Motion was based on the following grounds: Lack of a proper complaint, subscribed and sworn to under oath, as required by Section 2, Rule 110 of the Revised Rules of Criminal Procedure; Failure to follow proper procedure as required by Section 3(a), Rule 112; Violation of Petitioners right to be informed of the nature and cause of the accusation against them; Violation of Petitioner s right to confront the witnesses against him (i.e., the masked man claiming to be Jaime Beltran Fuentes); Since Petitioners were not afforded the right to confront Fuentes if only to verify his identity, Fuentes' affidavit should be excluded; The complaint is misleading because it makes reference to ninety-six (96) attached affidavits when only some of the 96 affidavits were actually attached to the letterreferral and not one of them specifically charged the herein Petitioners with rebellion; and

17 Page The supporting evidence are inadmissible being incompetent, irrelevant, immaterial, hearsay, selfserving, and mere opinions. 25. This Motion to Dismiss was adopted by the other Respondents in the cases, including the herein Petitioners ECHANIS, SANTIAGO and CASAMBRE, thru their respective counsels, by verbal manifestation during the preliminary investigation hearing. 26. Whereas Atty. Diokno urged the Investigating Panel to act on the Motion to Dismiss, Respondent VELASCO instead ordered the PNP-CIDG to produce the masked witness from the prior hearing. At first, the CIDG refused, at which point counsel for LADLAD reiterated the Motion to Dismiss; but later the PNP-CIDG relented and produced a man who showed his face, identified himself as Jaime Beltran Fuentes, and reaffirmed his affidavit before the media, and the investigating panel of prosecutors. 27. On that 23 March 2006 preliminary investigation hearing, Respondent VELASCO also announced that he had already resolved the 20 March 2006 Motion for Inhibition filed by the Respondents, without the benefit of any comment/opposition from the PNP. The Panel secretariat then released copies of the questioned 22 March 2006 Order, denying the Motion for Inhibition. The Respondents manifested their intention to file a Motion for Reconsideration of the 22 March 2006 Order, and they were given three (3) days by Respondent VELASCO within which to file the same. 28. For its part, the PNP was given three (3) days within which to file its Comment/Opposition to the Motion to Dismiss that was filed by LADLAD and adopted by the other herein Petitioners. 29. Meantime, Atty. Virgilio Pablico acting as counsel for the PNP announced that the police are poised to arrest the Respondents in I.S. No in the event that the said Congressmen decide to leave the premises of the House of Representatives. According to Atty. Pablico, it is a crime for said Congressmen to leave the House protective custody because they executed a waiver of the provisions of Article 125 of the Revised Penal Code. Realizing the idiocy of his position, Atty. Pablico backtracked and said that the Congressmen cannot leave the House because they were under arrest in I.S. No

18 Page When queried as to who had arrested the said Congressmen, Atty. Pablico merely insisted that there is an Affidavit attesting to their arrest. True to form, a Joint Affidavit of Arrest allegedly executed by PCI Rodel Pastor and PCI Cholijin P. Caduyac and subscribed before Respondent MARAYA miraculously appeared among the evidences (sic) for I.S. No which were furnished Representative Liza Maza after the 23 March 2006 hearing. Except for this updated compilation of evidences given to Representative Maza, none of the Respondents in the consolidated preliminary investigation were ever given a copy of this Joint Affidavit of Arrest, much less the Certification by Sergeant at Arms Bayani N. Fabic attached thereto. as Annex "H." A copy of the miraculous Joint Affidavit of Arrest is attached to this Petition 31. On 28 March 2006, the PNP filed its Opposition to the Omnibus Motion to dismiss the case, to expunge the Fuentes Affidavit, to exclude unsubscribed Affidavits, to exclude irrelevant documents, etc. Herein Petitioner LADLAD filed his Reply thereto on 3 April On 5 April 2006, the Respondents in I.S. No were served with a copy of the questioned 4 April 2006 Order, which was signed by Respondents VELASCO, MENDOZA, GUTIERREZ, MARAYA and WAGA. In that Order, the Investigating Panel of Prosecutors denied the pending Motions to Dismiss and the various Motions for Reconsideration filed by the other Respondents on the issue of inhibition. Likewise, the Panel gave the Respondents in the three (3) cases a non-extendible period of five (5) days to submit their Counter-Affidavits. Accordingly, the case would thereafter be deemed submitted for resolution. IV.ISSUES 33. Whether or not certiorari lies to set aside and annul the questioned 22 March 2006 Order of Respondent VELASCO, and the 4 April 2006 Order issued by the Respondent Panel of Prosecutors;

