G.R. No.
187728 September 12, 2011 cognizable by Regional Trial Courts, records of the subject case were
CHURCHILLE V. MARI and the PEOPLE OF THE PHILIPPINES,
Petitioners,
vs.
HON. ROLANDO L. GONZALES, Presiding Judge, Regional Trial Court,
Branch 39, Sogod, Southern Leyte, and PO1 RUDYARD PALOMA y
TORRES, Respondents.
DECISION
PERALTA, J.:
This resolves the Petition for Certiorari under Rule 65 of the Rules of Court,
praying that the Order1 of the Regional Trial Court of Sogod, Southern Leyte
(RTC), dated January 16, 2009, dismissing the criminal case for rape
against PO1 Rudyard Paloma y Torres (private respondent), and the
Resolution2 dated March 16, 2009, denying petitioners' motion for
reconsideration, be annulled and set aside.
The records reveal the following antecedent facts.
On October 25, 2004, petitioner AAA, private complainant below, executed a
sworn statement before an Investigator of the 8th Regional Office, Philippine
National Police-Criminal Investigation and Detection Group (PNP-CIDG) in
Tacloban City, where she stated that she was raped by herein private
respondent on October 10, 2004 at her boarding house at Sogod, Southern
Leyte. A preliminary investigation of the case was commenced on November
4, 2004 before the Presiding Judge of the Municipal Circuit Trial Court
(MCTC) of Sogod. A warrant of arrest was issued against private
respondent, so he voluntarily surrendered to the Chief of Police of Sogod on
November 18, 2004 and was then incarcerated at the Sogod Municipal Jail.
On November 20, 2004, private respondent filed a Motion for Bail. Hearings
on the motion commenced on December 7, 2004, but petitioner failed to
appear. Only private respondent presented evidence. Thus, on March 16,
2005, the MCTC of Sogod issued an Order allowing private respondent to
post bail set at ₱200,000.00. After posting a surety bond, private respondent
was released from confinement.
Pursuant to the issuance of A.M. No. 05-8-26, divesting first-level courts of
authority to conduct preliminary investigation of criminal complaints
transmitted to the Provincial Prosecutor's Office of Southern Leyte. 3 The
Prosecutor's Office issued a Resolution dated May 26, 2008, finding
probable cause against private respondent and, accordingly, an Information
for Rape was filed on June 11, 2008. A warrant of arrest was immediately
issued against private respondent.
On June 27, 2008, private respondent was committed to detention 4 and, on
June 30, 2008, the RTC issued an Order 5 stating that accused had
voluntarily surrendered to the Office of the Clerk of Court and arraignment
was set for July 31, 2008. In the meantime, on July 3, 2008, private
respondent filed a Motion to Admit Cash Bond in Lieu of Surety Bond; thus,
in an Order dated July 10, 2008, the RTC cancelled the July 31, 2008
schedule for arraignment and reset the arraignment and hearing on said
motion for August 20, 2008. At said scheduled date for arraignment and
hearing on the motion, nobody appeared for the prosecution. Hence, the
RTC issued the Order6 dated August 20, 2008 resetting the arraignment for
October 31, 2008 and stating that:
x x x this Court hereby orders the public prosecutor x x x and/or his assistant
prosecutor x x x to appear and prosecute this case on the next scheduled
hearing from arraignment up to the termination of the trial of this case
otherwise this Court will order the dismissal of this case for failure to
prosecute or nolle prosequi.7
On October 28, 2008, petitioner AAA, private complainant below, filed
through her private counsel, a Motion for Cancellation of Hearing, 8
manifesting that Atty. Pedro Felicen, Jr. had been granted the authority to
prosecute by the Provincial Prosecutor and praying that the scheduled
arraignment on October 31, 2008 be cancelled due to the pendency of
private complainant's petition for transfer of venue before this Court. The
authorized private prosecutor did not appear on said hearing date. The
hearing on October 31, 2008 proceeded as the RTC ruled, in its Order9
issued on the same day, that unless restrained by a higher court, the mere
pendency of a petition for transfer of venue is not sufficient reason to
suspend the proceedings. Moreover, counsel for accused invoked the
accused's right to a speedy trial and, thus, private respondent was arraigned
in the presence of the Provincial Prosecutor who was designated by the
RTC to represent the prosecution for the purpose of arraignment. Pre-trial
was set for November 13, 2008. Nevertheless, said schedule for pre-trial
was cancelled (per Order10 dated November 4, 2008) as the Presiding Judge
of the RTC had to attend a PHILJA Seminar, and pre-trial was reset to
November 24, 2008. On November 24, 2008, the day of the pre-trial itself,
the private prosecutor again filed a Motion for Cancellation of Hearing, again
using as justification the pendency of the petition for transfer of venue. The
RTC issued an Order on even date, reading as follows:
During the scheduled pre-trial conference of this case, the public
prosecutors of Leyte, the private prosecutor and the private complainant
failed to appear despite proper notices sent [to] them. A motion for
cancellation of hearing was filed by the authorized private prosecutor, Pedro
Felicen, Jr. for reasons stated therein to which this Court finds to be not
meritorious, hence, the same is denied. x x x the public prosecutor as well
as the counsel for the accused were directed to make their oral comments
on the first endorsement of the Hon. Deputy Court Administrator, regarding
the motion to transfer venue of this case to any of the RTC, at Tacloban City,
x x x.
x x x Thereafter, the pre trial proceeded by discussing matters concerning
the amicable settlement, plea bargaining agreement, stipulation of facts, pre-
marking of documentary exhibits, number of witnesses, trial dates and
nature of the defense. There being no other matters to discuss on pre-trial in
order to expedite the early disposition of this case, the pre-trial proper is now
deemed terminated.11
The said Order also scheduled the initial hearing for trial on the merits for
December 12, 2008. On December 12, 2008, no one appeared for the
prosecution, prompting counsel for accused private respondent to move for
dismissal of the case on the ground of failure to prosecute. Private
respondent's motion to dismiss was denied per Order12 dated December 12,
2008, and hearing was reset to January 16, 2009.
Again, on the very day of the January 16, 2009 hearing, the private
prosecutor filed an Urgent Motion for Cancellation of Hearing, stating that it
was only on January 14, 2009 that he was furnished a copy of the notice of
the January 16, 2009 hearing and he had to attend a previously scheduled
hearing for another case he was handling, set for the very same date. Thus,
in the Order dated January 16, 2009, the RTC disposed, thus:
x x x Again notably absent are the private prosecutor, the two public
prosecutors designated by the Department of Justice to prosecute this case
as well as the private complainant herself.
A last minute urgent motion to reset was filed by the private prosecutor, but
the same is denied being in violation of the three (3) day rule in filing written
postponements. After hearing the arguments coming from both the public
prosecutor assigned to this Court and counsel for the defense, the Court
deems it proper to act on the urgency of the matter prayed for by the said
counsel. Considering that the accused has been languishing in jail since
June, 2008 up to the present and to allow him to stay in jail for a single
minute, it is quite unreasonable and would violate his right to speedy trial.
WHEREFORE, finding the motion of the counsel for the accused to be
based on grounds that are meritorious, this Court pursuant to x x x the rule
on speedy trial (RA 8433) [should be "8493"] hereby orders this case
dismissed for failure of the prosecution to prosecute or nolle prosequi.13
Petitioners filed a motion for reconsideration, but the RTC denied the same
per Resolution dated March 16, 2009.
Hence, the present petition for certiorari, alleging that public respondent
acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in rashly and precipitately dismissing the rape case against
private respondent. Respondents counter that there was no grave abuse
committed by the trial court and setting aside the dismissal of the rape case
would put private respondent in double jeopardy.
The Court finds the petition bereft of merit.
Firstly, petitioners failed to observe the doctrine on hierarchy of courts. In
Garcia v. Miro,14 the Court, quoting Vergara, Sr. v. Suelto,15 ruled thus:
The Supreme Court is a court of last resort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental charter
and immemorial tradition. It cannot and should not be burdened with the task
of dealing with causes in the first instance. Its original jurisdiction to issue the
so-called extraordinary writs should be exercised only where absolutely
necessary or where serious and important reasons exist therefor. Hence,
that jurisdiction should generally be exercised relative to actions or
proceedings before the Court of Appeals, or before constitutional or other
tribunals, bodies or agencies whose acts for some reason or another are not
controllable by the Court of Appeals. Where the issuance of an extraordinary
writ is also within the competence of the Court of Appeals or a Regional Trial
Court, it is in either of these courts that the specific action for the writ's
procurement must be presented. This is, and should continue, to be the
policy in this regard, a policy that courts and lawyers must strictly observe. 16
(Emphasis supplied.)
On this point alone, the petition is already dismissible. However, on several
occasions, this Court found compelling reasons to relax the rule on
observance on hierarchy of courts. In Pacoy v. Cajigal,17 the Court opted not
to strictly apply said doctrine, since the issue involved is double jeopardy,
considered to be one of the most fundamental constitutional rights of an
accused. Hence, the Court also finds sufficient reason to relax the rule in this
case as it also involves the issue of double jeopardy, necessitating a look
into the merits of the petition.
Petitioners insist that the RTC dismissed the criminal case against private
respondent too hurriedly, despite the provision in Section 10 of the Speedy
Trial Act of 1998 (Republic Act No. 8493), now incorporated in Section 3,
Rule 119 of the Rules of Court, to wit:
SEC. 3. Exclusions. - The following periods of delay shall be excluded in
computing the time within which trial must commence:
(a) Any period of delay resulting from other proceedings concerning the
accused, including but not limited to the following:
xxxx
(5) Delay resulting from orders of inhibition, or proceedings relating to
change of venue of cases or transfer from other courts;
x x x x18
A careful reading of the above rule would show that the only delays that may
be excluded from the time limit within which trial must commence are those
resulting from proceedings concerning the accused. The time involved in
