G.R. No. 199082. July 23, 2013.

JOSE MIGUEL T. ARROYO, petitioner, vs.

DEPARTMENT OF JUSTICE; COMMISSION ON
ELECTIONS; HON. LEILA DE LIMA, in her capacity as
Secretary of the Department of Justice; HON. SIXTO
BRILLANTES, JR., in his capacity as Chairperson of the
Commission on Elections; and the JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITTEE and
FACT-FINDING TEAM, respondents.

G.R. No. 199085. July 23, 2013.*

BENJAMIN S. ABALOS, SR., petitioner, vs. HON. LEILA
DE LIMA, in her capacity as Secretary of the Department
of Justice; HON. SIXTO S. BRILLANTES, JR., in his
capacity as COMELEC Chairperson; RENE V.
SARMIENTO, LUCENITO N. TAGLE, ARMANDO V.
VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S.
LIM AND AUGUSTO C. LAGMAN, in their capacity as
COMELEC COMMISSIONERS; CLARO A. ARELLANO,
GEORGE C. DEE, JACINTO G. ANG, ROMEO B.
FORTES AND MICHAEL D. VILLARET, in their capacity
as CHAIRPERSON AND MEMBERS, RESPECTIVELY,
OF THE JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE ON THE

_______________
* EN BANC.

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Arroyo vs. Department of Justice

2004 AND 2007 ELECTION FRAUD, respondents.

G.R. No. 199118. July 23, 2013.*

GLORIA MACAPAGAL-ARROYO, petitioner, vs.
COMMISSION ON ELECTIONS, represented by
Chairperson Sixto S. Brillantes, Jr., DEPARTMENT OF
JUSTICE, represented by Secretary Leila M. De Lima,
JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE, SENATOR AQUILINO
M. PIMENTEL III, and DOJ-COMELEC FACT FINDING
TEAM, respondents.

Election Law; Commission on Elections (COMELEC); Under

the present law, the Comelec and other prosecuting arms of the
government, such as the Department of Justice (DOJ), now exercise
concurrent jurisdiction in the investigation and prosecution of
election offenses.—This is not the first time that the Court is
confronted with the issue of whether the Comelec has the
exclusive power to investigate and prosecute cases of violations of
election laws. In Barangay Association for National Advancement
and Transparency (BANAT) Party-List v. Commission on
Elections, 595 SCRA 477 (2009), the constitutionality of Section
43 of RA 9369 had already been raised by petitioners therein and
addressed by the Court. While recognizing the Comelec’s exclusive
power to investigate and prosecute cases under Batas Pambansa
Bilang 881 or the Omnibus Election Code, the Court pointed out
that the framers of the 1987 Constitution did not have such
intention. This exclusivity is thus a legislative enactment that can
very well be amended by Section 43 of RA 9369. Therefore, under
the present law, the Comelec and other prosecuting arms of the
government, such as the DOJ, now exercise concurrent
jurisdiction in the investigation and prosecution of election
offenses.
Same; The Comelec Law Department and the Office of the
Chief State Prosecutor of the Department of Justice (DOJ) were
tasked to jointly supervise the investigatory and prosecutory
functions of the Comelec-DOJ Task Force.—It is noteworthy that
Comelec Resolution No. 3467 was issued when Section 265 of the
Omnibus Election Code was still effective, while Joint Order No.
001-2011 as well as Comelec Resolution Nos. 8733 and 9057
mentioned in the assailed decision

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Arroyo vs. Department of Justice

but missed out by GMA in her motion, were issued during the
effectivity of Section 43 of RA 9369, giving the Comelec and other
prosecuting arms of the government the concurrent jurisdiction to
investigate and prosecute election offenses. This amendment
paved the way for the discrepancy. In Comelec Resolution No.
3467, the Comelec maintained the continuing deputation of
prosecutors and the Comelec Law Department was tasked to
supervise the investigatory and prosecutory functions of the task
force pursuant to the mandate of the Omnibus Election Code.
However, with the amendment, the Comelec likewise changed the
tenor of the later resolutions to reflect the new mandate of the
Comelec and other prosecuting arms of the government now
exercising concurrent jurisdiction. Thus, the Comelec Law
Department and the Office of the Chief State Prosecutor of the
DOJ were tasked to jointly supervise the investigatory and
prosecutory functions of the Comelec-DOJ Task Force.
Considering, therefore, that the later resolutions, including Joint
Order No. 001-2011, were issued pursuant to Section 43 of RA
9369 amending Section 265 of BP 881 which was declared
“constitutional” in Banat, there is no reason for us to declare
otherwise. To maintain the previous role of other prosecuting
arms of the government as mere deputies despite the amendment
would mean challenging Section 43 of RA 9369 anew which has
already been settled in Banat. To be sure, the creation of a Joint
Committee is not repugnant to the concept of “concurrent
jurisdiction” authorized by the amendatory law.
Same; Notwithstanding the grant of concurrent jurisdiction,
the Comelec and the Department of Justice (DOJ) nevertheless
included a provision in the assailed Joint Order whereby the
resolutions of the Joint Committee finding probable cause for
election offenses shall still be approved by the Comelec in
accordance with the Comelec Rules of Procedure.—
Notwithstanding the grant of concurrent jurisdiction, the Comelec
and the DOJ nevertheless included a provision in the assailed
Joint Order whereby the resolutions of the Joint Committee
finding probable cause for election offenses shall still be approved
by the Comelec in accordance with the Comelec Rules of
Procedure. With more reason, therefore, that we cannot consider
the creation of the Joint Committee as an abdication of the
Comelec’s independence enshrined in the 1987 Constitution.
Same; Preliminary Investigation; The procedure in conducting
the preliminary investigation is governed by Rule 112 of the
Revised

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Arroyo vs. Department of Justice

Rules on Criminal Procedure and Rule 34 of the Comelec Rules of

Procedure.—The procedure in conducting the preliminary
investigation is governed by Rule 112 of the Revised Rules on
Criminal Procedure and Rule 34 of the Comelec Rules of
Procedure. Under both Rules, the respondent shall submit his
counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense, within ten (10) days from
receipt of the subpoena, with the complaint and supporting
affidavits and documents. Also in both Rules, respondent is given
the right to examine evidence, but such right of examination is
limited only to the documents or evidence submitted by
complainants which she may not have been furnished and to copy
them at her expense.
Same; Same; The Rules use the term “shall” in requiring the
respondent to submit counter-affidavit and other countervailing
evidence within ten (10) days from receipt of the subpoena; As in
any other rule, though, liberality in the application may be
allowed provided that the party is able to present a compelling
justification for the non-observance of the mandatory rules.—
Neither was GMA’s right violated when her motion for extension
of time within which to submit her counter-affidavit and
countervailing evidence was consequently denied. The Rules use
the term “shall” in requiring the respondent to submit counter-
affidavit and other countervailing evidence within ten (10) days
from receipt of the subpoena. It is settled that the use of the word
“shall” which is a word of command, underscores the mandatory
character of the rule. As in any other rule, though, liberality in
the application may be allowed provided that the party is able to
present a compelling justification for the non-observance of the
mandatory rules. In the 2008 Revised Manual for Prosecutors,
investigating prosecutors allow or grant motions or requests for
extension of time to submit counter-affidavits when the interest of
justice demands that respondent be given reasonable time or
sufficient opportunity to engage the services of counsel; examine
voluminous records submitted in support of the complaint or
undertake research on novel, complicated or technical questions
or issues of law and facts of the case.
BRION, J., Dissenting Opinion:
Election Law; View that what exists under Joint Order No.
001-2011 is not a scheme whereby the COMELEC exercises its
power to

