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					                              REPUBLIC OF THE PHILIPPINES
                                FOURTH JUDICIAL REGION
                                 REGIONAL TRIAL COURT
                                  Branch 40, Calapan City



PEOPLE OF THE PHILIPPINES,
               Plaintiff,
                                                      Criminal Case No. CR-06-8525
                      - versus -                      For: Multiple Murder &
                                                            Multiple Frustrated Murder

RUSTOM SIMBULAN, ET AL.
                          Accused.
x-----------------------------------------x



         MOTION TO QUASH/RECALL WARRANT OF ARREST
               And MOTION TO DISMISS THE CASE

        Accused Atty. Remigio D. Saladero, Jr., by counsels, to this Honorable

Court, respectfully states: That –



                                              PREFATORY

        The Constitutional duty of the Court in criminal litigations is
        not only to acquit the innocent after trial but to insulate, from
        the start, the innocent from unfounded charges. For the Court
        is aware of the strains of a criminal accusation and the
        stresses of litigation which should not be suffered by the
        clearly innocent.     The filing of an unfounded criminal
        information in court exposes the innocent to severe distress
        especially when the crime is not bailable. Even an acquittal of
        the innocent will not fully bleach the dark and deep stains left
        by a baseless accusation for reputation once tarnished
        remains tarnished for a long length of time. The expense to
        establish innocence may also be prohibitive and can be more
        punishing especially to the poor and the powerless.
        Innocence ought to be enough and the business of the Court
        is to shield the innocent from senseless suits right from the
        start.1




1
     Dissenting Opinion, Justice Renato Puno. Roberts, Jr. v. Court of Appeals, 254
SCRA 307, March 5, 1996.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case                    2
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

                   WHO IS ATTY. REMIGIO D. SALDERO, JR.?



1.     ATTY. REMIGIO D. SALADERO, JR. is a dedicated, prominent and well

       recognized labor and human rights lawyer. He is currently the chief legal

       counsel of the progressive labor movement Kilusang Mayo Uno (KMU).

       He is also the chairman of the Pro-Labor Legal Assistance Center

       (PLACE), a law firm which principally renders legal services to the poor

       and oppressed workers and farm workers, conducts paralegal seminars

       on workers‘ rights and welfare, and engages in advocacy and lobby work

       for the promotion of workers‘ rights. As a labor lawyer, Atty. Saladero has

       extended legal services to the labor unions at San Miguel Corporation,

       Nestle-Cabuyao,       Monterey,    Shoe     Mart,   Philips    Electronics,   Dole

       Philippines, PNB, Hacienda Luisita, Azucarera de Tarlac, ABS-CBN,

       Legend Hotel-Subic, Yokohama Tires, Robina Farms-Rizal, LRT, RFM,

       Swifts, Cosmos Bottling and Sulpicio Lines, to name a few. He handles

       several hundreds of labor cases involving thousands of employees.



2.     He is also a member of the National Union of Peoples‘ Lawyers (NUPL), a

       nationwide voluntary association of human rights lawyers in the

       Philippines, committed to the defense, protection and promotion of human

       rights, especially of the poor and the oppressed.



3.     Atty. Saladero, Jr. was admitted to the Philippine Bar in 1985, garnering a

       general average of 88.95%2 which landed him on the 17th place. Right

       after his admission to the Bar, he worked as Assistant Attorney at the Del

       Rosario and Del Rosario Law Offices in Makati City until 1986. From




2
      A copy of the Certification to this effect from the Office of the Bar Confidant dated
March 2, 1995 is hereto attached as Annex “1.”.
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

       there, he entered the Public Attorney‘s Office (PAO)-Department of

       Justice, Antipolo District as Public Attorney II from 1987 to 1990.



4.     The Office of the Bar Confidant has certified that he is a lawyer in good

       standing, without a pending case against him before the said office as of

       October 27, 2008.3 He has also complied with the required Mandatory

       Continuing Legal Education (MCLE), with Compliance No. II-0010357

       issued on August 15, 2008.4



5.     He also holds his own law office at 119 Circumferential Road, San Isidro,

       Antipolo City, Rizal 5 .     Said Law Office is duly registered with the

       Department of Trade and Industry6 and is licensed to operate by the Office

       of the City Mayor of Antipolo City, Rizal7.



6.     Atty. Remigio D. Saladero, Jr. took his Bachelor of Arts-Major in Political

       Science at the Mindanao State University (MSU), Marawi City and

       graduated cum laude on April 7, 1979. He obtained his Bachelor of Laws

       in San Beda College on April 16, 1983. He has a Diploma in Industrial

       Relations (April 1987), Master in Industrial Relations (October 1989), and

       Master of Public Administration (April 1995) from the University of the

       Philippines (Diliman).




3
       A copy of the Certification from the Office of the Bar Confidant dated October 27,
2008 is hereto attached as Annex “2.”.
4
       A copy of his MCLE Certificate of Compliance issued on August 15, 2008 is
hereto attached as Annex “3.”.
5
       Copies of photos of his law office in his residence are hereto attached as
Annexes “4” and “4-1.”.
6
       A copy of the DTI Certificate of Business Name Registration issued on July 27,
2007 is hereto attached as Annex “5.”
7
       A copy of the Mayor‘s permit dated October 8, 2007 is hereto attached as Annex
“6.”.
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

7.    Atty. Remigio D. Saladero, Jr. was awarded on November 19, 2005 by the

      UP Industrial Relations Alumni Association the Natatanging Alumni for

      Labor Leadership and Advocacy for his concern in the empowerment of

      labor which extends to the shaping of public opinion on the labor sector.



8.    Atty. Saladero, Jr. is a member of the Integrated Bar of the Philippines

      (IBP)-Antipolo City Chapter, Movement of Attorney‘s for Brotherhood,

      Nationalism and Integrity, Inc. (MABINI), Free Legal Assistance Group

      (FLAG), Lex Leonum Fraternitas (a fraternity in San Beda College of Law),

      and Bayan Muna Party-List in Rizal (as chairman, 2001-2004). He was a

      former professor at the Dominican College and Lyceum College of Law.

      From 2003 to the present, he writes a column dealing exclusively on labor

      issues and cases at Pinoy Weekly on-line, a progressive weekly

      publication.



                       CIRUSMTANCES OF HIS ARREST



9.    At around 2:30 P.M. on October 23, 2008, while Atty. Remigio D. Saldero,

      Jr. was alone and drafting some pleadings at his office/residence at 119

      Circumferential Road, San Isidro, Antipolo City, Rizal, he heard somebody

      knocking at the gate.



10.   He initially ignored the knockings as he was not expecting any

      appointment for that afternoon, but when the knockings persisted, he

      decided to check who it was.



11.   At the gate, Atty. Remigio D. Saladero, Jr. noticed a frail-looking man in

      civilian clothes, about 20 to 30 years old. When the man told him he was

      looking for ―Atty. Saladero‖, he let the man in.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case             5
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525




12.   Once inside, the man told Atty. Saladero about his alleged brother who is

      purportedly charged with a drug-related offense. Atty. Saladero advised

      him that if the offense is bailable, his brother may post bail; otherwise, he

      could file a petition for bail. All the while, Atty. Saladero had noticed that

      the man kept on glancing around, as if checking if he had companions.



13.   Then the man told Atty. Saladero that the documents on the case was in

      his motor bike which was allegedly parked outside, and asked permission

      to get them.



14.   Minutes later, the man came back with two other men in civilian clothes.

      One of them suddenly approached Atty. Saladero and asked him ―Kayo si

      Atty. Saladero?‖ Then he showed me a document while saying ―mga pulis

      kami, may warrant kayo, multiple murder and multiple frustrated murder sa

      RTC Calapan.‖



15.   Atty. Saladero tried to read the document but the man immediately

      withdrew it. At a glance, however, Atty. Saladero could read that it was a

      warrant for the arrest of one ―REMEGIO SALADERO @ KA PATRICK,‖

      issued on October 6, 2008 by Judge Tomas Leynes.



16.   When Atty. Saladero insisted that the arresting officers made a mistake in

      arresting him, the man barked at him, ―Sumama kayo nang maayos para

      walang mangyaring masama.‖



17.   Thereupon, Atty. Saladero took out his cellular phone to call his wife but

      the man confiscated it. Another drew his gun and told him to keep quiet.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case          6
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

      And the other, who pretended to have a brother charged with a drug-

      related offense, handcuffed Atty. Saladero.



18.   Despite Atty. Saladero‘s pleas to allow him to call his wife, the men

      refused, pulled him out of his house and forced him into a tinted van.



19.   Two other men in civilian clothes, who had been positioned at the gate of

      the compound, also went inside his house and took with them Atty.