19 Page Whether or not prohibition lies to prevent Respondent Prosecutors and Respondent Police Officers from continuing with the preliminary investigation/court prosecution of the herein Petitioners; and 35. Whether or not Petitioners are entitled to a Temporary Restraining Order and/or Preliminary Injunction to enjoin Respondent Prosecutors and Respondent Police Officers from continuing with the preliminary investigation/court prosecution of the herein Petitioners. V. GROUNDS RELIED UPON A. For Certiorari and Prohibition 36. The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial. 2 It is also intended to protect the state from useless and expensive trials At all times, a preliminary investigation must observe the dictates of fair play and due process of law. 4 The prosecuting officer is the representative not of an ordinary party but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern all; and whose interest in a criminal prosecution is not that it will win, but that justice shall prevail. It is therefore as much the prosecutor's duty to refrain from improper methods as it is to use every legitimate means to bring about the just resolution of a case To satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity because a preliminary investigation must not only serve the purposes of the State. More importantly, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. 6 2 Ibid. 3 Trodo vs. Manta, 118 SCRA 241, citing Hashim vs. Boncan, 71 Phil Salonga vs. Paño, 134 SCRA 438 (1985). 5 Allado vs. Diokno, G.R. No , 5 May Conjuangco vs. PCGG, 2 October 1990, citing Salonga vs. Paño, supra.

20 Page While criminal prosecutions, as a general rule, cannot be restrained or stayed by injunction, there are recognized exceptions to the rule, 7 and they clearly apply here: To afford adequate protection to the constitutional rights of the accused and/or to prevent the threatened arrest of Petitioners; When necessary to avoid oppression; When the acts of the officer are without or in excess of authority; Where it is a case of persecution rather than prosecution; Where the charges are manifestly false; and When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied. 40. It is well settled that this Court will intervene to prevent the oppressive exercise of legal authority, or the use of the strong arm of the law in an oppressive or vindictive manner: The statutory rule, therefore, in this jurisdiction, is that the writ of prohibition is not confined exclusively to courts or tribunals to keep them within the limits of their own jurisdiction but will issue, in appropriate cases, to an officer or person whose acts are without or in excess of his authority. Not infrequently, the writ is granted where it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of actions As the Court held in Brocka v. Enrile, 9 when the filing of criminal charges is accompanied by manifest bad faith, and where a sham preliminary investigation was hastily conducted, the charges that are filed as a result should lawfully be enjoined. 7 Brocka vs. Enrile, 192 SCRA 183 (1990), citing Salonga vs. Paño, supra. and other cases. 8 Dimayuga vs. Fernandez, 43 Phil. 304 (1923); Planas vs. Gil, 67 Phil Ibid.

21 Page Petitioners now come before this Highest Tribunal to ask for its intervention to nullify the Orders rendered by the Respondents in grave abuse of discretion, and to enjoin them from further proceeding with their illegal acts. (i) The questioned Orders were issued with grave abuse of discretion amounting to lack or excess of jurisdiction and there is no plain, speedy and adequate remedy in the ordinary course of the law to afford Petitioner the relief and protection he needs; certiorari lies, therefore, to set aside and annul the two questioned orders. 43. Respondent Prosecutors acted with grave abuse of discretion equivalent to lack of jurisdiction when he denied Petitioners Omnibus Motion to dismiss, to expunge the Fuentes affidavit, and to exclude the complainant's evidence. 44. The 4 April 2006 Order denying such Motion clearly establishes that the proceedings are a sham, a charade with the end of persecuting the Petitioners. It was clearly issued by Respondent Prosecutors without or in excess of their jurisdiction. 45. The blatant and inexcusable defects in the referral and its supporting documents, as well as the irregularities in the procedures followed by Respondent VELASCO and the Investigating Panel, are obvious from the record. 46. There was no complaint. The PNP-DIDM letter-referral 10 does not qualify as a complaint pursuant to the requirements of the Revised Rules of Criminal Procedure The letter-referral was not even subscribed and sworn to before any person authorized to administer oaths; While there were affidavits attached to the letter-referral, a simple reading thereof will show that these were meant to be the supporting affidavits of the so-called witnesses, not the complainants; and 10 See Annex E.

