REPUBLIC OF THE PHILIPPINES
FOURTH JUDICIAL REGION
REGIONAL TRIAL COURT
Branch 40, Calapan City
PEOPLE OF THE PHILIPPINES,
Plaintiff,
- versus -
Criminal Case No. CR-06-8525
For: Multiple Murder &
Multiple Frustrated Murder
RUSTOM SIMBULAN, ET AL.
Accused.
x-----------------------------------------x
MOTION TO QUASH/RECALL WARRANT OF ARREST
And MOTION TO DISMISS THE CASE
Accused Atty. Remigio D. Saladero, Jr., by counsels, to this Honorable
Court, respectfully states: That –
PREFATORY
The Constitutional duty of the Court in criminal litigations is
not only to acquit the innocent after trial but to insulate, from
the start, the innocent from unfounded charges. For the Court
is aware of the strains of a criminal accusation and the
stresses of litigation which should not be suffered by the
clearly innocent.
The filing of an unfounded criminal
information in court exposes the innocent to severe distress
especially when the crime is not bailable. Even an acquittal of
the innocent will not fully bleach the dark and deep stains left
by a baseless accusation for reputation once tarnished
remains tarnished for a long length of time. The expense to
establish innocence may also be prohibitive and can be more
punishing especially to the poor and the powerless.
Innocence ought to be enough and the business of the Court
is to shield the innocent from senseless suits right from the
start.1
1
Dissenting Opinion, Justice Renato Puno. Roberts, Jr. v. Court of Appeals, 254
SCRA 307, March 5, 1996.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
2
WHO IS ATTY. REMIGIO D. SALDERO, JR.?
1.
ATTY. REMIGIO D. SALADERO, JR. is a dedicated, prominent and well
recognized labor and human rights lawyer. He is currently the chief legal
counsel of the progressive labor movement Kilusang Mayo Uno (KMU).
He is also the chairman of the Pro-Labor Legal Assistance Center
(PLACE), a law firm which principally renders legal services to the poor
and oppressed workers and farm workers, conducts paralegal seminars
on workers’ rights and welfare, and engages in advocacy and lobby work
for the promotion of workers’ rights. As a labor lawyer, Atty. Saladero has
extended legal services to the labor unions at San Miguel Corporation,
Nestle-Cabuyao,
Monterey,
Shoe
Mart,
Philips
Electronics,
Dole
Philippines, PNB, Hacienda Luisita, Azucarera de Tarlac, ABS-CBN,
Legend Hotel-Subic, Yokohama Tires, Robina Farms-Rizal, LRT, RFM,
Swifts, Cosmos Bottling and Sulpicio Lines, to name a few. He handles
several hundreds of labor cases involving thousands of employees.
2.
He is also a member of the National Union of Peoples’ Lawyers (NUPL), a
nationwide voluntary association of human rights lawyers in the
Philippines, committed to the defense, protection and promotion of human
rights, especially of the poor and the oppressed.
3.
Atty. Saladero, Jr. was admitted to the Philippine Bar in 1985, garnering a
general average of 88.95%2 which landed him on the 17th place. Right
after his admission to the Bar, he worked as Assistant Attorney at the Del
Rosario and Del Rosario Law Offices in Makati City until 1986. From
2
A copy of the Certification to this effect from the Office of the Bar Confidant dated
March 2, 1995 is hereto attached as Annex “1.”.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
3
there, he entered the Public Attorney’s Office (PAO)-Department of
Justice, Antipolo District as Public Attorney II from 1987 to 1990.
4.
The Office of the Bar Confidant has certified that he is a lawyer in good
standing, without a pending case against him before the said office as of
October 27, 2008.3 He has also complied with the required Mandatory
Continuing Legal Education (MCLE), with Compliance No. II-0010357
issued on August 15, 2008.4
5.
He also holds his own law office at 119 Circumferential Road, San Isidro,
Antipolo City, Rizal 5 .
Said Law Office is duly registered with the
Department of Trade and Industry6 and is licensed to operate by the Office
of the City Mayor of Antipolo City, Rizal7.
6.
Atty. Remigio D. Saladero, Jr. took his Bachelor of Arts-Major in Political
Science at the Mindanao State University (MSU), Marawi City and
graduated cum laude on April 7, 1979. He obtained his Bachelor of Laws
in San Beda College on April 16, 1983. He has a Diploma in Industrial
Relations (April 1987), Master in Industrial Relations (October 1989), and
Master of Public Administration (April 1995) from the University of the
Philippines (Diliman).
3
A copy of the Certification from the Office of the Bar Confidant dated October 27,
2008 is hereto attached as Annex “2.”.
4
A copy of his MCLE Certificate of Compliance issued on August 15, 2008 is
hereto attached as Annex “3.”.
5
Copies of photos of his law office in his residence are hereto attached as
Annexes “4” and “4-1.”.
6
A copy of the DTI Certificate of Business Name Registration issued on July 27,
2007 is hereto attached as Annex “5.”
7
A copy of the Mayor’s permit dated October 8, 2007 is hereto attached as Annex
“6.”.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
7.
4
Atty. Remigio D. Saladero, Jr. was awarded on November 19, 2005 by the
UP Industrial Relations Alumni Association the Natatanging Alumni for
Labor Leadership and Advocacy for his concern in the empowerment of
labor which extends to the shaping of public opinion on the labor sector.
8.
Atty. Saladero, Jr. is a member of the Integrated Bar of the Philippines
(IBP)-Antipolo City Chapter, Movement of Attorney’s for Brotherhood,
Nationalism and Integrity, Inc. (MABINI), Free Legal Assistance Group
(FLAG), Lex Leonum Fraternitas (a fraternity in San Beda College of Law),
and Bayan Muna Party-List in Rizal (as chairman, 2001-2004). He was a
former professor at the Dominican College and Lyceum College of Law.
From 2003 to the present, he writes a column dealing exclusively on labor
issues and cases at Pinoy Weekly on-line, a progressive weekly
publication.
CIRUSMTANCES OF HIS ARREST
9.
At around 2:30 P.M. on October 23, 2008, while Atty. Remigio D. Saldero,
Jr. was alone and drafting some pleadings at his office/residence at 119
Circumferential Road, San Isidro, Antipolo City, Rizal, he heard somebody
knocking at the gate.
10.
He initially ignored the knockings as he was not expecting any
appointment for that afternoon, but when the knockings persisted, he
decided to check who it was.
11.
At the gate, Atty. Remigio D. Saladero, Jr. noticed a frail-looking man in
civilian clothes, about 20 to 30 years old. When the man told him he was
looking for “Atty. Saladero”, he let the man in.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
12.
5
Once inside, the man told Atty. Saladero about his alleged brother who is
purportedly charged with a drug-related offense. Atty. Saladero advised
him that if the offense is bailable, his brother may post bail; otherwise, he
could file a petition for bail. All the while, Atty. Saladero had noticed that
the man kept on glancing around, as if checking if he had companions.
13.
Then the man told Atty. Saladero that the documents on the case was in
his motor bike which was allegedly parked outside, and asked permission
to get them.
14.
Minutes later, the man came back with two other men in civilian clothes.
One of them suddenly approached Atty. Saladero and asked him “Kayo si
Atty. Saladero?” Then he showed me a document while saying “mga pulis
kami, may warrant kayo, multiple murder and multiple frustrated murder sa
RTC Calapan.”
15.
Atty. Saladero tried to read the document but the man immediately
withdrew it. At a glance, however, Atty. Saladero could read that it was a
warrant for the arrest of one “REMEGIO SALADERO @ KA PATRICK,”
issued on October 6, 2008 by Judge Tomas Leynes.
16.
When Atty. Saladero insisted that the arresting officers made a mistake in
arresting him, the man barked at him, “Sumama kayo nang maayos para
walang mangyaring masama.”
17.
Thereupon, Atty. Saladero took out his cellular phone to call his wife but
the man confiscated it. Another drew his gun and told him to keep quiet.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
6
And the other, who pretended to have a brother charged with a drugrelated offense, handcuffed Atty. Saladero.