the proceedings in a petition for transfer of venue can only be excluded from
said time limit if it was the accused who instituted the same. Hence, in this
case, the time during which the petition for transfer of venue filed by the
private complainant is pending, cannot be excluded from the time limit of
thirty (30) days from receipt of the pre-trial order imposed in Section 1, Rule
119 of the Rules of Court.
The records reveal that the 30-day time limit set by Section 1, Rule 119 of
the Rules of Court had, in fact, already been breached. The private
prosecutor received the Pre-trial Order19 dated November 24, 2008 on
December 3, 2008, while the Provincial Prosecutor received the same on
December 2, 2008.20 This means that at the latest, trial should have
commenced by January 2, 2009, or if said date was a Sunday or holiday,
then on the very next business day. Yet, because of the prosecution's failure
to appear at the December 12, 2008 hearing for the initial presentation of the
prosecution's evidence, the RTC was constrained to reset the hearing to
January 16, 2009, which is already beyond the 30-day time limit.
Nevertheless, the prosecution again failed to appear at the January 16, 2009
hearing. Indeed, as aptly observed by the RTC, petitioners showed
recalcitrant behavior by obstinately refusing to comply with the RTC's
directives to commence presentation of their evidence. Petitioners did not
even show proper courtesy to the court, by filing motions for cancellation of
the hearings on the very day of the hearing and not even bothering to
appear on the date they set for hearing on their motion. As set forth in the
narration of facts above, the prosecution appeared to be intentionally
delaying and trifling with court processes.
Petitioners are likewise mistaken in their notion that mere pendency of their
petition for transfer of venue should interrupt proceedings before the trial
court. Such situation is akin to having a pending petition for certiorari with
the higher courts. In People v. Hernandez,21 the Court held that "delay
resulting from extraordinary remedies against interlocutory orders" must be
read in harmony with Section 7, Rule 65 of the Rules of Court which
provides that the "[p]etition [under Rule 65] shall not interrupt the course of
the principal case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the public respondent
from further proceeding in the case."22 The trial court was then correct
and acting well within its discretion when it refused to grant petitioners'
motions for postponement mainly because of the pendency of their petition
for transfer of venue.
The trial court cannot be faulted for refusing to countenance delays in the
prosecution of the case. The Court's ruling in Tan v. People23 is quite
instructive, to wit:
An accused's right to "have a speedy, impartial, and public trial" is
guaranteed in criminal cases by Section 14 (2) of Article III of the
Constitution. This right to a speedy trial may be defined as one free from
vexatious, capricious and oppressive delays, its "salutary objective" being to
assure that an innocent person may be free from the anxiety and expense of
a court litigation or, if otherwise, of having his guilt determined within the
shortest possible time compatible with the presentation and consideration of
whatsoever legitimate defense he may interpose. Intimating historical
perspective on the evolution of the right to speedy trial, we reiterate the old
legal maxim, "justice delayed is justice denied." This oft-repeated adage
requires the expeditious resolution of disputes, much more so in criminal
cases where an accused is constitutionally guaranteed the right to a speedy
trial.
Following the policies incorporated under the 1987 Constitution, Republic
Act No. 8493, otherwise known as "The Speedy Trial Act of 1998," was
enacted, with Section 6 of said act limiting the trial period to 180 days from
the first day of trial. Aware of problems resulting in the clogging of court
dockets, the Court implemented the law by issuing Supreme Court Circular
No. 38-98, which has been incorporated in the 2000 Rules of Criminal
Procedure, Section 2 of Rule 119.
In Corpuz v. Sandiganbayan, the Court had occasion to state -
The right of the accused to a speedy trial and to a speedy disposition of the
case against him was designed to prevent the oppression of the citizen by
holding criminal prosecution suspended over him for an indefinite time, and
to prevent delays in the administration of justice by mandating the courts to
proceed with reasonable dispatch in the trial of criminal cases. Such right to
a speedy trial and a speedy disposition of a case is violated only when the
proceeding is attended by vexatious, capricious and oppressive delays. The
inquiry as to whether or not an accused has been denied such right is not
susceptible by precise qualification. The concept of a speedy disposition is a
relative term and must necessarily be a flexible concept.
While justice is administered with dispatch, the essential ingredient is
orderly, expeditious and not mere speed. It cannot be definitely said how
long is too long in a system where justice is supposed to be swift, but
deliberate. It is consistent with delays and depends upon circumstances. It
secures rights to the accused, but it does not preclude the rights of public
justice. Also, it must be borne in mind that the rights given to the accused by
the Constitution and the Rules of Court are shields, not weapons; hence,
courts are to give meaning to that intent.
The Court emphasized in the same case that:
A balancing test of applying societal interests and the rights of the accused
necessarily compels the court to approach speedy trial cases on an ad hoc
basis.
In determining whether the accused has been deprived of his right to a
speedy disposition of the case and to a speedy trial, four factors must be
considered: (a) length of delay; (b) the reason for the delay; (c) the
defendant's assertion of his right; and (d) prejudice to the defendant. x x x.
Closely related to the length of delay is the reason or justification of the State
for such delay.1âwphi1 Different weights
should be assigned to different reasons or justifications invoked by the State.
x x x.
Exhaustively explained in Corpuz v. Sandiganbayan, an accused's right to
speedy trial is deemed violated only when the proceeding is attended by
vexatious, capricious, and oppressive delays. In determining whether
petitioner was deprived of this right, the factors to consider and
balance are the following: (a) duration of the delay; (b) reason therefor;
(c) assertion of the right or failure to assert it; and (d) prejudice caused
by such delay.
xxxx
We emphasize that in determining the right of an accused to speedy
trial, courts are required to do more than a mathematical computation
of the number of postponements of the scheduled hearings of the
case. A mere mathematical reckoning of the time involved is clearly
insufficient, and particular regard must be given to the facts and
circumstances peculiar to each case.24
Here, it must be emphasized that private respondent had already been
deprived of his liberty on two occasions. First, during the preliminary
investigation before the MCTC, when he was incarcerated from November
18, 2004 to March 16, 2005, or a period of almost four months; then again,
when an Information had already been issued and since rape is a non-
bailable offense, he was imprisoned beginning June 27, 2008 until the case
was dismissed on January 16, 2009, or a period of over 6 months. Verily,
there can be no cavil that deprivation of liberty for any duration of time is
quite oppressive. Because of private respondent's continued incarceration,
any delay in trying the case would cause him great prejudice. Thus, it was
absolutely vexatious and oppressive to delay the trial in the subject criminal
case to await the outcome of petitioners' petition for transfer of venue,
especially in this case where there is no temporary restraining order or writ
of preliminary injunction issued by a higher court against herein public
respondent from further proceeding in the case.
Hence, the Court does not find any grave abuse of discretion committed by
the trial court in dismissing the case against private respondent for violation
of his constitutional right to speedy trial.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.
G.R. No. 191411 July 15, 2013 anomalous purchase of medical and agricultural equipment for the Province
in the amount of ₱20,000,000.00 which allegedly happened around a month
RAFAEL L. COSCOLLUELA, Petitioner, before Coscolluela stepped down from office.
vs.
SANBIGANBAYAN (FIRST DIVISION) and PEOPLE OF THE Acting on the letter-complaint, the Case Building Team of the Office of the
PHILIPPINES, Respondents. Ombudsman conducted its investigation, resulting in the issuance of a Final
Evaluation Report7 dated April 16, 2002 which upgraded the complaint into a
x-----------------------x criminal case against petitioners.8 Consequently, petitioners filed their
respective counter-affidavits.9
G.R. No. 191871
On March 27, 2003, the assigned Graft Investigation Officer Butch E.
Cañares (Cañares) prepared a Resolution (March 27, 2003 Resolution),
EDWIN N. NACIONALES, ERNESTO P. MALVAS, and JOSE MA. G. finding probable cause against petitioners for violation of Section 3(e) of
AMUGOD, Petitioners, Republic Act No. (RA) 3019, otherwise known as the "Anti-Graft and Corrupt
vs. Practices Act," and recommended the filing of the corresponding information.
SANDIGANBAYAN (FIRST DIVISION) and PEOPLE OF THE On even date, the Information 10 was prepared and signed by Cañares and
PHILIPPINES, represented by the OFFICE OF THE SPECIAL submitted to Deputy Ombudsman for the Visayas Primo C. Miro (Miro) for
PROSECUTOR, OFFICE OF THE OMBUDSMAN, Respondents. recommendation. Miro recommended the approval of the Information on
June 5, 2003. However, the final approval of Acting Ombudsman Orlando C.
DECISION Casimiro (Casimiro), came only on May 21, 2009, and on June 19, 2009, the
Information was filed before the SB.
PERLAS-BERNABE, J.:
Petitioners alleged that they learned about the March 27, 2003 Resolution
1
Assailed in these consolidated Petitions for Certiorari are the October 6, and Information only when they received a copy of the latter shortly after its
20092 and February 10, 20103 Resolutions of public respondent First filing with the SB.11
Division of Sandiganbayan (SB), denying the Motion to Quash 4 dated July 8,
2009 filed by petitioner Rafael L. Coscolluela (Coscolluela). The said motion On July 9, 2009, Coscolluela filed a Motion to Quash, 12 arguing, among
was adopted by petitioners Edwin N. Nacionales (Nacionales), Dr. Ernesto P. others, that his constitutional right to speedy disposition of cases was
Malvas (Malvas), and Jose Ma. G. Amugod (Amugod), praying for the violated as the criminal charges against him were resolved only after almost
dismissal of Crim. Case No. SB-09-CRM-0154 for violation of their right to eight (8) years since the complaint was instituted. Nacionales, Malvas, and
speedy disposition of cases. Amugod later adopted Coscolluela’s motion.

