EDUARDO M. COJUANGCO, JR., PETITIONER, VS. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) AND HON. FRANCISCO I. CHAVEZ IN HIS CAPACITY AS SOLICITOR GENERAL, AND THE HON. OMBU…

In these petitions the issues raised are:  (1) whether or not the Presidential
Commission on Good Government (PCGG) has the power to conduct a preliminary
investigation of the anti-graft and corruption cases filed by the Solicitor
General against Eduardo Cojuangco, Jr. and other
respondents for the alleged misuse of coconut levy funds; and (2) on the
assumption that it has jurisdiction to conduct such a preliminary investigation,
whether or not its conduct constitutes a violation of petitioner’s rights to
due process and equal protection of the law.

On November 28, 1989,
President Corazon C. Aquino directed the Solicitor
General to prosecute all persons involved in the misuse of coconut levy
funds.  Pursuant to the above directive
the Solicitor General created a task force to conduct a thorough study of the
possible involvement of all persons in the anomalous use of coconut levy funds.

On January 12, 1990,
the Solicitor General filed two criminal complaints with respondent PCGG
docketed under I.S. Nos. 74 and 75.^[1]

The PCGG assigned both complaints to prosecutor Cesario del Rosario for
preliminary investigation.  The latter
scheduled both cases for hearing.

Del Rosario prepared a subpoena dated January 16, 1990
setting the preliminary investigation on January 29, 1990 at 2:00 o’clock in
the afternoon as to respondents Maria Clara Lobregat,
Jose Eleazar, Felix Dueñas,
Jr., and Salvador Escudero, III, and on January 31,
1990 at 2:00 o’clock in the afternoon as to petitioner  Eduardo M. Cojuangco,
Jr., Rolando de la Cuesta, and Hermenegildo
Zayco.

At the scheduled preliminary investigation on January 31, 1990 petitioner appeared
through counsel.  Instead of filing a
counter-affidavit, as required in the subpoena, he filed two motions
addressed to the PCGG, namely:  (1) a
motion to disqualify/inhibit PCGG; alternatively, a motion to dismiss; and (2)
motion to have the PCGG itself hear or resolve Cojuangco’s
motion to disqualify/inhibit PCGG alternatively, motion to dismiss.

Prosecutor del Rosario denied both
motions and declared the proceedings closed and the cases submitted for
resolution.  Thereafter, petitioner
requested the PCGG to resolve directly his aforesaid motions.

On February 27, 1990,
the PCGG issued an order denying petitioner’s motions and required him,
together with all the respondents in I.S. Nos. 
74 and 75 to submit counter-affidavits within five (5)
days from receipt thereof. 
Petitioner did not submit the required counter-affidavit.

Instead, he filed in this Court on March 12, 1990 the herein petitions for prohibition with
prayer for a temporary restraining order/writ of preliminary injunction.

He alleges that the PCGG may not conduct a preliminary
investigation of the complaints filed by the Solicitor General without
violating petitioner’s rights to due process and equal protection of the law,
and that the PCGG has no right to conduct such preliminary investigation.  It is prayed that a temporary restraining order
be issued enjoining the respondents and any or all persons acting under their
orders or in their behalf from continuing with the preliminary investigation of
I.S. Nos. 74 and 75 and enjoining as well the PCGG from taking any further
action on said cases; and after hearing on the merits, to issue a writ of
preliminary injunction prohibiting respondent PCGG from conducting a
preliminary investigation of said criminal complaints and to order that the
records of I.S. Nos. 74 and 75 be forwarded to the Ombudsman for such action he
may consider appropriate and to pay the costs of the suits.

In a resolution dated March
13, 1990, this Court, without giving due course to the petition,
resolved to require respondents to comment thereon within ten (10) days from notice.

On the same date, the PCGG issued an order that reads as follows:

“Considering that none of the respondents have filed their
counter-affidavits and supporting evidence, except respondent Hermenegildo Zayco, the
complaints filed against them may now be considered submitted for resolution by
this Commission.

Since the respondents, except Hermenegildo
Zayco, have not submitted counter-affidavits and controverting evidence, the evidence submitted by the
complainants stands uncontradicted.  And this Commission finds the findings and
conclusions of fact of the investigating prosecutor, that a prima facie
case has been established against all the respondents, including Hermenegildo Zayco, to warrant
the filing of an information for a violation of Section 3(1) in relation to
Section 3(i) thus making them liable under Section
3(a) of RA 3019, to be well-founded.

Wherefore, let the corresponding information be filed.”^[2]

On March 14, 1990,
two informations^[3]
were filed by the PCGG with the Sandiganbayan against
petitioner and all other respondents named in I.S. Nos. 74 and 75 which were
docketed as Criminal Cases Nos. 14398 and 14399.

Meanwhile, the Solicitor General filed with the PCGG several
other complaints against petitioner and several others bearing on the misuse of
the coconut levy funds.  Two of these
complaints were docketed as I.S. Nos. 79 and 82. A panel of prosecutors
designated by the PCGG issued a subpoena to petitioner in order to
compel him to appear in the investigation of said cases.

On March 20, 1990,
petitioner filed a supplemental petition informing the Court of the filing of
said informations and the additional complaints aforestated.  He
prays that a temporary restraining order be issued enjoining respondents and
other persons acting under their orders or in their behalf from continuing with
the preliminary investigation of as well as taking further action in I.S. Nos.
79 and 82 and similar cases filed with the PCGG.  Petitioner also prays that, after hearing,
the PCGG be prohibited from continuing with the preliminary investigation of I.
S. Nos. 79 and 82 and that it be ordered to forward the records of the case to
the Ombudsman for appropriate action, and to pay the costs of the suit.

On the same date, petitioner filed a motion reiterating the petition
for the issuance of a temporary restraining order/writ of preliminary
injunction and alternatively seeking that the case be set for hearing.

On March 22, 1990,
the Court admitted the supplemental pleading of the petitioner; required
respondents to comment thereon within a non-extendible period of ten (10) days
from notice; and issued a status quo order prevailing at the time
this petition was filed on March 12,
1990.

On April 2, 1990, a consolidated comment was submitted by the
respondents attaching as annex thereto the letters of the Executive Secretary
dated February 9, 1990 and February 21,1990, respectively, addressed to the
Chairman, PCGG, conveying the instructions of the President of the Philippines
that the complaints involving coconut levy funds be filed with the PCGG, to
conduct the necessary investigation and if warranted to file and prosecute the
cases before the Sandiganbayan; and it confirmed the
earlier instructions of the President dated November 28,1989 to the same
effect.^[4]

On May 4, 1990
petitioner filed a reply to the consolidated comment as required by the
Court.  In a resolution dated June 5, 1990, the Solicitor General
was required to file a rejoinder.  On May 31, 1990, a motion for hearing of
said cases was filed by petitioner and this was granted by the Court on June 21, 1990.  It was directed that the Ombudsman be impleaded as party-respondent.  The Court required the Ombudsman to comment
on the petition within ten (10) days from notice.  The case was set for hearing on Tuesday, July 17, 1990 at 10:00 in the morning.

The Ombudsman submitted his comment on July 3, 1990 and the Court required petitioner to
file a reply to the same.