18.
Despite Atty. Saladero’s pleas to allow him to call his wife, the men
refused, pulled him out of his house and forced him into a tinted van.
19.
Two other men in civilian clothes, who had been positioned at the gate of
the compound, also went inside his house and took with them Atty.
Saladero’s laptop.
20.
It was only later that Atty. Saladero learned he was arrested by the
combined forces of the RIID 4A, PIB, Rizal PPO 418th PPMG, and that the
central processing unit (CPU) of his computer, pleadings, Daily Calendar
of Activities for the year 2008 containing his scheduled hearings and other
professional commitments were also seized by the arresting team.
21.
Inside the van, Atty. Remigio D. Saladero, Jr. was made to sit on the
backseat sandwiched between two of his captors who were armed with
long firearms. The man seated beside the driver was also armed.
22.
When the van passed by the Antipolo Police Station, Atty. Saladero
requested that they drop by, hoping that some policemen in the station
would recognize him. But his captors ignored his request.
23.
Atty. Saladero’s captors began interrogating him inside the van, asking
him several outlandish questions such as how many times he had gone up
the mountains and his code name.
He explained to them that they
probably got the wrong man. He also asked them if he could call his
lawyers and if he could get back his cellular phone. But his captors told
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
7
him that he would be allowed to make his calls later. The men then
started to take his picture, using their own cellular phones.
24.
The van then stopped at the Rizal Police Provincial Office in Hilltop,
Taytay, Rizal. The armed men disembarked for a while and took pictures
of Atty. Saladero.
25.
When the armed men got back inside the van, they told Atty. Saladero
that they are going to the PNP Regional Office at Canlubang.
He
remained in handcuffs throughout the trip.
26.
At around 5:00 P.M., Atty. Saladero was brought to Camp Vicente Lim in
Canlubang, Laguna where he was again photographed and his
fingerprints were taken.
Thereafter, he was subjected to a detailed
interrogation. His answers were all taken down by the interrogator. At this
point, Atty. Saladero again requested that he be allowed to call his wife or
his lawyers, but the interrogator ignored his request.
27.
Atty. Saladero was made to answer prying questions ranging from the
names of his parents, his wife’s and those of his relatives. He was even
asked about his membership in organizations, his positions therein and his
tasks. He told his interrogator that his tasks did not include leading or
joining the armed struggle against the government, and that all his actions
were all legal and in accordance with law.
28.
When asked about his involvement with KMU, Atty. Saladero told his
interrogator that as its chief legal counsel, he renders legal assistance to
workers and unions affiliated with the said labor center.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
29.
8
Atty. Saladero was likewise asked about his companions in his office, and
whether he has joined rallies.
Atty. Saladero explained that he would
participate in rallies as an exercise of his freedom of expression.
30.
He was also asked about the seminars he has participated in, including its
venues, the topics and the participants. He was also asked about the
BKP or the IKP, to which he answered that he had never participated in
such types of seminars. During the entire interrogation, Atty. Saladero
was still handcuffed.
31.
The interrogation was cut short only by an order sending Atty. Saladero to
the police clinic for examination after which the interrogation resumed. He
remained in handcuffs all throughout these entire process.
32.
Atty. Saladero was allowed to make a call only at 9:00 P.M. after several
hours of interrogation, and after almost eight (8) hours since he was held
incommunicado. Then he was transferred to the detention center where
he spent the night alone.
33.
Upon learning where Atty. Saladero was taken to, his wife and his
colleague in his Quezon City office, Atty. Noel Neri, rushed to Camp
Vicente Lim. They were allowed to see and talk only briefly with Atty.
Saladero who was again left in solitary confinement after the visit.
34.
At 6:30 in the morning of the following day, October 24, 2008, Atty.
Remigio D. Saladero Jr. was loaded by his police escorts in an unmarked
vehicle bearing no license plate, over and above his wife’s insistence and
plea that she be allowed to accompany him during the travel.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
35.
9
Atty. Saladero was brought to Camp Naramo, Calapan City where he was
again photographed and fingerprinted. It was only at 3:00 P.M. that he
was presented to the Regional Trial Court of Calapan City, Branch 40
before Judge Tomas Leynes.
It was only during that time that he was
able to read the information and saw that the accused was one
“REMEGIO SALADERO alias Ka Patrick of Los Banos, Laguna.”
36.
Atty. Remigio D. Saladero, Jr. introduced himself in open court that he is
an attorney and requested that he be furnished with a copy of the records
of his case. However, he was denied access to the records and was told
he could not be provided with a copy allegedly because of the number of
accused and the possibility of flight by the other accused named in the
information.
37.
Also on that day, Executive Judge Manuel O. Luna, Jr. issued a
Commitment Order which surprised Atty. Saladero as he heard for the first
time his name correctly spelled and pronounced in court.
The
Commitment Order dated October 24, 2008 now bears his name
REMIGIO
SALADERO,
JR.
Y
DAMANDAMAN,
not
“REMEGIO
SALADERO” which appears in the “amended” Information. By virtue of
the said Commitment Order, Atty. Remigio D. Saladero, Jr. was transfrred
to the Oriental Mindoro Provincial Jail at about 3:30 P.M. of the same
date, where he remains detained up to the present.
STATEMENT OF THE CASE
38.
On July 24, 2006 Assisting Provincial Prosecutor Dorina H. Joya, with the
approval of Provincial Prosecutor Josephine
C. Caranzo – Olivar of
Oriental Mindoro, filed the information in this case accusing a certain
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
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“Rustom Simbulan @ Ka Bobby @ Ka Bayani @ Ka Silang @ Ka Arthur
and “John Does” of multiple murder and multiple frustrated murder. The
information alleged that the accused Rustom Simbulan of Puerto Galera,
Oriental Mindoro and “John Does” ambushed a group of PNP soldiers in
barangay San Isidro, Puerto Galera, Oriental Mindoro in the early morning
of March 3, 2006 resulting in the death of three and the wounding of two
others.
39.
The information listed six witnesses and ten exhibits for the prosecution.
Neither the name of Atty. Remigio D. Saladero, Jr. nor any of the seventytwo accused other than Rustom Simbulan is mentioned in any of the
supporting affidavits and exhibits of the prosecution.
Presiding Judge
Tomas C. Leynes issued a warrant of arrest only against Rustom
Simbulan.
Parenthetically, the resolution dated July 20, 2006 of
investigating prosecutor Dorina H. Joya, which was approved and signed
by Provincial Prosecutor Josephine C. Caranzo- Olivar, explicitly said that
the John Does in the original information who were allegedly members of
the New People’s Army were “unidentified.” The prosecutor’s resolution
explicitly stated that the “resolution is based solely on the evidence
submitted by the complainant.” The resolution said that only “more than 15
heavily armed men” headed by Simbulan staged the ambush. We take
note of this crucial finding of prosecutor Joya who conducted the
preliminary investigation against Rustom Simbulan because it contradicts
and destroys the credibility of prosecution witness Vincent Silva, the only
witness against Atty. Saladero and the 70 others who were included in the
“amended” information filed by Prosecutor Humilito A. Dolor without
conducting the requisite preliminary investigation. Both witness Silva and
Prosecutor Dolor alleged that seventy-two (72) heavily-armed members of
the New People’s Army staged the ambush – the seventy-two who were
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
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charged in the “amended” information including a certain Remegio
Saladero alias Ka Patrick, some of them women, many if not most of them
are
social
activists
and
mass
leaders
of
sectoral
progressive
organizations.
40.
In an order dated May 7, 2007 the Presiding judge motu propio ordered
that the case be archived “without prejudice to its subsequent prosecution
as soon as the accused is apprehended.”
41.
On September 29, 2008, more than one year and four months after the
case was archived, another prosecutor, prosecutor Humilito A. Dolor, with
the approval of Provincial Prosecutor Josephine C. Caranzo-Olivar filed an
“amended” information that now includes in addition to Rustom Simbulan
the name “Remegio Saladero aka “Ka Patrick” and seventy others with
corresponding aliases.
42.