The Facts
Coscolluela served as governor of the Province of Negros Occidental
(Province) for three (3) full terms which ended on June 30, 2001. During his
tenure, Nacionales served as his Special Projects Division Head, Amugod as
Nacionales’ subordinate, and Malvas as Provincial Health Officer.5
In reply, the respondents filed their Opposition to Motion to Quash 13 dated
August 7, 2009, explaining that although the Information was originally dated
March 27, 2003, it still had to go through careful review and revision before
its final approval. It also pointed out that petitioners never raised any
objections regarding the purported delay in the proceedings during the
interim.14

On November 9, 2001, the Office of the Ombudsman for the Visayas (Office The Ruling of the Sandiganbayan
of the Ombudsman) received a letter-complaint 6 dated November 7, 2001
from People’s Graftwatch, requesting for assistance to investigate the
In a Resolution15 dated October 6, 2009, the SB denied petitioners’ Motion to
Quash for lack of merit. It held that the preliminary investigation against
petitioners was actually resolved by Cañares on March 27, 2003, one (1)
year and four (4) months from the date the complaint was filed, or in
November 9, 2001. Complying with internal procedure, Cañares then
prepared the March 27, 2003 Resolution and Information for the
recommendation of the Miro and eventually, the final approval of the
Casimiro. As these issuances had to undergo careful review and revision
through the various levels of the said office, the period of delay – i.e., from
March 27, 2003 to May 21, 2009, or roughly over six (6) years – cannot be
deemed as inordinate16 and as such, petitioners’ constitutional right to
speedy disposition of cases was not violated.17
Aggrieved, petitioners filed their respective Motions for Reconsideration 18
dated November 9, 2009 and November 6, 2009, similarly arguing that the
SB erred in making a distinction between two time periods, namely: (a) from
the filing of the complaint up to the time Cañares prepared the resolution
finding probable cause against petitioners; and (b) from the submission of
the said resolution to the Acting Ombudsman for review and approval up to
the filing of the Information with the SB. In this regard, petitioners averred
that the aforementioned periods should not be compartmentalized and thus,
treated as a single period. Accordingly, the delay of eight (8) years of the
instant case should be deemed prejudicial to their right to speedy disposition
of cases.19
The SB, however, denied the foregoing motions in its Resolution 20 dated
February 10, 2010 for lack of merit.
Hence, the instant petitions.
The Issue Before the Court
The sole issue raised for the Court’s resolution is whether the SB gravely
abused its discretion in finding that petitioners’ right to speedy disposition of
cases was not violated.
The Court’s Ruling
The petitions are meritorious.
A person’s right to the speedy disposition of his case is guaranteed under
Section 16, Article III of the 1987 Philippine Constitution (Constitution) which
provides:
SEC. 16. All persons shall have the right to a speedy disposition of their
cases before all judicial, quasi-judicial, or administrative bodies.
This constitutional right is not limited to the accused in criminal proceedings
but extends to all parties in all cases, be it civil or administrative in nature, as
well as all proceedings, either judicial or quasi-judicial. In this accord, any
party to a case may demand expeditious action to all officials who are tasked
with the administration of justice.21
It must be noted, however, that the right to speedy disposition of cases
should be understood to be a relative or flexible concept such that a mere
mathematical reckoning of the time involved would not be sufficient.22
Jurisprudence dictates that the right is deemed violated only when the
proceedings are attended by vexatious, capricious, and oppressive delays;
or when unjustified postponements of the trial are asked for and secured; or
even without cause or justifiable motive, a long period of time is allowed to
elapse without the party having his case tried.23
Hence, in the determination of whether the defendant has been denied his
right to a speedy disposition of a case, the following factors may be
considered and balanced: (1) the length of delay; (2) the reasons for the
delay; (3) the assertion or failure to assert such right by the accused; and (4)
the prejudice caused by the delay.24
Examining the incidents in the present case, the Court holds that petitioners’
right to a speedy disposition of their criminal case had been violated.
First, it is observed that the preliminary investigation proceedings took a
protracted amount of time to complete.
In this relation, the Court does not lend credence to the SB’s position that
the conduct of preliminary investigation was terminated as early as March
27, 2003, or the time when Cañares prepared the Resolution recommending
the filing of the Information. This is belied by Section 4,
Rule II of the Administrative Order No. 07 dated April 10, 1990, otherwise
known as the "Rules of Procedure of the Office of the Ombudsman," which
provides:
SEC. 4. Procedure – The preliminary investigation of cases falling under the
jurisdiction of the Sandiganbayan and Regional Trial Courts shall be
conducted in the manner prescribed in Section 3, Rule 112 of the Rules of
Court, subject to the following provisions:
xxxx
No information may be filed and no complaint may be dismissed without the
written authority or approval of the Ombudsman in cases falling within the
jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all
other cases. (Emphasis and underscoring supplied)
The above-cited provision readily reveals that there is no complete
resolution of a case under preliminary investigation until the Ombudsman
approves the investigating officer’s recommendation to either file an
Information with the SB or to dismiss the complaint. Therefore, in the case at
bar, the preliminary investigation proceedings against the petitioners were
not terminated upon Cañares’ preparation of the March 27, 2003 Resolution
and Information but rather, only at the time Casimiro finally approved the
same for filing with the SB. In this regard, the proceedings were terminated
only on May 21, 2009, or almost eight (8) years after the filing of the
complaint.
Second, the above-discussed delay in the Ombudsman’s resolution of the
case largely remains unjustified.
To this end, the Court equally denies the SB’s ratiocination that the delay in
proceedings could be excused by the fact that the case had to undergo
careful review and revision through the different levels in the Office of the
Ombudsman before it is finally approved, in addition to the steady stream of
cases which it had to resolve.
Verily, the Office of the Ombudsman was created under the mantle of the
Constitution, mandated to be the "protector of the people" and as such,
required to "act promptly on complaints filed in any form or manner against
officers and employees of the Government, or of any subdivision, agency or
instrumentality thereof, in order to promote efficient service." 25 This great
responsibility cannot be simply brushed aside by ineptitude. Precisely, the
Office of the Ombudsman has the inherent duty not only to carefully go
through the particulars of case but also to resolve the same within the proper
length of time. Its dutiful performance should not only be gauged by the
quality of the assessment but also by the reasonable promptness of its
dispensation. Thus, barring any extraordinary complication, such as the
degree of difficulty of the questions involved in the case or any event
external thereto that effectively stymied its normal work activity – any of
which have not been adequately proven by the prosecution in the case at
bar – there appears to be no justifiable basis as to why the Office of the
Ombudsman could not have earlier resolved the preliminary investigation
proceedings against the petitioners.
Third, the Court deems that petitioners cannot be faulted for their alleged
failure to assert their right to speedy disposition of cases.
Records show that they could not have urged the speedy resolution of their
case because they were unaware that the investigation against them was
still on-going. They were only informed of the March 27, 2003 Resolution
and Information against them only after the lapse of six (6) long years, or
when they received a copy of the latter after its filing with the SB on June 19,
2009.26 In this regard, they could have reasonably assumed that the
proceedings against them have already been terminated. This serves as a
plausible reason as to why petitioners never followed-up on the case
altogether. Instructive on this point is the Court’s observation in Duterte v.
Sandiganbayan,27 to wit:
Petitioners in this case, however, could not have urged the speedy resolution
of their case because they were completely unaware that the investigation
against them was still on-going. Peculiar to this case, we reiterate, is the fact
that petitioners were merely asked to comment, and not file counter-
affidavits which is the proper procedure to follow in a preliminary
investigation. After giving their explanation and after four long years of being
in the dark, petitioners, naturally, had reason to assume that the charges
against them had already been dismissed.
On the other hand, the Office of the Ombudsman failed to present any
plausible, special or even novel reason which could justify the four-year
delay in terminating its investigation. Its excuse for the delay — the many
layers of review that the case had to undergo and the meticulous scrutiny it
had to entail — has lost its novelty and is no longer appealing, as was the
invocation in the Tatad case. The incident before us does not involve
complicated factual and legal issues, specially (sic) in view of the fact that
the subject computerization contract had been mutually cancelled by the
parties thereto even before the Anti-Graft League filed its complaint.
(Emphasis and underscoring supplied)
Being the respondents in the preliminary investigation proceedings, it was
not the petitioners’ duty to follow up on the prosecution of their case.
Conversely, it was the Office of the Ombudsman’s responsibility to expedite
the same within the bounds of reasonable timeliness in view of its mandate
to promptly act on all complaints lodged before it. As pronounced in the case
of Barker v. Wingo:28
A defendant has no duty to bring himself to trial; the State has that duty as
well as the duty of insuring that the trial is consistent with due process.
Fourth, the Court finally recognizes the prejudice caused to the petitioners
by the lengthy delay in the proceedings against them.
Lest it be misunderstood, the right to speedy disposition of cases is not
merely hinged towards the objective of spurring dispatch in the
administration of justice but also to prevent the oppression of the citizen by
holding a criminal prosecution suspended over him for an indefinite time.
Akin to the right to speedy trial, its "salutary objective" is to assure that an
innocent person may be free from the anxiety and expense of litigation or, if
otherwise, of having his guilt determined within the shortest possible time
compatible with the presentation and consideration of whatsoever legitimate
defense he may interpose.30 This looming unrest as well as the tactical
disadvantages carried by the passage of time should be weighed against the
State and in favor of the individual. In the context of the right to a speedy
trial, the Court in Corpuz v. Sandiganbayan31 (Corpuz) illumined:
A balancing test of applying societal interests and the rights of the accused
necessarily compels the court to approach speedy trial cases on an ad hoc
basis.
x x x Prejudice should be assessed in the light of the interest of the
defendant that the speedy trial was designed to protect, namely: to prevent
oppressive pre-trial incarceration; to minimize anxiety and concerns of the
accused to trial; and to limit the possibility that his defense will be impaired.
Of these, the most serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.
There is also prejudice if the defense witnesses are unable to recall
accurately the events of the distant past. Even if the accused is not
imprisoned prior to trial, he is still disadvantaged by restraints on his liberty
and by living under a cloud of anxiety, suspicion and often, hostility. His
financial resources may be drained, his association is curtailed, and he is
subjected to public obloquy.
Delay is a two-edge sword. It is the government that bears the burden of
proving its case beyond reasonable doubt. The passage of time may make it
difficult or impossible for the government to carry its burden. The
Constitution and the Rules do not require impossibilities or extraordinary
efforts, diligence or exertion from courts or the prosecutor, nor contemplate
that such right shall deprive the State of a reasonable opportunity of fairly
prosecuting criminals. As held in Williams v. United States, for the
government to sustain its right to try the accused despite a delay, it must
show two things: (a) that the accused suffered no serious prejudice beyond
that which ensued from the ordinary and inevitable delay; and (b) that there
was no more delay than is reasonably attributable to the ordinary processes
of justice.
Closely related to the length of delay is the reason or justification of the State
for such delay. Different weights should be assigned to different reasons or
justifications invoked by the State. For instance, a deliberate attempt to
delay the trial in order to hamper or prejudice the defense should be
weighted heavily against the State. Also, it is improper for the prosecutor to
intentionally delay to gain some tactical advantage over the defendant or to
harass or prejudice him. On the other hand, the heavy case load of the
prosecution or a missing witness should be weighted less heavily against the
State. x x x (Emphasis and underscoring supplied; citations omitted)
As the right to a speedy disposition of cases encompasses the broader
purview of the entire proceedings of which trial proper is but a stage, the
above-discussed effects in Corpuz should equally apply to the case at bar.
As held in Dansal v. Fernandez, Sr.:32
Sec. 16, Article III of the 1987 Constitution, reads:
"Sec. 16. All persons shall have the right to a speedy disposition of their
cases before all judicial, quasi-judicial, or administrative bodies."
Initially embodied in Section 16, Article IV of the 1973 Constitution, the
aforesaid constitutional provision is one of three provisions mandating
speedier dispensation of justice. It guarantees the right of all persons to "a
speedy disposition of their case"; includes within its contemplation the
periods before, during and after trial, and affords broader protection than
Section 14(2), which guarantees just the right to a speedy trial. It is more
embracing than the protection under Article VII, Section 15, which covers
only the period after the submission of the case. The present constitutional
provision applies to civil, criminal and administrative cases. (Emphasis and
underscoring supplied; citations omitted)
Thus, in view of the unjustified length of time miring the Office of the
Ombudsman’s resolution of the case as well as the concomitant prejudice
that the delay in this case has caused, it is undeniable that petitioners’
constitutional right to due process and speedy disposition of cases had been
violated. As the institutional vanguard against corruption and bureaucracy,
the Office of the Ombudsman should create a system of accountability in
order to ensure that cases before it are resolved with reasonable dispatch
and to equally expose those who are responsible for its delays, as it ought to
determine in this case.
Corollarily, for the SB’s patent and utter disregard of the existing laws and
jurisprudence surrounding the matter, the Court finds that it gravely abused
its discretion when it denied the quashal of the Information. Perforce, the
assailed resolutions must be set aside and the criminal case against
petitioners be dismissed.
While the foregoing pronouncement should, as matter of course, result in the
acquittal of the petitioners, it does not necessarily follow that petitioners are
entirely exculpated from any civil liability, assuming that the same is proven
in a subsequent case which the Province may opt to pursue.
Section 2, Rule 111 of the Rules of Court provides that an acquittal in a
criminal case does not bar the private offended party from pursuing a
subsequent civil case based on the delict, unless the judgment of acquittal
explicitly declares that the act or omission from which the civil liability may
arise did not exist.33 As explained in the case of Abejuela v. People, 34 citing
Banal v. Tadeo, Jr.:35
The Rules provide: "The extinction of the penal action does not carry with it
extinction of the civil, unless the extinction proceeds from a declaration in a
final judgment that the fact from which the civil might arise did not exist. In
other cases, the person entitled to the civil action may institute it in the
jurisdiction and in the manner provided by law against the person who may
be liable for restitution of the thing and reparation or indemnity for the
damage suffered."
xxxx
In Banal vs. Tadeo, Jr., we declared:
"While an act or omission is felonious because it is punishable by law, it
gives rise to civil liability not so much because it is a crime but because it
caused damage to another. Viewing things pragmatically, we can readily see
that what gives rise to the civil liability is really the obligation and moral duty
of everyone to repair or make whole the damage caused to another by
reason of his own act or omission, done intentionally or negligently, whether
or not the same be punishable by law."(Emphasis and underscoring
supplied)
Based on the violation of petitioners’ right to speedy disposition of cases as
herein discussed, the present case stands to be dismissed even before
either the prosecution or the defense has been given the chance to present
any evidence. Thus, the Court is unable to make a definite pronouncement
as to whether petitioners indeed committed the acts or omissions from which
any civil liability on their part might arise as prescribed under Section 2, Rule
120 of the Rules of Court.36 Consequently, absent this pronouncement, the
Province is not precluded from instituting a subsequent civil case based on
the delict if only to recover the amount of ₱20,000,000.00 in public funds
attributable to petitioners’ alleged malfeasance.
WHEREFORE, the petitions are hereby GRANTED. The assailed
Resolutions dated October 6, 2009 and February 10, 2010 of the First
Division of the Sandiganbayan are ANNULLED and SET ASIDE. The
Sandiganbayan is likewise ordered to DISMISS Crim. Case No. SB-09-
CRM-0154 for violation of the Constitutional right to speedy disposition of
cases of petitioners Rafael L. Coscolluela, Edwin N. Nacionales, Dr. Ernesto
P. Malvas, and Jose Ma. G. Amugod, without prejudice to any civil action
which the Province of Negros Occidental may file against petitioners.
SO ORDERED.
Aurora E. Balajedeong, A.M. No. MTJ-07-1662 Entry with Prayer for Issuance of a Temporary Restraining Order before the
Complainant, (Formerly OCA IPI No. 06-1858-P)
MCTC, Patnongon, Antique, presided over by respondent Judge Del
Rosario. She narrated that after a preliminary conference was held on 12
Present: May 2003, the parties were ordered by respondent Judge Del Rosario to
YNARES-SANTIAGO, C.J submit their respective position papers within 10 days. Colago, through his
Chairperson, representative and herein complainant Balajedeong, allegedly filed his
- versus - AUSTRIA-MARTINEZ, position paper on 24 June 2003, while Spouses Odi failed to do so. On 13
CHICO-NAZARIO, and February 2004, Colagos counsel filed a Motion for Early Decision, but
NACHURA, JJ. despite said motion, respondent Judge Del Rosario never entertained his
plea.