      Saladero‘s laptop.



20.   It was only later that Atty. Saladero learned he was arrested by the

      combined forces of the RIID 4A, PIB, Rizal PPO 418th PPMG, and that the

      central processing unit (CPU) of his computer, pleadings, Daily Calendar

      of Activities for the year 2008 containing his scheduled hearings and other

      professional commitments were also seized by the arresting team.



21.   Inside the van, Atty. Remigio D. Saladero, Jr. was made to sit on the

      backseat sandwiched between two of his captors who were armed with

      long firearms. The man seated beside the driver was also armed.



22.   When the van passed by the Antipolo Police Station, Atty. Saladero

      requested that they drop by, hoping that some policemen in the station

      would recognize him. But his captors ignored his request.



23.   Atty. Saladero‘s captors began interrogating him inside the van, asking

      him several outlandish questions such as how many times he had gone up

      the mountains and his code name.         He explained to them that they

      probably got the wrong man. He also asked them if he could call his

      lawyers and if he could get back his cellular phone. But his captors told
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case           7
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

      him that he would be allowed to make his calls later. The men then

      started to take his picture, using their own cellular phones.



24.   The van then stopped at the Rizal Police Provincial Office in Hilltop,

      Taytay, Rizal. The armed men disembarked for a while and took pictures

      of Atty. Saladero.



25.   When the armed men got back inside the van, they told Atty. Saladero

      that they are going to the PNP Regional Office at Canlubang.             He

      remained in handcuffs throughout the trip.



26.   At around 5:00 P.M., Atty. Saladero was brought to Camp Vicente Lim in

      Canlubang, Laguna where he was again photographed and his

      fingerprints were taken.     Thereafter, he was subjected to a detailed

      interrogation. His answers were all taken down by the interrogator. At this

      point, Atty. Saladero again requested that he be allowed to call his wife or

      his lawyers, but the interrogator ignored his request.



27.   Atty. Saladero was made to answer prying questions ranging from the

      names of his parents, his wife‘s and those of his relatives. He was even

      asked about his membership in organizations, his positions therein and his

      tasks. He told his interrogator that his tasks did not include leading or

      joining the armed struggle against the government, and that all his actions

      were all legal and in accordance with law.



28.   When asked about his involvement with KMU, Atty. Saladero told his

      interrogator that as its chief legal counsel, he renders legal assistance to

      workers and unions affiliated with the said labor center.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case          8
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

29.   Atty. Saladero was likewise asked about his companions in his office, and

      whether he has joined rallies.     Atty. Saladero explained that he would

      participate in rallies as an exercise of his freedom of expression.



30.   He was also asked about the seminars he has participated in, including its

      venues, the topics and the participants. He was also asked about the

      BKP or the IKP, to which he answered that he had never participated in

      such types of seminars. During the entire interrogation, Atty. Saladero

      was still handcuffed.



31.   The interrogation was cut short only by an order sending Atty. Saladero to

      the police clinic for examination after which the interrogation resumed. He

      remained in handcuffs all throughout these entire process.



32.   Atty. Saladero was allowed to make a call only at 9:00 P.M. after several

      hours of interrogation, and after almost eight (8) hours since he was held

      incommunicado. Then he was transferred to the detention center where

      he spent the night alone.



33.   Upon learning where Atty. Saladero was taken to, his wife and his

      colleague in his Quezon City office, Atty. Noel Neri, rushed to Camp

      Vicente Lim. They were allowed to see and talk only briefly with Atty.

      Saladero who was again left in solitary confinement after the visit.



34.   At 6:30 in the morning of the following day, October 24, 2008, Atty.

      Remigio D. Saladero Jr. was loaded by his police escorts in an unmarked

      vehicle bearing no license plate, over and above his wife‘s insistence and

      plea that she be allowed to accompany him during the travel.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case           9
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

35.   Atty. Saladero was brought to Camp Naramo, Calapan City where he was

      again photographed and fingerprinted. It was only at 3:00 P.M. that he

      was presented to the Regional Trial Court of Calapan City, Branch 40

      before Judge Tomas Leynes.         It was only during that time that he was

      able to read the information and saw that the accused was one

      ―REMEGIO SALADERO alias Ka Patrick of Los Banos, Laguna.‖



36.   Atty. Remigio D. Saladero, Jr. introduced himself in open court that he is

      an attorney and requested that he be furnished with a copy of the records

      of his case. However, he was denied access to the records and was told

      he could not be provided with a copy allegedly because of the number of

      accused and the possibility of flight by the other accused named in the

      information.



37.   Also on that day, Executive Judge Manuel O. Luna, Jr. issued a

      Commitment Order which surprised Atty. Saladero as he heard for the first

      time his name correctly spelled and pronounced in court.               The

      Commitment Order dated October 24, 2008 now bears his name

      REMIGIO        SALADERO,     JR.   Y   DAMANDAMAN,         not   ―REMEGIO

      SALADERO‖ which appears in the ―amended‖ Information. By virtue of

      the said Commitment Order, Atty. Remigio D. Saladero, Jr. was transfrred

      to the Oriental Mindoro Provincial Jail at about 3:30 P.M. of the same

      date, where he remains detained up to the present.



                          STATEMENT OF THE CASE



38.   On July 24, 2006 Assisting Provincial Prosecutor Dorina H. Joya, with the

      approval of Provincial Prosecutor Josephine       C. Caranzo – Olivar of

      Oriental Mindoro, filed the information in this case accusing a certain
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case         10
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

      ―Rustom Simbulan @ Ka Bobby @ Ka Bayani @ Ka Silang @ Ka Arthur

      and ―John Does‖ of multiple murder and multiple frustrated murder. The

      information alleged that the accused Rustom Simbulan of Puerto Galera,

      Oriental Mindoro and ―John Does‖ ambushed a group of PNP soldiers in

      barangay San Isidro, Puerto Galera, Oriental Mindoro in the early morning

      of March 3, 2006 resulting in the death of three and the wounding of two

      others.



39.   The information listed six witnesses and ten exhibits for the prosecution.

      Neither the name of Atty. Remigio D. Saladero, Jr. nor any of the seventy-

      two accused other than Rustom Simbulan is mentioned in any of the

      supporting affidavits and exhibits of the prosecution.     Presiding Judge

      Tomas C. Leynes issued a warrant of arrest only against Rustom

      Simbulan.     Parenthetically, the resolution dated July 20, 2006 of

      investigating prosecutor Dorina H. Joya, which was approved and signed

      by Provincial Prosecutor Josephine C. Caranzo- Olivar, explicitly said that

      the John Does in the original information who were allegedly members of

      the New People‘s Army were ―unidentified.‖ The prosecutor‘s resolution

      explicitly stated that the ―resolution is based solely on the evidence

      submitted by the complainant.‖ The resolution said that only ―more than 15

      heavily armed men‖ headed by Simbulan staged the ambush. We take

      note of this crucial finding of prosecutor Joya who conducted the

      preliminary investigation against Rustom Simbulan because it contradicts

      and destroys the credibility of prosecution witness Vincent Silva, the only

      witness against Atty. Saladero and the 70 others who were included in the

      ―amended‖ information filed by Prosecutor Humilito A. Dolor without

      conducting the requisite preliminary investigation. Both witness Silva and

      Prosecutor Dolor alleged that seventy-two (72) heavily-armed members of

      the New People‘s Army staged the ambush – the seventy-two who were
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case              11
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

         charged in the ―amended‖ information including a certain Remegio

         Saladero alias Ka Patrick, some of them women, many if not most of them

         are   social   activists   and   mass   leaders   of   sectoral   progressive

         organizations.



40.      In an order dated May 7, 2007 the Presiding judge motu propio ordered

         that the case be archived ―without prejudice to its subsequent prosecution

         as soon as the accused is apprehended.‖



41.      On September 29, 2008, more than one year and four months after the

         case was archived, another prosecutor, prosecutor Humilito A. Dolor, with

         the approval of Provincial Prosecutor Josephine C. Caranzo-Olivar filed an

         ―amended‖ information that now includes in addition to Rustom Simbulan

         the name ―Remegio Saladero aka ―Ka Patrick‖ and seventy others with

         corresponding aliases.