22 Page Likewise, the so-called supporting evidence, hearsay as they are for not having been subscribed before the Investigating Panel, did not even incriminate the herein Petitioners. As shown earlier, of the 161 documents attached as evidences (sic) to the 27 February 2006 letter-referral for I.S. No , the names of Petitioners LADLAD and SANTIAGO were only mentioned in passing in the Cachuela Affidavit, 11 and the affiant admittedly did not see any of the herein Petitioners in the supposed Plenum he was describing. 47. In Olivas vs. Office of the Ombudsman, 12 this Court, speaking through Justice Vicente V. Mendoza, emphasized that it is a mandatory requirement for the Complainant to submit his affidavit and those of his witnesses before the Respondent can be compelled to submit his Counter-Affidavit and other supporting documents. In blatant disregard for this rule, the Respondent Prosecutors required the herein Petitioners to file their respective Counter-Affidavits on or before 10 April Worse, the documents which are supposedly the basis for the conduct of a preliminary investigation were obviously defective and patently insufficient, and therefore herein Petitioners should not even have been called for such preliminary investigation. 13 The Respondent Prosecutors should have junked the documents outright instead of allowing the PNP to play up to the media with their Makapili tactics and manufacturing additional evidence to cure the defects in their referral. Indeed, since a preliminary investigation is designed to screen cases for trial, only evidence may be considered. While reports and even raw information may justify the initiation of an investigation, the stage of preliminary investigation can be held only after sufficient evidence has been gathered and evaluated warranting the eventual prosecution of the case in court If only the Respondent Prosecutors studied the voluminous enclosures transmitted by Respondent MENDOZA, they would have immediately discovered that there was absolutely no basis to require the Respondents to answer the complaint in I.S. No However, instead of taking their task seriously, Respondent VELASCO and State Prosecutors PEREZ, DAYOG, ABAD and WAGA perfunctorily and in 11 See Annex F SCRA 283 (1994). 13 Rule 112 Section 3 (b) of the Revised Rules of Criminal Procedure. 14 Duterte vs. Sadiganbayan, supra.

23 Page 23 blatant disregard for the rights of the herein Petitioners and unmindful of the doctrines laid down by this Court, issued a subpoena to them barely seven (7) days from the date the case was referred to the DOJ. 50. It cannot be overemphasized that the only other document which mentions the names of herein Petitioners LADLAD and ECHANIS is the affidavit of Fuentes belatedly submitted in PNP-DIDM vs. 1Lt Lawrence San Juan, et al. (I.S. No ), a case where the said Petitioners are not Respondents. There is, therefore, even no basis to use the Fuentes affidavit against the herein Petitioners since it pertains to a different case for which they have not been charged. Indeed, Fuentes is not named as a witness in the letter-referral made by Respondent MENDOZA for PNP-DIDM vs. Jose Ma. Sison, et al. (I.S. No ). 51. The Panel of Prosecutors, headed by Respondent VELASCO, conducted the consolidated preliminary investigation hurriedly, with obvious and inordinate interest in the prosecution of the cases and a very obvious fondness for the press; without regard whatsoever for the rights of the Respondents therein to due process of law, a fair trial, and other constitutional protections. 52. While the right to a preliminary investigation is statutory rather than constitutional in its fundament, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. To deny the Petitioner s claim to a valid and proper preliminary investigation would be to deprive him of the full measure of his right to due process It was only during the scheduled preliminary investigation hearing of I.S. No on 13 March 2006, that herein Petitioners were told that the said preliminary investigation has been consolidated with those of PNP-DIDM vs. 1Lt Lawrence San Juan, et al. (I.S. No ) and PNP-DIDM vs. Hon. Satur Ocampo, et al. (I.S. No ). No legal basis for the consolidation was given by Respondent VELASCO whatsoever; it was just imposed on the parties as a matter of fact. 15 Doromal vs. Sandiganbayan, 177 SCRA 354 (1980); Go vs. Court of Appeals, 206 SCRA 138 (1992).