Judge Deogracias K. Del Rosario, MCTC, Promulgated: In his Comment2[2] dated 26 July 2006, respondent Judge Del
Patnongon, Antique, Rosario claims that Spouses Odi submitted their memorandum on 2 June
Respondent. June 8, 2007 2003, while Colago through his representative and herein complainant
Balajedeong, submitted his position paper on 30 June 2003. Respondent
Judge Del Rosario admits that the delay in the disposition of the subject
case is due mainly to his failing health as he claims that sometime in July
2003 and September 2003, he had been hospitalized due to heart ailment
and was advised to undergo by-pass operation. Thereafter, he was
hospitalized several times more. Respondent Judge Del Rosario further
states that there was a time when he was assigned as Presiding Judge of
the 4th MCTC, Barbaza, Antique where he reported twice a week to conduct
trial and preliminary examination. Respondent Judge Del Rosario further
informs this Court that Civil Case No. 367, subject matter of this instant
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x administrative complaint, was already decided on 15 June 2006.

On 24 November 2006, the Office of the Court Administrator (OCA)

RESOLUTION submitted its report,3[3] recommending that -

This instant administrative complaint be RE-DOCKETED as a regular

CHICO-NAZARIO, J.:
This is an administrative complaint1[1] filed by Aurora E. Balajedeong
(Balajedeong), against Judge Deogracias K. Del Rosario (Judge Del
Rosario), Presiding Judge of the Municipal Circuit Trial Court (MCTC),
Patnongon, Antique, for Grave Misconduct; Conduct Unbecoming a Judge,
and Delay in the Disposition of a Case, relative to Civil Case No. 367
entitled, Paterno Colago v. Sps. Willy and Salvacion Odi, pending before
said court.
Complainant Balajedeong is the attorney-in-fact of Paterno Colago, the
plaintiff in Civil Case No. 367, filed against the Spouses Odi for Forcible
1 4
administrative matter, and respondent Judge, in view of the previous cases
where he was sanctioned to pay fines, be penalized to pay a FINE in the
amount of THIRTY THOUSAND PESOS (P30,000.00) with a stern
WARNING that a repetition of the same or similar offense will be dealt with
even more severely.
On 15 January 2007, we required4[4] the parties herein to manifest
within 10 days from notice if they were willing to submit the matter for
resolution based on the pleadings filed.
2
3
 On 16 February 2007, complainant Balajedeong submitted her
manifestation5[5] stating that she was submitting the case for resolution
based on the pleadings filed.
Respondent Judge Del Rosario failed to file his manifestation
despite notice sent to and received by him.
Resultantly, the case is submitted for decision based on the
pleadings filed.
We agree with the recommendation of the Court Administrator except in the
penalty imposed.
As a general principle, rules prescribing the time within which certain acts
must be done, or certain proceedings taken, are considered absolutely
indispensable to the prevention of needless delays and the orderly and
speedy discharge of judicial business. By their very nature, these rules are
regarded as mandatory.6[6]
The office of the judge exacts nothing less than faithful observance of the
Constitution and the law in the discharge of official duties.7[7] Section 15 (1),
Article VIII of the Constitution, mandates that cases or matters filed with the
lower courts must be decided or resolved within three months from the date
they are submitted for decision or resolution. Moreover, Rule 3.05, Canon 3
of the Code of Judicial Conduct, directs judges to dispose of the courts
business promptly and decide cases within the required periods. Judges
must closely adhere to the Code of Judicial Conduct in order to preserve the
integrity, competence, and independence of the judiciary and make the
administration of justice more efficient.8[8] Time and again, we have stressed
the need to strictly observe this duty so as not to negate our efforts to
minimize, if not totally eradicate, the twin problems of congestion and delay
that have long plagued our courts. Finally, Canons 6 and 7 of the Canons of
Judicial Ethics exhort judges to be prompt and punctual in the disposition
and resolution of cases and matters pending before their courts, to wit:
6. PROMPTNESS
5
6 9
7 10
8 11
He should be prompt in disposing of all matters submitted to him,
remembering that justice delayed is often justice denied.
7. PUNCTUALITY
He should be punctual in the performance of his judicial duties, recognizing
that the time of litigants, witnesses, and attorneys is of value and that if the
judge is unpunctual in his habits, he sets a bad example to the bar and tends
to create dissatisfaction with the administration of justice.
Also relevant is Administrative Circular No. 1 dated 28 January 1988, which
requires all magistrates to observe scrupulously the periods prescribed in
Article VIII, Section 15, of the Constitution, and to act promptly on all motions
and interlocutory matters pending before their courts.
With respect to cases falling under the Rules on Summary Procedure, first-
level courts are only allowed 30 days following the receipt of the last affidavit
and position paper, or the expiration of the period for filing the same, within
which to render judgment.9[9]
Section 10 of the Rules on Summary Procedure explicitly provides:
SEC.10. Rendition of judgment. Within thirty (30) days after receipt of the
last affidavits and position papers, or the expiration of the period for filing the
same, the court shall render judgment.
Clearly, respondent Judge Del Rosario failed to decide the aforementioned
case within the thirty-day period prescribed by the Revised Rules on
Summary Procedure. Herein complainant Balajedeong, on behalf of her
principal Colago, and the Spouses Odi, parties in Civil Case No. 357,
allegedly filed their position papers in June 2003; thus, respondent Judge
Del Rosario had thirty days thereafter to render a decision. But the decision
was rendered only on 15 June 2006 or almost three years later. Respondent
Judge Del Rosarios act is contrary to the rationale behind the Rules on
Summary Procedure which was promulgated for the purpose of achieving an
expeditious and inexpensive determination of cases.10[10] For this reason,
respondent Judge Del Rosario should be administratively sanctioned. As
held in Sanchez v. Vestil11[11]:
 This Court has constantly impressed upon judges the need to
decide cases promptly and expeditiously, for it cannot be gainsaid that
justice delayed is justice denied. Delay in the disposition of cases
undermines the peoples faith and confidence in the judiciary. Hence, judges
are enjoined to decide cases with dispatch. Their failure to do so constitute
gross inefficiency and warrants the imposition of administrative sanction on
them.
Indeed, we have consistently impressed upon judges the need to decide
cases promptly and expeditiously on the principle that justice delayed is
justice denied. Failure to resolve cases submitted for decision within the
period fixed by law constitutes a serious violation of the constitutional right of
the parties to a speedy disposition of their cases.12[12]
We cannot overstress this policy on prompt disposition or resolution of
cases. Delay in case disposition is a major culprit in the erosion of public
faith and confidence in the judiciary and the lowering of its standards.13[13]
Failure to decide cases within the reglementary period, without strong and
justifiable reason, constitutes gross inefficiency warranting the imposition of
administrative sanction on the defaulting judge.14[14]
Respondent Judge Del Rosario ascribes the delay in the resolution of Civil
Case No. 367 to his failing health, as he was hospitalized several times due
to heart ailment. Even if he was stricken by an illness which hampered the
due performance of his duties, still it was incumbent upon respondent Judge
Del Rosario to inform this Court of his inability to seasonably decide the
cases assigned to him. His illness should not be an excuse for his failure to
render the corresponding decision or resolution within the prescribed period.
While we sympathize with his woes, the demands of public service cannot
abide by his illness.15[15] In case of poor health, the Judge concerned needs
only to ask this Court for an extension of time to decide cases, as soon as it
becomes clear to him that there would be delay in his disposition of his
cases.16[16] We note that respondent Judge Del Rosario made no such
request. Also, if his health problems had indeed severely impaired his ability
to decide cases, respondent Judge Del Rosario could have retired
12
13
14
15
16
voluntarily instead of remaining at his post to the detriment of the litigants
and the public.
Respondent Judge Del Rosario also presented as an excuse to the delay in
deciding Civil Case No. 367 the additional work given to him when he was
assigned as Presiding Judge of the 4th MCTC, Barbaza, Antique, where he
reported twice a week to conduct trials and preliminary examinations. This
will not exonerate him. His failure to decide the case on time cannot be
ignored. As we ruled in Espaola v. Panay,17[17] if the case load of the judge
prevents the disposition of cases within the reglementary periods, again, he
should ask this Court for a reasonable extension of time to dispose of the
cases involved. This is to avoid or dispel any suspicion that something
sinister or corrupt is going on. The records of this administrative matter do
not show that any attempt was made by respondent Judge Del Rosario to
make such a request. Instead, he preferred to keep the case pending,
enshrouding the same in his silence.
Respondent Judge Del Rosario should have known that if his caseload,
additional assignments or designations, health reasons or other factors
prevented the timely disposition of his pending cases, all he had to do was to
simply ask this Court for a reasonable extension of time to dispose of his
cases. The Court, cognizant of the heavy case load of some judges and
mindful of the difficulties encountered by them in the disposition thereof, is
almost always disposed to grant such requests on meritorious grounds.18[18]
But for all his excuses, respondent Judge Del Rosario failed to file any
motion for extension despite the availability of this remedy.
It must be noted also that respondent Judge Del Rosario was already
penalized for his first offense involving undue delay in A.M. No. MTJ-96-
1091. He should have known better than to simply let the reglementary
period pass by again in another case.
All told, we find respondent Judge Del Rosario guilty of undue delay in
rendering a decision in Civil Case No. 367 which, under Section 9(1), Rule
140 of the Revised Rules of Court, is classified as a less serious charge.
Under Section 11(B) of the same Rule, the penalty for such charge is
suspension from office without salary and other benefits for not less than
one nor more than three months, or a fine of more than P10,000.00 but not
exceeding P20,000.00.
17
18
In the Report on the Judicial Audit Conducted in the RTC, Branches 29 and In the present case, the fine of P30,000.00 recommended by the OCA is, to
59, Toledo City,19[19] the Court observed the following factors in the our mind, too severe. We find the amount of P20,000.00 reasonable under
determination of the proper penalty for failure to decide a case on time: the premises.