During the scheduled arraignment on October 27, 2008 prosecutor Dolor
confirmed by his own admission in open court the decisive facts contained
in the records which are fatal to the prosecution’s case;
42.1
He filed the “amended” information without conducting a preliminary
investigation;
42.2
the seventy-one additional accused who were included in the
“amended” information were not issued any subpoena or notified of
the filing of an “amended” information against them. Therefore,
they were denied their right to present their defense through
counter-affidavits;
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
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42.3
no motion was filed in court to revive the archived case;
42.4
the motion to admit “amended” information, which was approved by
Provincial Prosecutor Caranzo-Olivar was filed ex parte. None of
the seventy-one additional accused was notified or sent copy of the
Motion. No hearing on the motion was conducted by the court;
42.5
Prosecutor Humilito Dolor certified under oath that the “amended”
information “was filed on the basis of the affidavit of Vincent Silva,
specifically naming the John Does in the original information.”
42.6
In total disregard of the meaning and implication of the public
prosecutor’s oath and certification to the fundamental rights of the
accused, and blatantly committing perjury, Prosecutor Dolor,
certified under oath that “a preliminary investigation was previously
conducted in this case and on the basis of the sworn statements
and other evidences on record, the undersigned (prosecutor Dolor)
found a reasonable ground to believe that the crime complained of
has been committed and that the respondents are probably guilty
thereof).” Provincial Prosecutor Caranzo–Olivar administered the
perjurious oath and certification of Prosecutor Dolor.
42.7
Erroneously invoking Section 14, Rule 110 of the Rules on Criminal
Procedure, Prosecutor Dolor insisted in his motion that it is “legally
proper” to unilaterally include ex parte seventy –one innocent
persons in an “amended” information for the capital offense of
multiple murder and cause their arrest and incarceration without
bail solely on the basis of clearly fabricated statement of Vincent
Silva, a witness who by his own admission, is being “handled” and
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
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under military/police custody. Curiously, the prayer of the motion to
admit “amended” information merely asked the court to admit the
same “to form part of the records of the instant case.”
43
In an order dated October 3, 2008 the Presiding judge, utterly
disregarding the right to preliminary investigation and in serious
violations of the constitutional right to due process of the accused,
granted the motion to admit “amended” information.
43.1
In his order, the Honorable Presiding judge said “the Court hereby
adopts the findings of the preliminary investigation conducted by
the investigating officers that probable cause exists, that the crime
had been committed and that the accused, who are originally
named as John Does in the original information, might probably
(sic) guilty thereof, hence the Court finds reasonable grounds for
the necessity of placing herein accused under immediate custody
in order not to frustrate the ends of justice. The Presiding judge
issued warrants of arrest against the 71 additional accused
including a certain “Remegio Saladero.”
In short, the Honorable Presiding Judge gave his imprimatur to the nonexistent preliminary investigation and “adopted” the flawed findings of the
public prosecutor that the John Does in the original information are the
seventy-one accused whose names were added by the Prosecutor Dolor in
the “amended” information.
43.2
Section 13 Rule 110 of the Rules provides:
“SEC. 13. Duplicity of the offense. – A complaint or information
must charge only one offense, except when the law prescribes a
single punishment for various offenses. “
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
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In contravention of this rule, the “amended” information charges more than
one offense. Article 48 of the Revised Penal Code cannot be invoked in this
case because this is not a complex crime.
THE EVIDENCE FOR THE PROSECUTION
44
A careful study of the evidence for the prosecution reveals the
following:
44.1
In the complaint affidavits executed by Police Inspector Wilson
Gani and PO1 Joseph Panes on March 4, 2006 – the following day
after the incident – no mention was made of the number, much less
the identity, of any of the perpetrators. In paragraph 15 of their
respective affidavits the two complainants identically said they
executed
their
affidavits
“upang
maipaliwanag
ang
buong
pangyayari.” Two days later, or on March 6, 2006 the two affiants,
in answer to a leading question from the police investigator, claim
they overheard during the incident the alias “Ka Bobby” from one of
the perpetrators and concluded that “Ka Bobby” must be Rustom
Simbulan, based on their Order of Battle. Both affiants additionally
claim that the number of perpetrators is “more than fifteen “ (mahigit
sa labing lima).
Clearly, this obvious fabrication identifying one
alleged perpetrator was made to support the filing of the original
information.
44.2
As to the identities of the seventy-one accused whose names were
added to the “amended” information including that of a certain
Remegio Saladero alias “Ka Patrick” the only evidence for the
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
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prosecution is the bare, unsubstantiated and inherently incredible
statement of Vincent Silva dated August 19, 2008 and sworn to
before Notary Public Rey Ladaga on September 2, 2008.
44.3
Rule 112 Section 4 of the Rules provide:
“SEC. 4. Resolution of investigating prosecutor and its
review. – If the investigating prosecutor finds cause to hold
the respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information
that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof;
that the accused was informed of the complaint and of the
evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he
shall recommend the dismissal of the complaint.”
Contrary to this mandatory requirement, the records do not show that
Vincent Silva ever appeared before prosecutor Dolor or any other public
prosecutor. The records do not show any sufficient certification made by
the public prosecutor in compliance
with this rule. The certification
merely states:
“I HEREBY CERTIFY UNDER OATH, that a
preliminary investigation was previously conducted in this
case and on the basis of the sworn statements and other
evidences on record, the undersigned found a reasonable
ground to believe that the crime complained of has been
committed and that the respondents are probably guilty
thereof.
I HEREBY FURTHER CERTIFY that this AMENDED
INFORMATION was filed on the basis of the affidavit of
VINCENT SILVA, specifically naming the JOHN DOE’s in
the original information.”
The sworn statement of Vincent Silva is a confession. The law requires that
such confession, to be valid and admissible as evidence, must be made with
the assistance of a lawyer freely chosen by Silva. On the face of the sworn
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People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
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statement, Silva was not assisted by counsel when he executed his
confession.
44.4
There is absolutely no evidence of conspiracy to support such
allegation in the information.
44.5
In the affidavit of Vincent Silva, he did not say that Remegio
Saladero alias “Ka Patrick “was a perpetrator or participant in the
alleged burning of the Globe tower or in the alleged ambush of the
PNP soldiers.
In fact, with the exception of Simbulan, a certain
Miguel Magbata, a certain Jaime Padilla, a certain Edmar
Fernandez and himself Silva did not say that the sixty-seven others
were perpetrators or participants in the two crimes. He was explicit
in his statement that these sixty seven (67) accused only had
knowledge or knew of these incidents. (“may kinalaman,” Q & A
Nos. 06 and 09).
44.6
Silva confessed that he was one of the perpetrators and explicitly
named and narrated the criminal acts performed by four others in
the two incidents.
He was silent on the sixty-seven (67) other
accused except his sweeping statement that they had knowledge of
the incidents. In conjunction with the statements of complaining
witnesses Wilson Gani and Joseph Panes that “more than fifteen
heavily armed men” perpetrated the alleged ambush, the
prosecution’s theory and evidence is seriously flawed and
inherently incredible because it seeks to prove that the rest of the
seventy-two accused other than the “more than fifteen heavily
armed men” were either “look-outs,” “on-lookers” or kibitzers during
the ambush.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
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GROUNDS IN SUPPORT OF THE MOTIONS
I
THE WARRANT OF ARREST ISSUED AGAINST
HEREIN ACCUSED ATTY. REMIGIO SALADERO
JR. IS VOID AB INITIO.
No preliminary investigation was
conducted in this case in serious
violation of the constitutional right to
due process of accused Atty.
Saladero, Jr.
Therefore, the
proceedings had in this case
including the issuance of the warrant
of arrest is null and void.
45
Section 1 of Article III of the 1987 Constitution provides, to wit:
“No person shall be deprived of life, liberty, or property
without due process of law xxx…xxx.”
45.1
Further, Section 14(1) of the same article states, thus:
“No person shall be held to answer for a criminal
offense without due process of law.”