On July 6, 1990, Maria Clara Lobregat
and Jose R. Eleazar, Jr. filed a Motion for Leave to Intervene
and a Motion to Admit Petition to Intervene wherein they ask that the PCGG
desist from further proceeding with the preliminary investigation of I.S. Nos.
74, 75, 77, 79, 80, 81, 82, 83, and 84 charging the intervenors
and other respondents, including petitioner, with violations of the Anti-Graft
and Corrupt Practices Act (Republic Act No. 3019) in connection with the
coconut levy funds. The intervenors question the
authority of the PCGG to conduct a preliminary investigation of the said
cases.  They maintain that even assuming
that the PCGG has such authority, the same cannot be
delegated to a prosecutor or his assistants.

On July 10, 1990,
the Court granted the motion for leave to intervene and admitted the petition
for intervention.  The PCGG was required
to comment on said petition within ten (10) days from notice.

On July 13, 1990,
respondents filed their rejoinder to the reply of petitioner to their
consolidated comments.  The Ombudsman
filed his comment to the petition for intervention, while petitioner filed his
reply to the comment of the Ombudsman on July 16, 1990.

The hearing was held as scheduled on July 17, 1990 where all the parties including the
Ombudsman appeared and/or were duly represented by counsels.  After the hearing, the parties were required
to submit their simultaneous memoranda within fifteen (15) days from the date
of the hearing.

On July 21, 1990,
the Solicitor General asked for an extension of time within which to file his
comment to the petition for intervention. 
He filed said comment within the period of extension asked for on July 31, 1990.

The memoranda of all the parties having been submitted, the
petitions were deemed submitted for resolution.

On the first issue wherein petitioner and intervenors
question the authority of the PCGG to conduct a preliminary investigation of
the criminal complaints filed against them by the Solicitor General, the Court
finds and so holds the same to be devoid of merit.

Under Section 2, Rule 112 of the 1985 Rules on Criminal Procedure
the officers authorized to conduct a preliminary investigation are the following:

“SEC. 2. Officers authorized to
conduct preliminary investigation. –

The following may conduct
a preliminary investigation:

(a)     Provincial or city fiscals and their
assistants;

(b)     Judges of the Municipal Trial Courts and
Municipal Circuit Trial Court;

(c)     National and Regional state prosecutors;
and

(d)     Such other officers as may be authorized by
law.

Their authority to conduct preliminary investigation shall include
all crimes cognizable by the proper court in their respective territorial
jurisdictions.”

Under Section 2 likewise of Rule 112 of the Rules of Court before
its present amendment, the officers authorized to conduct preliminary
investigation are as follows:

“SEC. 2. – Officers authorized to
conduct preliminary examination. – Every justice of the peace, municipal
judge, city or provincial fiscal, shall have authority to conduct preliminary
examination or investigation in accordance with these rules of all offenses
alleged to have been committed within his municipality, city or province,
cognizable by the Court of First Instance.

The justice of the peace of the provincial capital or of the
municipality in which the provincial jail is located when directed by an order
of the Court of First Instance, shall have authority to conduct such
preliminary examination or investigation of any offense committed anywhere
within his province at the expense of the municipality wherein the same was
committed.”

Under Section 3 thereof in case of temporary absence of the
justice of the peace or his auxiliary, the municipal mayor may conduct the
preliminary investigation.  For
complaints filed directly with the Court of First Instance, the judge of the said
court may refer the case to the justice of the peace or he may himself conduct both
the preliminary examination and investigation simultaneously, under Section 13
of the same rule.

Upon the enactment of the Anti-Graft and Corrupt Practices Act on
August 17, 1960,^[5]
and Republic Act No. 1379 (covering unexplained wealth cases) on August 18, 1955, the preliminary
investigation of cases involving the Anti-Graft and Corrupt Practices Act
and/or unexplained wealth cases was vested on the aforestated
officers.

However, on July 17,
1979, Presidential Decree No. 1630 was promulgated whereby the Tanodbayan was vested with the “exclusive authority to
conduct preliminary investigation of all cases cognizable by the Sandiganbayan.”^[6]
Under Presidential Decree No. 1486 which was approved on June 11, 1978, the Sandiganbayan
was created and vested with exclusive jurisdiction over all offenses committed
by public officers enumerated therein. 
This was amended by Presidential Decree No. 1606 dated December 10, 1978
and further amended by Presidential Decree No. 1861 issued on March 23, 1983
wherein the jurisdiction of the Sandiganbayan was
defined as follows:

“SECTION 1. Section 4 of Presidential
Decree No. 1606 is hereby amended to read as follows:

“SEC. 4. Jurisdiction.
– The Sandiganbayan shall exercise:

“(a) Exclusive original
jurisdiction in all cases involving:

(1)   Violations of Republic
Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of
the Revised Penal Code;

(2)   Other offenses or
felonies committed by public officers and employees in relation to their
office, including those employed in government-owned or controlled
corporations, whether simple or complexed with other
crimes, where the penalty prescribed by law is higher than prision
correctional or imprisonment for six (6) years, or a fine of P6,000.00:  PROVIDED, HOWEVER, that offenses or felonies
mentioned in this paragraph where the penalty prescribed by law does not exceed
prision correccional or
imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the
proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court
and Municipal Circuit Trial Court.

“(b) Exclusive appellate
jurisdiction:

(2)   On appeal, from the final
judgments, resolutions or orders of the Regional Trial Courts in cases
originally decided by them in their respective territorial jurisdiction.

(2)   By petition for review,
from the final judgments, resolutions or orders of the Regional Trial Courts in
the exercise of their appellate jurisdiction over cases originally decided by
the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts, in their respective jurisdiction.

The procedure prescribed in Batas Pambansa
Blg. 129, as well as the implementing rules the
Supreme Court has promulgated and may hereinafter promulgate, relative to
appeals/petitions for review to the Intermediate Appellate Court shall apply to
appeals and petition for review filed with the Sandiganbayan.  In all cases elevated to the Sandiganbayan, the Office of the Tanodbayan
shall represent the People of the Philippines.

In case private individuals are charged as co-principals, accomplies or accessories with the public officers or
employees, including those employed in government-owned or controlled
corporations, they shall be tried jointly with said public officers and
employees.

Any provision of law or the Rules of Court to the contrary
notwithstanding, the criminal action and the corresponding civil action for the
recovery of civil liability arising from the offense charged shall at all times
be simultaneously instituted with and jointly determined in the same proceeding
by the Sandiganbayan or the appropriate courts, the
filing of the criminal action being deemed to necessarily carry with it the
filing of the civil action, and no right to reserve the filing of such civil
action separately from the criminal action shall be recognized:  PROVIDED, HOWEVER, that where the civil
action had heretofore been filed separately but judgment therein has not yet
been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action
shall be transferred to the Sandiganbayan or the
appropriate court, as the case maybe, for consolidation and joint determination
with the criminal action, otherwise the separate civil action shall be
considered abandoned.”.

SECTION 2. All cases
pending in the Sandiganbayan or in the appropriate
courts as of the date of the effectivity of this
Decree shall remain with and be disposed of by the courts where they are
pending.