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Arroyo vs. Department of Justice

conduct preliminary investigation and prosecute election offenses

independently of other branches of government; what it provides is
a shared responsibility between the COMELEC and the Executive
Branch through the Department of Justice (DOJ).—I reiterate, if
only for emphasis, that what exists under Joint Order No. 001-
2011 is not a scheme whereby the COMELEC exercises its power
to conduct preliminary investigation and prosecute election
offenses independently of other branches of government; what it
provides is a shared responsibility between the COMELEC and
the Executive Branch through the DOJ. The result cannot but be
an arrangement that the Constitution and the law cannot allow,
however practical from the standpoint of efficiency it might be. To
stress the obvious, the joint or shared arrangement directly goes
against the rationale that justifies the grant of independence to
the COMELEC — to insulate it, particularly its role in the
country’s electoral exercise, from political pressures and partisan
politics.
Same; View that this concurrent jurisdiction between the
COMELEC and the Department of Justice (DOJ) in the
investigation and prosecution of election offenses is circumscribed
by the Constitutional provisions guaranteeing the COMELEC’s
independence as a Constitutional Commission.—I take exception
to the ponencia’s conclusion that the creation of the Joint DOJ-
COMELEC Committee is not repugnant to the concurrent
jurisdiction conferred to the COMELEC and other prosecutorial
agencies of government (such as the DOJ) under Section 42 of
Republic Act No. 9369. I reiterate the view that this concurrent
jurisdiction between the COMELEC and the DOJ in the
investigation and prosecution of election offenses is circumscribed
by the Constitutional provisions guaranteeing the COMELEC’s
independence as a Constitutional Commission. To my mind, the
only arrangement that can pass constitutional muster is the
practice of delegation of authority by the COMELEC, otherwise
known as deputation, which has long been upheld by the Court.
Same; View that in order for the COMELEC’s action in the
present case to be constitutionally valid, it must still be shown that
the COMELEC’s determination of probable cause was free from
any attendant participation by the Executive.—I also cannot
accept the ponencia’s strained reasoning that the creation of the
Joint Committee does not undermine the independence of the
COMELEC because the determination of probable cause
ultimately pertains to the

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Arroyo vs. Department of Justice

COMELEC under Section 2 of Joint Order No. 001-2011. In my
view, the constitutionally objectionable arrangement of a shared
responsibility between the COMELEC and the DOJ is not saved
by the existence of Section 2 of Joint Order No. 001-2011. In order
for the COMELEC’s action in the present case to be
constitutionally valid, it must still be shown that the COMELEC’s
determination of probable cause was free from any attendant
participation by the Executive.
Same; Commission on Elections (COMELEC); View that the
COMELEC, not the Joint DOJ-COMELEC Committee, has the
primary, if not exclusive, authority to conduct preliminary
investigation of election cases, and the creation of the Joint DOJ-
COMELEC Committee constitutes an unconstitutional abdication
by the COMELEC of its constitutionally-granted independence.—
The COMELEC, not the Joint DOJ-COMELEC Committee, has
the primary, if not exclusive, authority to conduct preliminary
investigation of election cases, and the creation of the Joint DOJ-
COMELEC Committee constitutes an unconstitutional abdication
by the COMELEC of its constitutionally-granted independence. In
arriving at this Dissent, I take into account, together with my
above conclusion, the extent of injury that can be caused to our
electoral system by opening the COMELEC to Executive
intrusion, as well as the haste the petitioners pointed out.

MOTIONS FOR RECONSIDERATION of a decision of the

Supreme Court.
   The facts are stated in the resolution of the Court.
  Topacio Law Office (TOPLAW) for petitioner in G.R.
No. 199082.
  Dulay, Pagunsan & Ty Law Offices for petitioner in
G.R. No. 199085.
  Artemio G. Tuquero and Benjamin C. Santos & Ray
Montri C. Santos Law Office for petitioner in G.R. No.
199118.
  Juan Alfonso P. Torrevillas for movant-intervenor Ana
Theresia “Risa” N. Hontiveros.
  Maria Cristina P. Yambot for oppositor-in-intervention.

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Arroyo vs. Department of Justice

RESOLUTION

PERALTA, J.:
 For resolution are the separate motions for
reconsideration filed by movants Gloria Macapagal Arroyo
(GMA)1 in G.R. No. 199118 and Jose Miguel T. Arroyo
(Mike Arroyo)2 in G.R. No. 199082 praying that the Court
take a second look at our September 18, 2012 Decision3
dismissing their petitions and supplemental petitions
against respondents Commission on Elections (Comelec),
the Department of Justice (DOJ), Senator Aquilino M.
Pimentel III (Senator Pimentel), Joint DOJ-Comelec
Preliminary Investigation Committee (Joint Committee)
and DOJ-Comelec Fact-Finding Team (Fact-Finding
Team), et al.
For a better perspective, we briefly state the relevant
factual and procedural antecedents as found by the Court
in the assailed decision, to wit:
On August 15, 2011, the Comelec and the DOJ issued
Joint Order No. 001-2011 creating and constituting a Joint
Committee and Fact-Finding Team (referred to as Joint
Panel) on the 2004 and 2007 National Elections electoral
fraud and manipulation cases. The Joint Committee was
mandated to conduct the necessary preliminary
investigation on the basis of the evidence gathered and the
charges recommended by the Fact-Finding Team. The Fact-
Finding Team, on the other hand, was created for the
purpose of gathering real, documentary, and testimonial
evidence which can be utilized in the preliminary
investigation to be conducted by the Joint Committee.
Pursuant to Section 74 of the Joint Order, on August

_______________
1 Rollo (G.R. No. 199118), pp. 845-867.
2 Rollo (G.R. No. 199082), pp. 1155-1174.
3 Id., at pp. 1188-1247.
4 Section 7. Rules of Procedure.—Within forty-eight (48) hours from
the issuance of this Joint Order, the Committee shall meet and craft its
rules of procedure as may be complementary to

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760 SUPREME COURT REPORTS ANNOTATED