We have always considered the failure of a judge to decide a case within
ninety (90) days as gross inefficiency and imposed either fine or suspension
from service without pay for such. The fines imposed vary in each case,
depending chiefly on the number of cases not decided within the
reglementary period and other factors, to wit: the presence of aggravating or
mitigating circumstances- the damage suffered by the parties as a result of
the delay, the health and age of the judge, etc. x x x.
As may be gleaned from the case above-quoted, several factors shall be
considered in imposing the proper penalty, such as: the presence of
aggravating or mitigating circumstances, the damage suffered by the parties
as a result of the delay, the health and age of the judge, etc.
As we have often stressed, the judge is the visible representation of the law
and, more importantly, of justice. Thus, he must be the first to abide by the
law and weave an example for the others to follow. He should be studiously
careful to avoid committing even the slightest infraction of the Rules.
WHEREFORE, Judge Deogracias K. Del Rosario is found guilty of undue
delay in the disposition of Civil Case No. 367 and is hereby ordered to pay a
FINE of TWENTY THOUSAND (P20,000.00) PESOS. He is warned that a
repetition of the same or similar act shall be dealt with more severely. Let a
copy of this decision be attached to his personal records. The Court
Administrator is directed to furnish all concerned copies of this Resolution.
SO ORDERED.

In the present case, the delay for which respondent Judge Del Rosario is
being found liable pertains to only one case, Civil Case No. 367. There are
the mitigating circumstances of his admission of his fault to decide the case
on time, and his failing health. While we recognize respondent Judge Del
Rosarios heavy case load and his poor health, such factors cannot
exonerate him from his administrative liability. They can only serve to
mitigate the imposable penalty.

As heretofore cited, records show that he was previously penalized in A.M.

No. MTJ-96-1091,20[20] and was fined P8,000.00 with warning, for not
deciding a criminal case despite the lapse of three years, despite his reason
for the inaction being that he personally believed that he could not decide a
case which was heard by another judge.

In A.M. No. MTJ-03-1515-MTJ, respondent Judge Del Rosario was found

administratively liable for his unjustified failure to comment on an
administrative complaint against him, and was fined P21,000.00. In A.M. No.
MTJ-94-949,21[22] he was fined P5,000.00 with warning for Gross
Misconduct and Negligence for his refusal to comply with the directives of
the OCA and of the Commission on Audit.
SECOND DIVISION

MARIALEN C. CORPUZ and G.R. No. 162214

19
ANTONIO H. ROMAN, SR.,
20 Petitioners, Present:
PUNO, J., Chairman,*
21
- versus - AUSTRIA-MARTINEZ,** two (2) accused Antonio P. Belicena and Uldarico P. Andutan, Jr., both public
CALLEJO, SR., officers, being then the Assistant Secretary/Administrator, and Deputy
TINGA, *** and Executive Director, respectively, of the One Stop Shop Inter-Agency Tax
THE SANDIGANBAYAN (Special CHICO-NAZARIO, JJ. Credit & Duty Drawback Center, Department of Finance, Manila, while in the
Fourth Division) and THE PEOPLE performance of their official functions and acting with evident bad faith and
OF THE PHILIPPINES, Promulgated: manifest partiality, conspiring and confederating with each other, together
Respondents. November 11, 2004 with accused Monico V. Jacob, Celso L. Legarda, Abdulaziz F. Al-Khayyal,
x----------------------------------------------------x Apolinario G. Reyes, Reynaldo V. Campos and Rafael S. Diaz, Jr., all
officials of Petron Corporation, and Antonio H. Roman, Sr. and Marialen C.
DECISION Corpuz, both officers of Filsyn Corporation, did then and there, willfully,
unlawfully and (sic) recommend and criminally approve the transfer of the
CALLEJO, SR., J.: following Tax Credit Certificates purportedly issued to Filsyn Corp., to wit:

This is a petition for certiorari for the nullification of the February 4, 2002 TCC No. Amount
Resolution of the Sandiganbayan (Division of Five Members)[1] setting aside 0159 P 713,213.00
the verbal Order of Justice Narciso S. Nario, the Chairman of its Fourth 0164 1,399,912.00
Division, ordering the dismissal of Criminal Cases Nos. 25911-25915; 0205 1,313,576.00
25917-25939; 25983-26016; and its December 12, 2003 Resolution denying 1106 1,128,118.00
the motions for reconsideration of the petitioners and the other accused in 1010 2,268,599.00
said cases,[2] as well as their petition for mandamus to compel the 1029 956,662.00
Sandiganbayan to dismiss the said cases. 1030 2,243,517.00
1165 1,282,215.00
The Antecedents 1180 1,399,950.00
1189 1,884,327.00
After the termination of the requisite preliminary investigation in OMB Cases 1204 702,105.00
Nos. 0-99-2188 to 2205, the Office of the Ombudsman issued a Resolution 1208 563,121.00
on July 27, 2000 finding probable cause against petitioners Antonio H. 1245 562,551.00
Roman, Sr. and Marialen C. Corpuz, the President and Vice-President of 1496 1,826,342.00
FILSYN Corporation, respectively, and several others. On April 10, 2000, the 1497 2,453,521.00
petitioners, the Undersecretary of Finance Antonio P. Belicena, and the 1498 731,196.00
officers of the Petron Corporation, were charged with violation of Section 1499 418,534.00
3(e) of Republic Act No. 3019, involving the so-called tax credit scam in an 1564 1,431,912.00
Information docketed as Criminal Case No. 25922 which reads: 1592 2,006,920.00
1633 784,148.00
The undersigned Ombudsman Prosecutors, Office of the Ombudsman, 1634 1,213,080.00
hereby accuse ANTONIO P. BELICENA, ULDARICO P. ANDUTAN, JR., 1667 1,649,799.00
MONICO V. JACOB, CELSO L. LEGARDA, ABDULAZIZ F. AL-KHAYYAL, 1732 119,795.00
APOLINARIO G. REYES, REYNALDO V. CAMPOS, RAFAEL S. DIAZ, JR., 1756 2,663,711.00
ANTONIO H. ROMAN, SR., AND MARIALEN C. CORPUZ, of violation of 1798 2,436,946.00
Section 3(e) of Republic Act No. 3019, as amended, otherwise known as the 1805 602,212.00
Anti-Graft and Corrupt Practices Act, committed as follows: 2160 2,375,949.00
19762 948,215.00
That, during the period from 13 May 1994 to 09 June 1997, or for sometime 19763 2,011,753.00
prior or subsequent thereto, in the City of Manila, Metro Manila, Philippines, 2205 3,701,703.00
and within the jurisdiction of this Honorable Court, the aforementioned first 2219 4,792,190.00
2253 441,461.00 4299 3,336,559.00
2273 1,081,349.00 4557 4,987,214.00
2274 1,237,078.00 ______________
2308 1,805,291.00 Total P131,547,043.00
2309 1,044,837.00 ===========
2331 1,474,537.00
2420 1,807,435.00 from Filsyn Corporation, represented by accused Antonio H. Roman, Sr. and
2421 1,351,385.00 Marialen C. Corpuz, unto and in favor of Petron Corp., represented by
2422 687,520.00 accused Monico V. Jacob, Cesar L. Legarda, Abdulaziz F. Al-Khayyal,
2423 1,508,715.00 Apolinario G. Reyes, Reynaldo V. Campos or Rafael S. Diaz, Jr., without
2424 501,893.00 legal basis and proper/required documentation, thereby causing undue injury
2430 1,609,726.00 and damage to the government in the aforestated amount and at the same
2436 901,146.00 time giving unwarranted benefit, preference or advantage to the said private
2463 1,016,673.00 firms.
2465 337,001.00
2482 1,960,916.00 CONTRARY TO LAW.[3]
2583 593,876.00
2587 1,588,883.00 Aside from the aforestated case, sixty-one (61) similar Informations were
2602 1,770,638.00 filed by the Office of the Ombudsman against some fifty (50) public officials
2727 1,487,893.00 and private individuals relating to the issuance of tax credit certificates.
2728 1,402,612.00
2755 1,499,909.00 The accused Monico V. Jacob and Celso Legarda were arraigned and
2762 1,163,789.00 pleaded not guilty.[4]
2763 1,854,245.00 As narrated by the petitioners, the following events transpired in the
3113 1,079,770.00 Sandiganbayan/Office of the Ombudsman:
3131 99,578.00
3164 459,986.00 4.2 Criminal Case No. 25922, along with other cases involving allegedly
3202 3,699,103.00 anomalous TCC transfers, namely, Criminal Cases Nos. 25911-25915,
3204 1,225,135.00 25917-25921, 25923-25939, and 25983-26016 were raffled to the Fourth
3288 408,000.00 Division of the Sandiganbayan.
3289 7,228,572.00
3291 2,844,774.00 4.3 On 17 April 2000, petitioners filed with the Office of the Ombudsman
3530 374,272.00 a Very Urgent Motion for Leave to File Motion for Reconsideration or
3549 1,658,172.00 Reinvestigation dated 16 April 2000, with an attached Motion for
3550 613,410.00 Reconsideration or Reinvestigation (Re: Resolution dated 27 March 2000)
3416 653,750.00 dated 17 April 2000, through which they sought reversal of the Office of the
3653 370,500.00 Ombudsmans 27 March 2000 Resolution which directed the filing of the
3670 805,480.00 Information in Criminal Case No. 25922. A copy of petitioners Very Urgent
3708 2,899,693.00 Motion for Leave to File Motion for Reconsideration or Reinvestigation dated
3909 1,867,139.00 16 April 2000, with their Motion for Reconsideration or Reinvestigation (Re:
3910 1,509,529.00 Resolution dated 27
4009 2,308,264.00 4.4 March 2000) dated 17 April 2000 attached to it as its Annex 1, is
4035 2,790,331.00 attached to this Petition, and made an integral part of it, as its Annex D.
4042 6,326,431.00
4147 5,317,781.00
4.5 On 28 April 2000, the Fourth Division of the Sandiganbayan issued
an Order granting petitioners, among other movants, leave to file their
respective motions for reinvestigation or reconsideration, and gave the
Prosecution sixty (60) days to resolve the said motions.
4.6 The sixty (60) day deadline given the Prosecution to complete its
reinvestigations and report its findings in relation to such reinvestigations
passed without the Prosecution resolving petitioners Motion for
Reconsideration or Reinvestigation (Re: Resolution dated 27 March 2000)
dated 17 April 2000.
4.7 The Prosecutions failure to resolve the motions for reconsideration
filed by petitioners and the other accused in Criminal Cases Nos. 25911-
25939 and 25983-26016 dragged on into the middle of 2001.
4.8 At the hearing of Criminal Cases Nos. 25911-25939 and 25983-
26016 held on 1 June 2001, the Prosecution was specifically warned by the
court that should it fail to resolve the accuseds pending motions for
reconsideration, it was possible that Criminal Cases Nos. 25911-25939 and
25983-26016 would be dismissed.
4.9 The courts warning notwithstanding, the Prosecution, in a
Manifestation dated 21 June 2001, again sought cancellation of the
arraignment and pre-trial conference in Criminal Cases Nos. 25911-25939
and 25983-26016 set on 2 July 2001, but the court denied that request in a
Resolution dated 26 June 2001, in which the court again reminded the
Prosecution that Criminal Cases Nos. 25911-25939 and 25983-26016 had
been pending for more than a year and that further delay caused by it would
not be countenanced.
4.10 Despite the courts warning, the Prosecution still failed to resolve the
pending motions for reinvestigation by the time of the scheduled arraignment
and pre-trial conference set on 2 July 2001, prompting the court to issue an
order which gave the Prosecution an additional ten (10) days to resolve the
motions, and reset the scheduled arraignment and pre-trial conference to 17
July 2001.
4.11 Despite the lapse of the ten (10) day additional period given it, the
Prosecution again failed to complete, and submit the results of, its
reinvestigation, and instead filed a Manifestation requesting the cancellation
and resetting of the arraignment and pre-trial conference set on 17 July
2001.
4.12 In an Order dated 17 July 2001, the court directed the Prosecution to
complete its reinvestigation, and submit the results of that reinvestigation to
the court, by 16 August 2001, and granted the Prosecutions request for a
resetting by canceling the scheduled arraignment and pre-trial conference
and setting it on 20 August 2001.
4.13 On 16 August 2001, the Prosecution again failed to report completion
of the reinvestigation process, but only filed an Omnibus Motion in which it
informed the court only that the prosecutor concerned had already made a
recommendation to the Office of the Special Prosecutor. There being no
resolution of the pending motions for reinvestigation yet, the Prosecution
sought yet another cancellation of the scheduled arraignment and pre-trial
conference on 20 August 2001.
4.14 The Prosecution repeated its request for deferment of the scheduled
arraignment and pre-trial conference at the scheduled hearing on 20 August
2001, but this time, the request was denied by Justice Nario, who issued an
oral order dismissing the case on account of the long delay associated with
the Prosecutions resolution of the motions for reinvestigation filed by
accused.
4.15 However, since Justice Nario and the other (2) regular members of the
Fourth Division of the Sandiganbayan could not reach unanimity on
upholding Justice Narios dismissal of Criminal Cases Nos. 25911-25939 and
25983-26016, a Special Fourth Division composed of five (5) members of
the Honorable Sandiganbayan was constituted pursuant to Section 1(b) of
Rule XVIII of the 1984 Revised Rules of the Sandiganbayan.
4.16 On 4 February 2002, a bare majority of respondent court,[5] overruling
dissents by Justice Nario and Justice Raoul Victorino, issued its first
questioned Resolution dated 4 February 2002, the dispositive portion of
which set aside the order of dismissal issued by Justice Nario in open court
at the hearing of 20 August 2001 in the following manner:
WHEREFORE, the dismissal of these cases orally ordered in open court by
the Chairman of the Fourth Division during its court session held on August
20, 2001, and reiterated in his subsequent ponencia, is hereby set aside.
xxx.
4.17 Petitioners filed their Motion for Reconsideration dated 11 February
2002 from the questioned Resolution dated 4 February 2002 on 18 February
2002. A copy of petitioners Motion for Reconsideration dated 11 February
2002 is attached to this Petition, and made an integral part of it, as its Annex
E.[6]
Several of the other accused also filed similar motions for reconsideration
and/or motions to quash/dismiss which the prosecution opposed.[7]