SECTION 3. The provisions of this Decree
notwithstanding, the office of the Tanodbayan
shall continue to have the exclusive authority to conduct preliminary
investigation, file the necessary information, and direct and control the
prosecution of all cases enumerated in Section 4 of Presidential Decree No.
1606, whether such cases be within the exclusive original/appellate
jurisdiction of the Sandiganbayan or the appropriate
courts in accordance with the provisions of Presidential Decree No. 1630.”
(Underscoring supplied.)

However, this exclusive jurisdiction of the Tanodbayan
to conduct preliminary investigation of said cases was modified by Executive
Order No. 1 signed by President Corazon C. Aquino on February 28, 1986 creating the PCGG
and constituting its membership to assist the President in the recovery of ill
gotten wealth accumulated by the former President, his relatives and
cronies.  Therein it is provided, among
others:

“SECTION 2. – The Commission shall
be charged with the task of assisting the President in regard to the following
matters:

(a)    The recovery of all ill-gotten wealth
accumulated by former President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates, whether located in the
Philippines or abroad, including the takeover or sequestration of all business
enterprises and entities owned or controlled by them, during his
administration, directly or through nominees, by taking undue advantage of
their public office and/or using their powers, authority, influence,
connections or relationship.

(b)    The investigation of such cases of graft
and corruption as the President may assign to Commission from time to time.

(c)  The adoption of safeguards to ensure that the
above practices shall not be repeated in any manner under the new government,
and the institution of adequate measures to prevent the occurrence of
corruption.

SECTION 3. The Commission shall have the
power and authority:

(a) To conduct investigations as may be
necessary in order to accomplish and carry out the purposes of this order. (Underscoring
supplied.)”

Under Executive Order No.14 signed by President Aquino on May 7,1986, it is also provided:

“SECTION 1, Any provision of the law to the contrary
notwithstanding, the Presidential Commission on Good Government with the
assistance of the Office of the Solicitor General and other government
agencies, is hereby empowered to file and prosecute all cases investigated
by it under Executive Order No. 1, dated February 28, 1986 and Executive
Order No. 2, dated March 12, 1986, as may be warranted by its findings.

SECTION 2. The Presidential Commission on
Good Government shall file all such cases, whether civil or criminal, with
the Sandiganbayan, which shall have exclusive and
original jurisdiction thereof.

SECTION 3. Civil suits for restitution,
reparation of damages, or indemnification for consequential damages, forfeiture
proceedings provided for under Republic Act No. 1379, or any other civil
actions under the Civil Code or other existing laws, in connection with
Executive Order No.1 dated February 28, 1986 and Executive Order No. 2 dated
March 12, 1986, may be filed separately from and proceed independently of any
criminal proceedings and may be proved by preponderance of evidence.
(Underscoring supplied.)”

From the foregoing provisions of law, particularly Sections 2(b)
and 3(a) of Executive Order No. 1 and Sections 1 and 2 of Executive Order No.
14, is clear that the PCGG has the power to investigate and prosecute such
ill-gotten wealth cases of the former President, his relatives and associates,
and graft and corrupt practices cases that may be assigned by the President to
the PCGG to be filed with the Sandiganbayan.  No doubt, the authority to investigate
extended to the PCGG includes the authority conduct a preliminary
investigation.^[7]

Thus, the Tanodbayan lost the exclusive
authority to conduct the preliminary investigation of these types of cases by
the promulgation of the said Executive Order Nos. 1 and 14 whereby the PCGG was
vested concurrent jurisdiction with the Tanodbayan to
conduct such preliminary investigation and to prosecute said cases before the Sandiganbayan.^[8]
The power of the PCGG to conduct a preliminary investigation of the
aforementioned types of cases has been recognized by this Court in Bataan Shipyard and Engineering Co. Inc. (BASECO)
vs. PCGG.^[9]

Upon the adoption of the 1987 Constitution, the Office of the
Ombudsman was created under Article XI, as follows:

“SEC. 13. The Office of the Ombudsman
shall have the following powers, functions, and duties:

(1)  Investigate on its own, or on complaint by
any person, any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.

(2)  Direct, upon complaint or at its own instance,
any public official or employee of the Government, or any subdivision, agency or
instrumentality thereof, as well as of any government-owned or controlled
corporation with original charter, to perform and expedite any act or duty
required by law, or to stop, prevent, and correct any abuse or impropriety in
the performance of duties.

(3)  Direct the officer concerned to take
appropriate action against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine, censure, or prosecution, and
ensure compliance therewith.

(4)  Direct the officer concerned, in any
appropriate case and subject to such limitations as may be provided by law, to
furnish it with copies of documents relating to contracts or transactions
entered into by his office involving the disbursement or use of public funds or
properties, and report any irregularity to the Commission on Audit for
appropriate action.

(5)  Request any government agency for assistance
and information necessary in the discharge of its responsibilities, and to
examine, if necessary, pertinent records and documents.

(6)  Publicize matters covered by its investigation
when circumstances so warrant and with due prudence.

(7)  Determine the causes of inefficiency, red
tape, mismanagement, fraud, and corruption in the Government and make recommendations
for their elimination and the observance of high standards of ethics and
efficiency.

(8)  Promulgate its rules of procedure and exercise
such other powers or perform such functions or duties as may be provided by
law.” (Underscoring supplied)

This Court, in Zaldivar,^[10]
interpreting the aforesaid provision of the Constitution, particularly Section
13(1) thereof vesting on the Ombudsman the right and the power to investigate
on its own or on complaint, any act or omission of any public official, employee,
office or agency which appears “to be illegal, unjust, improper, or
inefficient”, held that the general power of investigation covers the
lesser power to conduct a preliminary investigation.  Thus, as the power of investigation vested on
the Ombudsman under the Constitution includes the power to conduct a
preliminary investigation, then the special prosecutor (former Tanodbayan) may no longer conduct such a preliminary
investigation unless duly authorized by the Ombudsman.^[11]

A reading of the foregoing provision of the Constitution does not
show that the power of investigation including preliminary investigation vested
on the Ombudsman is exclusive.  Hence,
the said provision of the Constitution did not repeal or remove the power to
conduct an investigation, including the authority to conduct a preliminary
investigation, vested on the PCGG by Executive Orders Nos.1 and 14.

Although under Section 26 of Article XVIII of the Constitution
the authority of the PCGG to issue sequestration or freeze orders was maintained
for not more than eighteen months after the ratification of the Constitution,
it cannot be construed thereby that its power of investigation had thereby been
revoked by the failure to reiterate said power in the Constitution.

Indeed, upon the passage of Republic Act No. 6770, otherwise
known as the “Ombudsman Act of 1989,” it is therein specifically
provided in Section 15 as follows:

“SEC. 15.  Powers, Functions and
Duties. – The Office of the Ombudsman shall have the following
powers, functions and duties:

(1)     Investigate and
prosecute on its own or on complaint by any person, any act or omission of any
public officer or employee, office or agency, when such act or omission appears
to be illegal, unjust, improper or inefficient. 
It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the investigation of such cases;

x        x          x

(11)   Investigate and
initiate the proper action for the recovery of ill-gotten and/or unexplained
wealth amassed after February 25, 1986
and the prosecution of the parties involved therein.

The Ombudsman shall give priority to complaints filed against high
ranking government officials and/or those occupying supervisory positions,
complaints involving grave offenses as well as complaints involving large sums
of money and/or properties.”