46
“(D)ue process is comprised of two components -- substantive due
process which requires the intrinsic validity of the law in interfering with
the rights of the person to his life, liberty, or property, and procedural
due process which consists of the two basic rights of notice and
hearing, as well as the guarantee of being heard by an impartial
and competent tribunal”8 (Emphasis supplied.);
47
One component of procedural due process is the right to preliminary
investigation, a procedure enshrined in Section 3, Rule 112 of the
Revised Rules of Criminal Procedure, to wit:
8
Sec. of Justice v. Lantion, 322 SCRA 160
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People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
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“Sec.3. Procedure.- Except as provided in section 7 hereof,
no complaint or information for an offense cognizable by the
Regional Trial Court shall be filed without a preliminary
investigation having been first conducted in the following
manner:
(a) xxx….
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss the same if he
found no ground to continue with the inquiry, or issue
subpoena to the respondent, attaching thereto a
copy of the complaint, affidavits and other
supporting documents. Within ten (10) from receipt
thereof, the respondent shall submit counter-affidavits
and other supporting documents. He shall have the right
to examine all other evidence submitted by the
complaint.”
48
As clearly provided by the above cited provision, the investigating
officer, that is the prosecutor, must issue a subpoena to the
respondent to a criminal complaint should he find ground to continue
with the inquiry. Hence, at this early stage of the proceeding, the
respondent is already accorded the right to be informed of the criminal
complaint against him.
49
The significance of the right to preliminary investigation as a key
component of an accused’s right to due process has been upheld by
the Supreme Court in a long line of cases. “This procedure (in Section
3, Rule 112 of the Rules of Criminal Procedure) is to be observed in
order
to
assure
that
a
person
undergoing
such
preliminary
investigation will be afforded due process”9. In a more recent case, the
Supreme Court likewise held: “A preliminary investigation is the crucial
sieve in the criminal justice system which spells for an individual the
difference between months if not years of agonizing trial and possibly
jail term, on the one hand, and peace of mind and liberty, on the other
9
Cruz, Jr. vs. People, 233 SCRA 439.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
hand.
19
Thus, we have characterized the right to a preliminary
investigation as not “a mere formal or technical right” but a
“substantive” one, forming part of due process in criminal justice.10
49.1
Not only that, the Supreme Court in these cases emphasized that
the denial of the right to preliminary investigation, being a key
component of the accused’s right to due process, invalidates the
proceedings had on a case.
50
In the case of Secretary of Justice v. Lantion11 the Supreme Court
also held, to wit:
In a preliminary investigation which is an
administrative investigatory proceeding, Section 3,
Rule 112 of the Rules of Court guarantees the
respondent's basic due process rights, granting him
the right to be furnished a copy of the complaint, the
affidavits, and other supporting documents, and the
right to submit counter-affidavits and other supporting
documents within ten days from receipt thereof.
Moreover, the respondent shall have the right to
examine all other evidence submitted by the
complainant.”
Xxx
“True to the mandate of the due process clause,
the basic rights of notice and hearing pervade not
only in criminal and civil proceedings, but in
administrative proceedings as well. Nonobservance of these rights will invalidate the
proceedings. Individuals are entitled to be notified of
any pending case affecting their interests, and upon
notice, they may claim the right to appear therein and
present their side and to refute the position of the
opposing parties (Cruz, Phil. Administrative Law,
1996 ed., p. 64).
10
Ladlad vs. Senior State Prosecutor Velasco, et al., G.R. Nos. 172070-72; G.R.
Nos. 172074-76; and G.R. No. 175013, 01 June 2007; Go vs. Court of Appeals, G.R.
No. 101837, 11 February 1992, 206 SCRA 138.
11
322 SCRA 160,
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
51
20
During the last hearing of this case on 27 October 2008, the prosecutor
tried to come up with a lame excuse why the accused was not notified
of any proceeding regarding the filing of the Amended Information and
ended up with a blatant admission that “no subpoena was sent to the
parties particularly to the accused because they have filed the
Amended Information on the sole basis of the affidavit of Vincent Silva
naming the other accused” (page 17, TSN, 27 October 2008) and they
merely concluded that the “John Does” mentioned in the original
information included herein accused Atty. Saladero (ibid.).
This is
fatal.
51.1
The identity of the accused should always find basis in the
evidence attached to the complaint, and the use of the appellation
“John Doe” should always be connected to this identification as set
out in the complaint. The “John Doe” appellation should not be
used and abused as a sweeping net by prosecutors and arresting
officers to target just any hapless individual.
51.2
The prosecution cannot simply assume that Atty. Saladero is one of
the “John Doe’s” mentioned in the original information without
violating his basic right not only to due process, but also of his right
to be free from any unwarranted and vexatious prosecution, as it is
undisputed that up to the time that a warrant of arrest was issued
against one Remegio Saladero, the prosecution has absolutely no
evidence pointing to herein accused Atty. Remigio Saladero, Jr.
51.3
It is well to emphasize the stern reminder of the Supreme Court in
the case of
, when it held:
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
21
“Infinitely more important that conventional adherence
to general rules of criminal procedure is respect for
the citizen’s right to be free not only from arbitrary
arrest and punishment but also from unwarranted and
vexatious prosecution. The integrity of a democratic
society is corrupted if a person is carelessly included
in the trial of around forty persons when on the very
face of the record no evidence linking him to the
alleged conspiracy exists.”
51.4
In light of the clear admissions of the public prosecutor himself that
no preliminary investigation was conducted against herein accused
Atty. Remigio Saladero, Jr., one comes to the inevitable conclusion
that Atty. Saladero’s right to due process has been gravely,
seriously, and massively violated;
51.5
Because of this grave, serious and massive violation of the
accused Atty. Saladero’s right to due process, the proceedings –
starting from the filing of the “amended” information which led to the
arrest of herein accused Atty. Remigio D. Saladero, Jr., the
confiscation of his personal effects, including the Order committing
him to be detained at the Oriental Mindoro Provincial Jail, are all
null and void.
The information, on its face, is a
patent nullity. The trial court did not
acquire
jurisdiction
over
the
“multiple” murder and multiple
frustrated murder case. Clearly too,
the warrant of arrest issued against
accused Atty. Remigio D. Saladero,
Jr. is null and void
-------------------------------------------------
52
Rule 110, Section 13 of the Rules of Court explicitly requires that a
“complaint or information must charge only one offense, except when
the law prescribes a single punishment for various offenses.”
(underscoring is ours)
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
53
22
The rule enjoining the charging of two or more offenses in an
information has for its aim to give the defendant the necessary
knowledge of the charge to enable him to prepare his defense. The
State should not heap upon the defendant two or more charges which
might confuse him in his defense. (People vs. Ferrer, G.R. No. L8957, April 29, 1957)
54
This rule is mandatory and failure to comply with it is fatal to the
information if such defect is seasonably raised. The purpose of the
rule is to afford the defendant a necessary knowledge of the charge so
that he may not be confused in his defense. (People vs. Fernandez,
G.R. No. 62516, March 22, 1990)
55
Even a mere cursory reading of the questioned amended information
will readily show that it charges the separate offenses of alleged
multiple murder and multiple frustrated murder involving six (6)
different individual victims who are all named in the information in
violation of the fundamental rule against duplicity of offenses embodied
in the above-quoted Section 13 of Rule 110 of the Rules of Court.
56
The prosecution is in effect charging herein accused, along with the
other accused, with three murders and three frustrated murders of six
individual victims named in the information, in only one amended
information, in flagrant disregard of the above cited proscription by the
Rules.
57
This manifest disregard and deliberate dumping of different offenses in
only one information against the herein accused despite the above-
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
23
cited rule being too elementary was clearly designed to confuse and
harass him.
58
For the foregoing reason, we respectfully submit that the assailed
information in the present case which charges the herein accused with
multiple murder” and “multiple frustrated murder” is a patent nullity that
cannot confer jurisdiction and authority upon the presiding judge to
issue a valid warrant of arrest.
The certification in the “Amended
Information” is defective, in violation
of the requirements under Section 4,
Rule 112.
