THIRD DIVISION

[G.R. No. 113216. September 5, 1997]

RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and

HON. MAXIMIANO C. ASUNCION, in his capacity as Presiding
Judge of RTC, Quezon City, respondents.

DECISION
PANGANIBAN, J.:

When confronted with a motion to withdraw an information on the ground of lack of

probable cause based on a resolution of the secretary of justice, the bounden duty of
the trial court is to make an independent assessment of the merits of such
motion. Having acquired jurisdiction over the case, the trial court is not bound by such
resolution but is required to evaluate it before proceeding further with the trial. While the
secretarys ruling is persuasive, it is not binding on courts. A trial court, however,
commits reversible error or even grave abuse of discretion if it refuses/neglects to
evaluate such recommendation and simply insists on proceeding with the trial on the
mere pretext of having already acquired jurisdiction over the criminal action.
This principle is explained in this Decision resolving a petition for review
on certiorari of the Decision  of the Court of Appeals,  promulgated on September 14,
[1] [2]

1993 in CA-G.R. SP No. 30832 which in effect affirmed an order of the Regional Trial
Court of Quezon City denying the prosecutions withdrawal of a criminal information
against petitioner.

The Antecedent Facts

From the pleadings submitted in this case, the undisputed facts are as follows:

Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr.
against Dr. Rhodora M. Ledesma, petitioner herein, before the Quezon City
Prosecutors Office, docketed as I.S. No. 92-5433A.Petitioner filed her counter-
affidavit to the complaint.

Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed on
July 6, 1992 an Information for libel against petitioner with the Regional Trial Court
of Quezon City, Branch 104.  The Information filed by Assistant City Prosecutor
[3]

Augustine A. Vestil reads: [4]

That on or about the 27th day of June 1991, in Quezon City, Metro Manila,
Philippines, the said accused, acting with malice, did, then and there, wilfully,
unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral, Director
of Philippine Heart Center, East Avenue, this city, and furnished the same to other
officers of the said hospital, said letter containing slanderous and defamatory remarks
against DR. JUAN F. TORRES, JR., which states in part, to wit:

27June 1991

Dr. Esperanza I. Cabral

Director

Subject: Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear

Medicine Specialist/Consultant, Philippine Heart Center, from January 31, 1989 to
January 31, 1991.

Respondents: Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section

Dr. Orestes P. Monzon,

Staff Consultant

Dear Dr. Cabral,

This is to demand the return of all professional fees due me as a consultant in Nuclear
Medicine, this Center, since January 31, 1989 until my resignation effective January
31, 1991, amounting to at least P100,000.00 for the year 1990 alone. Records in the
Nuclear Medicine Section will show that from January 1989 to January 1991, a total
of 2,308 patients were seen. Of these, I had officially supervised, processed, and
interpreted approximately a total of 1,551 cases as against approximately 684 and 73
cases done by Dr. Monzon and Dr. Torres respectively.

Until my resignation I had received a monthly share of professional fees averaging

P1,116.90/month supposedly representing 20% of the total monthly professional
fees. The rest were divided equally between Dr. Monzon and Dr. Torres. There was
never any agreement between us three consultants that this should be the arrangement
and I am certain that this was not with your approval. The burden of unfairness would
have been lesser if there was an equal distribution of labor and the schedule of duties
were strictly followed. As it was, the schedule of duties submitted monthly to the
office of the Asst. Director for Medical Services was simply a dummy to comply with
administrative requirements rather than a guideline for strict compliance. Both
consultants have complete daily time records even if they did not come regularly. Dr.
Torres came for an hour every week, Dr. Monzon came sporadically during the week
while I was left with everything from training the residents and supervising the Techs
to processing and interpreting the results on a regular basis. I had a part time
appointment just like Dr. Monzon and Dr. Torres.

In the interest of fairness and to set a precedent for the protection of future PHC
Nuclear Medicine Alumni I am calling your attention to the unfair and inhuman
conditions I went through as a Consultant in that Section. I trust that your sense of
professionalism will put a stop to this corruption.

I suggest that a committee be formed to make an audit of the distribution of

professional fees in this Section. At this point, let me stress that since professional
fees vary according to the type of procedure done and since there was no equity of
labor between us I am not settling for an equal percentage share. I demand that I be
indemnified of all professional fees due me on a case to case basis.

Let me make clear my intention of pursuing this matter legally should there be no
favorable action in my behalf. Let me state at this point6 that the actions of Dr. Torres
and Dr. Monzon are both unprofessional and unbecoming and are clearly violating the
code of ethics of the medical profession and the Philippine Civil Service Rules and
Regulations related to graft and corruption.