Under Section 15(1) of Republic Act No. 6770 aforecited,
the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan so that it may take over at any stage from
any investigatory agency of the government, the investigation of such cases.
The authority of the Ombudsman to investigate offenses involving public
officers or employees is not exclusive but is concurrent with other similarly
authorized agencies of the government. 
Such investigatory agencies referred to include the PCGG and the
provincial and city prosecutors and their assistants, the state prosecutors and
the judges of the municipal trial courts and municipal circuit trial courts.^[12]

In other words, the aforestated
provision of the law has opened up the authority to conduct preliminary
investigation of offenses cognizable by the Sandiganbayan
to all investigatory agencies of the government duly authorized to conduct a
preliminary investigation under Section 2, Rule 112 of the 1985 Rules Of
Criminal Procedure with the only qualification that the Ombudsman may take over
at any stage of such investigation in the exercise of his primary jurisdiction.

It is also noted that under Section 15(11) of the aforestated Republic Act No. 6770, among the powers vested
on the Ombudsman is to investigate and to initiate the proper action for
recovery of ill-gotten wealth and/or unexplained wealth amassed after
February 25, 1986 and the prosecution of the parties involved therein.  The Court agrees with the contention of the
public respondent PCGG that this provision is a tacit recognition that the
authority of the PCGG to conduct preliminary investigation of ill-gotten wealth
and/or unexplained wealth amassed before February 25, 1986 is maintained.

However, the Court finds and so holds that the aforesaid
provision of the law cannot in any manner dilute or diminish the primary
jurisdiction of the Ombudsman over all such types of cases committed by public
officers or employees as provided in Section 13, Article XI of the
Constitution.  Thus, notwithstanding the
provision of Section 15(11) of Republic Act No. 6770, the primary jurisdiction
of the Ombudsman to investigate covers ill-gotten wealth and/or unexplained
wealth cases that occurred even before February
25, 1986.

The second issue raised that the preliminary investigation by the
PCGG of the aforestated complaints violates the right
of petitioner to due process and to equal protection of law is impressed with
merit.

Under Section 1, Rule 112 of the 1985 Rules on Criminal
Procedure, preliminary investigation is defined as “an inquiry or
proceeding for the purpose of determining whether there is sufficient ground to
engender a well-founded belief that a crime cognizable by the Regional Trial
Court has been committed and that the respondent is probably guilty thereof,
and should be held for trial.”

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 a crime, from the trouble, expense, anxiety of a
public trial, and also to protect the state from useless and expensive trials.^[13]

The conduct of a preliminary investigation is the initial step
towards the criminal prosecution of a person. 
After such preliminary investigation, if the investigating officer finds
that there is sufficient ground to engender a well-founded belief that a crime
has been committed and that the respondent is probably guilty thereof and
should be held for trial, then the corresponding complaint or information shall
be filed in the competent court.  It is
the filing of said complaint or information that initiates the criminal
prosecution of the accused when he is brought to court for trial.

Such a preliminary investigation is required for offenses
cognizable by the Regional Trial Court and the Sandiganbayan.^[14]
It must be undertaken in accordance with the procedure provided in Section 3,
Rule 112 of the 1985 Rules of Criminal Procedure.  This procedure is to be observed in order to
assure that a person undergoing such preliminary investigation will be afforded
due process.

As correctly pointed out by petitioner, an indispensable
requisite of due process is that the person who presides and decides over a
proceeding, including a preliminary investigation, must possess the cold
neutrality of an impartial judge.^[15]

Although such a preliminary investigation is not a trial and is not
intended to usurp the function of the trial court, it is not a casual
affair.  The officer conducting the same
investigates or inquires into the facts concerning the commission of the crime
with the end in view of determining whether or not an
information may be prepared against the accused.  Indeed, a preliminary investigation is in
effect a realistic judicial appraisal of the merits of the case.  Sufficient proof of the guilt of the accused
must be adduced so that when the case is tried, the trial court may not be
bound as a matter of law to order an acquittal. 
A preliminary investigation has then been called a judicial
inquiry.  It is a judicial proceeding.  An act becomes judicial when there is
opportunity to be heard and for, the production and weighing of evidence, and a decision is rendered thereon.

The authority of a prosecutor or investigating officer duly
empowered to preside or to conduct a preliminary investigation is no less than
that of a municipal judge or even a regional trial court judge.^[16]
While the investigating officer, strictly speaking is not a “judge,”
by the nature of his functions he is and must be considered to be a quasi
judicial officer.

Soon after the creation of the PCGG under Executive Order No. 1,
the PCGG sequestered and froze all the properties of petitioner Cojuangco in accordance with the powers vested in it by
law.

On July 31, 1987,
said petitioner was sued by the PCGG before the Sandiganbayan
by way of a complaint entitled “Republic of the Philippines
vs. Eduardo M. Cojuangco, Jr.,” et al. docketed
as Civil Case No. 0033.  Among the
allegations of the complaint are as follows:

“This is a civil action against Defendants Eduardo Cojuangco, Jr., Ferdinand E. Marcos, Imelda R. Marcos and
the rest of the Defendants in the above-entitled case to recover from them
ill-gotten wealth consisting of funds and other property which they, in
unlawful concert with one another, had acquired and accumulated in flagrant
breach of trust and of their fiduciary obligations as public officers with,
grave abuse of right and power and in brazen violation of the Constitution and
laws of the Republic of the Philippines, thus resulting in their unjust
enrichment during Defendant Ferdinand E. Marcos’ 20 years of rule from December
30, 1965 to February 25, 1986, first as President of the Philippines under the
1935 Constitution and, thereafter, as one-man ruler under martial law and
Dictator under the 1973 Marcos-promulgated Constitution.

2.  The wrongs committed by
Defendant acting singly or collectively and in unlawful concert with one
another, include the misappropriation and theft
of public funds, plunder of the nation’s
wealth, extortion, blackmail, bribery, embezzlement
and other acts of corruption, betrayal
of public trust and brazen abuse of
power as more fully described below, all at the expense and to the grave
and irreparable damage of Plaintiff and the Filipino people. (Underscoring
supplied.)”^[17]

The complaint was filed by the PCGG through its Chairman, Ramon
A. Diaz, who verified the complaint, and Solicitor General Francisco I. Chavez
and Assistant Solicitor General Ramon S. Desuasido.

Petitioner in turn filed a counterclaim against the PCGG for the
sequestration of his properties and the institution of the suit.  He also questioned the acts of the PCGG in
several special civil actions before the court.^[18]

On November 27, 1989,
the first working day after petitioner Cojuangco
returned to the Philippines,
the PCGG filed with the Sandiganbayan an information against said petitioner for violation of
Republic Act No. 3019 entitled “People of the Philippines
vs. Eduardo M. Cojuangco, Jr.” docketed as
Criminal Case No. 14161.  However, the Sandiganbayan found no probable cause for the issuance of a
warrant of arrest so a petition for certiorari was filed by the
Solicitor General in this Court docketed as G.R. No. 91741.  On March
29, 1990 this Court denied the petition.

On November 28, 1989,
President Aquino directed the Solicitor General to
prosecute all persons involved in the misuse of the coconut levy funds.  The Solicitor General created a task force
for the purpose.