Arroyo vs. Department of Justice

23, 2011, the Joint Committee promulgated its Rules of

Procedure.
In its Initial Report5 dated October 20, 2011, the Fact-
Finding Team concluded that manipulation of the results
in the May 14, 2007 senatorial elections in the provinces of
North and South Cotabato, and Maguindanao was indeed
perpetrated.6 The Fact-Finding Team recommended,
among others, that petitioner Benjamin S. Abalos, Sr.
(Abalos) be subjected to preliminary investigation for
electoral sabotage for conspiring to manipulate the election
results in North and South Cotabato; that GMA and Abalos
be subjected to another preliminary investigation for
manipulating the election results in Maguindanao;7 and,
that Mike Arroyo be subjected to further investigation.8
The case was docketed as DOJ-Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Pimentel filed
a Complaint-Affidavit9 for Electoral Sabotage against
petitioners and twelve others, and several John Does and
Jane Does. The case was docketed as DOJ-Comelec Case
No. 002-2011. On October 24, 2011, the Joint Committee
issued two subpoenas against petitioners in DOJ-Comelec
Case Nos. 001-2011 and 002-2011.10 On November 3, 2011,
petitioners, through counsel, appeared before the Joint
Committee11 and respondents therein were ordered to
submit their Counter-Affidavits by November 14, 2011.12

_______________
the respective rules of DOJ and Comelec, and submit the same to the
Secretary of Justice and the Comelec En Banc for approval within five (5)
days from such initial meeting.
5  Rollo (G.R. No. 199118), pp. 58-143.
6  Id., at p. 124.
7  Id., at pp. 132-134.
8  Id., at p. 137.
9  Rollo (G.R. No. 199085), pp. 162-194.
10 Rollo (G.R. No. 199118), p. 316.
11 Id., at p. 17.
12 Rollo (G.R. No. 199082), p. 21.

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Thereafter, petitioners filed before the Court separate

Petitions for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) and/or
Writ of Preliminary Injunction assailing the creation of the
Joint Panel.13 The petitions were eventually consolidated.
On November 14, 2011, Mike Arroyo filed a Motion to
Defer Proceedings14 before the Joint Committee, in view of
the pendency of his petition before the Court. On the same
day, GMA filed before the Joint Committee an Omnibus
Motion Ad Cautelam15 to require Senator Pimentel to
furnish her with documents referred to in his complaint-
affidavit and for the production of election documents as
basis for the charge of electoral sabotage. GMA prayed that
she be allowed to file her counter-affidavit within ten (10)
days from receipt of the requested documents.16 Petitioner
Abalos, for his part, filed a Motion to Suspend Proceedings
(Ex Abundante Ad Cautelam),17 in view of the pendency of
his petition brought before the Court.
In an Order18 dated November 15, 2011, the Joint
Committee denied the aforesaid motions of petitioners.
GMA, subsequently, filed a motion for reconsideration.19
On November 16, 2011, the Joint Committee
promulgated a Joint Resolution which was later indorsed to
the Comelec.20 On November 18, 2011, the Comelec en banc
issued a Resolution21 approving and adopting the Joint
Resolution subject to modifications. The Comelec resolved,
among others, that an information for electoral sabotage be
filed against GMA and

_______________
13 Refers to the Joint Committee and Fact-Finding Team.
14 Rollo (G.R. No. 199082), pp. 158-161.
15 Rollo (G.R. No. 199118), pp. 250-259.
16 Id., at p. 257.
17 Rollo (G.R. No. 199085), pp. 302-306.
18 Rollo (G.R. No. 199118), pp. 260-264.
19 Id., at p. 224.
20 Id., at p. 318.
21 Id., at pp. 265-273.

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Arroyo vs. Department of Justice

Abalos, while the charges against Mike Arroyo be

dismissed for insufficiency of evidence.
On even date, pursuant to the above Resolution, the
Comelec’s Law Department filed with the Regional Trial
Court (RTC), Pasay City, an Information against petitioner
GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang
H. Bedol, for violation of Section 42(b)(3) of Republic Act
(RA) No. 9369, amending Section 27 (b) of RA 6646,
docketed as Criminal Case No. RPSY-11-04432-CR.22 The
case was raffled to Branch 112 and the corresponding
Warrant of Arrest was issued which was served on GMA on
the same day.23
On November 18, 2011, GMA filed with the RTC an
Urgent Omnibus Motion Ad Cautelam24 with leave to allow
the Joint Committee to resolve the motion for
reconsideration filed by GMA, to defer issuance of a
warrant of arrest and a hold departure order, and to
proceed to judicial determination of probable cause. She,
likewise, filed with the Comelec a Motion to Vacate Ad
Cautelam25 praying that its Resolution be vacated for being
null and void. The RTC, nonetheless, issued a Warrant for
her arrest which was duly served. GMA was later
arraigned and she entered a plea of “not guilty.” She was,
for some time, on hospital arrest but was able to obtain
temporary liberty when her motion for bail was granted. At
present, she is again on hospital arrest by virtue of a
warrant issued in another criminal case.
On September 18, 2012, the Court rendered the assailed
Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the petitions and

supplemental petitions are DISMISSED. Comelec
Resolution No. 9266 dated August 2, 2011, Joint Order

_______________
22 Id., at p. 321.
23 Id., at p. 226.
24 Id., at pp. 274-280.
25 Id., at pp. 439-451.

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Arroyo vs. Department of Justice

No. 001-2011 dated August 15, 2011, and the Fact-Finding

Team’s Initial Report dated October 20, 2011, are declared
VALID. However, the Rules of Procedure on the Conduct of
Preliminary Investigation on the Alleged Election Fraud in
the 2004 and 2007 National Elections is declared
INEFFECTIVE for lack of publication.
In view of the constitutionality of the Joint Panel and the
proceedings having been conducted in accordance with Rule
112 of the Rules on Criminal Procedure and Rule 34 of the
Comelec Rules of Procedure, the conduct of the preliminary
investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay
City, Branch 112, where the criminal cases for electoral
 sabotage against petitioners GMA and Abalos are pending,
proceed with dispatch.
SO ORDERED.26

Hence, these motions for reconsideration.

Issues
Mike Arroyo reiterates his arguments on the
independence of the Comelec as basis in nullifying the
subject joint DOJ-Comelec resolutions. Echoing Justice
Arturo Brion in his Dissenting and Concurring Opinion,27
Mike Arroyo insists that the creation of the Joint Panel
undermines the decisional independence of the Comelec.28
Mike Arroyo also maintains that the DOJ should
conduct preliminary investigation only when deputized by
the Comelec but not exercise concurrent jurisdiction.29
Finally, as has been repeatedly pointed out in his earlier
pleadings before the Court, Mike Arroyo claims that the
proceedings involving the

_______________
26 Id., at pp. 756-757. (Emphasis in the original)
27 Rollo (G.R. No. 199082), pp. 1106-1146.
28 Id., at p. 1161.
29 Id., at p. 1162.