Thank you.

and other words of similar import, when in truth and in fact, as the accused very well
knew, the same are entirely false and untrue but were publicly made for no other
purpose than to expose said DR. JUAN F. TORRES, JR. to public ridicule, thereby
casting dishonor, discredit and contempt upon the person of the said offended party, to
his damage and prejudice.

A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by
petitioner before the Department of Justice pursuant to P.D. No. 77 as amended by P.D.
No. 911.
The Department of Justice gave due course to the petition and directed the Quezon
City prosecutor to move for deferment of further proceedings and to elevate the entire
records of the case.  Accordingly, a Motion to Defer Arraignment dated September 7,
[5]

1992 was filed by Prosecutor Tirso M. Gavero before the court a quo.  On September 9,
[6]
1992, the trial court granted the motion and deferred petitioners arraignment until the
final termination of the petition for review.
[7]

Without the consent or approval of the trial prosecutor, private complainant, through
counsel, filed a Motion to Lift the Order dated September 9, 1992 and to Set the Case
for Arraignment/Trial.[8]

On January 8, 1993, the trial court issued an Order setting aside its earlier Order of
September 9, 1992 and scheduling petitioners arraignment on January 18, 1993 at two
oclock in the afternoon. [9]

In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon
reversed the Quezon City investigating prosecutor. Pertinent portions of Drilons ruling
read:[10]

From the circumstances obtaining, the subject letter was written to bring to the
attention of the Director of the Philippine Heart Center for Asia and other responsible
authorities the unjust and unfair treatment that Dr. Ledesma was getting from
complainants. Since complainants and respondent are government employees, and the
subject letter is a complaint to higher authorities of the PHCA on a subject matter in
which respondent has an interest and in reference to which she has a duty to question
the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs.
Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922,
ruled that A communication made in good faith upon any subject matter in which the
party making the communication has an interest or concerning which he has a duty is
privileged... although it contains incriminatory or derogatory matter which, without
the privilege, would be libelous and actionable.

The follow-up letter sent by respondent to the director of the PHCA, is a direct
evidence of respondents righteous disposition of following the rule of law and is a
clear indication that her purpose was to seek relief from the proper higher authority
who is the Director of PHCA.

The same interpretation should be accorded the civil and administrative complaints
which respondent filed against complainants. They are mere manifestations of her
earnest desire to pursue proper relief for the alleged injustice she got from
complainants. If she was motivated by malice and ill-will in sending the subject
communication to the Director of the PHCA, she would not have sent the second
letter and filed the administrative and civil cases against complainants.

Moreover, it is unbelievable that it took complainants one year to realize that the
questioned letter subjected them to public and malicious imputation of a vice or
omission. It is beyond the ordinary course of human conduct for complainants to start
feeling the effects of the alleged libelous letter - that of experiencing sleepless nights,
wounded feelings, serious anxiety, moral shock and besmirched reputation - one year
after they read the communication in question.

The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the
instant case is unfounded. In the first place, the instant cases are not being
reinvestigated. It is the resolutions of the investigating prosecutor that are under
review. Further, the record shows that the court has issued an order suspending the
proceedings pending the resolutions of the petitions for review by this Office. In the
issuance of its order, the court recognizes that the Secretary of Justice has the
power and authority to review the resolutions of prosecutors who are under his control
and supervision.

In view of the foregoing, the appealed resolutions are hereby reversed. You are
directed to withdraw the Informations which you filed in Court. Inform this Office of
the action taken within ten (10) days from receipt hereof.

In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero
filed a Motion to Withdraw Information dated February 17,1993,  attaching thereto the
[11]

resolution of Secretary Drilon. The trial judge denied this motion in his Order dated
February 22, 1993, as follows: [12]

The motion of the trial prosecutor to withdraw the information in the above-entitled
case is denied. Instead, the trial prosecutor of this court is hereby directed to prosecute
the case following the guidelines and doctrine laid down by the Supreme Court in the
case of Crespo vs. Mogul, 151 SCRA 462.

Petitioners motion for reconsideration  was denied by the trial judge in the Order
[13]

dated March 5, 1993, as follows: [14]

Finding no cogent reason to justify the reconsideration of the ruling of this Court
dated February 22, 1993, the Motion for Reconsideration dated March 1, 1993 filed
by the accused through counsel is hereby denied.

Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme

Court. In a Resolution dated March 31, 1993, this Court referred the case to the Court of
Appeals for proper determination and disposition pursuant to Section 9, paragraph 1 of
B.P. 129.[15]

Respondent Court dismissed the petition for lack of merit, holding that it had no
jurisdiction to overturn the doctrine laid down in Crespo vs. Mogul -- once a complaint
or information has been filed in court, any disposition of the case, i.e., dismissal,
conviction or acquittal of the accused, rests on the sound discretion of the trial court.
[16]

Hence, this recourse to this Court.

 The Issues

For unexplained reasons, petitioner failed to make an assignment of errors against

the appellate court. Her counsel merely repeated the alleged errors of the trial court:  [17]

I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge
Asuncion relied solely on the Crespo vs. Mogul (151 SCRA 462) decision. It is
respectfully submitted that said case is not applicable because:

1. It infringes on the constitutional separation of powers between the executive and
judicial branches of the government;

2. It constitutes or it may lead to misuse or misapplication of judicial power as defined

in the Constitution;

3. It goes against the constitutional proscription that rules of procedure should not
diminish substantive rights;

4. It goes against the principle of non-delegation of powers;

5. It sets aside or disregards substantive and procedural rules;

6. It deprives a person of his constitutional right to procedural due process;

7. Its application may constitute or lead to denial of equal protection of laws;

8. It deprives the secretary of justice or the president of the power to control or review
the acts of a subordinate official;

9. It will lead to, encourage, abet or promote abuse or even corruption among the
ranks of investigating fiscals;

10. It does not subserve the purposes of a preliminary investigation because -

(10.a) It subjects a person to the burdens of an unnecessary trial, specially in cases

where the investigating fiscal recommends no bail for the accused;

(10.b) It subjects the government, both the executive and the judiciary, to unnecessary
time and expenses attendant to an unnecessary trial;

(10.c) It contributes to the clogging of judicial dockets; and

11. It has no statutory or procedural basis or precedent.

II. On the assumption that Crespo vs. Mogul is applicable, it is submitted that -

1. Respondent Judge Asuncion committed grave abuse of discretion, amounting to

lack of jurisdiction, when he denied the Motion to Withdraw Information since he had
already deferred to, if not recognized, the authority of the Secretary of Justice; and

2. The facts in Crespo vs. Mogul are different from the instant case. Hence,
respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of
jurisdiction, when he relied solely on said case in denying the Motion to Withdraw
Information.

In sum, the main issue in this petition is: Did Respondent Court commit any
reversible error in affirming the trial courts denial of the prosecutions Motion to Withdraw
Information?

The Courts Ruling

The petition is impressed with merit. We answer the above question in the
affirmative.

Preliminary Matter

Before discussing the substance of this case, the Court will preliminarily address a
procedural matter. Prior to the effectivity of the 1997 Rules of Civil Procedure on July 1,
1997, Section 2 of Rule 45, which governed appeals from the Court of Appeals to the
Supreme Court, provided:

SEC. 2. Contents of petition.The petition shall contain a concise statement of x x x the

assignment of errors made in the court below x x x.

A petition for review on certiorari under Rule 45 requires a concise statement of the

errors committed by the Court of Appeals, not of the trial court. For failure to follow this
Rule, the petition could have been dismissed by this Court motu proprio, considering
that under Section 4 of the same Rule, review is not a matter of right but of sound
discretion.
We take this occasion to stress the need for precision and clarity in the assignment
of errors. Review under this rule is unlike an appeal in a criminal case where the death
penalty, reclusin perpetua or life imprisonment is imposed and where the whole case is
opened for review. Under Rule 45, only the issues raised therein by the petitioner will be
passed upon by the Court, such that an erroneous specification of the issues may
cause the dismissal of the petition. We stressed this in Circular No. 2-90, entitled
Guidelines to be Observed in Appeals to the Court of Appeals and to the Supreme
Court, as follows:

4. Erroneous Appeals. x x x x

e) Duty of counsel.It is therefore incumbent upon every attorney who would seek
review of a judgment or order promulgated against his client to make sure of the
nature of the errors he proposes to assign, whether these be of fact or of law; then
upon such basis to ascertain carefully which Court has appellate jurisdiction; and
finally, to follow scrupulously the requisites for appeal prescribed by law, ever aware
that any error or imprecision in compliance may well be fatal to his clients cause.

FOR STRICT COMPLIANCE.

Be that as it may, the Court noting the importance of the substantial matters raised
decided to overlook petitioners lapse and granted due course to the petition per
Resolution dated July 15, 1996, with a warning that henceforth petitions which fail to
specify an assignment of errors of the proper lower court may be denied due
course motu proprio by this Court.