On January 12, 1990,
the Solicitor General filed with the PCGG the first two criminal complaints for
violation of the Anti-Graft and Corrupt Practices Act, bearing on the anomalous
use and/or misuse of the coconut levy funds docketed as I.S. Nos. 74 and
75.  Among the respondents were the
petitioner and intervenors Lobregat
and Eleazar. 
The PCGG assigned assistant prosecutor Cesario
del Rosario to conduct the preliminary investigation.

As hereinabove related, a subpoena was issued by the said
prosecutor for the preliminary investigation on January 29, 1989 insofar as intervenors
are concerned while that of petitioner, de la Cuesta
and Herminigildo Zayco was
scheduled on January 31, 1990.  In the same subpoena, respondents were
required to submit their counter-affidavits and other supporting documents to
controvert the complaint within ten (10) days from notice.

On the scheduled investigation dated January 29, 1990, intervenors
appeared through counsel and moved to dismiss the complaints for lack of
jurisdiction of the PCGG to conduct the preliminary investigation but this was
denied by said prosecutor.  They were
asked by the prosecutor if they will submit their counter-affidavits but intervenors’ counsel replied that they were not yet ready
to file the same because of their pending motion.  Thus, the cases were considered closed
insofar as they are concerned.

The intervenors contested the
prosecutor’s action before the Sandiganbayan through
a petition for certiorari and prohibition docketed as Criminal Case No.
0093.  On March 13, 1990, the Sandiganbayan promulgated its decision wherein it declared
the preliminary investigation conducted by del Rosario null and void, enjoined
the PCGG from filing an information on the basis thereof and directed the PCGG
to conduct another preliminary investigation of I.S. Nos. 74 and 75 as to the intervenors and to assign another investigating prosecutor.

Earlier however, that is, on February 27, 1990, the PCGG, overruling prosecutor del Rosario’s
order, gave the intervenors in I.S. Nos. 74 and 75
another period of five (5) days from notice within which to submit their
counter-affidavits and supporting evidence. 
Based on this action the PCGG filed a motion for reconsideration of the
aforesaid decision of the Sandiganbayan which had not
been resolved.

As to petitioner, on the day of the preliminary investigation
dated January 31, 1990, his
counsel filed a motion to disqualify or inhibit the PCGG, an alternative motion
to dismiss, and a motion to have the PCGG itself hear and/or resolve the motion
to disqualify or inhibit itself alternatively a motion to dismiss.  The preliminary investigation presided by
prosecutor del Rosario started at 2:00 o’clock P.M. with eight other respondents duly
represented by their counsel.  The said
motion was denied and the preliminary investigation was adjourned.

Immediately thereafter petitioner brought the matter to Chairman
Mateo A.T. Caparas of the PCGG and in several
communications sought resolution of the motion by the PCGG.  On February
27, 1990, the PCGG issued an order denying petitioner’s motion to
dismiss for lack of jurisdiction but did not resolve the motion to
disqualify.  Therein, the PCGG directed
petitioner to submit his counter-affidavits within five (5) days from receipt
of notice.

On March 12, 1990,
the same day this petition was filed in this Court, the petitioner, instead of
filing the counter-affidavit, filed with the PCGG an urgent motion to defer
proceedings in I.S. Nos. 74 and 75 for at least until March 22, 1990 within which to seek judicial
relief from the order of February 27,
1990.  Upon the filing of
this petition, petitioner filed a supplemental urgent motion to defer proceedings
with the PCGG informing it of the filing of this petition.

Nevertheless, on March
14, 1990, the PCGG filed two informations
corresponding to the complaints in I.S. Nos. 74 and 75 which are docketed as
Criminal Cases Nos. 14398 and 14399, respectively, at the Sandiganbayan.  The PCGG recommended bail as P100,000.00 for each case.

Meanwhile, the Solicitor General filed two other complaints
against the petitioner with the PCGG accusing the petitioner of violation of
Republic Act No. 3019 and other penal laws in connection with the coconut levy
funds, namely, I.S. No. 79 which concerns an alleged arbitration award in favor
of Agricultural Investors Inc., and I.S. No. 82 which concerns the acquisition
of coconut oil mills.

Several other complaints were filed by the Solicitor General with
the PCGG against petitioner for preliminary investigation, to wit:

(a) I.S. No. 80 which concerns the acquisition of the First
United Bank, now United Coconut Planters’ Bank; (b) I.S. No. 81 concerning
shares of the United Coconut Oil Mills Inc.; (c) I.S. No. 83 regarding the
acquisition of coconut oil mills and certain indebtedness thereof; and (d) I.S.
No. 84 regarding settlement of an Anti-Graft suit in the United States.  All of these complaints were for alleged
violation of Republic Act No. 3019.

The question that arises, therefore, is whether under the
circumstances of this case, it would be fair and just for the PCGG to conduct
the preliminary investigation of the said complaint instead of the Ombudsman or
any other duly authorized investigating agency.

Upon the creation of the PCGG under Executive Order No. 1 issued
by President Aquino, the PCGG was charged with the
task of assisting the President not only in the recovery of ill-gotten wealth
or unexplained wealth accumulated by the former President, his immediate
family, relatives subordinates and close associates but also in the
investigation of such cases of graft and corruption as the President may assign
to the Commission from time to time and to prevent a repetition of the same in
the future.

Section 3 of Executive Order No. 1 provides as follows:

“SECTION 3.- The Commission shall
have  the power and authority:

(a)    To conduct investigation as may be necessary
in order to accomplish and carry out the purposes of this order.

(b)    To sequester or place or cause to be placed
under its control or possession any building or office wherein any ill-gotten
wealth or properties may be found, and any records pertaining thereto, in order
to prevent their destruction, concealment or disappearance which would
frustrate or hamper the investigation or otherwise prevent the Commission from
accomplishing its task.

(c)    To provisionally take over in the public
interest or to prevent its disposal or dissipation, business enterprises and
properties taken over by the government of the Marcos administration or by
entities or persons close to former President Marcos, until the transactions
leading to such acquisition by the latter can be disposed of by the appropriate
authorities.

(d)    To enjoin or restrain any actual or
threatened commission of acts by any person or entity that may render moot and
academic, or frustrate, or otherwise make ineffectual the efforts of the
Commission to carry out its tasks under this order.

(e)    To administer oaths, and issue subpoenas
requiring the attendance and testimony of witnesses and/or the production of
such books, papers, contracts, records, statement of accounts and other
documents as may be material to the investigation conducted by the Commission.

(f)     To hold any person in direct or indirect
contempt and impose the appropriate penalties, following the same procedures
and penalties provided in the Rules of Court.

(g)    To seek and secure the assistance of any
office, agency or instrumentality of the government.

(h)    To promulgate such rules and regulations as
may be necessary to carry out the purposes of this order.”