42.      During the scheduled arraignment on October 27, 2008 prosecutor Dolor

         confirmed by his own admission in open court the decisive facts contained

         in the records which are fatal to the prosecution‘s case;



      42.1      He filed the ―amended‖ information without conducting a preliminary

                investigation;



      42.2      the seventy-one additional accused who were included in the

                ―amended‖ information were not issued any subpoena or notified of

                the filing of an ―amended‖ information against them. Therefore,

                they were denied their right to present their defense through

                counter-affidavits;
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case           12
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

   42.3      no motion was filed in court to revive the archived case;



   42.4      the motion to admit ―amended‖ information, which was approved by

             Provincial Prosecutor Caranzo-Olivar was filed ex parte. None of

             the seventy-one additional accused was notified or sent copy of the

             Motion. No hearing on the motion was conducted by the court;



   42.5      Prosecutor Humilito Dolor certified under oath that the ―amended‖

             information ―was filed on the basis of the affidavit of Vincent Silva,

             specifically naming the John Does in the original information.‖



   42.6      In total disregard of the meaning and implication of the public

             prosecutor‘s oath and certification to the fundamental rights of the

             accused, and blatantly committing perjury, Prosecutor Dolor,

             certified under oath that ―a preliminary investigation was previously

             conducted in this case and on the basis of the sworn statements

             and other evidences on record, the undersigned (prosecutor Dolor)

             found a reasonable ground to believe that the crime complained of

             has been committed and that the respondents are probably guilty

             thereof).‖ Provincial Prosecutor Caranzo–Olivar administered the

             perjurious oath and certification of Prosecutor Dolor.



   42.7      Erroneously invoking Section 14, Rule 110 of the Rules on Criminal

             Procedure, Prosecutor Dolor insisted in his motion that it is ―legally

             proper‖ to unilaterally include ex parte seventy –one innocent

             persons in an ―amended‖ information for the capital offense of

             multiple murder and cause their arrest and incarceration without

             bail solely on the basis of clearly fabricated statement of Vincent

             Silva, a witness who by his own admission, is being ―handled‖ and
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case             13
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

                under military/police custody. Curiously, the prayer of the motion to

                admit ―amended‖ information merely asked the court to admit the

                same ―to form part of the records of the instant case.‖



43           In an order dated October 3, 2008 the Presiding judge, utterly

             disregarding the right to preliminary investigation and in serious

             violations of the constitutional right to due process of the accused,

             granted the motion to admit ―amended‖ information.



     43.1       In his order, the Honorable Presiding judge said ―the Court hereby

                adopts the findings of the preliminary investigation conducted by

                the investigating officers that probable cause exists, that the crime

                had been committed and that the accused, who are originally

                named as John Does in the original information, might probably

                (sic) guilty thereof, hence the Court finds reasonable grounds for

                the necessity of placing herein accused under immediate custody

                in order not to frustrate the ends of justice. The Presiding judge

                issued warrants of arrest against the 71 additional accused

                including a certain ―Remegio Saladero.‖



        In short, the Honorable Presiding Judge gave his imprimatur to the non-

     existent preliminary investigation and ―adopted‖ the flawed findings of the

     public prosecutor that the John Does in the original information are the

     seventy-one accused whose names were added by the Prosecutor Dolor in

     the ―amended‖ information.



     43.2       Section 13 Rule 110 of the Rules provides:

            ―SEC. 13. Duplicity of the offense. – A complaint or information
            must charge only one offense, except when the law prescribes a
            single punishment for various offenses. ―
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case             14
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525




        In contravention of this rule, the ―amended‖ information charges more than

     one offense. Article 48 of the Revised Penal Code cannot be invoked in this

     case because this is not a complex crime.



                         THE EVIDENCE FOR THE PROSECUTION



44          A careful study of the evidence for the prosecution reveals the

            following:



     44.1      In the complaint affidavits executed by Police Inspector Wilson

               Gani and PO1 Joseph Panes on March 4, 2006 – the following day

               after the incident – no mention was made of the number, much less

               the identity, of any of the perpetrators. In paragraph 15 of their

               respective affidavits the two complainants identically said they

               executed     their   affidavits   “upang   maipaliwanag   ang   buong

               pangyayari.” Two days later, or on March 6, 2006 the two affiants,

               in answer to a leading question from the police investigator, claim

               they overheard during the incident the alias ―Ka Bobby‖ from one of

               the perpetrators and concluded that ―Ka Bobby‖ must be Rustom

               Simbulan, based on their Order of Battle. Both affiants additionally

               claim that the number of perpetrators is ―more than fifteen ― (mahigit

               sa labing lima).     Clearly, this obvious fabrication identifying one

               alleged perpetrator was made to support the filing of the original

               information.



     44.2      As to the identities of the seventy-one accused whose names were

               added to the ―amended‖ information including that of a certain

               Remegio Saladero alias ―Ka Patrick‖ the only evidence for the
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case           15
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

               prosecution is the bare, unsubstantiated and inherently incredible

               statement of Vincent Silva dated August 19, 2008 and sworn to

               before Notary Public Rey Ladaga on September 2, 2008.



   44.3        Rule 112 Section 4 of the Rules provide:



               ―SEC. 4. Resolution of investigating prosecutor and its
               review. – If the investigating prosecutor finds cause to hold
               the respondent for trial, he shall prepare the resolution and
               information. He shall certify under oath in the information
               that he, or as shown by the record, an authorized officer, has
               personally examined the complainant and his witnesses; that
               there is reasonable ground to believe that a crime has been
               committed and that the accused is probably guilty thereof;
               that the accused was informed of the complaint and of the
               evidence submitted against him; and that he was given an
               opportunity to submit controverting evidence. Otherwise, he
               shall recommend the dismissal of the complaint.‖



          Contrary to this mandatory requirement, the records do not show that

          Vincent Silva ever appeared before prosecutor Dolor or any other public

          prosecutor. The records do not show any sufficient certification made by

          the public prosecutor in compliance     with this rule. The certification

          merely states:


                      ―I HEREBY CERTIFY UNDER OATH, that a
               preliminary investigation was previously conducted in this
               case and on the basis of the sworn statements and other
               evidences on record, the undersigned found a reasonable
               ground to believe that the crime complained of has been
               committed and that the respondents are probably guilty
               thereof.

                      I HEREBY FURTHER CERTIFY that this AMENDED
               INFORMATION was filed on the basis of the affidavit of
               VINCENT SILVA, specifically naming the JOHN DOE‘s in
               the original information.‖


   The sworn statement of Vincent Silva is a confession. The law requires that

   such confession, to be valid and admissible as evidence, must be made with

   the assistance of a lawyer freely chosen by Silva. On the face of the sworn
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case          16
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

   statement, Silva was not assisted by counsel when he executed his

   confession.



   44.4      There is absolutely no evidence of conspiracy to support such

             allegation in the information.



   44.5      In the affidavit of Vincent Silva, he did not say that Remegio

             Saladero alias ―Ka Patrick ―was a perpetrator or participant in the

             alleged burning of the Globe tower or in the alleged ambush of the

             PNP soldiers.      In fact, with the exception of Simbulan, a certain

             Miguel Magbata, a certain Jaime Padilla, a certain Edmar

             Fernandez and himself Silva did not say that the sixty-seven others

             were perpetrators or participants in the two crimes. He was explicit

             in his statement that these sixty seven (67) accused only had

             knowledge or knew of these incidents. (―may kinalaman,‖ Q & A

             Nos. 06 and 09).



   44.6      Silva confessed that he was one of the perpetrators and explicitly

             named and narrated the criminal acts performed by four others in

             the two incidents.     He was silent on the sixty-seven (67) other

             accused except his sweeping statement that they had knowledge of

             the incidents. In conjunction with the statements of complaining

             witnesses Wilson Gani and Joseph Panes that ―more than fifteen

             heavily armed men‖ perpetrated the alleged ambush, the

             prosecution‘s theory and evidence is seriously flawed and

             inherently incredible because it seeks to prove that the rest of the

             seventy-two accused other than the ―more than fifteen heavily

             armed men‖ were either ―look-outs,‖ ―on-lookers‖ or kibitzers during

             the ambush.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case                 17
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525




                     GROUNDS IN SUPPORT OF THE MOTIONS


                                             I

                THE WARRANT OF ARREST ISSUED AGAINST
                HEREIN ACCUSED ATTY. REMIGIO SALADERO
                JR. IS VOID AB INITIO.



No preliminary investigation was
conducted in this case in serious
violation of the constitutional right to
due process of accused Atty.
Saladero, Jr.          Therefore, the
proceedings had in this case
including the issuance of the warrant
of arrest is null and void.