Determination of Probable Cause Is an Executive Function

The determination of probable cause during a preliminary investigation is judicially

recognized as an executive function and is made by the prosecutor. The primary
objective of a preliminary investigation is to free a respondent from the inconvenience,
expense, ignominy and stress of defending himself/herself in the course of a formal trial,
until the reasonable probability of his or her guilt has been passed upon in a more or
less summary proceeding by a competent officer designated by law for that
purpose. Secondarily, such summary proceeding also protects the state from the
burden of unnecessary expense and effort in prosecuting alleged offenses and in
holding trials arising from false, frivolous or groundless charges. [18]

Such investigation is not a part of the trial. A full and exhaustive presentation of the
parties evidence is not required, but only such as may engender a well-grounded belief
that an offense has been committed and that the accused is probably guilty thereof.  By[19]

reason of the abbreviated nature of preliminary investigations, a dismissal of the

charges as a result thereof is not equivalent to a judicial pronouncement of
acquittal. Hence, no double jeopardy attaches.
In declaring this function to be lodged in the prosecutor, the Court distinguished the
determination of probable cause for the issuance of a warrant of arrest or a search
warrant from a preliminary investigation proper in this wise:[20]
xxx Judges and prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from a preliminary
investigation proper which ascertains whether the offender should be held for trial or
released. xxx The determination of probable cause for the warrant of arrest is made by
the Judge. The preliminary investigation proper--whether xxx there is reasonable
ground to believe that the accused is guilty of the offense charged and, therefore,
whether xxx he should be subjected to the expense, rigors and embarrassment of
trial--is the function of the prosecutor.

We reiterate that preliminary investigation should be distinguished as to whether it is

an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is executive
in nature. It is part of the prosecutors job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in
nature and is lodged with the judge.

Sound policy supports this distinction. Otherwise, judges would be unduly laden

with the preliminary examination and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their courts. The Separate
Opinion of Mr. Chief Justice Andres R. Narvasa in Roberts, Jr. vs. Court of
Appeals stressed that the determination of the existence of probable cause properly
pertains to the public prosecutor in the established scheme of things, and that the
proceedings therein are essentially preliminary, prefatory and cannot lead to a final,
definite and authoritative judgment of the guilt or innocence of the persons charged with
a felony or a crime.
[21]

In Crespo vs. Mogul,  the Court emphasized the cardinal principle that the public
[22]

prosecutor controls and directs the prosecution of criminal offenses thus:

It is a cardinal principle that all criminal actions either commenced by complaint or by

information shall be prosecuted under the direction and control of the fiscal. The
institution of a criminal action depends upon the sound discretion of the fiscal. He
may or may not file the complaint or information, follow or not follow that presented
by the offended party, according to whether the evidence in his opinion, is sufficient
or not to establish the guilt of the accused beyond reasonable doubt. The reason for
placing the criminal prosecution under the direction and control of the fiscal is to
prevent malicious or unfounded prosecution by private persons. It cannot be
controlled by the complainant. Prosecuting officers under the power vested in them by
law, not only have the authority but also the duty of prosecuting persons who,
according to the evidence received from the complainant, are shown to be guilty of a
crime committed within the jurisdiction of their office. They have equally the legal
duty not to prosecute when after an investigation they become convinced that the
evidence adduced is not sufficient to establish a prima facie case.

In the same case, the Court added that where there is a clash of views between a
judge who did not investigate and a fiscal who conducted a reinvestigation, those of the
prosecutor should normally prevail: [23]

x x x x The Courts cannot interfere with the fiscals discretion and control of the
criminal prosecution. It is not prudent or even permissible for a Court to compel the
fiscal to prosecute a proceeding originally initiated by him on an information, if he
finds that the evidence relied upon by him is insufficient for conviction. Neither has
the Court any power to order the fiscal to prosecute or file an information within a
certain period of time, since this would interfere with the fiscals discretion and control
of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the case for
insufficiency of evidence has authority to do so, and Courts that grant the same
commit no error. The fiscal may re-investigate a case and subsequently move for the
dismissal should the re-investigation show either that the defendant is innocent or that
his guilt may not be established beyond reasonable doubt.In a clash of views between
the judge who did not investigate and the fiscal who did, or between the fiscal and the
offended party or the defendant, those of the fiscals should normally prevail. x x x x.

Appeal as an Exercise of the Justice Secretarys Power of Control Over

Prosecutors

Decisions or resolutions of prosecutors are subject to appeal to the secretary of

justice who, under the Revised Administrative Code, exercises the power of direct
control and supervision over said prosecutors; and who may thus affirm, nullify, reverse
or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III
of the Code gives the secretary of justice supervision and control over the Office of the
Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of his
power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7,
Book IV of the Code:

(1) Supervision and Control. Supervision and control shall include authority to act

directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate officials or units; xxxx.

Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section
37 of Act 4007, which read:
Section 3. x x x x

The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State
Prosecutors, and the State Prosecutors shall x x x perform such other duties as may be
assigned to them by the Secretary of Justice in the interest of public service.

xxx xxx xxx

Section 37. The provisions of the existing law to the contrary notwithstanding,
whenever a specific power, authority, duty, function, or activity is entrusted to a chief
of bureau, office, division or service, the same shall be understood as also conferred
upon the proper Department Head who shall have authority to act directly in
pursuance thereof, or to review, modify, or revoke any decision or action of said chief
of bureau, office, division or service.

Supervision and control of a department head over his subordinates have been
defined in administrative law as follows: [24]

In administrative law supervision means overseeing or the power or authority of an

officer to see that subordinate officers perform their duties. If the latter fail or neglect
to fulfill them, the former may take such action or step as prescribed by law to make
them perform such duties. Control, on the other hand, means the power of an officer
to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the
latter.

Review as an act of supervision and control by the justice secretary over the fiscals
and prosecutors finds basis in the doctrine of exhaustion of administrative remedies
which holds that mistakes, abuses or negligence committed in the initial steps of an
administrative activity or by an administrative agency should be corrected by higher
administrative authorities, and not directly by courts. As a rule, only after administrative
remedies are exhausted may judicial recourse be allowed.

Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling in Crespo

In Marcelo vs. Court of Appeals,  the Court clarified that Crespo  did not foreclose
[25] [26]

the power or authority of the secretary of justice to review resolutions of his

subordinates in criminal cases. The Court recognized in Crespo that the action of the
investigating fiscal or prosecutor in the preliminary investigation is subject to the
approval of the provincial or city fiscal or chief state prosecutor. Thereafter, it may be
appealed to the secretary of justice.
 The justice secretarys power of review may still be availed of despite the filing of an
information in court. In his discretion, the secretary may affirm, modify or reverse
resolutions of his subordinates pursuant to Republic Act No. 5180, as amended,
 specifically in Section 1 (d):
[27]

(d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal
or the Chief State Prosecutor is, upon review, reversed by the Secretary of Justice, the
latter may, where he finds that no prima faciecase exists, authorize and direct the
investigating fiscal concerned or any other fiscal or state prosecutor to cause or move
for the dismissal of the case, or, where he finds a prima facie case, to cause the filing
of an information in court against the respondent, based on the same sworn statements
or evidence submitted without the necessity of conducting another preliminary
investigation.

Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated

January 25, 1990 governing appeals in preliminary investigation. Appeals under Section
2 are limited to resolutions dismissing a criminal complaint. However, Section 4
provides an exception: appeals from resolutions finding probable cause upon a showing
of manifest error or grave abuse of discretion are allowed, provided the accused has not
been arraigned. In the present case, petitioners appeal to the secretary of justice was
given due course on August 26, 1992 pursuant to this Circular.
On June 30, 1993, Circular No. 7 was superseded by Department Order No. 223;
however, the scope of appealable cases remained unchanged:

SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State

Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice except
as otherwise provided in Section 4 hereof.

Appeals from the resolutions of provincial/city prosecutors where the penalty

prescribed for the offense charged does not exceed prisin correccional, regardless of
the imposable fine, shall be made to the Regional State Prosecutors who shall resolve
the appeals with finality, pursuant to Department Order No. 318 dated August 28,
1991 as amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223 dated August
11, 1992 and D.O. No. 45 dated February 2, 1993. Such appeals shall also be
governed by these rules.

SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a

resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor finding probable cause except upon showing of manifest error or grave
abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of
discretion, no appeal shall be entertained where the appellant had already been
arraigned. If the appellant (is) arraigned during the pendency of the appeal, x x x
appeal shall be dismissed motu proprio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause,

however, shall not hold the filing of the information in court.

Apart from the foregoing statutory and administrative issuances, the power of
review of the secretary of justice is recognized also by Section 4 of Rule 112 of the
Rules of Court:

SEC. 4. Duty of investigating fiscal.--x x x x

xxx xxx xxx

If upon petition by a proper party, the Secretary of Justice reverses the resolution of
the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal
concerned to file the corresponding information without conducting another
preliminary investigation or to dismiss or move for dismissal of the complaint or
information.

This appeal rests upon the sound discretion of the secretary of justice arising from
his power of supervision and control over the prosecuting arm of the government, not on
a substantial right on the part of the accused as claimed by petitioner.