From the foregoing provisions of law, it is clear that the PCGG
has the following powers and authority:

1.  To conduct an
investigation including the preliminary investigation and prosecution of the
ill-gotten wealth cases of former President Marcos, relatives and associates,
and graft and corruption cases assigned by the President to it;

2.  Issue sequestration
orders in relation to property claimed to be ill-gotten;

3.  Issue “freeze
orders” prohibiting persons in possession of property alleged to be
ill-gotten from transferring or otherwise disposing of the same;

4.  Issue provisional
takeover orders of the said property;

5.  Administer oaths and
issue subpoenas in the conduct of its investigation;

6.  Hold any person in
direct or indirect contempt and impose the appropriate penalties as provided by
the rules.

Considering that the PCGG, like the courts, is vested with the
authority to grant provisional remedies of (1) sequestration, (2) freezing
assets, and (3) provisional takeover, it is indispensable that, as in the case
of attachment and receivership, there exists a prima facie
factual foundation, at least, for the sequestration order, freeze order or
takeover order, an adequate and fair opportunity to contest it and endeavor to
cause its negation or nullification. 
Both are assured under the foregoing executive orders and the rules and
regulations promulgated by the PCGG.^[19]

Thus, in Baseco, this Court
held, as follows:

“Executive Order No. 14 enjoins that there be ‘due regard to
the requirements of fairness and due process.’ Executive Order No. 2 declares
that with respect to claims on allegedly ‘ill-gotten’ assets and properties,
‘it is the position of the new democratic government that President Marcos * *
(and other parties affected) be
afforded fair opportunity to contest these claims before appropriate Philippine
authorities.’  Section 7 of the
Commission’s Rules and Regulations provides that sequestration or freeze (and
takeover) orders issue upon the authority of at least two commissioners, based
on the affirmation or complaint of an interested party, or motu
propio when the Commission has reasonable
grounds to believe that the issuance thereof is warranted.  A similar requirement is now found in Section
26, Art. XVIII of the 1987 Constitution, which requires that a ‘sequestration
or freeze order shall be issued only upon showing of a prima facie
case.’”^[20]

Insofar as the general power of investigation vested in the PCGG
is concerned, it may be divided into two stages.  The first stage of investigation which is
called the criminal investigation stage is the fact-finding inquiring which is
usually conducted by the law enforcement agents whereby they gather evidence
and interview witnesses after which they assess the evidence and if they find
sufficient basis, file the complaint for the purpose of preliminary
investigation.  The second stage is the
preliminary investigation stage of the said complaint.  It is at this stage, as above discussed,
where it is ascertained if there is sufficient evidence to bring a person to
trial.

In the petition before this Court, it is not denied that the PCGG
conducted the appropriate criminal investigation of petitioner and intervenors as a law enforcer.  In the process it sequestered all the
properties of the petitioner after a prima facie finding that the
same amount to ill-gotten wealth and/or were acquired
in relation to allegedly anomalous disposition or misuse of the coconut levy
funds.

The PCGG then filed on July 31, 1987 a complaint docketed as
Civil Case No. 0033 against petitioner and intervenors
not only for alleged ill-gotten wealth as associates of former President Marcos
but for the unlawful concert with the former President and his wife to unjustly
enrich themselves at the expense of the Filipino people through the alleged
misuse, misappropriation and dissipation of the coconut levy funds, as
enumerated in the complaint.  This
complaint was verified and filed by the then Chairman of the PCGG and also
signed by the Solicitor General and the Assistant Solicitor General.

Among the allegations in the civil complaint, are the very
transactions now subject of the criminal complaints filed by the Solicitor
General against petitioner to wit:

“13.        Defendant
Eduardo Cojuangco, Jr., taking undue advantage of his
association, influence and connection, acting in unlawful concert with
Defendants Ferdinand E. Marcos and Imelda R. Marcos, embarked upon devices,
schemes and stratagems to unjustly enrich themselves at the expense of
Plaintiff and the Filipino people, such as, when he –

13(a) manipulated, beginning the year 1975, with the active
collaboration of Defendants Juan Ponce Enrile, Maria
Clara Lobregat, Danilo Ursua, Jose R. Eleazar, Jr. and Herminigildo C. Zayco, the
purchase by Philippine Coconut Authority (PCA) of 72.2% of the outstanding
capital stock of the First (sic) (FUB) which was subsequently converted
into a universal bank named United Coconut Planters Bank (UCPB) through the use
of the Coconut Consumers Stabilization–Fund (CCSF) levy initially in
the amount of P85,773,100.00 in a manner 
contrary to law and to the specific purposes for which said coconut levy
funds were imposed and collected under P.D. 276, and under anomalous and
sinister designs and circumstances, to wit: . .

x                  x          x

At pp. 22 to 22-A, Expanded Complaint,
Civil Case No. 0033)

[I.S. No. 080]

(c)   misappropriated,
misused and dissipated P840 million of the Coconut Industry Development Fund
(CIDF) levy funds deposited with the National Investment Development Corporation (NIDC) as
administrator-trustee  of said  funds and later with UCPB, of which Defendant
Eduardo Cojuangco, Jr. was the Chief Executive
Officer in connection with  the (i) development, improvement, operation and maintenance of
the Bugsuk Island Seed Garden (“BUGSUK) by Agricultural
Investors, Inc. (“AII”) as developer (both Bugsuk
and AII are beneficially held and controlled by Defendant  Eduardo Cojuangco,
Jr.) pursuant to a highly oppressive, anomalous and one-sided memorandum
agreement, dated November  20, 1974, (ii)
sale by All to PCA of the seed nuts produced at Bugsuk
Seed Garden at exorbitant prices pursuant to a very onerous, oppressive and
disadvantageous agreement, dated August 2, 1985 and (iii) payment of liquidated
damages in the amount of P640,856,879.67 and arbitration fee of P150,000.00
pursuant to a decision rendered by a Board of Arbitrators against UCPB for alleged
breach of contract.;

x                  x          x

(At pp. 26 – 27)

[I.S. No.
079]

(d)   established and caused
to be funded with coconut levy funds, with the active collaboration of  Defendant Ferdinand E. Marcos through the
issuance of LOI 926, and of
defendants, Juan Ponce Enrile, Jose R. Eleazar, Jr.,
Maria Clara Lobregat, Jose C. Concepcion,
Inaki Mendezona, Douglas Lu
Ym, Teodoro D. Regala Emmanuel Almeda,
Eduardo Escueta, Leo Palma, and Rolando de la Cuesta, the United Coconut Oil Mills, Inc. (UNICOM) a
corporation beneficially held and controlled by Defendant Eduardo Cojuangco, Jr. and bought sixteen (16) competing and/or
non-operating oil mills at exorbitant prices in the total amount of
P184,935 million, then mothballed them in order to control the prices of copra
and other coconut products, and assumed and paid the outstanding loan  obligations of seven (7) of those
purchased oil mills in the total amount of P805,984 million with the express
consent and approval of Defendant Ferdinand E. Marcos, thereby establishing
a coconut monopoly for their own benefit and unjust enrichment and to the grave
damage of Plaintiff and the Filipino people;

(e)   manipulated, with the
active collaboration of Defendants 
Mohammad Ali Dimaporo and Teodoro
D. Regala,  the
sale of the Mindanao Coconut Oil
Mills (MINCOCO) to UNICOM through the issuance of LOI 926 by Defendant
Ferdinand E. Marcos, in violation of the Guaranty Agreement dated July 23,
1976, which prohibited the  sale, among
others, of the MINCOCO assets/properties without the prior written consent of
NIDC, under terms and conditions  grossly
disadvantageous to Plaintiff and the Filipino people;

