G.R. No. 190569 P/INSP. ARIEL S. ARTILLERO, petitioner versus ORLANDO C. CASIMIRO, Overall Deputy Ombudsman, Office of the Deputy Ombudsman, BERNABE D. DUSABAN, Provincial Prosecutor, Office of the Provincial Prosecutor of Iloilo, EDITO AGUILLON, Brgy. Capt., Brgy. Lanjagan, Ajuy, Iloilo, respondents.

 

 

Promulgated:

 

April 25, 2012

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DISSENTING OPINION

 

 

BRION, J.:

 

I dissent from the ponencias conclusion that the Office of the Overall Deputy Ombudsman (Ombudsman) committed no grave abuse of discretion in dismissing the criminal complaint against Edito Aguillon for insufficiency of evidence.

 

The Court consistently adheres to its policy of non-interference in the conduct of preliminary investigations. This policy leaves the investigating prosecutor with sufficient latitude of discretion in determining what constitutes sufficient evidence to establish probable cause for the purpose of filing information in court.[1] The inherently executive nature[2] of determining the existence of probable cause dictates this judicial course of action.

 

More particularly, the Courts policy of non-interference with the investigatory and prosecutory powers of the Office of the Ombudsman is anchored on the provisions of the Constitution, which guarantees the independence of this office.[3] However, given the Courts own duty under paragraph 2, Section 1, Article VIII of the Constitution, the Court is not precluded from reviewing the Ombudsmans action for the limited purpose of determining whether this action is tainted with grave abuse of discretion.[4]

 

In the present case, I find the Ombudsmans dismissal of the criminal complaint tainted with grave abuse of discretion, as the dismissal was not supported by the established facts of the case and was also grossly contrary to applicable laws, rules and jurisprudence on the matter.

 

First, in conducting a preliminary investigation, the investigating prosecutor merely determines whether probable cause exists that would warrant the filing of the corresponding information in court against a supposed offender. In turn, probable cause is simply the existence of such facts and circumstances, sufficient to create the belief in a reasonable mind that a crime has been committed and that the person charged is probably guilty of the crime charged.[5] The determination of probable cause only requires reasonable belief, not actual certainty, that a crime has been committed and that the person charged is probably guilty thereof.

 

In this regard, Edito Aguillon was charged with violation of Presidential Decree (P.D.) No. 1866, as amended by Republic Act No. 8294. The last paragraph of Section 1 of P.D. No. 1866 as amended provides:

 

The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor."

 

 

 

The established facts show that Edito Aguillon was found in possession of an M16 rifle with 20 live ammunitions outside his residence. While he was able to present a license to possess the firearm, he failed to present evidence that he had legal authority to carry the firearm outside of his residence. These circumstances alone, to my mind, satisfy the standard definition of probable cause that the acts charged were committed, and that Edito Aguillon was probably guilty of its commission (violation of P.D. No. 1866). Whether or not he is indeed guilty beyond reasonable doubt of this crime is another matter that must be addressed in the trial proper of the criminal case.[6]

 

Second, the Ombudsmans dismissal of the criminal complaint based on the finding that Edito Aguillon did not commit a crime, as he was a barangay captain performing his peace and order functions and had a license for his M16 rifle, is contrary to the provisions of P.D. No. 1866 and the factual circumstances of the case.

 

The crime of illegal possession of firearm,[7] on one hand, and the crime of carrying a licensed firearm outside ones residence without legal authority, on the other, are two separate offenses punished by P.D. No. 1866 as amended. In other words, while Edito Aguillon cannot be prosecuted for illegal possession of firearms, sufficient evidence exists to prosecute him for carrying a licensed firearm outside his residence without legal authority.

 

In Francisco I. Chavez v. Hon. Alberto G. Romulo, et. al,[8] we held that the right to bear arms is a mere statutory privilege, and not a constitutional right; and that the possession of firearms by citizens in the Philippines is the exception rather than the rule.[9] Consequently, when a prima facie showing of a violation of the law on firearms is established, the prosecutor cannot peremptorily apply a statutory exception without weighing it against the facts and evidence before him; otherwise, he would be committing grave abuse of discretion, warranting the corrective writ of certiorari which brings me to my third point.