------------------------------------------------------
59
Section 4 of Rule 112 of the Rules of Criminal Procedure provides:
Section 4. Resolution of investigating prosecutor and
its review. – If the investigating prosecutor finds cause to
hold respondent for trial, he shall prepare the resolution and
information.
He shall certify under oath in the
information that he, or as shown by the record, an
authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable
ground to believe that a crime has been committed and
that the accused is probably guilty thereof; that the
accused was informed of the complaint and of the
evidence submitted against him; and that he was given
an opportunity to submit controverting evidence. x x x
(Emphasis is ours.)
60
This rule explicitly requires that if the investigating prosecutor finds
probable cause to hold the respondent for trial, he shall certify under
oath in the information:
(a)
that he, or as shown by the record, an authorized officer has
personally examined the complainant and his witnesses;
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
(b)
24
that there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof;
(c)
that the accused was informed of the complaint and of the
evidence submitted against him; and
(d)
that he was given an opportunity to submit controverting
evidence.
61
Contrary to these mandatory requirements, the certification of
Prosecutor Humilito A. Dolor in the “Amended Information “ merely
states:
“I HEREBY CERTIFY UNDER OATH, (that) a
preliminary investigation was previously conducted in this
case and on the basis of the sworn statements and other
evidences on record, the undersigned found a reasonable
ground to believe that the crime complained of has been
committed and that the respondents are probably guilty
thereof.
I HEREBY FURTHER CERTIFY that this AMENDED
INFORMATION was filed on the basis of the affidavit of
VINCENT SILVA, specifically naming the JOHN DOE’S (sic)
in the original Information.”
62
This certification by Prosecutor Dolor falls short of the plain
requirements of Section 4, Rule 112 because: (a) it did not certify
under oath that said prosecutor as investigating prosecutor, by himself
or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses; (b) neither were the
additional accused, including herein accused-movant Atty. Saladero,
informed of the complaint and the evidence submitted against them;
and (c) nor were said additional accused, including accused-movant
Atty. Saladero, given the opportunity to submit controverting evidence.
63
Apparently, the failure of Prosecutor Dolor to comply with the
requirements of Section 4, Rule 112 was not a mere oversight. It was
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
25
because he could not have made such a certification to comply with
the rule without rendering himself liable for perjury.
63.1
Prosecutor Dolor did not personally examine the complainants,
police officers, and their witnesses, especially Vincent Silva who
named and identified the John Does in the original information. As
borne out by the records, Prosecutor Dolor never summoned or
required them to appear before him, much less held or set a
hearing for preliminary investigation with respect to the additional
71 accused, including accused-movant Atty. Saladero. He merely
took as gospel truth the entire testimony of Vincent Silva, without
determining its veracity, much less its admissibility, and his
credibility as a witness.
63.2
Neither was accused-movant Atty. Saladero fully informed of the
complaint and of the evidence submitted against him. He never
received a subpoena or any notice whatsoever from the
investigating prosecutor relative to this case.
63.3
As accused-movant Atty. Saladero was not informed of the
complaint against him at the minimum, consequently, he was
deprived of any opportunity to submit controverting evidence.
The amended information is a patent
nullity for there was no hearing on
the motion to admit Amended
Information and there was no
preliminary investigation conducted
thereon.
------------------------------------------------------
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
64
26
Section 14, Rule 110 of the Revised Rules of Criminal Procedure
provides, to wit:
“SEC.14. Amendment or substitution.- A complaint
or information may be amended, in form or in substance,
without leave of court, at any time before the accused enters
his plea. After the plea and during the trial, a formal
amendment may only be made with leave of court and when
it can be done without causing prejudice to the rights of the
accused.
However, any amendment before plea, which
downgrades the nature of the offense charged in or excludes
any accused from the complaint or information, can be made
only upon motion by the prosecutor, with notice to the
offended party and with leave of court. The court shall state
its reason in resolving the motion and copies of its order
shall be furnished all parties, especially the offended party.”
65
A careful scrutiny of the above-cited provision no doubt allows the
amendment of information, in form or in substance at any time before
the accused enters his plea and even without leave of court. However,
the second paragraph thereof provides the exception, which is,
amendment may only be made before plea upon motion of the
prosecutor, with notice to the offended party and with leave of court
when the amendment downgrades the nature of the offense charged
or excludes any accused from the information. In this case,
amendment must be with leave of court, meaning that the motion must
be set for hearing, and the offended party must be notified thereof.
66
By parity of reasoning, the second paragraph should likewise apply
where the amendment seeks to include an accused not included at all
in the original information, such as in the instant case. If exclusion of
an accused from an information requires notice to the offended party,
with more reason should such notice be given to the person sought to
be included as accused in an amended information, so that he could
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
27
adequately prepare for whatever legal remedies he can avail of under
existing laws. And such notice will only be effective if the motion to
admit amended information is set for hearing.
67
In the instant case, Atty. Saladero was not notified at all of the said
amendment, as the motion of the prosecutor was not set for hearing.
And the judge perfunctorily granted the motion without a hearing,
which should have been conducted, in violation of his right to due
process.
68
In the case of Almeda v. Villaluz,12 it was held, to wit:
“The procedure taken by the respondent fiscal and
allowed by the respondent judge in the amendment of the
information does not, however, merit our approbation. Under
section 2 of Rule 15 of the Rules of Court, "all motions shall
be made in writing except motions for continuance made in
the presence of the adverse party, or those made in the
course of a hearing or trial." A motion to amend the
information, after the accused has pleaded thereto, is
certainly one that should be placed in writing and properly
set for hearing. We are loath to give our imprimatur to the
kind of shortcut devised by the respondents, especially as it
relates to an alteration in the information. Considering,
however, that the petitioner was not deprived of his day in
court and was in fact given advance warning of the proposed
amendment, although orally, we refrain from disturbing the
said amendment.”
69
And in De Asis v. Romero,13 the Supreme Court held:
“The petitioner, however, stresses that it is the
intention of the respondent fiscal to amend the original
information in connection with which the questioned warrant
of arrest was issued. But, even if this intention of the fiscal is
conceded, it is not controverted that he filed in the court a
quo, as the Rules of Court require, a motion to effectuate the
amendment desired be present, oral testimony and other
evidence will be add. Naturally, there will be a hearing on
this motion, and in the course of such proceeding, in which
the petitioner De Asis will uced concerning the fact of death
12
13
66 SCRA 38
41 SCRA 235
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
28
and identity of the alleged kidnapped victim and other related
circumstances. The hearing on the said motion, in our
opinion, serves and fulfills the essential purpose and
requirements of a full-blown preliminary investigation for the
alleged crime of murder intended to be added to the original
basic charge of kidnapping as an inextricable part thereof.
Thus, if the court a quo finds and is convinced at the hearing
on the motion to amend the information, that there is prima
facie evidence of murder indispensably connected with the
alleged kidnapping, then it is but natural, nay, logical, to
expect that it will grant the said motion. In such event, it is
clearly wishful thinking and an unavailing technicality to
require the court a quo to order the release of the petitioner
De Asis and then (or then and there) issue another warrant
for his arrest. Upon the other hand, if the said court believes
that the original information should stand as it is, then for the
more reason that the petitioner should not be ordered
released.” (Underscoring supplied)
70
As can be implied from the above ruling of the Supreme Court, a
preliminary investigation must be had first before the fiscal could
properly file a motion to amend the information. But even without such
preliminary investigation, if the motion was set for hearing, the hearing
will serve and fulfill the essential purpose and requirements of a fullblown preliminary investigation. But in the instant case, neither
preliminary investigation nor hearing on the motion to amend was
conducted, in violation of Atty. Saladero’s right to due process.
Clearly, therefore, the amended information is a patent nullity and
could not serve as valid basis for the issuance of the warrant of arrest.
The Presiding Judge erred in
ordering motu propio the revival of
the archived case without any motion
to that effect filed by the prosecutor.
71
In an order dated May 7, 2007, the Presiding Judge motu propio
ordered that the instant case be archived “without prejudice to its
subsequent prosecution as soon as the accused is apprehended.”
