PEOPLE OF THE PHILIPPINES, PROVINCIAL FISCAL MARTIN PAULETE, AND SPECIAL PROSECUTOR VICENTE ORENDAIN, JR., PETITIONERS, VS. HON. GERONIMO MARAVE, JUDGE OF THE CFI OF SULU, PROVI…

This is a petition for certiorari, prohibition, mandamus with
preliminary injunction, praying that the Judge of the Court of First
Instance of Sulu be enjoined from carrying out his orders in Criminal
Case No. 2500 of that court dated August 29 and September 25, 1961, and
that he be compelled to proceed with the trial of the said case on the
merits.

The facts antecedent to the filing of the criminal case are stated
in the order dated September 25, 1961, to wit: On October 25, 1960, the
Provincial Board of Sulu passed Resolution 172 abolishing the position
of Special Counsel of that province, effective November 1, 1960. In
view of this abolition, the Provincial Board suppressed the
corresponding salary appropriation for such position in the 1960-61
provincial budget. Thenceforth, series of communications were sent by
the Provincial Governor to the Provincial Fiscal advising him of the
abolition and requesting him to terminate the services of said special
counsel. The Provincial Fiscal, however, did not heed this advice and
the special counsel continued to hold office.

In the early morning of June 15, 1961, the then provincial governor
Benjamin Abubakar, accompanied by Assistant Provincial Wirden Enrique
Teackle, P.C. Sgt. Amil Alpasain, PC Cpl. Daniel Palileo and some
prisoners repaired to the room of said special counsel and closed the
same by nailing bamboo splits therein. While so doing, Provincial
Fiscal Martin Paulate arrived. He approached the Governor and asked him
under whose orders he was closing the room. The latter answered, it was
his orders. Whereupon, Fiscal Paulate told the Governor that his act
was illegal because his office is not under him but under the
Department of Justice. The Governor retorted that he should not discuss
with him unless he wants personal violence. The Fiscal answered, “If
they (referring to the Governor’s bodyguards) are going to shoot, they
can do so. As long as I am in the performance of my official duties, I
have to protect the integrity and good name of the office, including
his subordinates.”

Consequently, on July 28, 1961, an information was filed with the
lower court charging the Provincial Governor Benjamin Abubakar, Asst.
Provincial Warden Enrique Teackle, PC Sgt. Amil Alpasain, PC Cpl.
Daniel Palileo and several John Does of the crime of direct assault
with grave coercion. The information reads:

“That on or about the 15th day of June 1061, in the
Municipality of Jolo, province of Sulu, Philippines, and within the
jurisdiction of th«s Honorable Court, the above-named accused, all
armed, being public officials with another civilian-clothed bodyguard,
six provincial jail guards whrse identities are unknown and six
detained prisoners whose identities are entially unknown, with the aid
of armed men, did then and there willfully, unlawfully and feloniously,
without a public uprising, employ force and serious intimidation in
fencincr and closeting a portion of the office of the Provincial Fiscal
of Sulu to prevent the Provincial Fiscal and/or his assistants to frclv
perform their functions in connection with public records enclosed
within the above portion or office despoiling such part of the Office;
and in so doing, the abovenamed accused did then and there willfully,
unlawfully and feloniously, without authority of law by means of
violence, prevent the Special Counsel, occupant of the portion of the
Office of the Provincial Fiscal enclosed, from making use of the same
and of his official and personal papers and belongings therein.

Preliminary investigation was conducted by a Special Prosecutor,
Vicente Orendain, Jr. After considering the testimonies given during
said investigations, the court, on August 29, 1961, issued an order
with the findings that—

“What determines the nature of the crime committed
is the intention of the defendant. From the above testimonies of both
the Fiscal and the defendant, it is clear that it was not the intention
of Governor Abubakar, when he went to the office of the Provincial
Fiscal on the mowing of June 15, 1961, to assault Fiscal Paulate. His
intention was to close the office of special counsel Jose T. Piñon in
the belief that he was authorized by law’to do so by reason of the
abolition by the Provincial Board of the position of Special Counsel.
It was when Fiscal Paulute informed Gov. Abubakar that the lattcr’s
actuations were illegal that the defendant flared up and told Fiscal
Paulate that he should not interfere unless he wants physical violence.