(f)    drew up a scheme of
payment to settle the accounts of 
MINCOCO and other UNICOM-acquired mills with their respective
creditors:  namely, The National
Investment Development Corporation (NIDC),
Development Bank of the Philippines (DBP), Philippine Veterans Bank (PVB),
under terms grossly disadvantageous to Plaintiff;

x                  x          x

At pp. 27-28)

[I.S. Nos. 81, 82
and 83

(g)   misappropriated and
dissipated the coconut levy funds by withdrawing therefrom
tens of millions of pesos in order to pay damages adjudged against
UNICOM, headed and controlled by Defendant Eduardo Cojuangco,
Jr., in an anti-trust suit in
California, U.S.A.;

x                  x          x

(At p. 29)

[I.S. No. 84]

(h)   misused, dissipated
and unlawfully disbursed coconut levy funds with the active collaboration  and participation of defendants Maria Clara Lobregat, Juan Ponce Enrile,
Jose Eleazar, Jr., Rolando de la Cuesta
and Herminigildo Zayco as
members of the PCA governing board
for projects and purposes
completely alien to those for which the fund was collected and donations
made by PCA such as … P6 million to COCOFED; and other similar
unlawful disbursements, which all remain unaccounted for to date;

x                  x          x

(At pp. 28 to 28-A underscoring
supplied)

[I.S. No. 74 and 75]”

Thereafter, as aforestated, the
Solicitor General filed the first two complaints against petitioner and intervenors among others, under I.S. Nos. 74 and 75 for
alleged violation of the Anti-Graft and Corrupt Practices Act for donations
allegedly made out of coconut levy funds to the Philippine Coconut Producers
Federation (COCOFED).

Petitioner and intervenors questioned
not only the authority of the PCGG to conduct the preliminary investigation but
asserted a denial of due process and equal protection of the law.  There is cogent basis for their plea.

The PCGG, as a law enforcer, gathered evidence as to the alleged ill-gotten
wealth of petitioner and intervenors and, after
satisfying itself that there is a prima facie case, sequestered
and issued a freeze order for all the properties of petitioner.  Based also on the said finding of a prima
facie case, the PCGG filed a civil complaint docketed as Civil Case No.
0033 against petitioner and intervenors for alleged
ill-gotten wealth including the alleged misuse, misappropriation, and diversion
of coconut levy funds.

As hereinabove discussed the criminal complaints under I. S. Nos.
74, 79, 80, 81, 82, 83 and 84 filed by the Solicitor General all for alleged
violation of Republic Act No. 3019, are covered and alleged in the aforesaid
civil complaint docketed as Civil Case No. 0033.

The PCGG conducted the preliminary investigation of I.S. Nos. 74
and 75 and is poised to conduct the preliminary investigation of the other
aforementioned complaints for the same alleged violations of law subject of the
civil complaint.

The Court cannot close its eyes to the glaring fact that in earlier
instances, the PCGG had already found a prima facie case against
the petitioner and intervenors when, acting like a
judge, it caused the sequestration of the properties and the issuance of the
freeze order of the properties of petitioner. 
Thereafter, acting as a law enforcer, in collaboration with the
Solicitor General, the PCGG gathered the evidence and upon finding cogent basis
therefor filed the aforestated
civil complaint.  Consequently the
Solicitor General filed a series of criminal complaints.

It is difficult to imagine how in the conduct of such preliminary
investigation the PCGG could ever make a turn about and take a position
contradictory to its earlier findings of a prima facie case
against petitioner and intervenors.  This was demonstrated in the undue haste with
which I.S. Nos.  74 and 75 was
investigated and the informations were filed in court
even as the petitioner and intervenors questioned its
authority, invoked the denial of due process and promptly informed the PCGG of
the filing of this petition.

In our criminal justice system, the law enforcer who conducted
the criminal investigation, gathered the evidence and thereafter filed the
complaint for the purpose of preliminary investigation cannot be allowed to
conduct the preliminary investigation of his own complaint.  It is to say the least arbitrary and unjust.

It is in such instances that We say one
cannot be “a prosecutor and judge at the same time.” Having gathered
the evidence and filed the complaint as a law enforcer, he cannot be expected
to handle with impartiality the preliminary investigation of his own complaint,
this time as a public prosecutor.

The circumstances of the instant petition are even worse.  To repeat, the PCGG and the Solicitor General
finding a prima facie basis filed a civil complaint against
petitioner and intervenors alleging substantially the
same illegal or criminal acts subject of the subsequent criminal complaints the
Solicitor General filed with the PCGG for preliminary investigation.  While ostensibly, it is only the Solicitor
General who is the complainant in the criminal cases filed with the PCGG, in
reality the PCGG is an unidentified co-complainant.

Moreover, when the PCGG issued the sequestration and freeze
orders against petitioner’s properties, it was on the basis of a prima facie
finding that the same were ill-gotten and/or were
acquired in relation to the illegal disposition of coconut levy funds.  Thus, the Court finds that the PCGG cannot
possibly conduct the preliminary investigation of said criminal complaints with
the “cold neutrality of an impartial judge,” as it has prejudged the
matter.  Add to this the fact that there
are many suits filed by petitioner and the intervenors
against the PCGG and vice versa.

For lesser grounds this Court had disqualified a fiscal or a
judge from handling a case.

A fiscal was disqualified from conducting a preliminary
investigation because he had appeared for the prosecution when said case was
pending in the municipal court.^[21]
In a case filed before the Commission on Elections this Court held Commissioner
Opinion should not have participated in the case since he was the former lawyer
of Arturo Pacificador.^[22]
A judge was required to inhibit himself in a case where he was a witness for
the complainant.^[23]
A judge before whom the extrajudicial statement of one of the accused was
subscribed was disqualified from hearing the case.^[24]
A judge who told the complainant his case was weak and it would be to his
advantage to settle the case was disqualified.^[25] A
judge against whom an administrative complaint was filed by one of the parties
was also disqualified.^[26]
In a case where the motion for inhibition was found to be groundless, this
Court held that the judge should inhibit himself considering the seriousness of
the charges.^[27]
A judge was asked to inhibit himself from trying a malversation
case against the accused since he previously convicted the latter of arson.^[28]
In another case, the judge was ordered to inhibit himself because of strained
relationship with the defendant.^[29]

There are numerous other cases wherein the judges and fiscals
were disqualified on similar grounds as those aforementioned.^[30]

Where the circumstances do not inspire confidence in the
objectivity and impartiality of the judge, such judge should inhibit
voluntarily or if he refuses, he should be prohibited from handling the
case.  A judge must not only be impartial
but must also appear impartial as an assurance to the parties that his decision
will be just.^[31]
His actuation must inspire that belief. 
This is an instance when appearance is as important as reality.^[32]

The same rule of thumb should apply to an investigating officer
conducting a preliminary investigation. 
This is the reason why under Section 1679 of the former Revised
Administrative Code, the Secretary of Justice, who has supervision over the
prosecution arm of the government, is given ample power to designate another
prosecutor to handle the investigation and prosecution of a case when the
prosecutor handling the same is otherwise disqualified by personal interest, or
is unable or fails to perform his duty.