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764 SUPREME COURT REPORTS ANNOTATED

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electoral sabotage case were rushed because of pressures

from the executive branch of the government.30
For her part, GMA claims that in availing of the
procedural remedies available, she merely exercised her
earnest efforts to defend herself and should not have been
deemed by the Court as acts which purportedly tend to
demonstrate that she either waived or forfeited her right to
submit her counter-affidavit and countervailing evidence.31
Citing several cases decided by the Court, she likewise
faults the Court in not upholding her right to ask for
additional time within which to submit her counter-
affidavit and countervailing evidence.32 GMA highlights
that the subject Comelec Resolution creating the Joint
Panel is different from the previous Comelec resolutions
requesting the DOJ Secretary to assign prosecutors to
assist the Comelec, as the latter emphasize the role of the
DOJ as deputized agency in the conduct of preliminary
investigation. She maintains that it is the Comelec and not
the Joint Committee that has the primary, if not exclusive,
authority to conduct preliminary investigation of election
cases.33
In their Consolidated Comment,34 respondents defend
the creation of the Joint Committee and argue that it does
not undermine the independence of the Comelec as a
constitutional body because it is still the Comelec that
ultimately determines probable cause.35 As to the conduct
of the preliminary investigation, respondents maintain
that no rights were violated as GMA was afforded the
opportunity to defend herself, submit her counter-affidavit
and other countervailing evidence.36 They, thus, consider
GMA’s claim of availing of the remedial measures as
“delaying tactics” employed to thwart

_______________
30 Id., at p. 1163.
31 Rollo (G.R. No. 199118), pp. 850-854.
32 Id., at pp. 854-857.
33 Id., at pp. 860-862.
34 Id., at pp. 902-932.
35 Id., at pp. 906-911.
36 Id., at pp. 911-913.

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the investigation of charges against her by the Joint

Committee.37
The Court’s Ruling
Clearly from the above discussion, movants raise issues
that have been thoroughly explained by the Court in the
assailed decision. The issues were all addressed and the
explanation was exhaustive, thus, we find no reason to
disturb the Court’s conclusions.
At any rate, if only to address the motions of the
movants herein and to put an end to the questions attached
to the creation of the Joint Panel and, consequently, to the
performance of their assigned tasks, we hereby reiterate
our findings and conclusions made in the assailed decision.
This is not the first time that the Court is confronted
with the issue of whether the Comelec has the exclusive
power to investigate and prosecute cases of violations of
election laws. In Barangay Association for National
Advancement and Transparency (BANAT) Party-List v.
Commission on Elections,38 the constitutionality of Section
4339 of RA 936940 had

_______________
37 Id., at p. 913.
38 G.R. No. 177508, August 7, 2009, 595 SCRA 477.
39  Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby
amended to read as follows:
“SEC. 265. Prosecution.—The Commission shall, through its duly
authorized legal officers, have the power, concurrent with the other
prosecuting arms of the government, to conduct preliminary investigation
of all election offenses punishable under this Code, and to prosecute the
same.”
40  An Act Amending Republic Act No. 8436, Entitled “An Act
Authorizing the Commission on Elections to Use an Automated Election
System in the May 11, 1998 National or Local Elections and in
Subsequent National and Local Electoral Exercises, to Encourage
Transparency, Credibility, Fairness and Accuracy of Elections, Amending
for the Purpose Batas Pambansa Blg. 881, as Amended, Republic Act No.
7166 and Other Related Election Laws, Providing

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766 SUPREME COURT REPORTS ANNOTATED

Arroyo vs. Department of Justice

already been raised by petitioners therein and addressed

by the Court. While recognizing the Comelec’s exclusive
power to investigate and prosecute cases under Batas
Pambansa Bilang 881 or the Omnibus Election Code, the
Court pointed out that the framers of the 1987 Constitution
did not have such intention. This exclusivity is thus a
legislative enactment that can very well be amended by
Section 43 of RA 9369. Therefore, under the present law,
the Comelec and other prosecuting arms of the
government, such as the DOJ, now exercise concurrent
jurisdiction in the investigation and prosecution of election
offenses.
Indeed, as aptly pointed out by GMA, there is a
discrepancy between Comelec Resolution No. 346741 dated
January 12, 2001 and Joint Order No. 001-2011, dated
August 15, 2011, creating and constituting a Joint
Committee and Fact-Finding Team on the 2004 and 2007
National Elections electoral fraud and manipulation cases.
However, GMA seemed to miss the date when these two
resolutions were promulgated by the Comelec. It is
noteworthy that Comelec Resolution No. 3467 was issued
when Section 265 of the Omnibus Election Code was still
effective, while Joint Order No. 001-2011 as well as
Comelec Resolution Nos. 873342 and 905743 mentioned

_______________
Funds Therefor and for Other Purposes.” Approved on 23 January
2007.
41 “In the Matter of Requesting the Honorable Secretary of Justice to
Assign Prosecutors as Members of a Special Task Force to Assist the
Commission in the Investigation and Prosecution of Election Offenses in
the May 14, 2001 National and Local Elections and Reiterating the
Continuing Deputation of Prosecutors under Rule 34 of the Comelec Rules
of Procedure.”
42 “In the Matter of Requesting the Honorable Secretary of Justice to
Assign Prosecutors as Members of a Special Task Force Created by the
Commission to Conduct the Investigation and Prosecution of Election
Offenses in Connection with the May 10, 2010 National and Local
Elections.”
43 “In the Matter of Requesting the Honorable Secretary of Justice to
Assign Prosecutors as Members of a Special Task Force to

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Arroyo vs. Department of Justice

in the assailed decision but missed out by GMA in her

motion, were issued during the effectivity of Section 43 of
RA 9369, giving the Comelec and other prosecuting arms of
the government the concurrent jurisdiction to investigate
and prosecute election offenses. This amendment paved the
way for the discrepancy. In Comelec Resolution No. 3467,
the Comelec maintained the continuing deputation of
prosecutors and the Comelec Law Department was tasked
to supervise the investigatory and prosecutory functions of
the task force pursuant to the mandate of the Omnibus
Election Code. However, with the amendment, the Comelec
likewise changed the tenor of the later resolutions to reflect
the new mandate of the Comelec and other prosecuting
arms of the government now exercising concurrent
jurisdiction. Thus, the Comelec Law Department and the
Office of the Chief State Prosecutor of the DOJ were tasked
to jointly supervise the investigatory and prosecutory
functions of the Comelec-DOJ Task Force. Considering,
therefore, that the later resolutions, including Joint Order
No. 001-2011, were issued pursuant to Section 43 of RA
9369 amending Section 265 of BP 881 which was declared
“constitutional” in Banat, there is no reason for us to
declare otherwise. To maintain the previous role of other
prosecuting arms of the government as mere deputies
despite the amendment would mean challenging Section 43
of RA 9369 anew which has already been settled in Banat.
To be sure, the creation of a Joint Committee is not
repugnant to the concept of “concurrent jurisdiction”
authorized by the amendatory law. As we explained in our
September 18, 2012 Decision:

x  x  x The doctrine of concurrent jurisdiction means equal

jurisdiction to deal with the same subject matter. Contrary
to the contention of the petitioners, there is no pro-

_______________
Assist the Commission in the Investigation and Prosecution of Elections
Offenses in Connection with the October 25, 2010 Barangay and Sangguniang
Kabataan Elections.”