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
72
29
On September 29, 2008, more than one year and four months after the
case was archived, another prosecutor, prosecutor Humilito A. Dolor,
with the approval of Provincial Prosecutor Josephine C. CaranzoOlivar filed an “amended” information that now includes in addition to
Rustom Simbulan the name “Remegio Saladero aka “Ka Patrick” and
seventy others with corresponding aliases.
73
During the scheduled arraignment on October 27, 2008, prosecutor
Dolor admitted in open court, among others, that no motion to revive
the aforesaid archived case was filed in court. However, despite the
fact that there was no motion filed to revive the case, the Presiding
Judge revised the case by admitting the ex parte “amended”
information filed by the public prosecutor.
74
Moreover, perusing from the order of the Presiding Judge dated May 7,
2007, it is explicitly stated that the case be archived “without prejudice
to
its
subsequent
prosecution
as
soon
as
the
accused
is
apprehended.” From this explicit statement, it is apparent that the
accused being referred therein was no other than Rustom Simbulan
inasmuch as all the other accused have not yet been sufficiently
identified by prosecution witnesses in the said original information.
75
The motion to admit amended information filed by the prosecutor is not
akin to a motion to revive the case as there was no allegation or prayer
in the sad motion praying for the revival of the archived case. More
importantly, there is yet no reason to revive the case due to the fact
that the accused named therein, i.e. Rustom Simbulan, has not yet
been arrested.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
76
30
It is well to stress that a motion to revive an archived case is a litigated
motion which, under the rules, must be set for hearing so that the
concerned parties especially the accused will be given the opportunity
to present his side and oppose the said motion.
77
The Presiding Judge therefore erred blatantly in reviving the case and
in
admitting
the
“amended”
information
without
taking
into
consideration the rules as well as the right of the accused to due
process.
Among the accused named in the
“Amended Information” is “REMEGIO
SALADERO,” whereas the person
arrested is ATTY. REMIGIO D.
SALADERO, JR.”
------------------------------------------------------
78
In the sworn statement of prosecution witness Vincent Silva, he
included as among the accused a certain “REMEGIO SALADERO @
KA PATRICK Los Baños, Laguna.” Having made the sole basis of the
prosecution in filing the “Amended Information,” the same name
appears as one of the accused in the said ”Amended Information.”
79
While the name appearing in the Warrant of Arrest dated October 6,
2008 is for a certain REMEGIO SALADERO aka KA PATRICK, the
person unlawfully arrested on October 23, 2008 in his residence at 119
Circumferential Road, Brgy. San Isidro, Antipolo City is a lawyer,
REMIGIO SALADERO, JR. y DAMANDAMAN.
80
In fact, the Commitment Order issued by Executive Judge Manuel C.
Luna, Jr. on October 24, 2008 states that the accused arrested is
REMIGIO SALADERO, JR. y DAMANDAMAN.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
81
31
The obvious difference between “REMEGIO SALADERO of Los
Baños, Laguna” and REMIGIO SALADERO, JR. y DAMANDAMAN of
119 Circumferential Road, San Isidro, Antipolo City, undoubtedly
renders the indictment against accused Atty. Remigio D. Saladero, Jr.,
as fatally defective and subject to outright dismissal especially
considering that he has unnecessarily suffered a deprivation of his
liberty because of this inexcusable blunder of the prosecution.
The warrant of arrest is void ab initio
as the Honorable Presiding judge did
not make a personal determination of
probable cause but instead merely
“adopted the findings of the
preliminary investigation conducted
by the investigating officers”.
------------------------------------------------------
82
In his Order dated 03 October 2008, the Honorable Presiding judge
said: “the court hereby adopts the finding of the preliminary
investigation conducted by the investigating officers that probable
cause exists, that the crime had been committed and that the accused,
who are originally named as John Does in the original information,
might probably guilty thereof, hence the court finds reasonable
grounds for the necessity of placing herein accused under immediate
custody in order not to frustrate the ends of justice.” The Presiding
judge, in view of the said “findings”, immediately issued the assailed
warrant of arrest.
83
At the outset, it must be remembered that per admission of the
prosecutor who filed the information, there was no preliminary
investigation nor any proceedings conducted in relation to the
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
32
amended information filed, in which the name of herein accussedmovant was conveniently inserted.
84
By such order, the Presiding judge gave his imprimatur to the noexistent preliminary investigation and “adopted” the flawed finding of
the public prosecutor that the John Does in the original information are
the seventy one accused whose names were just added by Prosecutor
Dolor in the “amended” information and that probable cause exists,
which later became the basis for the issuance of a warrant of arrest
against herein accused.
85
With this important fact, it is evident that the Presiding judge did not
make a personal evaluation of the records of the case to determine
whether probable cause exists to justify the issuance of the assailed
warrant of arrest. For how could the Presiding Judge adopt a finding
not derived from any proceeding? The Presiding judge could have
known that no preliminary investigation was conducted as to the
amended information had he made a more than cursory examination of
the records of the case. It only goes to show he did not study
personally the records of the case as required by law but perfunctorily
issued the warrant of arrest, relying mainly on the certification of the
prosecutor that probable cause exists, in violation of the constitutional
provision that no warrant shall issue except upon probable cause to be
determined personally by the judge.
86
In the case of MAYOR BAI UNGGIE D. ABDULA and ODIN ABDULA,,
vs. HON. JAPAL M. GUIANI, G.R. No. 118821, 18 February 2000, the
Supreme Court held, thus:
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
33
“Although the prosecutor enjoys the legal
presumption of regularity in the performance of his official
duties, which in turn gives his report the presumption of
accuracy, nothing less than the fundamental law of the land
commands the judge to personally determine probable
cause in the issuance of warrants of arrest. A judge fails in
this constitutionally mandated duty if he relies merely on the
certification or report of the investigating officer.
To be sure, we cannot determine beforehand how
cursory or exhaustive the respondent's examination of the
records should be. The extent of the judge's examination
depends on the exercise of his sound discretion as the
circumstances of the case require. In the case at bench, the
respondent had before him two different informations and
resolutions charging two different sets of suspects. In the
face of these conflicting resolutions, it behooves him not to
take the certification of the investigating prosecutor at face
value. The circumstances thus require that respondent look
beyond the bare certification of the investigating prosecutor
and examine the documents supporting the prosecutor's
determination of probable cause. The inordinate haste that
attended the issuance of the warrant of arrest and
respondent's own admission are circumstances that tend to
belie any pretense of the fulfillment of this duty.
Clearly, respondent judge, by merely stating that he
had no reason to doubt the validity of the certification made
by the investigating prosecutor has abdicated his duty under
the Constitution to determine on his own the issue of
probable cause before issuing a warrant of arrest.
Consequently, the warrant of arrest should be declared null
and void.”(underscoring supplied)
87
Had the Honorable Presiding judge gone over the records of the case
as required by law and the rules, he would have immediately noticed
the glaring irregularities in the certification of the prosecutor, the
absurdities in the affidavits of the witnesses and the utter lack of basis
in the inclusion of the name of herein accused-movant in the amended
information. Not a scintilla of evidence can be found in the documents
attached to the amended information as would have convince an
unbiased mind that reasonable grounds exist to justify the issuance of
warrant of arrest against herein accused.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
88
34
The Presiding judge, had he made a scrutiny of the records, would
have immediately noticed that the certification itself of the prosecutor
already arouses suspicion that there is something wrong, for it does
not state whether the complainants and his witnesses appeared before
him or whether the respondents were given an opportunity to present
counter-affidavits. He would have likewise noted that the only basis of
the prosecutor in filing the amended information, without a motion to
revive at that, was the affidavit of a certain Silva who even did not
appear personally before the prosecutor.
89
Unfortunately, the Presiding judge took the word of the public
prosecutor hook, line and sinker, so to speak, that probable cause
exists and immediately issued the warrant of arrest. Accused therefore
may not be faulted if he entertains in his mind that the mind that issued
the warrant of arrest against him may not be ‘unbiased’ after all.