Appeal Did Not Divest the Trial Court of Jurisdiction

Where the secretary of justice exercises his power of review only after an
information has been filed, trial courts should defer or suspend arraignment and further
proceedings until the appeal is resolved. Such deferment or suspension, however, does
not signify that the trial court is ipso facto bound by the resolution of the secretary of
justice. Jurisdiction, once acquired by the trial court, is not lost despite a resolution by
the secretary of justice to withdraw the information or to dismiss the case.

Judicial Review of the Resolution of the Secretary of Justice

Judicial power is defined under the 1987 Constitution as the duty of courts to settle
actual controversies involving rights which are legally demandable and
enforceable. Such power includes the determination of whether there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the government.  Under this definition, a court is without power to
[28]

directly decide matters over which full discretionary authority has been delegated to the
legislative or executive branch of the government. It is not empowered to substitute its
judgment for that of Congress or of the President. It may, however, look into the
question of whether such exercise has been made in grave abuse of discretion.
Judicial review of the acts of other departments is not an assertion of superiority
over them or a derogation of their functions. In the words of Justice Laurel in Angara vs.
Electoral Commission: [29]

x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does not

in reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument sources and guarantees to them. This is in
truth all that is involved in what is termed judicial supremacy which properly is the
power of the judicial review under the Constitution. x x x.

It is not the purpose of this Court to decrease or limit the discretion of the secretary
of justice to review the decisions of the government prosecutors under him. In Crespo,
the secretary was merely advised to restrict such review to exceptionally meritorious
cases. Rule 112, Section 4 of the Rules of Court, which recognizes such power, does
not, however, allow the trial court to automatically dismiss the case or grant the
withdrawal of the information upon the resolution of the secretary of justice.  This is
precisely the import of Crespo, Marcelo, Martinez vs. Court of Appeals  and the recent
[30]

case of Roberts, Jr. vs. Court of Appeals, which all required the trial court to make its
own evaluation of the merits of the case, because granting the motion to dismiss or to
withdraw the information is equivalent to effecting a disposition of the case itself.

The Marcelo and Martinez Cases Are Consistent

In Marcelo vs. Court of Appeals,  this Court ruled that, although it is more prudent
[31]

to wait for a final resolution of a motion for review or reinvestigation from the secretary
of justice before acting on a motion to dismiss or a motion to withdraw an information, a
trial court nonetheless should make its own study and evaluation of said motion and not
rely merely on the awaited action of the secretary. The trial court has the option to grant
or deny the motion to dismiss the case filed by the fiscal, whether before or after the
arraignment of the accused, and whether after a reinvestigation or upon instructions of
the secretary who reviewed the records of the investigation; provided that such grant or
denial is made from its own assessment and evaluation of the merits of the motion.
In Martinez vs. Court of Appeals,  this Court overruled the grant of the motion to
[32]

dismiss filed by the prosecuting fiscal upon the recommendation of the secretary of
justice because such grant was based upon considerations other than the judges own
assessment of the matter. Relying solely on the conclusion of the prosecution to the
effect that there was no sufficient evidence against the accused to sustain the allegation
in the information, the trial judge did not perform his function of making an independent
evaluation or assessment of the merits of the case.
 Despite the pronouncement in Marcelo that a final resolution of the appeal to the
Department of Justice is necessary, both decisions followed the rule in Crespo vs.
Mogul: Once a complaint or information is filed in court, any disposition of the case such
as its dismissal or its continuation rests on the sound discretion of the court. Trial judges
are thus required to make their own assessment of whether the secretary of justice
committed grave abuse of discretion in granting or denying the appeal, separately and
independently of the prosecutions or the secretarys evaluation that such evidence is
insufficient or that no probable cause to hold the accused for trial exists. They should
embody such assessment in their written order disposing of the motion.
The above-mentioned cases depict two extreme cases in complying with this
rule. In Marcelo, the dismissal of the criminal action upon the favorable recommendation
of the Review Committee, Office of the City Prosecutor, was precipitate in view of the
pendency of private complainants appeal to the secretary of justice. In effect, the
secretarys opinion was totally disregarded by the trial court. In contrast, in Martinez the
dismissal of the criminal action was an erroneous exercise of judicial discretion as the
trial court relied hook, line and sinker on the resolution of the secretary, without making
its own independent determination of the merits of the said resolution.