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x x x x
None of these problems would likely arise in the present
case. The Comelec and the DOJ themselves agreed that
they would exercise their concurrent jurisdiction jointly.
Although the preliminary investigation was conducted on
the basis of two complaints – the initial report of the Fact-
Finding Team and the complaint of Senator Pimentel – both
complaints were filed with the Joint Committee.
Consequently, the complaints were filed with and the
preliminary investigation was conducted by only one
investigative body. Thus, we find no reason to disallow the
exercise of concurrent jurisdiction jointly by those given
such authority. This is especially true in this case given the
magnitude of the crimes allegedly committed by petitioners.
The joint preliminary investigation also serves to maximize
the resources and manpower of both the Comelec and the
DOJ for the prompt disposition of the cases.44

Notwithstanding the grant of concurrent jurisdiction,

the Comelec and the DOJ nevertheless included a provision
in the assailed Joint Order whereby the resolutions of the
Joint Committee finding probable cause for election
offenses shall still be approved by the Comelec in
accordance with the Comelec Rules of Procedure.45 With
more reason, therefore,
 _______________
44 Rollo (G.R. No. 199118), pp. 734-736. (Citations omitted)
45 Id., at p. 733.

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that we cannot consider the creation of the Joint

Committee as an abdication of the Comelec’s independence
enshrined in the 1987 Constitution.
Finally, we focus on the validity of the preliminary
investigation conducted by the Joint Committee.
The procedure in conducting the preliminary
investigation is governed by Rule 112 of the Revised Rules
on Criminal Procedure and Rule 34 of the Comelec Rules of
Procedure. Under both Rules,46 the respondent shall
submit his counter-affidavit and that of his witnesses and
other supporting documents relied upon for his defense,
within ten (10) days from receipt of the subpoena, with the
complaint and supporting affidavits and documents.47 Also
in both Rules, respondent is given the right to examine
evidence, but such right of examination is limited only to
the documents or evidence sub-

_______________
46 Section 3 (c), Rule 112 of the Revised Rules on Criminal Procedure
provides:
(c) Within ten (10) days from receipt of the subpoena with the
complaint and supporting affidavits and documents, the respondent shall
submit his counter-affidavit and that of his witnesses and other
supporting documents relied upon for his defense. x x x
***
Section 6 (a), Rule 34 of the Comelec Rules of Procedure, on the other
hand, provides:
(a) If on the basis of the complaint, affidavits and the supporting
evidence, the investigating officer finds no ground to continue with the
inquiry, he shall recommend the dismissal of the complaint and shall
follow the procedure prescribed in Section 8 (c) of this Rule. Otherwise, he
shall issue a subpoena to the respondent, attaching thereto a copy of the
complaint, affidavits and other supporting documents giving said
respondent ten (10) days from receipt within which to submit counter-
affidavits and other supporting documents. The respondent shall have the
right to examine all other evidence submitted by the complainant.
47  Revised Rules of Criminal Procedure, Rule 112, Section 3 (c) and
Comelec Rules of Procedure, Rule 34, Section 6 (a).
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Arroyo vs. Department of Justice

mitted by complainants which she may not have been

furnished and to copy them at her expense.48
As to the alleged denial of GMA’s right to examine
documents, we maintain that no right was violated in view
of the limitation of such right as set forth above. We
reiterate our explanation in the assailed decision, to wit:

While it is true that Senator Pimentel referred to certain

election documents which served as bases in the allegations
of significant findings specific to the protested
municipalities involved, there were no annexes or
attachments to the complaint filed. As stated in the Joint
Committee’s Order dated November 15, 2011 denying
GMA’s Omnibus Motion Ad Cautelam, Senator Pimentel
was ordered to furnish petitioners with all the supporting
evidence. However, Senator Pimentel manifested that he
was adopting all the affidavits attached to the Fact-Finding
Team’s Initial Report. Therefore, when GMA was furnished
with the documents attached to the Initial Report, she was
already granted the right to examine as guaranteed by the
Comelec Rules of Procedure and the Rules on Criminal
Procedure. Those were the only documents submitted by the
complainants to the Committee. If there are other
documents that were referred to in Senator Pimentel’s
complaint but were not submitted to the Joint Committee,
the latter considered those documents unnecessary at that
point (without foreclosing the relevance of other evidence
that may later be presented during the trial) as the
evidence submitted before it were considered adequate to
find probable cause against her. x x x49

Neither was GMA’s right violated when her motion for

extension of time within which to submit her counter-
affidavit and countervailing evidence was consequently
denied. The Rules use the term “shall” in requiring the
respondent to

_______________
48 Rollo (G.R. No. 199118), p. 746.
49 Id., at pp. 746-747. (Citations omitted)

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submit counter-affidavit and other countervailing evidence

within ten (10) days from receipt of the subpoena. It is
settled that the use of the word “shall” which is a word of
command, underscores the mandatory character of the
rule.50 As in any other rule, though, liberality in the
application may be allowed provided that the party is able
to present a compelling justification for the non-observance
of the mandatory rules. In the 2008 Revised Manual for
Prosecutors, investigating prosecutors allow or grant
motions or requests for extension of time to submit counter-
affidavits when the interest of justice demands that
respondent be given reasonable time or sufficient
opportunity to engage the services of counsel; examine
voluminous records submitted in support of the complaint
or undertake research on novel, complicated or technical
questions or issues of law and facts of the case.51
In this case, GMA claimed that she could not submit her
counter-affidavit within the prescribed period because she
needed to examine documents mentioned in Senator
Pimentel’s complaint-affidavit. It appeared, however, that
said documents were not submitted to the Joint Committee
and the only supporting documents available were those
attached to the Initial Report of the Fact-Finding Team.
Admittedly, GMA was furnished those documents. Thus, at
the time she asked for the extension of time within which
to file her counter-affidavit, she very well knew that the
documents she was asking were not in the record of the
case. Obviously, she was not furnished those documents
because they were not submitted to the Joint Committee.
Logically, she has no right to examine said documents. We
cannot, therefore, fault the Joint Committee in
consequently denying her motion for extension to file
counter-affidavit as there was no compelling justification
for the non-observance of the period she was earlier
required to follow.

_______________
50 Tan v. Link, G.R. No. 172849, December 10, 2008, 573 SCRA 479,
490.
51 2008 Revised Manual for Prosecutors, p. 89.

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772 SUPREME COURT REPORTS ANNOTATED

 Arroyo vs. Department of Justice

And as we held in the assailed decision:

There might have been overzealousness on the part of

the Joint Committee in terminating the investigation,
endorsing the Joint Resolution to the Comelec for approval,
and in filing the information in court. However, speed in the
conduct of proceedings by a judicial or quasijudicial officer
cannot per se be instantly attributed to an injudicious
performance of functions. The orderly administration of
justice remains the paramount consideration with
particular regard to the peculiar circumstances of each case.
To be sure, petitioners were given the opportunity to
present countervailing evidence. Instead of complying with
the Joint Committee’s directive, several motions were filed
but were denied by the Joint Committee. Consequently,
petitioners’ right to submit counter-affidavit and
countervailing evidence was forfeited. Taking into account
the constitutional right to speedy disposition of cases and
following the procedures set forth in the Rules on Criminal
Procedure and the Comelec Rules of Procedure, the Joint
Committee finally reached its conclusion and referred the
case to the Comelec. The latter, in turn, performed its task
and filed the information in court. Indeed, petitioners were
given the opportunity to be heard. They even actively
participated in the proceedings and in fact filed several
motions before the Joint Committee. Consistent with the
constitutional mandate of speedy disposition of cases,
unnecessary delays should be avoided.52

Finally, in our assailed decision, we already took judicial

notice that not only did GMA enter a plea of “not guilty,”
she also filed a Motion for Bail and after due hearing, it
was granted. Apparently, she benefited from the RTC
Order giving her temporary liberty. In filing the motion
before the RTC and actively participating therein, she has
chosen to seek judicial remedy before the RTC where the
electoral sabotage

_______________
52 Rollo (G.R. No. 199118), pp. 750-751. (Citations omitted)

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case is pending instead of the executive remedy of going
back to the Joint Committee for the submission of her
counter-affidavit and countervailing evidence. Besides, as
thoroughly discussed in the assailed decision, the
irregularity or even the absence of preliminary
investigation does not impair the validity of the
information filed against her.
WHEREFORE, premises considered, the Motions for
Reconsideration are DENIED for lack of merit.
SO ORDERED.