II
THE HONORABLE JUDGE SHOULD HAVE
DISMISSED THE CASE OUTRIGHT FOR THERE IS
ABSOLUTELY NO EVIDENCE TO ESTABLISH
PROBABLE CAUSE AGAINST ACCUSED ATTY.
REMEGIO SALADERO JR.
90
In the landmark case of Allado vs Diokno,14 the Honorable Supreme
Court had occasion to emphasize the concept and implication of
probable cause, the existence of which is necessary for the prosecutor
to have an accused held for trial and for a trial judge to issue a warrant
for his arrest.
14
232 SCRA 193 (1994)
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
91
35
In the said case, petitioners Diosdado Jose Allado and Roberto L.
Mendoza are both lawyers and partners of the Law Firm of Salonga,
Hernandez and Allado. In the practice of their profession, and on the
basis of an alleged extrajudicial confession of a security guard, they
were accused of the heinous crime of kidnapping with murder and
ordered arrested without bail by the respondent judge in the said case.
92
In setting aside the warrant of arrest and in enjoining the respondent
judge from proceeding any further against therein petitioners Allado
and Mendoza, the Honorable Supreme Court held as follows:
Xxxx
Pilapil v. Sandiganbayan 27 sets a standard for
determining the existence of probable cause. While it
appears in that case that we have granted the prosecutor
and the trial judge seemingly unlimited latitude in
determining the existence or absence of probable cause by
affirming the long-standing procedure that they can base
their findings merely on their personal opinion and
reasonable belief, yet, this permissiveness should not be
interpreted as giving them arbitrary powers and letting
them loose in the determination of the existence of
probable cause, a delicate legal question which can
result in the harassment and deprivation of liberty of the
person sought to be charged or arrested. There we said
—
Probable cause is a reasonable ground of
presumption that a matter is, or may be, well founded, such
a state of facts in the mind of the prosecutor as would lead a
person of ordinary caution and prudence to believe, or
entertain an honest or strong suspicion, that a thing is so.
The term does not mean "actual and positive cause" nor
does it import absolute certainty. It is merely based on
opinion and reasonable belief. Thus, a finding of probable
cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that
it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for
the reception of evidence of the prosecution in support of the
charge.
Whether an act was done causing undue injury to the
government and whether the same was done with manifest
partiality or evident bad faith can only be made out by proper
and sufficient testimony. Necessarily, a conclusion can be
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
People v. Rustom Simbulan, et al.
Crim. Case No. CR-06-8525
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arrived at when the case has already proceeded on sufficient
proof. 28
Accordingly, before issuing a warrant of arrest,
the judge must satisfy himself that based on the
evidence submitted there is sufficient proof that a crime
has been committed and that the person to be arrested
is probably guilty thereof. In the Order of respondent judge
dated 11 February 1994, it is expressly stated that "[t]his
court after careful evaluation of the evidence on record,
believes and rules that probable cause exists; and therefore,
a warrant of arrest should be issued." However, we are
unable to see how respondent judge arrived at such
ruling. We have painstakingly examined the records and we
cannot find any support for his conclusion. On the contrary,
we discern a number of reasons why we consider the
evidence submitted to be insufficient for a finding of
probable cause against petitioners.
Xxx
Based on the evidence thus far submitted there is
nothing indeed, much less is there probable cause, to
incriminate petitioners. For them to stand trial and be
deprived in the meantime of their liberty, however brief, the
law appropriately exacts much more to sustain a warrant for
their arrest — facts and circumstances strong enough in
themselves to support the belief that they are guilty of a
crime that in fact happened. Quite obviously, this has not
been met.
Verily, respondent judge committed grave abuse
of discretion in issuing the warrant for the arrest of
petitioners it appearing that he did not personally
examine the evidence nor did he call for the complainant
and his witnesses in the face of their incredible
accounts. Instead, he merely relied on the certification
of the prosecutors that probable cause existed. For,
otherwise, he would have found out that the evidence
thus far presented was utterly insufficient to warrant the
arrest of petitioners.
Xxx
93
In this case, there is nothing on record that would justify the finding of
probable cause by the Honorable Judge.
We have examined the
records and we cannot find any support for his conclusion.
94
On the contrary, we have determined a number of reasons why the
Honorable Judge should have dismissed outright the charges against
herein accused.
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There is no evidence of conspiracy to
support such allegation in the
Information. A charge of conspiracy
should be based on facts and not on
mere conclusions or inferences.
------------------------------------------------------
95
Article 8 of the Revised Penal Code provides:
Conspiracy and proposal to commit felony.—
Conspiracy and proposal to commit felony are
punishable only in the cases in which the law
specially provides a penalty therefore.
A conspiracy exists when two or more persons
come to an agreement concerning the commission of
a felony and decide to commit it.
96
The elements of a conspiracy, therefore, are: (1) that two or more
persons come to an agreement; (2) that the agreement concerned the
commission of a felony; and (3) that the execution of the felony be
agreed upon.
97
Conspiracy must be proved by positive and convincing evidence15; it
cannot
be
founded
on
mere
conjectures,
inferences
and
presumptions;16 It must be real and not presumptive. 17
98
As if it could not be made more clear, the Supreme Court ruled in
People v. Ortiz (266 SCRA 641 [1997]) that:
[p]roofs, not mere conjectures or assumptions,
should be proffered by the prosecution which would
show that appellant had taken part in the planning,
preparation and perpetration of the alleged conspiracy
to kill the victim. Otherwise, ‘a careless use of the
conspiracy theory (can) sweep into jail even innocent
persons who may have (only) been made unwitting
15
16
17
People v. Tiongson, 47 SCRA 243; People v. Ancheta, 66 Phil. 638.
Orodio v. Court of Appeals, 164 SCRA 316.
United States v. Figueras, 2 Phil 491.
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Crim. Case No. CR-06-8525
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tools by the criminal minds’ really responsible for the
crime. (underscoring supplied)
99
In terms of quantum of proof necessary to establish a conspiracy,
“conspiracy must be shown to exist as convincingly as the commission
of the offense itself in order to uphold the fundamental principle that no
one shall be found guilty of a crime except upon proof beyond
reasonable doubt.”18
100
In this case, there is absolutely no evidence of conspiracy to support
such allegation in the information.
101
To reiterate, in the affidavit of Vincent Silva, he did not say that
Remegio Saladero alias “Ka Patrick “was a perpetrator or participant in
the alleged burning of the Globe tower or in the alleged ambush of the
PNP soldiers. In fact, with the exception of Simbulan, a certain Miguel
Magbata, a certain Jaime Padilla, a certain Edmar Fernandez and
himself Silva did not say that the sixty-seven others were perpetrators
or participants in the two crimes. He was explicit in his statement that
these sixty seven (67) accused only had knowledge or knew of these
incidents. (“may kinalaman,” Q & A Nos. 06 and 09).
102
Significantly too, Silva confessed that he was one of the perpetrators
and explicitly named and narrated the criminal acts performed by four
others in the two incidents. He was silent on the sixty-seven (67) other
accused except his sweeping statement that they had knowledge of
the incidents.
18
Pecho v. People, 262 SCRA 518 [1996].
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39
Verily, in the absence of any allegation or proof against herein
accused, he should not be implicated in the alleged conspiracy. To
reiterate, a charge of conspiracy should be based on facts and not on
mere conclusions or inferences.
104
To reiterate too, the statements of complaining witnesses Wilson Gani
and Joseph Panes that “more than fifteen heavily armed men”
perpetrated the alleged ambush seriously flawed and inherently
incredible because it seeks to prove that the rest of the seventy-two
accused other than the “more than fifteen heavily armed men” were
either “look-outs,” “on-lookers” or kibitzers during the ambush.
The
extra-judicial
confession/
admission of prosecution witness
Vincent U. Silva is inadmissible in
evidence under the res inter alios
acta rule embodied in Rule 130,
Section 28 of the Rules of Court.
------------------------------------------------------
105
Section 28, Rule 130 of the Rules of Court enshrines in our legal
system the doctrine of res inter alios acta alteri nocere non debet
which ordains that the rights of a party cannot be prejudiced by an act,
declaration or omission of another, and that, therefore, an extrajudicial
confession or admission is binding only upon the confessant and is not
admissible against others19.
