Adasa v.

Abalos | 19 February 2007 | Contemporary Construction

Petitioner: Bernadette L. Adasa

Respondent: Cecille Abalos
Ponente: Chico-Nazario, J.

FACTS:
18 January 2001: Abalos filed two complaints-affidavits against Adasa for Estafa before the Office of
the City Prosecutor of Iligan City
- Alleged that through deceit, Adasa received and encashed two checks issued in the name of
Abalos without the latter’s knowledge and consent
- Despite repeated demands by Abalos, Adasa failed and refused to pay the proceeds of the
checks
23 March 2001: Adasa filed a counter-affidavit admitting she received and encashed the two checks
issued in favor of respondent
29 March 2001: Adasa recanted and alleged instead that it was a certain Bebie Correa who received
the two checks which are the subject matter of the complaints and encashed the same
- Said Bebie Correa left the country after misappropriating the proceeds of the checks
25 April 2001: Office of the City Prosecutor of Iligan City found probable cause against Adasa;
two separate criminal charges were filed against her before the RTC of Iligan
8 June 2001: Trial court ordered the Office of the City Prosecutor of Iligan to conduct a
reinvestigation
30 August 2001: Prosecutor affirmed the finding of probable against petitioner
1 October 2001: Petitioner entered unconditional plea of not guilty
15 October 2001: Adasa filed a petition for review before the DOJ
11 July 2002: DOJ reversed and set aside the 30 August 2001 resolution of the Office of the City
Prosecutor of Iligan City and directed the said office to withdraw the Information for Estafa against
petitioner
26 July 2002: Abalos filed a motion for reconsideration, saying the DOJ should have dismissed
outright the petition for review since Section 7 of DOJ Circular No. 70 mandates that when an
accused has already been arraigned and the aggrieved party files a petition for review
before the DOJ, the Secretary of Justice cannot, and should not take cognizance of the
petition, or even give due course thereto, but instead deny it outright. Respondent claimed
Section 12 of said circular mentions arraignment as one of the grounds for the dismissal of the
petition for review before the DOJ
30 January 2003: DOJ denied the Motion for Reconsideration opining that under Section 12, in
relation to Section 7, of DOJ Circular No. 70, the Secretary of Justice is not precluded from
entertaining any appeal taken to him even where the accused has already been arraigned in court
due to the permissive language "may" utilized in Section 12 whereby the Secretary has the
discretion to entertain an appealed resolution notwithstanding the fact that the accused has been
arraigned
27 February 2003: Trial court granted petitioner’s "Motion to Withdraw Information" and
dismissed Criminal Case No. 8782
- Abalos did not take any action regarding the dismissal

* Abalos filed a Petition for Certiorari before the Court of Appeals (CA), raising the following issues:
raised the following issues before the appellate court:
1. WON the DOJ gravely abused its discretion in giving due course to petitioner’s petition for
review despite its having been filed after the latter had already been arraigned;
2. WON there is probable cause that the crime of estafa has been committed and that
petitioner is probably guilty thereof;
Adasa v. Abalos | 19 February 2007 | Contemporary Construction

3. WON the petition before the Court of Appeals has been rendered moot and academic by
the order of the Regional Trial Court dismissing Criminal Case No. 8782

21 July 2004: CA granted respondent’s petition and reversed the Resolutions of the DOJ dated 11
July 2002 and 30 January 2003
1) CA relied on Section 7 of DOJ Circular No. 70 which states “if an information has been filed
in court pursuant to the appealed resolution, the petition shall not be given due course if the
accused had already been arraigned”
- Since petitioner was arraigned before she filed the petition for review with the DOJ, it was
imperative for the DOJ to dismiss such petition
- When petitioner pleaded to the charge, she was deemed to have waived her right to
reinvestigation and right to question any irregularity that surrounds it
2) Existence of probable cause, or the lack of it, cannot be dealt with by it since factual issues
are not proper subjects of a Petition for Certiorari
3) The order of the trial court dismissing the subject criminal case pursuant to the assailed
resolutions of the DOJ did not render the petition moot and academic, since the trial court’s
order relied solely on the resolutions of the DOJ, said order is void as it violated the rule
which enjoins the trial court to assess the evidence presented before it in a motion to
dismiss and not to rely solely on the prosecutor’s averment that the Secretary of Justice had
recommended the dismissal of the case

* Petitioner filed motion for reconsideration on the following grounds:

1. Over-all language of Sections 7 and 12 of Department Circular No. 70 is permissive and
directory; SoJ may entertain appeal despite arraignment
2. Contemporaneous construction by the SoJ should be given great weight and respect
3. Section 7 of the Circular applies only to resolutions rendered pursuant to a preliminary
investigation, not on reinvestigation
4. Trial court’s order of dismissal of the criminal case has rendered the instant petition moot
and academic
5. Arraignment was null and void it being conducted despite her protestations
6. Despite her being arraigned, the supposed waiver of her right to preliminary
investigation has been nullified or recalled by virtue of the trial court’s order of
reinvestigation
* CA stood firm by its decision, but it tried to construe Section 7 side by side with Section 12 of DOJ
Circular No. 70 and attempted to reconcile these two provisions
- According to the appellate court, the phrase "shall not" in paragraph two, first sentence of Section
7 of subject circular denotes a positive prohibition
If an information has been filed in court pursuant to the appealed resolution, the
petition shall not be given due course if the accused had already been arraigned (Emphasis
supplied)