  Velasco, Jr., Bersamin, Del Castillo, Villarama, Jr.,

Perez, Reyes and Perlas-Bernabe, JJ., concur.
Sereno (CJ), I reiterate my qualified concurring vote
joining J. Carpio’s Opinion of September 2012.
Carpio, J., I reiterate my Separate Concurring and
Dissenting Opinion of Sept. 18, 2012.
Leonardo-De Castro, J., I concur in the result but join
the dissenting opinion of Justice Brion on the violation of
the constitutionally guaranteed independence of
COMELEC.
Brion, J., See: Dissenting Opinion.
Abad, J., I join the dissent of J. A. D. Brion.
Mendoza, J., I maintain in my previous separate
opinion.
Leonen, J., I concur in the result and join J. Carpio’s
Separate Concurring and Dissenting Opinion of Sept. 18,
2012.

DISSENTING OPINION

BRION, J.:
I dissent from the majority’s conclusion and vote to
grant the petitioners’ motions for reconsideration. The
reasons for this position are explained below.
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In his Motion for Reconsideration (Motion), petitioner

Jose Miguel T. Arroyo (Arroyo) argues that the creation of a
Fact-Finding Team and a Joint Department of Justice
(DOJ)-Commission on Elections (COMELEC) Committee
violates the constitutionally guaranteed independence of
the COMELEC, in particular, its decisional independence.
Arroyo also urges the Court to reconsider its September 18,
2012 Decision and take judicial cognizance of: (1) the
alleged “rushed resolution of the electoral sabotage cases
against co-petitioner Gloria Macapagal-Arroyo (GMA) by
the Joint DOJ-COMELEC Committee, having been packed
with members of the Executive Branch, as a product of
what he claims was the COMELEC’s lack of decisional
independence”; and (2) “the subsequent grant of bail to
GMA as an indication that the evidence of guilt was weak
and that the filing of cases against her was done regardless
of merit.”1
For her part, petitioner GMA contends that it is the
COMELEC and not the Joint DOJ-COMELEC Committee
which has the primary, if not exclusive, authority to
conduct preliminary investigation of election cases and that
the creation of the Joint DOJ-COMELEC Committee
constitutes an abdication by the COMELEC of its
constitutional mandate. GMA also argues that she should
not be deemed to have waived her right to file her counter-
affidavit and submit evidence on her behalf before the Joint
DOJ-COMELEC Committee.2
I submit this Dissent to point out and stress that the
fundamental constitutional transgression the ponencia
glossed over is a grave, deep and lasting one that can
unsettle our elections and undo the constitutional balance
that those who have come before us have worked
assiduously to maintain for almost eight decades of
constitutional history. The resulting prejudice to our
electoral system is the effect of the ponencia’s

_______________
1 Rollo (G.R. No. 199082), p. 1384.
2 Ibid.

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confirmation of the validity of COMELEC Resolution No.

9266 and Joint Order No. 001-2011 — the instruments
that called for the creation of a Fact-Finding Team and a
Joint DOJ-COMELEC Preliminary Investigation
Committee to investigate and conduct preliminary
investigation on the 2004 and 2007 National Elections
Electoral Fraud and Manipulation case. I maintain that
these instruments should be struck down as they
violate the constitutionally guaranteed decisional
independence of the COMELEC and allow the
intrusion of the Executive Department into the
administration of our elections.
The enduring constitutional and
jurisprudential policy upholding
the COMELEC’s independence com-
pletely abhors any outside intrusion
into its authority and functions
The COMELEC’s history undeniably shows that its
independence was the principal justification for its
creation. The people’s dissatisfaction with the manner by
which the elections were administered by the Executive
Department under the then Department of Interior
prompted the constitutional amendment of the 1935
Constitution in 1940. This constitutional amendment was
deliberately undertaken to place the COMELEC outside
the influence of political parties and the control of
the other departments of government. This
constitutional policy towards protection of the COMELEC’s
independence has never wavered and in fact, has prevailed
even after two amendments of our Constitution in 1973 and
1987. The current 1987 Constitution now provides that the
COMELEC, like all other Constitutional Commissions,
shall be independent.
Taking cue from the people’s protectionist policy, the
Court had very zealously guarded the COMELEC’s
independence against various forms of executive intrusion
as exemplified in
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the cases of Nacionalista Party v. Bautista,3 Brillantes, Jr.

v. Yorac,4 and Atty. Macalintal v. Comelec.5
In Nacionalista Party v. Bautista,6 the Court invalidated
President Quirino’s designation of Solicitor General
Bautista as Acting Member of the COMELEC because the
designation was repugnant to the constitutionally
guaranteed independence of the COMELEC, the Court
pointedly stated:

Under the Constitution, the Commission on Elections is

an independent body or institution (Article X of the
Constitution), just as the General Auditing Office is an
independent office (Article XI of the Constitution).
Whatever may be the nature of the functions of the
 Commission on Elections, the fact is that the framers of
the Constitution wanted it to be independent from
the other departments of the Government. x x x
By the very nature of their functions, the members of the
Commission on Elections must be independent. They must
be made to feel that they are secured in the tenure of their
office and entitled to fixed emoluments during their
incumbency (economic security), so as to make them
impartial in the performance of their functions — their
powers and duties. They are not allowed to do certain
things, such as to engage in the practice of a profession; to
intervene, directly or indirectly, in the management or
control of any private enterprise; or to be financially
interested in any contract with the Government or any
subdivision or instrumentality thereof (sec. 3, Article X, of
the Constitution). These safeguards are all conducive or
tend to create or bring about a condition or state of mind
that will lead the members of the Commission to perform
with impartiality their great and important task and
functions. That independence and

_______________
3 85 Phil. 101 (1949).
4 G.R. No. 93867, December 18, 1990, 192 SCRA 358.
5 453 Phil. 586; 405 SCRA 614 (2003).
6 Supra note 3.