On December 12, 2003, the Sandiganbayan, by unanimous vote, issued a
Resolution denying all the motions respectively filed by the accused,
including the petitioners:
WHEREFORE, for lack of merit, the court issues an Omnibus Resolution
denying all the above described motions for reconsideration.
This disposition renders moot and academic the resolution of the court dated
May 6, 2002 penned by Justice Narciso S. Nario, which deferred action on
the Manifestation of the prosecution considering that there is no need for the
court to act on the same, as the Manifestation was filed merely for the courts
information on the action taken by the Office of the Special Prosecutor on
the various motions for reconsideration filed by the accused in these cases.
SO ORDERED.[8]
Only the petitioners filed their petition for certiorari and mandamus assailing
the February 4, 2002 and the December 12, 2003 Resolutions of the
Sandiganbayan, asserting that the graft court committed a grave abuse of its
discretion amounting to excess or lack of jurisdiction in issuing the same.[9]
In its Comment on the petition, the Office of the Ombudsman, through the
Office of the Special Prosecutor, avers that the delay in the submission to
the Sandiganbayan of its report on its reinvestigation was caused by the
pendency of the other cases of equal, if not of more importance, not to
mention the filing of twenty-two (22) other motions for reconsideration and/or
reinvestigation by the other accused in the said cases.[10] It asserts that the
more than one-year delay is not capricious, much less, intolerably
capricious. It also contends that the oral dismissal of the cases by Justice
Narciso S. Nario was too drastic, as it deprived the respondent of its right to
prosecute the cases and prove the guilt of the petitioners beyond reasonable
doubt for the crimes charged.
The Ruling of the Court
The petition is denied due course.
For a petition for certiorari to be granted, it must set out and demonstrate,
plainly and distinctly, all the facts essential to establish a right to a writ. [11]
The petitioners must allege in their petition and establish facts to show that
any other existing remedy is not speedy or adequate[12] and that (a) the writ
is directed against a tribunal, board or officer exercising judicial or quasi-
judicial functions; (b) such tribunal, board or officer has acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to excess
or lack of jurisdiction; and, (c) there is no appeal or any plain, speedy and
adequate remedy in the ordinary course of law.[13]
The public respondent acts without jurisdiction if it does not have the legal
power to determine the case; there is excess of jurisdiction where the
respondent, being clothed with the power to determine the case, oversteps
its authority as determined by law. There is grave abuse of discretion where
the public respondent acts in a capricious, whimsical, arbitrary or despotic
manner in the exercise of its judgment as to be said to be equivalent to lack
of jurisdiction.[14] Mere abuse of discretion is not enough.
In a petition for certiorari, the jurisdiction of the court is narrow in scope. It is
limited to resolving only errors of jurisdiction. It is not to stray at will and
resolve questions or issues beyond its competence such as errors of
judgment. Errors of judgment of the trial court are to be resolved by the
appellate court in the appeal or via a petition for review on certiorari in this
Court under Rule 45 of the Rules of Court. Certiorari will issue only to correct
errors of jurisdiction. It is not a remedy to correct errors of judgment.[15] An
error of judgment is one in which the court may commit in the exercise of its
jurisdiction, and which error is reversible only by an appeal. As long as the
court acts within its jurisdiction, any alleged errors committed in the exercise
of its discretion will amount to nothing more than mere errors of judgment,
correctible by an appeal or a petition for review under Rule 45 of the Rules
of Court.[16] An error of jurisdiction is one where the act complained of was
issued by the court without or in excess of jurisdiction and which error is
correctible only by the extraordinary writ of certiorari.[17]
Generally, the performance of an official act or duty which necessarily
involves the exercise of discretion or judgment cannot be compelled by
mandamus. However, a writ of mandamus may issue where there is grave
abuse of discretion, manifest injustice, or palpable excess of authority.[18]
In this case, we find and so rule that the Sandiganbayan did not commit
grave abuse of discretion amounting to excess or lack of jurisdiction in
issuing the assailed resolutions. We also held that the petitioners are not
entitled to a writ of mandamus.
The Verbal Order of Dismissal
By Justice Nario Is A Nullity
In the unanimous Resolution of December 12, 2003, the Sandiganbayan
ruled as follows:
In the cases at bar, the dismissal made in open court by the Chairman,
which was not reduced in writing, is not a valid dismissal or termination of
the cases. This is because the Chairman cannot unilaterally dismiss the
same without the approval or consent of the other members of the Division.
The Sandiganbayan is a collegiate court and under its internal rules
prevailing at the time (Rule XVIII, Section 1(b) of the 1984 Revised Rules of
the Sandiganbayan, which is now Section 1(b), Rule VIII of the 2002
Revised Internal Rules of the Sandiganbayan), an order, resolution or
judgment, in order to be valid that is to say, in order to be considered as an
official action of the Court itself must bear the unanimous approval of the
members of the division, or in case of lack thereof, by the majority vote of
the members of a special division of five.[19]
We agree with the foregoing ratiocination. Section 1, Rule 120 of the
Revised Rules of Criminal Procedure, mandates that a judgment must be
written in the official language, personally and directly prepared by the judge
and signed by him and shall contain clearly and distinctly a statement of the
facts and the law upon which it is based. The rule applies to a final order
dismissing a criminal case grounded on the violation of the rights of the
accused to a speedy trial.[20] A verbal judgment or order of dismissal is a
violation of the provision; hence, such order is, in contemplation of law, not in
esse, therefore, ineffective. Justice Nario failed to issue a written resolution
dismissing the criminal cases for failure of the prosecution to submit its
report on the reinvestigation of the cases within the sixty-day period fixed by
the graft court. Moreover, the verbal order was rejected by majority vote of
the members of the Sandiganbayan Special Division. In fine, there has been
no valid and effective order of dismissal of the cases. The Sandiganbayan
cannot then be faulted for issuing the assailed resolutions.
Neither are the petitioners entitled to a writ of mandamus to compel the
Sandiganbayan to reinstate the cases, considering that the verbal order of
Justice Nario as aforestated does not exist at all in contemplation of law.
In Criminal Cases, the Accused Is Entitled To a Speedy Disposition of the
Cases against Him
No less than Section 16, Article III of the 1987 Constitution provides that all
persons shall have the right to a speedy disposition of their cases before all
judicial, quasi-judicial or administrative bodies. The judicial bodies envisaged
in the said provision include the Office of the Ombudsman and the Office of
the Special Prosecutor.
Rule 115, Section 1(h) of the Revised Rules of Criminal Procedure further
provides that the accused has the right to have a speedy, impartial and
public trial. The said rule requires that the arraignment of the accused should
be held within thirty (30) days from the date the court acquired jurisdiction
over the person of the accused, unless a shorter period is provided by
special law or unless excusable delays as provided in Rule 119, Section 10
of the Rules are attendant.[21] Such rights to due process, speedy trial and
disposition of the case were first articulated as early as 1297 in England: To
none will we see, to none will we deny or delay right or justice.[22]
It cannot be overstressed that the accused in all criminal prosecutions are
entitled to due process as much as the prosecution. In Tatad v.
Sandiganbayan,[23] we held that substantial adherence to the requirements
of the law governing the conduct of preliminary investigation, including
substantial compliance with the time limitation prescribed by the law for the
resolution of the case by the prosecutor, is part of the procedural due
process constitutionally guaranteed by the fundamental law. This ruling
clearly applies to reinvestigations authorized by the trial courts, including the
Sandiganbayan.
The right of the accused to a speedy trial and to a speedy disposition of the
case against him was designed to prevent the oppression of the citizen by
holding criminal prosecution suspended over him for an indefinite time, and
to prevent delays in the administration of justice by mandating the courts to
proceed with reasonable dispatch in the trial of criminal cases.[24] Such right
to a speedy trial and a speedy disposition of a case is violated only when the
proceeding is attended by vexatious, capricious and oppressive delays. The
inquiry as to whether or not an accused has been denied such right is not
susceptible by precise qualification. The concept of a speedy disposition is a
relative term and must necessarily be a flexible concept.[25]
While justice is administered with dispatch, the essential ingredient is
orderly, expeditious and not mere speed.[26] It cannot be definitely said how
long is too long in a system where justice is supposed to be swift, but
deliberate. It is consistent with delays and depends upon circumstances. It
secures rights to the accused, but it does not preclude the rights of public
justice.[27] Also, it must be borne in mind that the rights given to the accused
by the Constitution and the Rules of Court are shields, not weapons; hence,
courts are to give meaning to that intent.[28]
A balancing test of applying societal interests and the rights of the accused
necessarily compels the court to approach speedy trial cases on an ad hoc
basis.[29]
In determining whether the accused has been deprived of his right to a
speedy disposition of the case and to a speedy trial, four factors must be
considered: (a) length of delay; (b) the reason for the delay; (c) the
defendants assertion of his right; and (d) prejudice to the defendant.
Prejudice should be assessed in the light of the interest of the defendant that
the speedy trial was designed to protect, namely: to prevent oppressive pre-
trial incarceration; to minimize anxiety and concerns of the accused to trial;
and to limit the possibility that his defense will be impaired. Of these, the
most serious is the last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system. There is also
prejudice if the defense witnesses are unable to recall accurately the events
of the distant past.[30] Even if the accused is not imprisoned prior to trial, he
is still disadvantaged by restraints on his liberty and by living under a cloud
of anxiety, suspicion and often, hostility.[31] His financial resources may be
drained, his association is curtailed, and he is subjected to public obloquy.
[32]
Delay is a two-edge sword. It is the government that bears the burden of
proving its case beyond reasonable doubt. The passage of time may make it
difficult or impossible for the government to carry its burden.[33] The
Constitution and the Rules do not require impossibilities or extraordinary
efforts, diligence or exertion from courts or the prosecutor, nor contemplate
that such right shall deprive the State of a reasonable opportunity of fairly
prosecuting criminals.[34] As held in Williams v. United States,[35] for the
government to sustain its right to try the accused despite a delay, it must
show two things: (a) that the accused suffered no serious prejudice beyond
that which ensued from the ordinary and inevitable delay; and (b) that there
was no more delay than is reasonably attributable to the ordinary processes
of justice.
Closely related to the length of delay is the reason or justification of the State
for such delay. Different weights should be assigned to different reasons or
justifications invoked by the State. For instance, a deliberate attempt to
delay the trial in order to hamper or prejudice the defense should be
weighted heavily against the State. Also, it is improper for the prosecutor to
intentionally delay to gain some tactical advantage over the defendant or to
harass or prejudice him.[36] On the other hand, the heavy case load of the
prosecution or a missing witness should be weighted less heavily against the
State. Corollarily, Section 4, Rule 119 of the Revised Rules of Criminal
Procedure enumerates the factors for granting a continuance.[37]
The Delay in the Arraignment And
The Trial of the Petitioners was
Caused By Them, the Other
Accused and the Ombudsman/
Special Prosecutor
In its February 4, 2002 Resolution, the Sandiganbayan overruled the verbal
Order of Justice Nario for the following reasons:
In the present case, (1) there is already a delay of the trial for more than one
year now; (2) but it is not shown that the delay is vexatious, capricious and
oppressive; (3) it may be that, as stated in the herein dissented Resolution,