The Court finds that under the circumstances of the case, the
PCGG cannot inspire belief that it could be impartial in the conduct of the
preliminary investigation of the aforesaid complaints against petitioner and intervenors.  It
cannot possibly preside in the said preliminary investigation with an even
hand.

The Court holds that a just and fair administration of justice
can be promoted if the PCGG would be prohibited from conducting the preliminary
investigation of the complaints subject of this petition and the petition for
intervention and that the records of the same should be forwarded to the
Ombudsman, who as an independent constitutional officer has primary
jurisdiction over cases of this nature, to conduct such preliminary
investigation and take appropriate action.

All violators of the law must be brought before the bar of
justice.  However, they must be afforded
due process and equal protection of the law, whoever they may be.

WHEREFORE, the petitions of Eduardo M. Cojuangco,
Jr. and intervenors Maria Clara Lobregat
and Jose Eleazar, Jr. are hereby GRANTED.  The PCGG is directed to transmit the
complaints and records thereof under I.S. Nos. 74, 75, 79, 80, 81, 82, 83 and
84 to the Ombudsman for appropriate action. 
All proceedings of the preliminary investigation conducted by the PCGG
of said complaints are hereby declared null and void including the informations which it filed in the Sandiganbayan
against petitioner and intervenors docketed as
Criminal Cases Nos. 14398 and 14399.  The
status quo order which this Court issued on March 12, 1990 is hereby made permanent and the
PCGG is permanently prohibited from further conducting the preliminary
investigation of the aforestated complaints. The
Court makes no pronouncement as to costs.

SO ORDERED.

Fernan, C.J., Narvasa,
Melencio-Herrera, Cruz, Feliciano, Padilla, Bidin, Sarmiento, Cortez, Griño-Aquino, Medialdea, and Regalado, JJ., concur.

Gutierrez Jr., J., see separate concurrence.

Paras, J., no part.

---

^[1] Annexes A-1 and A-2 to the Petition.

^[2] Pages 850 to 851, Rollo.

^[3]
Annex 3 and 4 to the Supplemental Petition, pages 178 to 180, rollo.

^[4]
Annexes 1 and 2; pages 203 to 204, Rollo.

^[5] Amended by Batas Pambansa No. 195, March 16, 1982.

^[6] Section 17, Presidential Decree No. 1630.

^[7] Zaldivar vs.
Sandiganbayan, 160 SCRA 843 (1988).

^[8]
See Balatbat vs. Sandiganbayan,
G.R. No. 78314, resolution of May 21,
1987.

^[9] 150 SCRA 181, 205 (1987).

^[10] Supra,
note 7.

^[11] Section
7, Article XI of the Constitution provides as follows:  “The existing Tanodbayan
shall hereafter be known as the Office of Special Prosecutor.  It shall continue to function and exercise
its powers as now or hereafter may be provided by law, except those
conferred on the Office of the Ombudsman created under this Constitution.  (Underscoring supplied.)” See also Zaldivar vs. Sandiganbayan,
supra, pages 846 to 847.

^[12] Executive Orders Nos. 1 and 14, and Section 2, Rule 112, 1985 Rules
of Criminal Procedure.

^[13] Hashim vs.
Boncan, 71 Phil. 216 (1941) and Trocio
vs. Mantas 118 SCRA 241 (1982).

^[14] Section 1, Rule 112, 1985 Rules on Criminal Procedure; Section 10,
P.D. No. 1386.

^[15]
Javier vs. Comelec, 144 SCRA 194 (1986); Salta vs. Court of Appeals, 143 SCRA 228, 239-240
(1986); Galman vs. Sandiganbayan,
144 SCRA 43 (1986); Arula vs. Espino, 28 SCRA 540, (1969); Salonga
vs. Cruz Paño, 134 SCRA 438 (1985); Andaya vs. Provincial Fiscal of Surigao
del Sur, 73 SCRA 131 (1976); Nuclear Free Coalition,
et al, vs. National Power Corp. et. al.; and Lorenzo M. Tañada vs. Philippine Atomic Energy Commission, et. al., 14 SCRA 307, (1986).

^[16] Arula vs.
Espino, 28 SCRA 540, 592 and 593, (1969).

^[17] Pages 604 to 605, Rollo.

^[18] Page 610, Rollo.
Eduardo M. Cojuangco Jr. vs. PCGG, et al, Sandiganbayan Civil Case No. 0060, (now Republic of
the Philippines [PCGG] vs. Sandiganbayan and Cojuangco Jr., G.R. No. 88809); Eduardo M. Cojuangco Jr. vs. PCGG, et al, Sandiganbayan
Civil Case No. 0067 (now Republic of the Philippines [PCGG] vs. Sandiganbayan and Cojuangco Jr.,
G.R. No. 88858); Eduardo M. Cojuangco Jr. et al vs.
Antonio J. Roxas, et al, G.R. No. 91925; Eduardo M. Cojuangco Jr. et al, vs. Adolfo Azcuna,
et al, G.R. No. 93005; Eduardo M. Cojuangco Jr. et al
vs. Republic of the Philippines PCGG, and the Sandiganbayan
(First Division), G.R. No. 93278); Eduardo M. Cojuangco
Jr. vs. People of the Philippines and Sandiganbayan
(Third Division) G.R. No. 93884.”

^[19] Baseco vs.
PCGG, supra, p. 215.

^[20] At pages 215 to 216.

^[21] Andaya vs. Provincial Fiscal of Surigao
del Sur. 73 SCRA 131 (1976).

^[22]  Javier vs. Comelec, supra.

^[23] Tuzon vs.
Cruz, 66 SCRA 235 (1975).

^[24] Mateo vs. Villaluz,
50 SCRA 18 (1973)

^[25] Castillo vs. Juan,
62 SCRA 124 (1975).

^[26] Paderanga vs. Azura, 136 SCRA 266 (1985).

^[27] Dimacuha vs. Concepcion, 117 SCRA 630 (1982).

^[28] Ignacio vs. Villaluz, 90 SCRA 16 (1979).

^[29] Luque vs. Kayanan, 29 SCRA 165 (1969).

^[30] Borromeo-Herrera vs. Borromeo,
152 SCRA 171 (1987); Floro Enterprises vs.
Court of Appeals, 116 SCRA 479 (1982); 
Castro vs. Reyes, 104 SCRA 650 (1981; Bautista vs. Rebueno, 81 SCRA 535 (1978); People vs. Ocaya, 83 SCRA 218 (1977); Martinez vs. Gironella, 65 SCRA 245 (1975); Pimentel vs. Salanga, 21 SCRA 160 (1967); Paredes
vs. Abad, 56 SCRA 522 (1974); Umale vs. Villaluz,
51 SCRA 84 (1973); Villapando vs. Quitain, 75 SCRA 25 (1977); Gutierrez vs. Santos, 2 SCRA 249 (1961).

^[31] Javier vs. Comelec, supra.

^[32] Palang vs. Zosa, 58 SCRA 776, 778 (1974).

---

Clean
Clean

6 pt
6 pt
0
3

MicrosoftInternetExplorer4

st1:*{behavior:url(#ieooui) }

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-parent:””;
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:10.0pt;
font-family:”Times New Roman”;}