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impartiality may be shaken and destroyed by a

designation of a person or officer to act temporarily
in the Commission on Elections. And, although
Commonwealth Act No. 588 provides that such temporary
designation “shall in no case continue beyond the date of the
adjournment of the regular session of the National
Assembly (Congress) following such designation,” still such
limit to the designation does not remove the cause for the
impairment of the independence of one designated in a
temporary capacity to the Commission on Elections. It
would be more in keeping with the intent, purpose
and aim of the framers of the Constitution to appoint
a permanent Commissioner than to designate one to
act temporarily. Moreover, the permanent office of
the respondent may not, from the strict legal point of
view, be incompatible with the temporary one to
 which he has been designated, tested by the nature
and character of the functions he has to perform in
both offices, but in a broad sense there is an
incompatibility, because his duties and functions as
Solicitor General require that all his time be devoted
to their efficient performance. Nothing short of that is
required and expected of him.7 (emphases ours)

This ruling and its tenor have been reiterated in all the
subsequent cases involving COMELEC independence,
except in the present case where the Court looked the other
way and allowed the COMELEC to share its decisional
independence with the DOJ, an agency under the
supervision, control and influence of the President.
I submit that by doing this, the majority wrote
away 78 years of history of COMELEC independence
in favor of the Executive’s intrusion into its
authority and functions.

_______________
7 Id., at pp. 106-109.

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The shared DOJ-COMELEC investigatory

and prosecutory arrangement under
COMELEC Resolution No. 9266 and
Joint Order No. 001-2011 violates the constitutionally
guaranteed decisional independence of the
COMELEC
A fundamental point of disagreement with the ponencia
relates to the nature of the independence that the
Constitution guarantees the COMELEC in the exercise of
its power to investigate and prosecute election offenses.
In the present case, the “independence” that the
Constitution guarantees the COMELEC should be
understood in the context of its “decisional independence”
or the COMELEC’s “capacity to perform its investigative
and prosecutory functions according to its own discretion
and independent consideration of the facts, the evidence
and the applicable law free from attempts by the legislative
or executive branches or even the public to influence the
outcome of the case.”8 This simply means that the
COMELEC, in the exercise of its power to investigate and
prosecute election offenses, must be protected from
unwarranted encroachment or intrusion by the other
branches of government — in this case, the Executive
Branch.
My core objection relates to the novel method by which
the COMELEC exercised its power to investigate and
prosecute the election cases against the petitioners. Under
the terms of Joint Order No. 001-2011, the COMELEC, as
an independent constitutional body, was fused with the
DOJ, the prosecutorial arm of the Executive Branch. I
pointed this out in my previous Opinion, as follows:

To point out the obvious, the Fact-Finding Team, on the

one hand, is composed of five members from the

_______________
8 Stephen H. Legomsky, Deportation And The War On Independence, 91 Cornell
L. Rev. 369, 386 (2006).

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DOJ and two members from the COMELEC. This team is,
in fact, chaired by a DOJ Assistant Secretary. Worse,
the Fact-Finding Team is under the supervision of the
Secretary of DOJ and the Chairman of the COMELEC
or, in the latter’s absence, a Senior Commissioner of the
COMELEC.
On the other hand, the Joint DOJ-COMELEC
Preliminary Investigation Committee is composed of
three (3) officials coming from the DOJ and two (2)
officials from the COMELEC. Prosecutor General
Claro A. Arellano from the DOJ is also designated as
Chairperson of the Committee. Not to be forgotten also
is that budget and financial support for the operation of
the Committee and the Fact-Finding Team shall be sourced
from funds of the DOJ and the COMELEC, as may be
requested from the Office of the President. This,
again, is a perfect example of an incremental change that
the Executive can exploit.
What appears to be the arrangement in this case is a
novel one, whereby the COMELEC — supposedly an
independent Constitutional body — has been fused with
the prosecutorial arm of the Executive branch in order to
conduct preliminary investigation and prosecute election
offenses in the 2004 and 2007 National Elections. To my
mind, this fusion or shared responsibility between the
 COMELEC and the DOJ completely negates the
COMELEC’s “decisional independence” so jealously
guarded by the framers of our Constitution who
intended it to be insulated from any form of political
pressure.9 (emphases, italics and underscores supplied)

I reiterate, if only for emphasis, that what exists under

Joint Order No. 001-2011 is not a scheme whereby the
COMELEC exercises its power to conduct preliminary
investigation and prosecute election offenses independently
of

_______________
9 See J. Brion’s Separate Concurring and Dissenting Opinion, Arroyo v.
Department of Justice, G.R. Nos. 199082, 199085 and 199118, September
18, 2012, 681 SCRA 181, 289-290.

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other branches of government; what it provides is a shared

responsibility between the COMELEC and the Executive
Branch through the DOJ. The result cannot but be an
arrangement that the Constitution and the law cannot
allow, however practical from the standpoint of efficiency it
might be. To stress the obvious, the joint or shared
arrangement directly goes against the rationale that
justifies the grant of independence to the COMELEC — to
insulate it, particularly its role in the country’s electoral
exercise, from political pressures and partisan politics.
As I previously noted in my previous Opinion, this
shared arrangement between the COMELEC and the DOJ
amounts to an incremental change whose adoption
weakens the independence of the COMELEC. By allowing
shared responsibility, the independence of the COMELEC
ends up like the proverbial boiled frog10 — slowly killed
because it was lulled into complacency by the slow
application of heat — in this case, apparently brought
about by the political identities of those who stood charged.
Unfortunately, the majority’s ruling today will now be the
latest case law on COMELEC independence. Unless a new
occasion arises, we are — in the meanwhile — now
effectively back to the country’s situation before 1940 with
elections subject to intrusion by the Executive.
 _______________
10 See Euegene Volokh, The Mechanisms of the Slippery Slope,
Harvard Law Review, Vol. 116, February 2003, available online at SSRN:
http://ssrn.com/abstract 343640 or http://dx.doi.org/102139/ssrn.343640
(last visited September 17, 2012) Volokh notes: “Libertarians often tell of
the parable of the frog. If a frog is dropped into hot water, it supposedly
jumps out. If a frog is put into cold water that is then heated, the frog
doesn’t notice the gradual temperature; change, and dies. Likewise, the
theory goes, with liberty: People resists to take rights away outright, but if
the rights are eroded slowly.”