45           Section 1 of Article III of the 1987 Constitution provides, to wit:


                ―No person shall be deprived of life, liberty, or property
                without due process of law xxx…xxx.‖


      45.1      Further, Section 14(1) of the same article states, thus:

                       ―No person shall be held to answer for a criminal
                       offense without due process of law.‖


46           ―(D)ue process is comprised of two components -- substantive due

             process which requires the intrinsic validity of the law in interfering with

             the rights of the person to his life, liberty, or property, and procedural

             due process which consists of the two basic rights of notice and

             hearing, as well as the guarantee of being heard by an impartial

             and competent tribunal”8 (Emphasis supplied.);



47           One component of procedural due process is the right to preliminary

             investigation, a procedure enshrined in Section 3, Rule 112 of the

             Revised Rules of Criminal Procedure, to wit:
8
    Sec. of Justice v. Lantion, 322 SCRA 160
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case              18
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525




                ―Sec.3. Procedure.- Except as provided in section 7 hereof,
                no complaint or information for an offense cognizable by the
                Regional Trial Court shall be filed without a preliminary
                investigation having been first conducted in the following
                manner:

                (a) xxx….

                (b) Within ten (10) days after the filing of the complaint, the
                    investigating officer shall either dismiss the same if he
                    found no ground to continue with the inquiry, or issue
                    subpoena to the respondent, attaching thereto a
                    copy of the complaint, affidavits and other
                    supporting documents. Within ten (10) from receipt
                    thereof, the respondent shall submit counter-affidavits
                    and other supporting documents. He shall have the right
                    to examine all other evidence submitted by the
                    complaint.‖

48          As clearly provided by the above cited provision, the investigating

            officer, that is the prosecutor, must issue a subpoena to the

            respondent to a criminal complaint should he find ground to continue

            with the inquiry. Hence, at this early stage of the proceeding, the

            respondent is already accorded the right to be informed of the criminal

            complaint against him.



49          The significance of the right to preliminary investigation as a key

            component of an accused‘s right to due process has been upheld by

            the Supreme Court in a long line of cases. ―This procedure (in Section

            3, Rule 112 of the Rules of Criminal Procedure) is to be observed in

            order   to   assure   that    a   person   undergoing   such   preliminary

            investigation will be afforded due process‖9. In a more recent case, the

            Supreme Court likewise held: ―A preliminary investigation is the crucial

            sieve in the criminal justice system which spells for an individual the

            difference between months if not years of agonizing trial and possibly

            jail term, on the one hand, and peace of mind and liberty, on the other


9
    Cruz, Jr. vs. People, 233 SCRA 439.
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

            hand.     Thus, we have characterized the right to a preliminary

            investigation as not ―a mere formal or technical right‖ but a

            ―substantive‖ one, forming part of due process in criminal justice.10



     49.1      Not only that, the Supreme Court in these cases emphasized that

               the denial of the right to preliminary investigation, being a key

               component of the accused‘s right to due process, invalidates the

               proceedings had on a case.



50          In the case of Secretary of Justice v. Lantion11 the Supreme Court

            also held, to wit:


                       In a preliminary investigation which is an
                       administrative investigatory proceeding, Section 3,
                       Rule 112 of the Rules of Court guarantees the
                       respondent's basic due process rights, granting him
                       the right to be furnished a copy of the complaint, the
                       affidavits, and other supporting documents, and the
                       right to submit counter-affidavits and other supporting
                       documents within ten days from receipt thereof.
                       Moreover, the respondent shall have the right to
                       examine all other evidence submitted by the
                       complainant.”

                       Xxx

                       ―True to the mandate of the due process clause,
                       the basic rights of notice and hearing pervade not
                       only in criminal and civil proceedings, but in
                       administrative proceedings as well. Non-
                       observance of these rights will invalidate the
                       proceedings. Individuals are entitled to be notified of
                       any pending case affecting their interests, and upon
                       notice, they may claim the right to appear therein and
                       present their side and to refute the position of the
                       opposing parties (Cruz, Phil. Administrative Law,
                       1996 ed., p. 64).




10
   Ladlad vs. Senior State Prosecutor Velasco, et al., G.R. Nos. 172070-72; G.R.
Nos. 172074-76; and G.R. No. 175013, 01 June 2007; Go vs. Court of Appeals, G.R.
No. 101837, 11 February 1992, 206 SCRA 138.
11
   322 SCRA 160,
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

51          During the last hearing of this case on 27 October 2008, the prosecutor

            tried to come up with a lame excuse why the accused was not notified

            of any proceeding regarding the filing of the Amended Information and

            ended up with a blatant admission that ―no subpoena was sent to the

            parties particularly to the accused because they have filed the

            Amended Information on the sole basis of the affidavit of Vincent Silva

            naming the other accused‖ (page 17, TSN, 27 October 2008) and they

            merely concluded that the ―John Does‖ mentioned in the original

            information included herein accused Atty. Saladero (ibid.).         This is

            fatal.



     51.1       The identity of the accused should always find basis in the

                evidence attached to the complaint, and the use of the appellation

                ―John Doe‖ should always be connected to this identification as set

                out in the complaint. The ―John Doe‖ appellation should not be

                used and abused as a sweeping net by prosecutors and arresting

                officers to target just any hapless individual.



     51.2       The prosecution cannot simply assume that Atty. Saladero is one of

                the ―John Doe‘s‖ mentioned in the original information without

                violating his basic right not only to due process, but also of his right

                to be free from any unwarranted and vexatious prosecution, as it is

                undisputed that up to the time that a warrant of arrest was issued

                against one Remegio Saladero, the prosecution has absolutely no

                evidence pointing to herein accused Atty. Remigio Saladero, Jr.



     51.3       It is well to emphasize the stern reminder of the Supreme Court in

                the case of                                   , when it held:
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525


                          ―Infinitely more important that conventional adherence
                          to general rules of criminal procedure is respect for
                          the citizen‘s right to be free not only from arbitrary
                          arrest and punishment but also from unwarranted and
                          vexatious prosecution. The integrity of a democratic
                          society is corrupted if a person is carelessly included
                          in the trial of around forty persons when on the very
                          face of the record no evidence linking him to the
                          alleged conspiracy exists.‖

     51.4        In light of the clear admissions of the public prosecutor himself that

                 no preliminary investigation was conducted against herein accused

                 Atty. Remigio Saladero, Jr., one comes to the inevitable conclusion

                 that Atty. Saladero‘s right to due process has been gravely,

                 seriously, and massively violated;



     51.5        Because of this grave, serious and massive violation of the

                 accused Atty. Saladero‘s right to due process, the proceedings –

                 starting from the filing of the ―amended‖ information which led to the

                 arrest of herein accused Atty. Remigio D. Saladero, Jr., the

                 confiscation of his personal effects, including the Order committing

                 him to be detained at the Oriental Mindoro Provincial Jail, are all

                 null and void.



The information, on its face, is a
patent nullity. The trial court did not
acquire         jurisdiction          over        the
“multiple” murder and multiple
frustrated murder case. Clearly too,
the warrant of arrest issued against
accused Atty. Remigio D. Saladero,
Jr. is null and void
-------------------------------------------------


52           Rule 110, Section 13 of the Rules of Court explicitly requires that a

             ―complaint or information must charge only one offense, except when

             the law prescribes a single punishment for various offenses.‖

             (underscoring is ours)
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525




53        The rule enjoining the charging of two or more offenses in an

          information has for its aim to give the defendant the necessary

          knowledge of the charge to enable him to prepare his defense. The

          State should not heap upon the defendant two or more charges which

          might confuse him in his defense. (People vs. Ferrer, G.R. No. L-

          8957, April 29, 1957)



54        This rule is mandatory and failure to comply with it is fatal to the

          information if such defect is seasonably raised. The purpose of the

          rule is to afford the defendant a necessary knowledge of the charge so

          that he may not be confused in his defense. (People vs. Fernandez,

          G.R. No. 62516, March 22, 1990)



55        Even a mere cursory reading of the questioned amended information

          will readily show that it charges the separate offenses of alleged

          multiple murder and multiple frustrated murder involving six (6)

          different individual victims who are all named in the information in

          violation of the fundamental rule against duplicity of offenses embodied

          in the above-quoted Section 13 of Rule 110 of the Rules of Court.



56        The prosecution is in effect charging herein accused, along with the

          other accused, with three murders and three frustrated murders of six

          individual victims named in the information, in only one amended

          information, in flagrant disregard of the above cited proscription by the

          Rules.



57        This manifest disregard and deliberate dumping of different offenses in

          only one information against the herein accused despite the above-
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

             cited rule being too elementary was clearly designed to confuse and

             harass him.



58           For the foregoing reason, we respectfully submit that the assailed

             information in the present case which charges the herein accused with

             multiple murder‖ and ―multiple frustrated murder‖ is a patent nullity that

             cannot confer jurisdiction and authority upon the presiding judge to

             issue a valid warrant of arrest.