No Grave Abuse of Discretion in theResolution of the Secretary of Justice

In the light of recent holdings in Marcelo and Martinez; and considering that the

issue of the correctness of the justice secretarys resolution has been amply threshed
out in petitioners letter, the information, the resolution of the secretary of justice, the
motion to dismiss, and even the exhaustive discussion in the motion for reconsideration
all of which were submitted to the court -- the trial judge committed grave abuse of
discretion when it denied the motion to withdraw the information, based solely on his
bare and ambiguous reliance on Crespo. The trial courts order is inconsistent with our
repetitive calls for an independent and competent assessment of the issue(s) presented
in the motion to dismiss. The trial judge was tasked to evaluate the secretarys
recommendation finding the absence of probable cause to hold petitioner criminally
liable for libel. He failed to do so. He merely ruled to proceed with the trial without
stating his reasons for disregarding the secretarys recommendation.
Had he complied with his judicial obligation, he would have discovered that there
was, in fact, sufficient ground to grant the motion to withdraw the information. The
documents before the trial court judge clearly showed that there was no probable cause
to warrant a criminal prosecution for libel.
Under the established scheme of things in criminal prosecutions, this Court would
normally remand the case to the trial judge for his or her independent assessment of the
motion to withdraw the information. However, in order not to delay the disposition of this
case and to afford the parties complete relief, we have decided to make directly the
independent assessment the trial court should have done. The petitioner has attached
as annexes to the present petition for review the information, which contains a complete
and faithful reproduction of the subject letter, the resolution of the secretary of justice,
the prosecutions motion for reconsideration of the trial courts Order of February 22,
1993, and even the private complainants opposition to said motion. The records below
have been reproduced and submitted to this Court for its appreciation. Thus, a remand
to the trial court serves no purpose and will only clog the dockets.
We thus proceed to examine the substance of the resolution of the secretary of
justice. The secretary reversed the finding of probable cause on the grounds that (1) the
subject letter was privileged in nature and (2) the complaint was merely a
countercharge.
In every case for libel, the following requisites must concur:

(a) it must be defamatory;

(b) it must be malicious;

(c) it must be given publicity; and

(d) the victim must be identifiable.

At the preliminary investigation stage, these requisites must show prima facie a

well-founded belief that a crime has been committed and that the accused probably
committed it. A cursory reading of the information immediately demonstrates a failure on
the part of the complainant to establish the foregoing elements of libel.
Every defamatory imputation, even if true, is presumed malicious, if no good
intention or justifiable motive for making it is shown. There is malice when the author of
the imputation is prompted by personal ill will or spite and speaks not in response to
duty but merely to injure the reputation of the person who claims to have been
defamed.   In this case however, petitioners letter was written to seek redress of proper
[33]

grievance against the inaccurate distribution and payment of professional fees and
against unfair treatment in the Nuclear Medicine Department of the Philippine Heart
Center. It is a qualified privileged communication under Article 354(1) of the Revised
Penal Code which provides:

ART. 354. Requirement of publicity. -- Every defamatory imputation is presumed to

be malicious, even if it be true, if no good intention and justifiable motive for making
it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any
legal, moral or social duty; and

xxx xxx xxx
The rule on privileged communication is that a communication made in good faith
on any subject matter in which the communicator has an interest, or concerning which
he has a duty, is privileged if made to a person having a corresponding interest or duty,
although it contains incriminatory matter which, without the privilege, would be libelous
and actionable. Petitioners letter was a private communication made in the performance
of a moral duty on her part. Her intention was not to inflict an unjustifiable harm on the
private complainant, but to present her grievance to her superior. The privileged nature
of her letter overcomes the presumption of malice. There is no malice when justifiable
motive exists; and in the absence of malice, there is no libel. We note that the
information itself failed to allege the existence of malice.
Thus, we agree with the ruling of the secretary of justice: [34]

x x x (T)he subject letter was written to bring to the attention of the Director of
the Philippine Heart Center for Asia and other responsible authorities the unjust and
unfair treatment that Dr. Ledesma was getting from government employees, and the
subject letter is a complaint x x x on a subject matter in which respondent has an
interest and in reference to which she has a duty to question the same is definitely
privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA
455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that a
communication made in good faith upon any subject matter in which the party making
the communication has an interest or concerning which he has a duty is privileged
although it contains incriminatory or derogatory matter which, without the privilege,
would be libelous and actionable.

The follow-up letter sent by respondent to the director of the PHCA, is a

direct evidence of respondents righteous disposition of following the rule of law and
is a clear indication that her purpose was to seek relief from the proper higher
authority xxx.