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Delegation of authority by the

COMELEC to the DOJ, as its
deputy in the investigation and
prosecution of election offenses,
is the only constitutionally per-
missible arrangement, given the
independence of the COMELEC
I take exception to the ponencia’s conclusion that the
creation of the Joint DOJ-COMELEC Committee is not
repugnant to the concurrent jurisdiction conferred to the
COMELEC and other prosecutorial agencies of government
(such as the DOJ) under Section 42 of Republic Act No.
9369. I reiterate the view that this concurrent jurisdiction
between the COMELEC and the DOJ in the investigation
and prosecution of election offenses is circumscribed by the
Constitutional provisions guaranteeing the COMELEC’s
independence as a Constitutional Commission.11 To my
mind, the only arrangement that can pass constitutional
muster is the practice of delegation of authority by the
COMELEC, otherwise known as deputation, which has
long been upheld by the Court, viz.:

In other words, the only arrangement constitutionally

possible, given the independence of the COMELEC and
despite Section 42 of RA 9369, is for the DOJ to be a mere
deputy or delegate of the COMELEC and not a co-
equal partner in the investigation and prosecution of
election offenses WHENEVER THE COMELEC ITSELF
DIRECTLY ACTS. While the COMELEC and the DOJ
have equal jurisdiction to investigate and prosecute election
offenses (subject to the rule that the body or agency that
first takes cognizance of the complaint shall exercise
 jurisdiction to the exclusion of the others), the COMELEC
— whenever it directly acts in the fact-finding and
preliminary investigation of elections offences — can still
work with the DOJ and seek its

_______________
11 CONSTITUTION, Article IX(A), Sections 1, 2, 3, 4, 5 and 6.

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Arroyo vs. Department of Justice

assistance without violating its constitutionally

guaranteed independence, but it can only do so as the
principal in a principal-delegate relationship with
the DOJ where the latter acts as the delegate.
This arrangement preserves the COMELEC’s
independence as “being mere deputies or agents of the
COMELEC, provincial or city prosecutors deputized . . . are
expected to act in accord with and not contrary to or in
derogation of its resolutions, directives or orders xxx in
relation to election cases that such prosecutors are
deputized to investigate and prosecute. Being mere
deputies, provincial and city prosecutors, acting on behalf of
the COMELEC, [shall also] proceed within the lawful scope
of their delegated authority.”12 (emphases, italics and
underscore supplied)

COMELEC’s approval under Section

2 of Joint Order No. 001-2011 of the
resolutions of the Joint DOJ-
COMELEC Committee finding prob-
able cause does not save the said
Order from the vice of unconstitu-
tionality
I also cannot accept the ponencia’s strained reasoning
that the creation of the Joint Committee does not
undermine the independence of the COMELEC because the
determination of probable cause ultimately pertains to the
COMELEC under Section 2 of Joint Order No. 001-2011. In
my view, the constitutionally objectionable arrangement of
a shared responsibility between the COMELEC and the
DOJ is not saved by the existence of Section 2 of Joint
Order No. 001-2011. In order for the COMELEC’s action in
the present case to be constitutionally valid, it must still be
shown that the COMELEC’s determination of probable
cause was free from any attendant participation by the
Executive.

_______________
12 Supra note 9, at pp. 298-299.

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In the present case, the COMELEC’s determination of

probable cause can hardly be considered to be free from
executive intrusion as its independent consideration of the
facts, evidence and the applicable law with respect to the
complaints for electoral sabotage filed against the
petitioners was severely compromised by the tainted
proceedings before the Joint DOJ-COMELEC Committee
discussed elsewhere in this Opinion. I stress that the
COMELEC’s decisional independence should be observed
or required at every stage of the preliminary investigation.
Any standard less than this is tantamount to the
emasculation of the independence that the framers so
painstakingly incorporated in our Constitution to ensure
that the COMELEC is insulated from any intrusion of
outside influences, political pressures and partisan politics.
The fact that the COMELEC’s determination of probable
cause has been compromised by the intrusion of the
Executive through its DOJ representatives is further
shown by the COMELEC en banc’s November 18, 2011
Resolution finding probable cause for electoral sabotage
against petitioner GMA. In the guise of maintaining its
independence (by making it appear that it had exercised its
discretion and made an independent judgment), the
COMELEC en banc in its November 18, 2011 Resolution
included a caveat that the adoption of the resolution was
“upon the recommendation of the COMELEC’s own
representatives in the Committee.”13 On this point, the
following oral argument exchanges are illuminating, viz.:

JUSTICE VELASCO: Section 6 of the Joint Order states…

wait a minute. No, Section 2 rather of the Joint Order
states that “the resolutions of the preliminary investigation
committee shall be approved by COMELEC,” correct?
ATTY. DULAY: Yes, Your Honor.

_______________
13 Rollo (G.R. No. 199082), p. 190.
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Arroyo vs. Department of Justice

JUSTICE VELASCO: However, I noticed that in the

COMELEC En Banc resolution dated November 18, 2011,
the Comelec En Banc resolved the complaint only upon the
recommendation of the COMELEC’s own representatives in
the committee, what can you say about this?
ATTY. DULAY: Well, Your Honor, this is precisely the
point we would like to point out also that even the
COMELEC itself is unsure of its legal footing in this case
because instead of affirming the authority of the same body
which they jointly created, they would now make it appear,
Your Honor, that the resolution of the COMELEC En Banc
was only based on the recommendation of the two members,
of the two of the five members of the Preliminary
Investigation Committee. And if I may point out, Your
Honor, this was issued after there was already publicity
regarding this case, Your Honor, and I supposed after
they’ve already received our petition, Your Honor.
JUSTICE VELASCO: So COMELEC En Banc issued that
resolution dated November 18, 2011, only on the basis of the
recommendations of two members of the five men
Preliminary Investigation Committee which is not even the
majority in the Committee?
ATTY. DULAY: Well yes, Your Honor, precisely that is
why we would, we are quite surprised that the COMELEC
would seem to disown its own creation now when in fact the
decision of the Preliminary Investigation Committee is not
a decision made by two people alone. Under their own rules
this was a decision made by five people, three from the
DOJ, and two from the COMELEC. So I do not see, Your
Honor, how they can divorce the findings of their own
representatives on the same committee with only one
report, Your Honor.
JUSTICE VELASCO: Under the Constitution, which body
or agency has the exclusive charge of the enforcement and
administration of all laws relative to the conduct of
election?
ATTY. DULAY: It would be the COMELEC, Your Honor,
under the Constitution.

785

VOL. 701, JULY 23, 2013 785

Arroyo vs. Department of Justice
 JUSTICE VELASCO: It’s only the COMELEC, right.14
ATTY. DULAY: Yes, Your Honor.

Conclusion
To summarize, the COMELEC, not the Joint DOJ-
COMELEC Committee, has the primary, if not exclusive,
authority to conduct preliminary investigation of election
cases, and the creation of the Joint DOJ-COMELEC
Committee constitutes an unconstitutional abdication by
the COMELEC of its constitutionally-granted
independence. In arriving at this Dissent, I take into
account, together with my above conclusion, the extent of
injury that can be caused to our electoral system by
opening the COMELEC to Executive intrusion, as well as
the haste the petitioners pointed out.
I conclude, as a consequence of the defective
determination of probable cause, that no basis exists to
support the charge of electoral sabotage against the
petitioners. I thus vote for the grant of the motions for
reconsideration.

Motions for Reconsideration denied.

Notes.—Under Section 2, Rule 34 of the Comelec Rules

of Procedure, provincial and city prosecutors and their
assistants are given continuing authority as deputies to
conduct preliminary investigation of complaints involving
election offenses under election laws and to prosecute the
same. (Arroyo vs. Department of Justice, 681 SCRA 181
[2012])
The Department of Justice (DOJ) now conducts
preliminary investigation of election offenses concurrently
with the Comelec and no longer as mere deputies. (Ibid.)
——o0o—— 

_______________
14 TSN, November 29, 2011, pp. 84-86.

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