Principle in statutory construction: When a statute or provision contains words of positive

prohibition, such as "shall not," "cannot," or "ought not" or which is couched in negative terms
importing that the act shall not be done otherwise than designated, that statute or provision is
mandatory, thus rendering the provision mandatory – it opined that the subject provision simply
means that the Secretary of Justice has no other course of action but to deny or dismiss a
petition before him when arraignment of an accused had already taken place prior to the filing of
the petition for review
Sec. 12
Adasa v. Abalos | 19 February 2007 | Contemporary Construction

The Secretary may reverse, affirm or modify the appealed resolution. He may, motu proprio
or upon motion, dismiss the petition for review on any of the following grounds:

(e) That the accused had already been arraigned when the appeal was taken

 CA: the permissive word "may" would seem to imply the SoJ has discretion to entertain an
appeal notwithstanding the fact that the accused has been arraigned
 Sections 7 and 12 should be taken together, which means that when an accused was already
arraigned when the aggrieved party files a petition for review, the SoJ cannot, and should
not take cognizance of the petition, or even give due course thereto, but instead dismiss or
deny it outright
 The word "may" in Section 12 should be read as "shall" or "must" since such construction is
absolutely necessary to give effect to the apparent intention of the rule as gathered from the
context
 As to the contemporaneous construction of the SoJ, the CA said the same should not be
given weight since it was erroneous
 On petitioner’s argument that Section 7 of the questioned circular applies only to original
resolutions from the filing of the corresponding informations in court but not to resolutions
rendered pursuant to a motion for reinvestigation, the appellate court simply brushed aside
such contention
 CA also rejected petitioner’s protestation her arraignment was forced upon her since she
failed to present any evidence to substantiate the same
 CA: No supposed waiver of preliminary investigation to speak of since petitioner had
undergone preliminary investigation

ISSUE: WON the DOJ can give due course to an appeal or petition for review despite its having been
filed after the accused had already been arraigned

HELD: Petition denied, CA decisions are affirmed

RATIO:
- Petitioner asserts the fact of arraignment of an accused before the filing of an appeal or
petition for review before the DOJ "is not at all relevant" as the DOJ can still take cognizance
of the appeal or Petition for Review before it
- Court is unconvinced:
 Crespo v. Mogul ruling does not concern the issue of an appeal or petition for review before
the DOJ after arraignment; it has to do with the filing of a motion to dismiss and the court’s
discretion to deny or grant the same
- Petitioner asserts the CA’s interpretation of the provisions of DOJ Circular No. 70 violated
three basic rules in statutory construction
1) Rule that the provision that appears last in the order of position in the rule or regulation
must prevail
 Not applicable, there is no irreconcilable conflict between Section 7 and Section 12 of DOJ
Circular No. 70.
2) Rule that the contemporaneous construction of a statute or regulation by the officers
who enforce it should be given weight
3) The word "shall" had been construed as a permissive, and not a mandatory language
 All too-familiar rule in statutory construction: When a statute or rule is clear and
unambiguous, interpretation need not be resorted to
Adasa v. Abalos | 19 February 2007 | Contemporary Construction

 Since Section 7 of the subject circular clearly and categorically directs the DOJ to dismiss
outright an appeal or a petition for review filed after arraignment, no resort to
interpretation is necessary
 Courts may disregard contemporaneous construction in instances where the law or rule
construed possesses no ambiguity, where the construction is clearly erroneous, where
strong reason to the contrary exists, and where the court has previously given the statute a
different interpretation
 If through misapprehension of law or a rule an executive or administrative officer called
upon to implement it has erroneously applied or executed it, the error may be corrected
when the true construction is ascertained. If a contemporaneous construction is found to be
erroneous, the same must be declared null and void. Such principle should be as it is applied
in the case at bar
 Petitioner’s posture on a supposed exception to the mandatory import of the word "shall" is
misplaced
o Not applicable; in the cited passage, the word "shall" departed from its mandatory
import connotation because it was connected to certain provisos/conditions:
"subject to the availability of funds" and "upon such violation being proved." No
such proviso/condition, however, can be found in Section 7 of the subject circular.
Hence, the word "shall" retains its mandatory import
o If the intent of Department Circular No. 70 were to give the Secretary of Justice a
discretionary power to dismiss or to entertain a petition for review despite its being
outrightly dismissible, such as when the accused has already been arraigned, or
where the crime the accused is being charged with has already prescribed, or there
is no reversible error that has been committed, or that there are legal or factual
grounds warranting dismissal, the result would not only be incongruous but also
irrational and even unjust
o For then, the action of the Secretary of Justice of giving due course to the petition
would serve no purpose and would only allow a great waste of time.
 Trial court dismissed the case because DOJ resolutions, in grave abuse of its discretion, took
cognizance of the petition for review filed by petitioner. Having been rendered in grave
abuse of its discretion, the Resolutions of the DOJ are void
 Void judgment is a complete nullity and without legal effect, and that all proceedings or
actions founded thereon are themselves regarded as invalid and ineffective for any purpose
 Section 7 discloses that there is no qualification given by the same provision to limit its
application to appeals from original resolutions and not to resolutions on reinvestigation.
Hence, the rule stating that “when the law does not distinguish, we must not distinguish”
finds application in this regard
 When an accused pleads to the charge, he is deemed to have waived the right to preliminary
investigation and the right to question any irregularity that surrounds it: also applicable in
cases of reinvestigation as well as in cases of review of such reinvestigation
 Arraignment of petitioner constitutes a waiver of her right to preliminary investigation or
reinvestigation. Such waiver is tantamount to a finding of probable cause; no need for the
Court to determine the existence or non-existence of probable cause
 Under Rule 45 of Rules of Court, only questions of law may be raised in, and be subject of, a
petition for review on certiorari since this Court is not a trier of facts