24 Page It was also at this 13 March 2006 preliminary investigation hearing when, in the presence of numerous members of the media including live simultaneous coverages over nationwide radio and television stations, Respondent VELASCO allowed the theatric appearance of the PNP s masked witness. For her part, Respondent GUTIERREZ attested having personally examined the masked witness and determined that he/she/they voluntarily executed and understood his/her/their affidavit. 16 As a testament to this gross error, Respondents VELASCO and GUTIERREZ landed on the headline of news coverages that night, and in the front page of the major dailies the next morning. 55. In a quest to sort out the confusion created by the unprecedented changes in the usual preliminary investigation procedure, herein Petitioner LADLAD requested for a copy of the Department Order creating the Investigating Panel. Respondent Velasco, however, has failed to act on such request to date. Copies of the letter-request to the Department of Justice dated 22 March 2006, and the follow-up letter thereto, are attached to this Petition as Annexes "I" and J, respectively. 56. The propriety of the consolidation of the preliminary investigations for the three cases remains a question to the herein Petitioners, especially in the light of the fact that the acts alleged in the various letters-referral are very different from each other, the witnesses and evidences (sic) are varied from one complaint to the other; there is even no unanimity in the Respondents named in the referrals! 57. The continued unjustified refusal of Respondent VELASCO, however, to provide the herein Petitioner LADLAD with a copy of the Department Order creating the Panel and authorizing the consolidation of the cases is only consistent with his brazen disregard for the due process rights of the said Petitioner. 58. Further, Respondent VELASCO acted with grave abuse of discretion when he denied the Petitioners Motion for Inhibition and the Motion for Reconsideration of such denial. Respondents VELASCO, GUTIERREZ and MARAYA should have in fact, even sans the Motions having been filed, voluntarily inhibited themselves as investigating prosecutors in the consolidated preliminary investigation, on the ground of pre-judgment. 16 See Annex D.

25 Page Respondent VELASCO is also the official prosecuting Criminal Case No before the Regional Trial Court of Makati Branch 137, which is the rebellion case filed against Rep. Crispin Beltran and 1Lt. Lawrence San Juan upon inquest in I.S. No This is the same PNP referral which is one of the cases subject of the consolidated preliminary investigation in question. Respondent VELASCO cannot play both roles at the same time, and should have inhibited himself immediately from the preliminary investigation of the consolidated cases, which includes the case filed against the herein Petitioners. A copy of the Court Order evidencing that Respondent VELASCO is the prosecutor handling the case before the RTC of Makati is attached to this Petition as Annex K On their part, Respondents VELASCO, GUTIERREZ and MARAYA were part of the DOJ Panel that issued the 27 February 2006 Resolution recommending the filing of an Information for violation of Article 134 in relation to Article 135 of the Revised Penal Code, as amended, as against San Juan and Beltran. They were in fact among those who signed the 27 February 2006 Information against the said accused. Copies of the 27 February 2006 DOJ Resolution finding probable cause against San Juan and Beltran, and the Information filed pursuant thereto, are attached to this Petition as Annexes L and M, respectively After finding probable cause to charge Beltran and San Juan before the Regional Trial Court for the very acts under preliminary investigation in I.S. No , it is difficult to imagine how, in the conduct of this consolidated preliminary investigation, the Respondent Prosecutors can make a turnabout and take a position contradictory to their earlier findings of a prima facie case and conduct the preliminary investigation of the herein Petitioners case with the cold neutrality of an impartial judge.

26 Page A judge must not only be impartial but must also appear impartial as an assurance to the parties that his decision will be just. 17 His actuation must inspire that belief, and his appearance is as important as reality. 18 The same rule of thumb should apply to an investigating officer conducting a preliminary investigation. 19 (ii) Prohibition lies to prevent the continuation of a sham preliminary investigation and persecution in the guise of prosecution; and to protect the Petitioners constitutional rights from the strong arm of the law. 60. The preliminary investigation in the case at bar, like those in the Allado and Salonga cases, 20 was a sham from the very start, and will continue to its foregone conclusion unless restrained by the Honorable Court. 61. As discussed above, the preliminary investigation was attended by the following defects and irregularities: Failure to comply with Section 3, Rule 110 of the Revised Rules of Criminal Procedure. Section 3, Rule 110 defines a complaint as "a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the law violated." This requirement that the complaint and its accompanying affidavits and supporting documents be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits, is mandatory. 21 The PNP-DIDM letter-referral dated 27 February is not a sworn written statement and was not subscribed by the officer who signed it. 17 Javier vs. Comelec, 144 SCRA Palang vs. Zosa, 58 SCRA 776 (1974). 19 Cojuangco vs. PCGG, supra. 20 Supra. 21 Oporto vs. Monserate, 16 April See Annex E.