The same interpretation should be accorded the civil and administrative complaints
which respondent filed against complainants. They are mere manifestations of her
earnest desire to pursue proper relief for the alleged injustice she got
from complainants. If she was motivated by malice and ill-will in sending the subject
communication to the Director of the PHCA, she would not have sent the second
letter and filed the administrative and civil cases against complainants.

In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her
official duties, sends a communication to another officer or to a body of officers, who
have a duty to perform with respect to the subject matter of the communication, such
communication does not amount to publication within the meaning of the law on
defamation.  Publication in libel means making the defamatory matter, after it has been
[35]

written, known to someone other than the person to whom it has been written.  The [36]

reason for such rule is that a communication of the defamatory matter to the person
defamed cannot injure his reputation though it may wound his self-esteem. A mans
reputation is not the good opinion he has of himself, but the estimation in which others
hold him.  In this case, petitioner submitted the letter to the director of said hospital; she
[37]
did not disseminate the letter and its contents to third persons. Hence, there was no
publicity and the matter is clearly covered by paragraph 1 of Article 354 of the Penal
Code.
Further, we note that the information against petitioner was filed only on July 27,
1992 or one year after June 27, 1991, the date the letter was sent. It is obviously
nothing more than a countercharge to give Complainant Torres a leverage against
petitioners administrative action against him.
Ineluctably, Judge Asuncions denial of the motion to withdraw the information and
the reconsideration thereof was not only precipitate but manifestly erroneous. This is
further compounded by the fact that he did not explain his grounds for his denial
inasmuch as he did not make an independent assessment of the motion or the
arguments in the resolution of the secretary of justice. All in all, such rash action did not
do justice to the sound ruling in Crespo vs. Mogul upon which, ironically, he supposedly
rested his action, or to the directive in Marcelo and Martinez where this Court required
trial courts to make an independent assessment of the merits of the motion.
WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The
Motion to Withdraw the Information dated February 17, 1993 filed before the trial court
is GRANTED. No costs.
SO ORDERED.
Davide, Jr., Melo, and Francisco, JJ., concur.
Narvasa C.J., no part: Close relation to a party:

[1]
 Rollo, pp. 39-49.
[2]
 The Special Eighth Division is composed of JJ. Corona Ibay-Somera, ponente, and Arturo B. Buena
and Buenaventura J. Guerrero.
[3]
 Presided by then Judge (now Justice of the Court of Appeals) Maximiano C. Asuncion.
[4]
 Rollo, pp. 53-55.
[5]
 Annex D, rollo, p. 56.
[6]
 Annex E, rollo, p. 57
[7]
 Annex F, rollo, p. 58.
[8]
 Annex G, rollo, pp. 59-62.
[9]
 Annex I, rollo, p. 66.
[10]
 Annex J, rollo, pp. 68-69.
[11]
 Annex K, rollo, p. 71.
[12]
 Annex L, rollo, p. 73.
[13]
 Annex M, rollo, pp. 74-91.
[14]
 Annex O, rollo, p. 97.
[15]
 Annex P, rollo, p. 98.
[16]
 Rollo, pp.44-49.
[17]
 Memorandum for Petitioner, pp. 6-8; rollo, pp. 182-184.
[18]
 Cf. People vs.  Magpale,  70 Phil. 176, 179-180 (1940).
[19]
 Ibid.;  Mayuga  vs. Maravilla,  18 SCRA 1115, 1119, December 17, 1966, per Bengzon,  J.
[20]
 Ibid., pp. 344-345.
[21]
 254 SCRA 307, 349-350, March 5, 1996.
[22]
 151 SCRA 462, 467, June 30, 1987, per Gancayco, J.
[23]
 Ibid.,  pp. 468-469.
[24]
 Mondano vs.  Silvosa,  97 Phil. 143, 148 (1955).
[25]
 235 SCRA 39, 48-49, August 4, 1994, per Davide, Jr., J.
[26]
 Supra,  p. 469.
[27]
 Otherwise known as An Act Prescribing a Uniform System of Preliminary Investigation by Provincial
and City Fiscals and Their Assistants, and by State Attorneys or Their Assistants.
[28]
 Article VIII, Section 1, 2nd paragraph.
[29]
 63 Phil. 134.
[30]
 Infra; see note 32.
[31]
 235 SCRA 39, August 4, 1994.
[32]
 237 SCRA 575, October 13, 1994, per Narvasa, C.J.
[33]
 Alonzo  vs. Court of Appeals, 241 SCRA 51, 59-60, February 1, 1995.
[34]
 Rollo, pp. 68-69.
[35]
 Ibid., p. 65, citing 53 C.J.S. 81 (1948).
[36]
 Id., p. 60.
[37]
 Id., pp. 60-61.