The certification in the “Amended
Information” is defective, in violation
of the requirements under Section 4,
Rule 112.
------------------------------------------------------


59           Section 4 of Rule 112 of the Rules of Criminal Procedure provides:


                           Section 4. Resolution of investigating prosecutor and
                   its review. – If the investigating prosecutor finds cause to
                   hold respondent for trial, he shall prepare the resolution and
                   information.     He shall certify under oath in the
                   information that he, or as shown by the record, an
                   authorized officer, has personally examined the
                   complainant and his witnesses; that there is reasonable
                   ground to believe that a crime has been committed and
                   that the accused is probably guilty thereof; that the
                   accused was informed of the complaint and of the
                   evidence submitted against him; and that he was given
                   an opportunity to submit controverting evidence. x x x
                   (Emphasis is ours.)


60           This rule explicitly requires that if the investigating prosecutor finds

             probable cause to hold the respondent for trial, he shall certify under

             oath in the information:



             (a)     that he, or as shown by the record, an authorized officer has

                     personally examined the complainant and his witnesses;
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case          24
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

          (b)     that there is reasonable ground to believe that a crime has been

                  committed and that the accused is probably guilty thereof;

          (c)     that the accused was informed of the complaint and of the

                  evidence submitted against him; and

          (d)     that he was given an opportunity to submit controverting

                  evidence.


61        Contrary to these mandatory requirements, the certification of

          Prosecutor Humilito A. Dolor in the ―Amended Information ― merely

          states:

                       ―I HEREBY CERTIFY UNDER OATH, (that) a
                preliminary investigation was previously conducted in this
                case and on the basis of the sworn statements and other
                evidences on record, the undersigned found a reasonable
                ground to believe that the crime complained of has been
                committed and that the respondents are probably guilty
                thereof.

                       I HEREBY FURTHER CERTIFY that this AMENDED
                INFORMATION was filed on the basis of the affidavit of
                VINCENT SILVA, specifically naming the JOHN DOE‘S (sic)
                in the original Information.‖


62        This certification by Prosecutor Dolor falls short of the plain

          requirements of Section 4, Rule 112 because: (a) it did not certify

          under oath that said prosecutor as investigating prosecutor, by himself

          or as shown by the record, an authorized officer, has personally

          examined the complainant and his witnesses; (b) neither were the

          additional accused, including herein accused-movant Atty. Saladero,

          informed of the complaint and the evidence submitted against them;

          and (c) nor were said additional accused, including accused-movant

          Atty. Saladero, given the opportunity to submit controverting evidence.



63        Apparently, the failure of Prosecutor Dolor to comply with the

          requirements of Section 4, Rule 112 was not a mere oversight. It was
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

             because he could not have made such a certification to comply with

             the rule without rendering himself liable for perjury.


    63.1         Prosecutor Dolor did not personally examine the complainants,

                 police officers, and their witnesses, especially Vincent Silva who

                 named and identified the John Does in the original information. As

                 borne out by the records, Prosecutor Dolor never summoned or

                 required them to appear before him, much less held or set a

                 hearing for preliminary investigation with respect to the additional

                 71 accused, including accused-movant Atty. Saladero. He merely

                 took as gospel truth the entire testimony of Vincent Silva, without

                 determining its veracity, much less its admissibility, and his

                 credibility as a witness.



    63.2         Neither was accused-movant Atty. Saladero fully informed of the

                 complaint and of the evidence submitted against him. He never

                 received a subpoena or any notice whatsoever from the

                 investigating prosecutor relative to this case.



    63.3         As accused-movant Atty. Saladero was not informed of the

                 complaint against him at the minimum, consequently, he was

                 deprived of any opportunity to submit controverting evidence.



The amended information is a patent
nullity for there was no hearing on
the motion to admit Amended
Information and there was no
preliminary investigation conducted
thereon.
------------------------------------------------------
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

64        Section 14, Rule 110 of the Revised Rules of Criminal Procedure

          provides, to wit:


                    “SEC.14. Amendment or substitution.- A complaint
             or information may be amended, in form or in substance,
             without leave of court, at any time before the accused enters
             his plea. After the plea and during the trial, a formal
             amendment may only be made with leave of court and when
             it can be done without causing prejudice to the rights of the
             accused.

                    However, any amendment before plea, which
             downgrades the nature of the offense charged in or excludes
             any accused from the complaint or information, can be made
             only upon motion by the prosecutor, with notice to the
             offended party and with leave of court. The court shall state
             its reason in resolving the motion and copies of its order
             shall be furnished all parties, especially the offended party.‖



65        A careful scrutiny of the above-cited provision no doubt allows the

          amendment of information, in form or in substance at any time before

          the accused enters his plea and even without leave of court. However,

          the second paragraph thereof provides the exception, which is,

          amendment may only be made before plea upon motion of the

          prosecutor, with notice to the offended party and with leave of court

          when the amendment downgrades the nature of the offense charged

          or excludes any accused from the information. In this case,

          amendment must be with leave of court, meaning that the motion must

          be set for hearing, and the offended party must be notified thereof.



66        By parity of reasoning, the second paragraph should likewise apply

          where the amendment seeks to include an accused not included at all

          in the original information, such as in the instant case. If exclusion of

          an accused from an information requires notice to the offended party,

          with more reason should such notice be given to the person sought to

          be included as accused in an amended information, so that he could
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case             27
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

          adequately prepare for whatever legal remedies he can avail of under

          existing laws. And such notice will only be effective if the motion to

          admit amended information is set for hearing.



67        In the instant case, Atty. Saladero was not notified at all of the said

          amendment, as the motion of the prosecutor was not set for hearing.

          And the judge perfunctorily granted the motion without a hearing,

          which should have been conducted, in violation of his right to due

          process.



68        In the case of Almeda v. Villaluz,12 it was held, to wit:


                    ―The procedure taken by the respondent fiscal and
             allowed by the respondent judge in the amendment of the
             information does not, however, merit our approbation. Under
             section 2 of Rule 15 of the Rules of Court, "all motions shall
             be made in writing except motions for continuance made in
             the presence of the adverse party, or those made in the
             course of a hearing or trial." A motion to amend the
             information, after the accused has pleaded thereto, is
             certainly one that should be placed in writing and properly
             set for hearing. We are loath to give our imprimatur to the
             kind of shortcut devised by the respondents, especially as it
             relates to an alteration in the information. Considering,
             however, that the petitioner was not deprived of his day in
             court and was in fact given advance warning of the proposed
             amendment, although orally, we refrain from disturbing the
             said amendment.”


69        And in De Asis v. Romero,13 the Supreme Court held:


                     ―The petitioner, however, stresses that it is the
             intention of the respondent fiscal to amend the original
             information in connection with which the questioned warrant
             of arrest was issued. But, even if this intention of the fiscal is
             conceded, it is not controverted that he filed in the court a
             quo, as the Rules of Court require, a motion to effectuate the
             amendment desired be present, oral testimony and other
             evidence will be add. Naturally, there will be a hearing on
             this motion, and in the course of such proceeding, in which
             the petitioner De Asis will uced concerning the fact of death

12
      66 SCRA 38
13
      41 SCRA 235
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case            28
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

             and identity of the alleged kidnapped victim and other related
             circumstances. The hearing on the said motion, in our
             opinion, serves and fulfills the essential purpose and
             requirements of a full-blown preliminary investigation for the
             alleged crime of murder intended to be added to the original
             basic charge of kidnapping as an inextricable part thereof.
             Thus, if the court a quo finds and is convinced at the hearing
             on the motion to amend the information, that there is prima
             facie evidence of murder indispensably connected with the
             alleged kidnapping, then it is but natural, nay, logical, to
             expect that it will grant the said motion. In such event, it is
             clearly wishful thinking and an unavailing technicality to
             require the court a quo to order the release of the petitioner
             De Asis and then (or then and there) issue another warrant
             for his arrest. Upon the other hand, if the said court believes
             that the original information should stand as it is, then for the
             more reason that the petitioner should not be ordered
             released.‖ (Underscoring supplied)



70        As can be implied from the above ruling of the Supreme Court, a

          preliminary investigation must be had first before the fiscal could

          properly file a motion to amend the information. But even without such

          preliminary investigation, if the motion was set for hearing, the hearing

          will serve and fulfill the essential purpose and requirements of a full-

          blown preliminary investigation. But in the instant case, neither

          preliminary investigation nor hearing on the motion to amend was

          conducted, in violation of Atty. Saladero‘s right to due process.

          Clearly, therefore, the amended information is a patent nullity and

          could not serve as valid basis for the issuance of the warrant of arrest.



The Presiding Judge erred in
ordering motu propio the revival of
the archived case without any motion
to that effect filed by the prosecutor.