 

Third. Undoubtedly, Section 389 (c), Chapter 3, Book III of the Local Government Code (LGC) of the Philippines (Republic Act [R.A.] No. 7160) provides an exception to the rule on carrying of firearms outside ones residence. R.A. No. 7160 is a special law[10] that allows the barangay captain (now the Punong Barangay) the right to possess and carry firearms within his territorial jurisdiction. As expressly stated in the law, however, the exercise of such right is not without restrictions. Section 389 (c) in fact mentions four (4) conditions that restrict the right of the Punong Barangay to possess and carry firearms:

In the performance of his peace and order functions, the Punong Barangay shall be entitled to possess and carry the necessary firearm within his territorial jurisdiction, subject to appropriate rules and regulations.

 

 

The four (4) conditions are: first, the right must be exercised in performance of peace and order functions; second, the right must be exercised within the territorial jurisdiction of the Punong Barangay; third, the firearm must be necessary in the exercise of official functions; and fourth, the exercise of the right is subject to appropriate rules and regulations.

The available records do not establish compliance with the above conditions.

 

The records do not show that Edito Aguillon, as barangay captain, was in the performance of official duties to protect and preserve the peace and order of his community at the time the police confronted him. Contrary to the ponencias claim unsupported by law and evidence a barangay captain cannot be performing his peace and order functions 24 hours a day. This is a preposterous claim that effectively says that the mere fact of being a barangay captain characterizes one as an official continuously exercising peace and order functions. At most, perhaps, such a presumption can exist; but a presumption should not apply when the attendant circumstances dictate otherwise.

 

What the records establish are the following: that (i) the police responded to a call for assistance upon hearing successive gunfires; (ii) the police saw and confronted Edito Aguillon, wobbling and visibly drunk, carrying an M16 rifle; and (iii) Edito Aguillon was then and there disarmed of his firearm and brought to the police station. None of these facts was denied by Aguillon. Significantly, Aguillon made no claim, not even a pretense, that he was then in the course of protecting and preserving peace in his barangay at the time he was arrested.

 

Similarly, the second and third conditions were not clearly established. The records failed to show that Edito Aguillon was actually within the territorial jurisdiction of his barangay when the confrontation with the police took place. This is a matter of defense that the one charged must claim and support by evidence. No such effort appears to have taken place. The facts also failed to show how, specifically, an M16 rifle became necessary for the exercise of his official functions - if at all he was exercising his official functions at that time. We can take judicial notice that an M16 (as the prefix M denotes) is a military weapon, not a civilian one.

 

The fourth condition on the appropriate rules and regulations is no other than the rules governing the possession and carrying of firearm, which are mainly found in the implementing rules and regulations of P.D. No. 1866. In this regard, Section 3 of the Implementing Rules and Regulations of P.D. No. 1866 impose the following restrictions on persons in possession of licensed firearms:

 

a.       As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate of registration or M/R) are prohibited from carrying their firearms outside of residence.

 

b.      However, the Chief of Constabulary (now PNP Chief) may, in meritorious cases as determined by him and under such conditions as he may impose, authorize such person or persons to carry firearm outside of residence.

 

c.       Except as other provided in Sections 4 (Authority of personnel or certain civilian government entities and guards of private security agencies, company guard forces and government guard forces to carry firearms) and 5 (Authority to issue mission order involving the carrying of firearm) hereof, the carrying of firearm outside of residence or official station in pursuance of an official mission or duty shall have prior approval of the Chief of Constabulary.

 

 

Hence, while Section 389 (c) Chapter 3, Book III of R.A. No. 7160 grants the Punong Barangay the right to possess and carry firearms, the very wording of the law did not relieve the Punong Barangay from complying with the rules and regulations involving the possession and carrying of firearms.

 

Specifically, I take exception to the ponencias (i) statement that [e]ven the IRR of PD 1866 was modified by Section 389 (b)[11] of the LGC as the latter provision already existed when Congress enacted the LGC and (ii) conclusion that Section 389 (b) of the LGC of 1991 added to the list found in Section 3 of the IRR of PD 1866.