106
In the case of People v. Tena20, the Honorable Supreme Court said:
Not unexpectedly, therefore, it is this extrajudicial
confession on which Solita Sena centers his attack in the
present appellate proceedings, assigning as errors on the
part of the lower court the admission in evidence of the
extrajudicial confession of Adelberto Camota and his
conviction on the sole basis thereof.
19
20
See People v. Buntag, 427 SCRA 190 (2004)
215 SCRA 43, 47-48
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But as is made clear by the Solicitor General in his
“Manifestation in Lieu of Appellee’s Brief,” the matter of that
confession’s competency need not be delved into as the
issue of accused-appellant’s guilt or innocence may be
resolved by application of the doctrine res inter alios acta
alteri nocere non debet. Actually, the issue is not so much
the admissibility in evidence of the extrajudicial confession,
but rather, even conceding its admissibility, its use against
persons other than the confessant, e.g., herein accusedappellant.
Use of Camota’s extrajudicial confession is precluded
by Section 25 (now Section 28), of Rule 130 of the Rules of
Court, viz:
Section 28. Admission by third party. – The rights of a
party cannot be prejudiced by an act, declaration, or
omission of another, except as hereinafter provided.
107
In the instant case, the prosecution relies principally on the sworn
statement of witness Vincent U. Silva to indict accused Atty. Saladero
and the other additional accused. In fact, Prosecutor Dolor states in
the “Amended Information” that the same was filed on the basis of
Silva’s sworn statement. Said witness’ sworn statement reads:
x x x x
04. T – Kailan naman isinagawa ng mga NPA and pag-ambush
sa mga RMG kung iyong matatandaan?
S - Noon pong ika-3 ng Marso 2006 din po mga alas siyete
ng umaga.
05. T – Nasaan ka ng maganap ang mga bagay na ito
S – Kasama po nila ako sa dalawang insidenteng iyon.
x x x x
09. T - Nasabi mo na ang mga taong ito ang may kinalaman sa
pagsunog sa Globe Tower sa Brgy. San Isidro, Pto.
Galera, sa papaanong paraan naman nila sinunog ang
nasabing tower?
S – Binuhusan po namin ng gasolina paikot ang tower
pagkatapos po ay sinindihan.
x x x x
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14. T – Sa papaanong paraan naman isinagawa ng grupo nina
Jaime Padilla at Rustom Simbulan ang pag-ambush sa
grupo ng mga RMG?
S – Nagbaon po sina MIGUEL MAGBATA @ KA AMAN at
RUSTOM SIMBULAN @ KA BOBBY ng landmine at
pagtapat po ng sasakyan nila na Dump truck ay
sumabog at pagkatapos po noon ay walang humpay
na naming pinaputukan ang mga pulis na sakay
doon.
Ako po ay kasama sa main body bilang
Pangalawang platun lider ni EDMAR FERNANDEZ @
KA HOMER. (Emphasis is ours.)
x x x x
108
It is clear from his sworn statement that he was part of the alleged
conspiracy to assault the police officers in Brgy. San Isidro, Puerto
Galera, Oriental Mindoro on March 3, 2006 at about 7:00 P.M.
Assuming arguendo that his allegations were true, his extra-judicial
confession, however, is admissible in evidence only as against himself,
but not against his alleged co-conspirators pursuant to the well-settled
doctrine of res inter alios acta alteri nocere non debet.
109
In People v. Tena 21 and People v. Cui, et al. 22 , the High Court
explained the rationale for this doctrine or rule, to wit:
x x x The reason for the rule is that, on a principle of
good faith and mutual convenience, a man’s own acts are
binding upon himself, and are evidence against him. So are
his conduct and declarations. Yet, it would not only be
rightly inconvenient, but also manifestly unjust, that a man
should be bound by the acts of mere unauthorized strangers,
neither ought their acts or conduct be used as evidence
against him.
110
While the res inter alios acta rule admits of certain exceptions, one of
which is found in Section 30 of Rule 130, such exception does not
apply in the present case. As further held in People v. Cui, et al23.:
21
22
23
Supra.
314 SCRA 166-168 (1999), citing People v. Raquel, 265 SCRA 248.
Supra.
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The res inter alios has exceptions. Thus, Section 30
of Rule 130 provides:
“The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in
evidence against the co-conspirator after the conspiracy is
shown by evidence other than such act or declaration.”
For this provision to apply, the following requisites
must be satisfied:
“a. that the conspiracy be first proved by evidence
other than the admission itself;
b.
that the admission relates to the common
objects; and
c.
that it has been made while the declarant was
engaged in carrying out the conspiracy.”
x x x
In the case at bar, the alleged conspiracy among the
accused was not priorly established by independent
evidence. Nor was it shown that the extrajudicial statements
of Basingan were made while they were engaged in carrying
out the conspiracy. In truth, the statements were made after
the conspiracy has ended and after the consummation of the
crime. They were not acts or declarations made during the
conspiracy’s existence. Since the extra-judicial admissions
were made after the supposed conspiracy, they are binding
only upon the confessant and are not admissible against his
co-accused, as against the latter, the confession is hearsay.
111
Similarly, in this case, there is absolutely no other evidence,
independent of the extrajudicial confession of prosecution witness
Silva, to establish the alleged conspiracy between him and all the
accused purportedly to ambush the police officers.
112
Thus, stripped of the inadmissible extrajudicial confession/admission of
witness Silva, the entire records are utterly bereft of any other
evidence that would separately and independently establish conspiracy
between accused Atty. Saladero, all the other accused and witness
Silva.
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People v. Rustom Simbulan, et al.
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43
Moreover, while the crimes were allegedly committed on March 3,
2006, curiously, witness Silva executed his sworn statement only on
August 19, 2008, when he and the accused were no longer engaged in
the alleged conspiracy and after the consummation of the crime. His
reason that
“ngayon lang po ako nabigyan ng pagkakataon na
makababa at makapagreport sa aking handler” is a lame excuse, for
he neither gave details when he allegedly joined the NPA as a DPA
and when he left the same to report to his “handler.”
Therefore,
Prosecutor Dolor should not have given any credence to Silva’s sworn
statement and made it the basis of filing the “Amended Information,”
and accordingly, the Honorable Presiding Judge should not have
issued the warrant of arrest against accused Atty. Saladero by
perfunctorily adopting the findings of Prosecutor Dolor.
114
From
the
foregoing,
the
extrajudicial
confession/admission
of
prosecution witness Silva does not qualify as an exception to the res
inter alios acta rule, rendering his confession inadmissible in evidence.
115
It is worthy of note that without the sworn statement of witness Silva,
the prosecution has absolutely no case at all against accused-movant
Atty. Saladero and the other additional accused. Thus, the dearth of
evidence for the prosecution only strengthens our submission that
prosecution witness Silva fabricated his testimony against accusedmovant Atty. Saladero and the other accused. To reiterate, witness
Silva claims to be a deep penetration agent of the PNP. Hence, his
credibility as a prosecution witness is at once placed under a heavy
cloud of doubt, rendering his testimony biased, polluted, self-serving
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case
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Crim. Case No. CR-06-8525
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and patently fabricated. Naturally, his testimony is full of biased and
false allegations that reek of motives to demonize, vilify and demolish
the reputation of the movement he and his principal have been
pursuing for decades, including the reputation and the lives of the
people who they imagine to be members of the NPA, including a
practicing labor lawyer, accused-movant Remigio Saladero, Jr.
PRAYER
WHEREFORE, PREMISES CONSIDERED, in the interest of justice and
to uphold the rule of law, accused Atty. Remigio D. Saladero, Jr. respectfully
prays that the Warrant of Arrest dated October 6, 2008 issued against him BE
QUASHED/ RECALLED; and that this case BE OUTRIGHLY DISMISSED.
Other forms of relief that are just and equitable under the premises are
also prayed for.
Makati City for Calapan City. 3 November 2008.