at the hearings conducted in these cases, the defense orally, openly and
consistently asked for the dismissal of these cases; however, these oral
manifestations were more of knee-jerk reactions of the defense counsel in
those hearings everytime the prosecution requested for postponement than
anything else as said defense counsel did not seriously pursue the dismissal
of these cases, such as by reducing their request in a formal written motion
to dismiss and/or insisting that the court formally rule on their request for
dismissal and go on certiorari if denied; and (4) considering the nature and
importance of the cases, if there is any prejudice that may have resulted as
a consequence of the series of postponements, it would be more against the
government than against any of the accused; however, be that as it may,
none of the herein accused has come out to claim having been thus
prejudiced.[38]
The records show that the failure of the petitioners and the other accused to
be arraigned and the case against them tried was caused by (1) the filing of
their motion for reconsideration and/or reinvestigation which was granted by
the Sandiganbayan; and (2) the failure of the Ombudsman/Special
Prosecutor to terminate his reinvestigation and submit his report thereon
within the sixty-day period fixed by the graft court.
The Ombudsman/Special Prosecutor filed the Informations on April 10, 2000
even before the lapse of the five-day period within which to file a motion for
reconsideration or the reinvestigation thereof as provided in Administrative
Order No. 15 of the Ombudsman.[39] This impelled the petitioners to file on
April 17, 2000 a very urgent motion for leave to file a motion for
reconsideration of the said resolution finding probable cause against them or
the reinvestigation thereof, on the ground that there was no factual and legal
basis for their indictment for violation of Section 3(e) of Rep. Act No. 3019.
On April 28, 2000, the Sandiganbayan issued a Resolution granting the
motion of the petitioners and gave the prosecutor a period of sixty (60) days
from notice within which to conduct a reinvestigation of the case. However,
aside from the petitioners, the other accused filed 23 separate motions for
reconsideration/reinvestigation in Criminal Cases Nos. 25911-25939 and
25983-26016.
The arraignment of the accused including the petitioners and the pre-trial of
the cases had to be suspended by the Sandiganbayan until after the
Ombudsman/Special Prosecutor had completed the consolidated
reinvestigation of the cases and submitted his consolidated report to the
graft court. However, the Prosecutor failed to terminate his reinvestigation of
the cases within the period given him, which impelled the Sandiganbayan,
over the verbal objections of the petitioners, to repeatedly reset the
arraignment of the petitioners and that of the other accused. Thereafter,
Justice Nario verbally dismissed the cases on August 20, 2001, despite the
Omnibus Motion of the Prosecution on August 16, 2001 informing the
Sandiganbayan that he had already submitted his recommendation on his
reinvestigation to the Office of the Special Prosecutor for the latters
consideration and approval.
The Petitioners were Burdened to
Prove the Factual and Legal Basis
For Motion Nolle Prosequi;
The Prosecutor was Burdened
To Prove a Valid Justification
For Non-Compliance with
The Order of the Sandiganbayan
And the Motion for Continuance
Prefatorily, we find it unfair for the majority members of the Sandiganbayan
to brand the verbal motions nolle prosequi of the petitioners as a mere knee-
jerk reaction/action to the Prosecutors repeated motions for continuance.
Although the petitioners failed to file written motions for the dismissal of the
cases, their verbal motions should not be brushed aside as trivial. Ideally,
the petitioners should file formal motions for the dismissal of the cases.
However, they are not precluded from orally moving for the dismissal of the
said cases. In McCandles v. District Court,[40] the appellate court held that
the proper method of making demands for speedy trial is by motions filed in
the case or made in open court. A demand therefor must be made in court.
The Sandiganbayan would have acted beyond its authority if it had
dismissed the case against the accused simply because the prosecutor had
gone to sleep at the switch while the defendant and his counsel rested in
silence.[41] The accused must not be rewarded by the dismissal of the case
and the State and society punished by the neglect of the prosecutor unless
the accused himself calls the attention of the court to the matter.[42]
Under Section 9, Rule 119 of the Revised Rules of Criminal Procedure, the
petitioners had the burden of proving the factual basis for their motions for
the dismissal of the Informations on the ground of a denial of their right to a
speedy trial and to a speedy disposition of the cases against them. They
were burdened to prove that such delay caused by the Prosecutor was
vexatious, capricious or whimsical. On the other hand, the Prosecutor was
burdened to present evidence to establish that the delay in the submission of
his report on the reinvestigation of the cases was reasonably attributed to
the ordinary process of justice, and that the accused suffered no serious
prejudice beyond that which ensued after an inevitable and ordinary delay.
Indubitably, there was an undue and inordinate delay in the reinvestigation of
the cases by the Ombudsman/Special Prosecutor, and, consequently, the
submission of his report thereon. Despite the lapse of more than one year,
he failed to comply with the Orders of the Sandiganbayan. It bears stressing
that a reinvestigation is summary in nature, and merely involves a
reexamination and re-evaluation of the evidence already submitted by the
complainant and the accused, as well as the initial finding of probable cause
which led to the filing of the Informations after the requisite preliminary
investigation. Undeniably, the Ombudsman/Special Prosecutor is saddled
with cases of equal, if not of more importance than the cases against the
petitioners. However, this is not a valid justification for an inordinate delay of
one (1) year in the termination of the reinvestigation of the cases. The
Prosecutor should have expedited the reinvestigation not only because he
was ordered by the Sandiganbayan to submit a report within sixty (60) days,
but also because he is bound to do so under the Constitution, and under
Section 13 of Rep. Act No. 6770:
The Ombudsman and his deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against public officials or
employees of the Government, or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and shall, in
appropriate cases, notify the complainants of the action taken and the
results thereof. (Section 12, Article XI of the 1987 Constitution)
The Ombudsman and his deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against public officials or
employees of the Government, or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and enforce
their administrative, civil and criminal liability in every case where the
evidence warrants in order to promote efficient service by the government to
the people. (Section 13, Republic Act No. 6770)
In Hodges v. United States,[43] it was emphasized that the government, and
for that matter, the trial court, is not without responsibility for the expeditious
trial for criminal cases. The burden for trial promptness does not solely rest
upon the defense. The right to a speedy trial is not to be honored only for the
vigilant and the knowledgeable.[44] In De Vera v. Layague,[45] we also held
that:
The constitutional mandate to promptly dispose of cases does not only refer
to the decision of cases on their merits, but also to the resolution of motions
and other interlocutory matters, as the constitutional provisions explicitly
mention cases and matters. Therefore, respondent judge must not be
excused for his delay in resolving the incident in Civil Case No. 17,215.
The Dismissal of the
Information Was Too Drastic
We note that the Prosecutor informed the Sandiganbayan on August 16,
2001 that he had already submitted his recommendation on the
reinvestigation of the cases to the Special Prosecutor, and requested for
continuance anew. The graft court again obliged, and reset the arraignment
of the accused to August 20, 2001, only to be informed by the Prosecutor
that his recommendation had not yet been acted upon by the Special
Prosecutor/Ombudsman. The unexplained delay by the
Ombudsman/Special Prosecutor of his compliance with the Sandiganbayans
directive brings to mind the trite and distressing observation of this Court in
Abardo v. Sandiganbayan:[46]
Clearly, the delay in this case disregarded the Ombudsmans duty, as
mandated by the Constitution and Republic Act No. 6770, to enforce the
criminal liability of government officers or employees in every case
where the evidence warrants in order to promote efficient service to the
people. The fact that up to this time no trial has been set, apparently due to
the inability of the Ombudsman to complete the reinvestigation is a
distressing indictment of the criminal justice system, particularly its
investigative and prosecutory pillars.
The Sandiganbayan, for its part, is not free of blame. In resolving the
motions for reconsideration of the petitioners and the other accused, it
should have required the Ombudsman/Special Prosecutor, under pain of
contempt, to explain and justify the inordinate delay in the submission of the
report on the reinvestigation. The Sandiganbayan failed to do so. The graft
court was content to issue mere orders denying the motions for
reconsideration of the petitioners and the other accused.
The Court is wont to stress that the State, through the Sandiganbayan and
the Ombudsman/Special Prosecutor, has the duty of insuring that the
criminal justice system is consistent with due process and the constitutional
rights of the accused. Society has a particular interest in bringing swift
prosecutions and societys representatives are the ones who should protect
that interest.[47] It has been held that the right to a prompt inquiry into
criminal charges is fundamental and the duty of the charging authority is to
provide a prompt disposition of the case.[48]
Prescinding from the foregoing, we agree with the Sandiganbayan that the
dismissal of the cases was precipitate and unwarranted. The State should
not be prejudiced and deprived of its right to prosecute the cases simply
because of the ineptitude or nonchalance of the Ombudsman/Special
Prosecutor.
Under Section 9, Rule 119 of the Revised Rules of Criminal Procedure, the
trial court may dismiss a criminal case on a motion nolle prosequi if the
accused is not brought to trial within the prescribed time and is deprived of
his right to a speedy trial or disposition of the case on account of
unreasonable or capricious delay caused by the prosecution.[49] En
contrario, the accused is not entitled to a dismissal where such delay was
caused by proceedings or motions instituted by him.[50] But it must be
understood that an overzealous or precipitate dismissal of a case may
enable the defendant, who may be guilty, to go free without having been
tried, thereby infringing the societal interest in trying people accused of
crimes rather than granting them immunization because of legal error.[51]
Not too long ago, we emphasized that:
[T]he State, like any other litigant, is entitled to its day in court, and to a
reasonable opportunity to present its case. A hasty dismissal such as the
one in question, instead of unclogging dockets, has actually increased the
workload of the justice system as a whole and caused uncalled-for delays in
the final resolution of this and other cases. Unwittingly, the precipitate action
of the respondent court, instead of easing the burden of the accused, merely
prolonged the litigation and ironically enough, unnecessarily delayed the
case in the process, causing the very evil it apparently sought to avoid. Such
action does not inspire public confidence in the administration of justice.[52]
There can be no denying the fact that the petitioners, as well as the other
accused, was prejudiced by the delay in the reinvestigation of the cases and
the submission by the Ombudsman/Special Prosecutor of his report thereon.
So was the State. We have balanced the societal interest involved in the
cases and the need to give substance to the petitioners constitutional rights
and their quest for justice, and we are convinced that the dismissal of the
cases is too drastic a remedy to be accorded to the petitioners. The cloud of
suspicion may still linger over the heads of the petitioners by the precipitate
dismissal of the cases. We repeat -- the cases involve the so-called tax
credit certificates scam and hundreds of millions of pesos allegedly
perpetrated by government officials in connivance with private individuals.
The People has yet to prove the guilt of the petitioners of the crimes charged
beyond reasonable doubt. We agree with the ruling of the Sandiganbayan
that before resorting to the extreme sanction of depriving the petitioner a
chance to prove its case by dismissing the cases, the Ombudsman/Special
Prosecutor should be ordered by the Sandiganbayan under pain of
contempt, to explain the delay in the submission of his report on his
reinvestigation.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE
COURSE. SO ORDERED.