“From
the foregoing, the Court believes that the crime of assault against a
person in authority defined and penalized in Article 148 of the Revised
Penal Code has not been committed. It is the opinion of the Court that,
if the Governor did not have the right or authority to close the office
of Special Counsel, he had committed the crime of coercion.

“The
Court does not find sufficient evidence to link Assistant provincial
Warden Enrique Teackle, PC Sgt. Amil Alpasain and PC Cnl. Daniel
Palileo in the commission of an offense.

“WHEREFORE, Special
Prosecutor Vicente Orendain, Jr. is hereby directed to act accordingly
within ten days from notice. If after this period no action is taken in
the manner indicated above, (this case shall be dismissed.”

Instead of acting in pursuance with the above-quoted order, the
Special Prosecutor Vicente Orendain, Jr. filed a motion for
reconsideration, which motion was, however, denied by the Court on
September 25, 1961.

Treating the order dated August 29, 1961 as one of dismissal and/or
acquittal, the petitioners brought the case here by certiorari,
presenting the following arguments:

“That in practically acquitting the accused of the
criminal charge against them without any trial and without waiting for
the presentation of the evidence of the prosecution, respondent judge
acted without, and in excess of his jurisdiction, or with grave abuse
of discretion;

“That, likewise, respondent judge acted with
grave abuse of discretion in holding that there is no pi-obaMe cause to
justify the issuance of the warrant without hearing the complainant and
the witnesses he may produce and in refusing to issue a warrant for the
arrest of the accused; and

“That assuming arguondo, that
after respondent judge had examined the complainant and his witnesses,
he believed that there is no probable cause, he can only refuse to
issue a warrant of arrest but he cannot viola proprio acquit the
accused of the offenses charged and direct the fiscal to file a new
charge.

Without need of any individual discussion of the issues raised, the action should be dismissed for being premature.

A careful reading of the order dated August 29, 1961 will show that
it is not one really of dismissal. While it is, true that there is a
portion in which the judge stated he would have the case dismissed upon
failure of the Special Prosecutor to “act accordingly/’ this
insinuation, however, is not dismissal in itself that could be the
object of the writ applied for. The court may yet change its mind on
this threatened dismissal.

Also, the order is hardly an acquittal because the case is only at
its initial Mage, there having been no arraignment yet. Neither is it a
definite order upon the Special Prosecutor to amend the information. In
other words, there is nothing in the order that would give cause for
complaint of an utter abuse of discretion or lack of jurisdiction on
the part of the respondent judge.

This Court has repeatedly held that there is grave abuse of
discretion justifying the issuance of the writ of certiorari when there
is a capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction; where the power is exercised in an arbitrary or
despotic manner by reason of passion, prejudice, or personal hostility
amounting to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined, or to act at all in contemplation of law.^[1]
We find none of those circumstances to be attendant in the issuance of
the order complained of. The said order, as a matter of fact, merely
gives a leeway for the Special Prosecutor to act as he may deem proper
under the circumstances of the case in its present stage.

What the Special Prosecutor could have done was either to act upon
the order of the court, or if not, to wait for the action of the court
on his failure or refusal to so act. And in the event of any
unreasonable and abusive action on the part of the court, that would be
the time for him to elevate the case here for a writ of certiorari.

WHEREFORE, the petition is hereby dismissed and the preliminary injunctive writ heretofore issued dissolved. No costs.

Bengzon, C. J., Padilla, Bautista Angelo, Concepcion, Reyes, J. B. L., Paredes and Makalintal, JJ., concur.

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^[1] See Abad Santos vs. Province of Tarlac, 67 Phil. 480; Tan vs. People, 88 Phil.. 609; Tavera-Luna, Inc. vs. Nable, 67 Phil. 340; Alafriz vs. Nable, 72 Phil. 278; Liwanag, et al. vs. Cartillo, 106 Phil., 375; llueda vs. Court of Agrarian Relations, 106 Phil., 300.