71        In an order dated May 7, 2007, the Presiding Judge motu propio

          ordered that the instant case be archived ―without prejudice to its

          subsequent prosecution as soon as the accused is apprehended.‖
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case             29
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

72        On September 29, 2008, more than one year and four months after the

          case was archived, another prosecutor, prosecutor Humilito A. Dolor,

          with the approval of Provincial Prosecutor Josephine C. Caranzo-

          Olivar filed an ―amended‖ information that now includes in addition to

          Rustom Simbulan the name ―Remegio Saladero aka ―Ka Patrick‖ and

          seventy others with corresponding aliases.


73        During the scheduled arraignment on October 27, 2008, prosecutor

          Dolor admitted in open court, among others, that no motion to revive

          the aforesaid archived case was filed in court. However, despite the

          fact that there was no motion filed to revive the case, the Presiding

          Judge revised the case by admitting the ex parte ―amended‖

          information filed by the public prosecutor.



74        Moreover, perusing from the order of the Presiding Judge dated May 7,

          2007, it is explicitly stated that the case be archived ―without prejudice

          to   its   subsequent   prosecution   as   soon   as   the   accused    is

          apprehended.‖ From this explicit statement, it is apparent that the

          accused being referred therein was no other than Rustom Simbulan

          inasmuch as all the other accused have not yet been sufficiently

          identified by prosecution witnesses in the said original information.



75        The motion to admit amended information filed by the prosecutor is not

          akin to a motion to revive the case as there was no allegation or prayer

          in the sad motion praying for the revival of the archived case. More

          importantly, there is yet no reason to revive the case due to the fact

          that the accused named therein, i.e. Rustom Simbulan, has not yet

          been arrested.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case                      30
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

76           It is well to stress that a motion to revive an archived case is a litigated

             motion which, under the rules, must be set for hearing so that the

             concerned parties especially the accused will be given the opportunity

             to present his side and oppose the said motion.



77           The Presiding Judge therefore erred blatantly in reviving the case and

             in    admitting      the     ―amended‖      information   without   taking   into

             consideration the rules as well as the right of the accused to due

             process.


Among the accused named in the
“Amended Information” is “REMEGIO
SALADERO,” whereas the person
arrested is ATTY. REMIGIO D.
SALADERO, JR.”
------------------------------------------------------



78           In the sworn statement of prosecution witness Vincent Silva, he

             included as among the accused a certain ―REMEGIO SALADERO @

             KA PATRICK Los Baños, Laguna.‖ Having made the sole basis of the

             prosecution in filing the ―Amended Information,‖ the same name

             appears as one of the accused in the said ‖Amended Information.‖



79           While the name appearing in the Warrant of Arrest dated October 6,

             2008 is for a certain REMEGIO SALADERO aka KA PATRICK, the

             person unlawfully arrested on October 23, 2008 in his residence at 119

             Circumferential Road, Brgy. San Isidro, Antipolo City is a lawyer,

             REMIGIO SALADERO, JR. y DAMANDAMAN.



80           In fact, the Commitment Order issued by Executive Judge Manuel C.

             Luna, Jr. on October 24, 2008 states that the accused arrested is

             REMIGIO SALADERO, JR. y DAMANDAMAN.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case           31
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525




81           The obvious difference between ―REMEGIO SALADERO of Los

             Baños, Laguna‖ and REMIGIO SALADERO, JR. y DAMANDAMAN of

             119 Circumferential Road, San Isidro, Antipolo City, undoubtedly

             renders the indictment against accused Atty. Remigio D. Saladero, Jr.,

             as fatally defective and subject to outright dismissal especially

             considering that he has unnecessarily suffered a deprivation of his

             liberty because of this inexcusable blunder of the prosecution.


The warrant of arrest is void ab initio
as the Honorable Presiding judge did
not make a personal determination of
probable cause but instead merely
“adopted the findings of the
preliminary investigation conducted
by the investigating officers”.
------------------------------------------------------



82           In his Order dated 03 October 2008, the Honorable Presiding judge

             said: ―the court hereby adopts the finding of the preliminary

             investigation conducted by the investigating officers that probable

             cause exists, that the crime had been committed and that the accused,

             who are originally named as John Does in the original information,

             might probably guilty thereof, hence the court finds reasonable

             grounds for the necessity of placing herein accused under immediate

             custody in order not to frustrate the ends of justice.‖ The Presiding

             judge, in view of the said ―findings‖, immediately issued the assailed

             warrant of arrest.



83           At the outset, it must be remembered that per admission of the

             prosecutor who filed the information, there was no preliminary

             investigation nor any proceedings conducted in relation to the
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case           32
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

          amended information filed, in which the name of herein accussed-

          movant was conveniently inserted.



84        By such order, the Presiding judge gave his imprimatur to the no-

          existent preliminary investigation and ―adopted‖ the flawed finding of

          the public prosecutor that the John Does in the original information are

          the seventy one accused whose names were just added by Prosecutor

          Dolor in the ―amended‖ information and that probable cause exists,

          which later became the basis for the issuance of a warrant of arrest

          against herein accused.



85        With this important fact, it is evident that the Presiding judge did not

          make a personal evaluation of the records of the case to determine

          whether probable cause exists to justify the issuance of the assailed

          warrant of arrest. For how could the Presiding Judge adopt a finding

          not derived from any proceeding? The Presiding judge could have

          known that no preliminary investigation was conducted as to the

          amended information had he made a more than cursory examination of

          the records of the case. It only goes to show he did not study

          personally the records of the case as required by law but perfunctorily

          issued the warrant of arrest, relying mainly on the certification of the

          prosecutor that probable cause exists, in violation of the constitutional

          provision that no warrant shall issue except upon probable cause to be

          determined personally by the judge.



86        In the case of MAYOR BAI UNGGIE D. ABDULA and ODIN ABDULA,,

          vs. HON. JAPAL M. GUIANI, G.R. No. 118821, 18 February 2000, the

          Supreme Court held, thus:
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case            33
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

                      “Although the prosecutor enjoys the legal
             presumption of regularity in the performance of his official
             duties, which in turn gives his report the presumption of
             accuracy, nothing less than the fundamental law of the land
             commands the judge to personally determine probable
             cause in the issuance of warrants of arrest. A judge fails in
             this constitutionally mandated duty if he relies merely on the
             certification or report of the investigating officer.

                    To be sure, we cannot determine beforehand how
             cursory or exhaustive the respondent's examination of the
             records should be. The extent of the judge's examination
             depends on the exercise of his sound discretion as the
             circumstances of the case require. In the case at bench, the
             respondent had before him two different informations and
             resolutions charging two different sets of suspects. In the
             face of these conflicting resolutions, it behooves him not to
             take the certification of the investigating prosecutor at face
             value. The circumstances thus require that respondent look
             beyond the bare certification of the investigating prosecutor
             and examine the documents supporting the prosecutor's
             determination of probable cause. The inordinate haste that
             attended the issuance of the warrant of arrest and
             respondent's own admission are circumstances that tend to
             belie any pretense of the fulfillment of this duty.

                    Clearly, respondent judge, by merely stating that he
             had no reason to doubt the validity of the certification made
             by the investigating prosecutor has abdicated his duty under
             the Constitution to determine on his own the issue of
             probable cause before issuing a warrant of arrest.
             Consequently, the warrant of arrest should be declared null
             and void.”(underscoring supplied)



87        Had the Honorable Presiding judge gone over the records of the case

          as required by law and the rules, he would have immediately noticed

          the glaring irregularities in the certification of the prosecutor, the

          absurdities in the affidavits of the witnesses and the utter lack of basis

          in the inclusion of the name of herein accused-movant in the amended

          information. Not a scintilla of evidence can be found in the documents

          attached to the amended information as would have convince an

          unbiased mind that reasonable grounds exist to justify the issuance of

          warrant of arrest against herein accused.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case             34
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

88         The Presiding judge, had he made a scrutiny of the records, would

           have immediately noticed that the certification itself of the prosecutor

           already arouses suspicion that there is something wrong, for it does

           not state whether the complainants and his witnesses appeared before

           him or whether the respondents were given an opportunity to present

           counter-affidavits. He would have likewise noted that the only basis of

           the prosecutor in filing the amended information, without a motion to

           revive at that, was the affidavit of a certain Silva who even did not

           appear personally before the prosecutor.



89         Unfortunately, the Presiding judge took the word of the public

           prosecutor hook, line and sinker, so to speak, that probable cause

           exists and immediately issued the warrant of arrest. Accused therefore

           may not be faulted if he entertains in his mind that the mind that issued

           the warrant of arrest against him may not be „unbiased‟ after all.