 

Contrary to the ponencias claim, P.D. No. 1866s IRR could not have been modified by Section 389 (c) of the LGC. On May 12, 1983 Batas Pambansa (BP) 337 (the old Local Government Code) took effect. Section 88 par. 3 of BP 337 similarly limits the punong barangays otherwise broad authority to possess and carry firearms. It was only later (or in October 1983) that the IRR of P.D. No. 1866 was issued. Effectively, the promulgation of the IRR after BP 337 took effect served to limit (and continues to by the re-enactment of the same provision in Section 389 of the present LGC) the Punong Barangays authority to carry firearms.

 

At any rate, even granting that Section 389 (c) of R.A. No. 7160 does not require compliance with the ordinary rules regarding the licensing of firearms under P.D. No. 1866, the facts do not sufficiently show that Edito Aguillon falls within the exception provided under Section 389 (c) of R.A No. 7160 that would exempt him from compliance with the general rule on licensing of firearms. Given that the issue before us is the existence of grave abuse of discretion in the determination of the well-settled concept of probable cause, the petitioners reliance on People v. Monton,[12] which already involves the guilt or innocence of an accused, is misplaced.

In short, being a matter of exception to the rule on carrying of firearms outside ones residence, the Court cannot simply apply Section 389 (c) of the LGC (as the ponencia did) without regard to the plain qualifications stated in that provision all of which are aimed at serving the interest (maintenance of peace and order[13]) of the Punong Barangays constituencies and not his personal interests. As an exception, too, the burden lies with the person charged to show that he falls within the exception. No such showing is evident from the records of the case; thus, the application of the exception has no basis.

 

For these reasons, I vote to GRANT the petition.

 

Sgd.

ARTURO D. BRION

Associate Justice

 

 

 

 

 

 


[1] Kalalo v. Office of the Ombudsman, G.R. No. 158189, April 23, 2010.

[2] ARTICLE VII, Section 17, second sentence, the 1987 CONSTITUTION (the Faithful execution clause).

[3] Section 5, Section 8 and Section 14 of Article XI of the 1987 Constitution reads:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.

 

Section 8. The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have, for ten years or more, been a judge or engaged in the practice of law in the Philippines.

 

During their tenure, they shall be subject to the same disqualifications and prohibitions as provided for in Section 2 of Article 1X-A of this Constitution.

 

Section 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released.

[4] Hilario P. Soriano v. Ombudsman Simeon V. Marcelo, G.R. No. 160772, July 13, 2009, 592 SCRA 394 and Marina B. Schroeder v. Attys. Mario A. Saldevar and Erwin C. Macalino, G.R. No. 163656, April 27, 2007, 522 SCRA 624, 629.

[5] Ibid.

[6] Ibid.

[7] In Villanueva v. People (G.R. No. 159703 March 3, 2008), the Court stated that

The corpus delicti in the crime of illegal possession of firearms is the accused's lack of license or permit to possess or carry the firearm, as possession itself is not prohibited by law. To establish the corpus delicti, the prosecution has the burden of proving that the firearm exists and that the accused who owned or possessed it does not have the corresponding license or permit to possess or carry the same.

[8] G.R. No. 157036, June 9, 2004, 431 SCRA 534, 559.

[9] Id. at 559.

[10] Alex L. David v. Commission on Elections, G.R. No. 127116 April 8, 1997, 271 SCRA 90, 102. The Court held that RA 7160 is a codified set of laws that specifically applies to local government units.

[11] Should be Section 389 (c).

[12] G.R. No. L-48112, February 29, 1988.

[13] Section 389 (b) 3 and 14 reads:

(b) For efficient, effective and economical governance, the purpose of which is the general welfare of the barangay and its inhabitants pursuant to Section 16 of this Code, the punong barangay shall:

 

x x x x

 

(3) Maintain public order in the barangay and, in pursuance thereof, assist the city or municipal mayor and the sanggunian members in the performance of their duties and functions;

 

x x x x

 

(14) Promote the general welfare of the barangay; and