                                          II


              THE HONORABLE JUDGE SHOULD HAVE
              DISMISSED THE CASE OUTRIGHT FOR THERE IS
              ABSOLUTELY NO EVIDENCE TO ESTABLISH
              PROBABLE CAUSE AGAINST ACCUSED ATTY.
              REMEGIO SALADERO JR.



90         In the landmark case of Allado vs Diokno,14 the Honorable Supreme

           Court had occasion to emphasize the concept and implication of

           probable cause, the existence of which is necessary for the prosecutor

           to have an accused held for trial and for a trial judge to issue a warrant

           for his arrest.




14
     232 SCRA 193 (1994)
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

91        In the said case, petitioners Diosdado Jose Allado and Roberto L.

          Mendoza are both lawyers and partners of the Law Firm of Salonga,

          Hernandez and Allado. In the practice of their profession, and on the

          basis of an alleged extrajudicial confession of a security guard, they

          were accused of the heinous crime of kidnapping with murder and

          ordered arrested without bail by the respondent judge in the said case.



92        In setting aside the warrant of arrest and in enjoining the respondent

          judge from proceeding any further against therein petitioners Allado

          and Mendoza, the Honorable Supreme Court held as follows:


                                      Xxxx
                    Pilapil v. Sandiganbayan 27 sets a standard for
             determining the existence of probable cause. While it
             appears in that case that we have granted the prosecutor
             and the trial judge seemingly unlimited latitude in
             determining the existence or absence of probable cause by
             affirming the long-standing procedure that they can base
             their findings merely on their personal opinion and
             reasonable belief, yet, this permissiveness should not be
             interpreted as giving them arbitrary powers and letting
             them loose in the determination of the existence of
             probable cause, a delicate legal question which can
             result in the harassment and deprivation of liberty of the
             person sought to be charged or arrested. There we said
             —

                     Probable cause is a reasonable ground of
             presumption that a matter is, or may be, well founded, such
             a state of facts in the mind of the prosecutor as would lead a
             person of ordinary caution and prudence to believe, or
             entertain an honest or strong suspicion, that a thing is so.
             The term does not mean "actual and positive cause" nor
             does it import absolute certainty. It is merely based on
             opinion and reasonable belief. Thus, a finding of probable
             cause does not require an inquiry into whether there is
             sufficient evidence to procure a conviction. It is enough that
             it is believed that the act or omission complained of
             constitutes the offense charged. Precisely, there is a trial for
             the reception of evidence of the prosecution in support of the
             charge.

                     Whether an act was done causing undue injury to the
             government and whether the same was done with manifest
             partiality or evident bad faith can only be made out by proper
             and sufficient testimony. Necessarily, a conclusion can be
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case            36
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

             arrived at when the case has already proceeded on sufficient
             proof. 28

                    Accordingly, before issuing a warrant of arrest,
             the judge must satisfy himself that based on the
             evidence submitted there is sufficient proof that a crime
             has been committed and that the person to be arrested
             is probably guilty thereof. In the Order of respondent judge
             dated 11 February 1994, it is expressly stated that "[t]his
             court after careful evaluation of the evidence on record,
             believes and rules that probable cause exists; and therefore,
             a warrant of arrest should be issued." However, we are
             unable to see how respondent judge arrived at such
             ruling. We have painstakingly examined the records and we
             cannot find any support for his conclusion. On the contrary,
             we discern a number of reasons why we consider the
             evidence submitted to be insufficient for a finding of
             probable cause against petitioners.

                                          Xxx

                    Based on the evidence thus far submitted there is
             nothing indeed, much less is there probable cause, to
             incriminate petitioners. For them to stand trial and be
             deprived in the meantime of their liberty, however brief, the
             law appropriately exacts much more to sustain a warrant for
             their arrest — facts and circumstances strong enough in
             themselves to support the belief that they are guilty of a
             crime that in fact happened. Quite obviously, this has not
             been met.

                    Verily, respondent judge committed grave abuse
             of discretion in issuing the warrant for the arrest of
             petitioners it appearing that he did not personally
             examine the evidence nor did he call for the complainant
             and his witnesses in the face of their incredible
             accounts. Instead, he merely relied on the certification
             of the prosecutors that probable cause existed. For,
             otherwise, he would have found out that the evidence
             thus far presented was utterly insufficient to warrant the
             arrest of petitioners.

                                          Xxx

93        In this case, there is nothing on record that would justify the finding of

          probable cause by the Honorable Judge.          We have examined the

          records and we cannot find any support for his conclusion.



94        On the contrary, we have determined a number of reasons why the

          Honorable Judge should have dismissed outright the charges against

          herein accused.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case                        37
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525




There is no evidence of conspiracy to
support such allegation in the
Information. A charge of conspiracy
should be based on facts and not on
mere conclusions or inferences.
------------------------------------------------------


95           Article 8 of the Revised Penal Code provides:

                       Conspiracy and proposal to commit felony.—
                 Conspiracy and proposal to commit felony are
                 punishable only in the cases in which the law
                 specially provides a penalty therefore.

                        A conspiracy exists when two or more persons
                 come to an agreement concerning the commission of
                 a felony and decide to commit it.


96           The elements of a conspiracy, therefore, are: (1) that two or more

             persons come to an agreement; (2) that the agreement concerned the

             commission of a felony; and (3) that the execution of the felony be

             agreed upon.



97           Conspiracy must be proved by positive and convincing evidence15; it

             cannot       be     founded       on        mere   conjectures,   inferences   and

             presumptions;16 It must be real and not presumptive. 17



98           As if it could not be made more clear, the Supreme Court ruled in

             People v. Ortiz (266 SCRA 641 [1997]) that:



                  [p]roofs, not mere conjectures or assumptions,
                 should be proffered by the prosecution which would
                 show that appellant had taken part in the planning,
                 preparation and perpetration of the alleged conspiracy
                 to kill the victim. Otherwise, ‗a careless use of the
                 conspiracy theory (can) sweep into jail even innocent
                 persons who may have (only) been made unwitting
15
        People v. Tiongson, 47 SCRA 243; People v. Ancheta, 66 Phil. 638.
16
        Orodio v. Court of Appeals, 164 SCRA 316.
17
        United States v. Figueras, 2 Phil 491.
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

             tools by the criminal minds‘ really responsible for the
             crime. (underscoring supplied)


99        In terms of quantum of proof necessary to establish a conspiracy,

          ―conspiracy must be shown to exist as convincingly as the commission

          of the offense itself in order to uphold the fundamental principle that no

          one shall be found guilty of a crime except upon proof beyond

          reasonable doubt.‖18



100       In this case, there is absolutely no evidence of conspiracy to support

          such allegation in the information.



101       To reiterate, in the affidavit of Vincent Silva, he did not say that

          Remegio Saladero alias ―Ka Patrick ―was a perpetrator or participant in

          the alleged burning of the Globe tower or in the alleged ambush of the

          PNP soldiers. In fact, with the exception of Simbulan, a certain Miguel

          Magbata, a certain Jaime Padilla, a certain Edmar Fernandez and

          himself Silva did not say that the sixty-seven others were perpetrators

          or participants in the two crimes. He was explicit in his statement that

          these sixty seven (67) accused only had knowledge or knew of these

          incidents. (―may kinalaman,‖ Q & A Nos. 06 and 09).



102       Significantly too, Silva confessed that he was one of the perpetrators

          and explicitly named and narrated the criminal acts performed by four

          others in the two incidents. He was silent on the sixty-seven (67) other

          accused except his sweeping statement that they had knowledge of

          the incidents.




18
      Pecho v. People, 262 SCRA 518 [1996].
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

103          Verily, in the absence of any allegation or proof against herein

             accused, he should not be implicated in the alleged conspiracy. To

             reiterate, a charge of conspiracy should be based on facts and not on

             mere conclusions or inferences.



104          To reiterate too, the statements of complaining witnesses Wilson Gani

             and Joseph Panes that ―more than fifteen heavily armed men‖

             perpetrated the alleged ambush seriously flawed and inherently

             incredible because it seeks to prove that the rest of the seventy-two

             accused other than the ―more than fifteen heavily armed men‖ were

             either ―look-outs,‖ ―on-lookers‖ or kibitzers during the ambush.



The         extra-judicial           confession/
admission of prosecution witness
Vincent U. Silva is inadmissible in
evidence under the res inter alios
acta rule embodied in Rule 130,
Section 28 of the Rules of Court.
------------------------------------------------------


105          Section 28, Rule 130 of the Rules of Court enshrines in our legal

             system the doctrine of res inter alios acta alteri nocere non debet

             which ordains that the rights of a party cannot be prejudiced by an act,

             declaration or omission of another, and that, therefore, an extrajudicial

             confession or admission is binding only upon the confessant and is not

             admissible against others19.


106          In the case of People v. Tena20, the Honorable Supreme Court said:

                        Not unexpectedly, therefore, it is this extrajudicial
                 confession on which Solita Sena centers his attack in the
                 present appellate proceedings, assigning as errors on the
                 part of the lower court the admission in evidence of the
                 extrajudicial confession of Adelberto Camota and his
                 conviction on the sole basis thereof.

19
        See People v. Buntag, 427 SCRA 190 (2004)
20
        215 SCRA 43, 47-48
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525


                    But as is made clear by the Solicitor General in his
             ―Manifestation in Lieu of Appellee‘s Brief,‖ the matter of that
             confession‘s competency need not be delved into as the
             issue of accused-appellant‘s guilt or innocence may be
             resolved by application of the doctrine res inter alios acta
             alteri nocere non debet. Actually, the issue is not so much
             the admissibility in evidence of the extrajudicial confession,
             but rather, even conceding its admissibility, its use against
             persons other than the confessant, e.g., herein accused-
             appellant.

                    Use of Camota‘s extrajudicial confession is precluded
             by Section 25 (now Section 28), of Rule 130 of the Rules of
             Court, viz:

                   Section 28. Admission by third party. – The rights of a
             party cannot be prejudiced by an act, declaration, or
             omission of another, except as hereinafter provided.



107       In the instant case, the prosecution relies principally on the sworn

          statement of witness Vincent U. Silva to indict accused Atty. Saladero

          and the other additional accused. In fact, Prosecutor Dolor states in

          the ―Amended Information‖ that the same was filed on the basis of

          Silva‘s sworn statement. Said witness‘ sworn statement reads:



                                        x x x x

          04. T – Kailan naman isinagawa ng mga NPA and pag-ambush
          sa mga RMG kung iyong matatandaan?
              S - Noon pong ika-3 ng Marso 2006 din po mga alas siyete
                  ng umaga.

          05. T – Nasaan ka ng maganap ang mga bagay na ito
              S – Kasama po nila ako sa dalawang insidenteng iyon.

                                    x x x x

          09. T - Nasabi mo na ang mga taong ito ang may kinalaman sa
                  pagsunog sa Globe Tower sa Brgy. San Isidro, Pto.
                  Galera, sa papaanong paraan naman nila sinunog ang
                  nasabing tower?
              S – Binuhusan po namin ng gasolina paikot ang tower
                  pagkatapos po ay sinindihan.

                                        x x x x
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case              41
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

          14. T – Sa papaanong paraan naman isinagawa ng grupo nina
                 Jaime Padilla at Rustom Simbulan ang pag-ambush sa
                 grupo ng mga RMG?
              S – Nagbaon po sina MIGUEL MAGBATA @ KA AMAN at
                 RUSTOM SIMBULAN @ KA BOBBY ng landmine at
                 pagtapat po ng sasakyan nila na Dump truck ay
                 sumabog at pagkatapos po noon ay walang humpay
                 na naming pinaputukan ang mga pulis na sakay
                 doon.   Ako po ay kasama sa main body bilang
                 Pangalawang platun lider ni EDMAR FERNANDEZ @
                 KA HOMER. (Emphasis is ours.)

                                          x x x x

108       It is clear from his sworn statement that he was part of the alleged

          conspiracy to assault the police officers in Brgy. San Isidro, Puerto

          Galera, Oriental Mindoro on March 3, 2006 at about 7:00 P.M.

          Assuming arguendo that his allegations were true, his extra-judicial

          confession, however, is admissible in evidence only as against himself,

          but not against his alleged co-conspirators pursuant to the well-settled

          doctrine of res inter alios acta alteri nocere non debet.



109       In People v. Tena 21 and People v. Cui, et al. 22 , the High Court

          explained the rationale for this doctrine or rule, to wit:



                     x x x The reason for the rule is that, on a principle of
             good faith and mutual convenience, a man‘s own acts are
             binding upon himself, and are evidence against him. So are
             his conduct and declarations. Yet, it would not only be
             rightly inconvenient, but also manifestly unjust, that a man
             should be bound by the acts of mere unauthorized strangers,
             neither ought their acts or conduct be used as evidence
             against him.



110       While the res inter alios acta rule admits of certain exceptions, one of

          which is found in Section 30 of Rule 130, such exception does not

          apply in the present case. As further held in People v. Cui, et al23.:


21
      Supra.
22
      314 SCRA 166-168 (1999), citing People v. Raquel, 265 SCRA 248.
23
      Supra.
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People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525




                    The res inter alios has exceptions. Thus, Section 30
             of Rule 130 provides:

                   ―The act or declaration of a conspirator relating to the
             conspiracy and during its existence, may be given in
             evidence against the co-conspirator after the conspiracy is
             shown by evidence other than such act or declaration.‖

                   For this provision to apply, the following requisites
             must be satisfied:

                    ―a. that the conspiracy be first proved by evidence
             other than the admission itself;
                    b.     that the admission relates to the common
             objects; and
                    c.     that it has been made while the declarant was
             engaged in carrying out the conspiracy.‖

                                         x x x

                   In the case at bar, the alleged conspiracy among the
             accused was not priorly established by independent
             evidence. Nor was it shown that the extrajudicial statements
             of Basingan were made while they were engaged in carrying
             out the conspiracy. In truth, the statements were made after
             the conspiracy has ended and after the consummation of the
             crime. They were not acts or declarations made during the
             conspiracy‘s existence. Since the extra-judicial admissions
             were made after the supposed conspiracy, they are binding
             only upon the confessant and are not admissible against his
             co-accused, as against the latter, the confession is hearsay.



111       Similarly, in this case, there is absolutely no other evidence,

          independent of the extrajudicial confession of prosecution witness

          Silva, to establish the alleged conspiracy between him and all the

          accused purportedly to ambush the police officers.



112       Thus, stripped of the inadmissible extrajudicial confession/admission of

          witness Silva, the entire records are utterly bereft of any other

          evidence that would separately and independently establish conspiracy

          between accused Atty. Saladero, all the other accused and witness

          Silva.
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case             43
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525




113       Moreover, while the crimes were allegedly committed on March 3,

          2006, curiously, witness Silva executed his sworn statement only on

          August 19, 2008, when he and the accused were no longer engaged in

          the alleged conspiracy and after the consummation of the crime. His

          reason that     ―ngayon lang po ako nabigyan ng pagkakataon na

          makababa at makapagreport sa aking handler‖ is a lame excuse, for

          he neither gave details when he allegedly joined the NPA as a DPA

          and when he left the same to report to his ―handler.‖          Therefore,

          Prosecutor Dolor should not have given any credence to Silva‘s sworn

          statement and made it the basis of filing the ―Amended Information,‖

          and accordingly, the Honorable Presiding Judge should not have

          issued the warrant of arrest against accused Atty. Saladero by

          perfunctorily adopting the findings of Prosecutor Dolor.



114       From    the   foregoing,   the   extrajudicial   confession/admission   of

          prosecution witness Silva does not qualify as an exception to the res

          inter alios acta rule, rendering his confession inadmissible in evidence.



115       It is worthy of note that without the sworn statement of witness Silva,

          the prosecution has absolutely no case at all against accused-movant

          Atty. Saladero and the other additional accused. Thus, the dearth of

          evidence for the prosecution only strengthens our submission that

          prosecution witness Silva fabricated his testimony against accused-

          movant Atty. Saladero and the other accused. To reiterate, witness

          Silva claims to be a deep penetration agent of the PNP. Hence, his

          credibility as a prosecution witness is at once placed under a heavy

          cloud of doubt, rendering his testimony biased, polluted, self-serving
Motion to Quash/Recall Warrant of Arrest & Motion to Dismiss the Case         44
People v. Rustom Simbulan, et al.              Crim. Case No. CR-06-8525

          and patently fabricated. Naturally, his testimony is full of biased and

          false allegations that reek of motives to demonize, vilify and demolish

          the reputation of the movement he and his principal have been

          pursuing for decades, including the reputation and the lives of the

          people who they imagine to be members of the NPA, including a

          practicing labor lawyer, accused-movant Remigio Saladero, Jr.




                                    PRAYER



      WHEREFORE, PREMISES CONSIDERED, in the interest of justice and

to uphold the rule of law, accused Atty. Remigio D. Saladero, Jr. respectfully

prays that the Warrant of Arrest dated October 6, 2008 issued against him BE

QUASHED/ RECALLED; and that this case BE OUTRIGHLY DISMISSED.



      Other forms of relief that are just and equitable under the premises are

also prayed for.



      Makati City for Calapan City. 3 November 2008.

				
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