G.R. No. 164763 February 12, 2008

ZENON R. PEREZ, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, respondents.
 DECISION
REYES, R.T., J.:
PETITIONER Zenon R. Perez seeks a review1 of his conviction by the
Sandiganbayan2 for malversation of public funds3 under Article 217 of the
Revised Penal Code.
This is not a big case but its implications are wide-ranging and the issues
We resolve include the rights to speedy trial and speedy disposition of a
criminal case, the balancing test, due process, and cruel and unusual
punishment.
loan of his late brother, another portion was spent for the food of his family,
and the rest for his medicine.9
As a result of the audit, Arlene R. Mandin prepared a memorandum10 dated
January 13, 1989 addressed to the Provincial Auditor of Bohol
recommending the filing of the appropriate criminal case against petitioner.
On January 16, 1989, petitioner remitted to the Office of the Provincial
Treasurer of Bohol the amounts of P10,000.00 and P15,000.00, respectively.
On February 14, 1989, petitioner again remitted to the Provincial Treasurer
an additional amount of P35,000.00, followed by remittances made on
February 16, 1989 in the amounts of P2,000.00 and P2,784.00.

The Facts An administrative case was filed against petitioner on February 13, 1989. He
filed an Answer11 dated February 22, 1989 reiterating his earlier verbal
admission before the audit team.
On December 28, 1988, an audit team headed by Auditor I Arlene R.
Mandin, Provincial Auditor’s Office, Bohol,4 conducted a cash examination
on the account of petitioner, who was then the acting municipal treasurer of On April 17, 1989, petitioner again remitted the amount of P8,000.00 to the
Tubigon, Bohol. Provincial Treasurer of Bohol. Petitioner had then fully restituted his shortage
in the amount of P72,784.57. The full restitution of the missing money was
confirmed and shown by the following receipts:12
Petitioner was absent on the first scheduled audit at his office on December
28, 1988. A radio message was sent to Loon, the town where he resided, to
apprise him of the on-going audit. The following day, the audit team counted Official Receipt No. Date Issued and Amount
the cash contained in the safe of petitioner in his presence. In the course of Received
the audit, the amount of P21,331.79 was found in the safe of petitioner. 8266659 January 16, 1989 P10,000.00
8266660 January 16, 1989 P15,000.00
The audit team embodied their findings in the Report of Cash Examination,5
which also contained an inventory of cash items. Based on the said audit, 8266662 February 14, 1989 P35,000.00
petitioner was supposed to have on hand the total amount of P94,116.36, 8266667 February 16, 1989 P 2,000.00
instead of the P21,331.79, incurring a shortage of P72,784.57.6
8266668 February 16, 1989 P 2,784.00
7
The report also contained the Cash Production Notice dated January 4, 8266675 April 17, 1989 P 8,000.00
1989, where petitioner was informed and required to produce the amount of TOTAL - P72,784.57
P72,784.57, and the cash count sheet signed and acknowledged by
petitioner indicating the correctness of the amount of P21,331.79 found in
his safe and counted in his presence. A separate demand letter8 dated Later, petitioner was charged before the Sandiganbayan with malversation of
January 4, 1989 requiring the production of the missing funds was sent and public funds, defined and penalized by Article 217 of the Revised Penal
received by petitioner on January 5, 1989. Code in an Information that read:

When asked by the auditing team as to the location of the missing funds, That on or about the period covering from December 28, 1988 to
petitioner verbally explained that part of the money was used to pay for the January 5, 1989, and for sometime prior thereto, in the Municipality
of Tubigon, Province of Bohol, Philippines and within the jurisdiction
 of this Honorable Court, the above-named accused Zenon R.
Perez, a public officer being then Acting Municipal Treasury of the
said Municipality, by reason of the duties of his official position was
accountable for the public funds collected and received by him, with
grave abuse of confidence did then and there willfully, unlawfully
and feloniously misappropriate, misapply, embezzle and take away
from the said funds the total amount of SEVENTY-TWO
THOUSAND SEVEN HUNDRED EIGHTY-FOUR PESOS and
57/100 (P72,784.57), which said fund was appropriated and
converted by the said accused to his own personal use and benefit
to the damage and prejudice of the government in the
aforementioned amount.
CONTRARY TO LAW.13 (Underscoring supplied)
On March 1, 1990, petitioner, duly assisted by counsel de parte, entered a
plea of "not guilty."14
Pre-trial was initially set on June 4-5, 1990 but petitioner’s counsel moved
for postponement. The Sandiganbayan, however, proceeded to hear the
case on June 5, 1990, as previously scheduled, due to the presence of
prosecution witness Arlene R. Mandin, who came all the way from Bohol.
On said date, the Sandiganbayan dispensed with pre-trial and allowed the
prosecution to present its witness. Arlene R. Mandin testified as narrated
above.
The defense presented evidence through petitioner Zenon R. Perez himself.
He denied the contents of his first Answer15 to the administrative case filed
against him by the audit team. He claimed it was prepared without the
assistance of counsel and that at the time of its preparation and submission,
he was not in peak mental and physical condition, having been stricken with
diabetes mellitus.16
He then revoked his Answer dated February 22, 1989 and filed his second
Answer dated March 2, 1989.17 In the latter, he vehemently denied that he
incurred a cash shortage P72,784.57.
According to petitioner, the alleged shortage was in the possession and
custody of his accountable personnel at the time of the audit examination.
Several amounts totalling P64,784.00 were remitted to him on separate
dates by his accountable officer, starting January 16, 1989 to February 16,
1989. The same were turned over by him to the Office of the Provincial
Treasurer, leaving an unremitted sum of P8,000.00 as of February 16,
1989.18 He remitted the P8,000.00 on April 17, 1989 to the Provincial
Treasurer of Bohol, fully restoring the cash shortage.
Petitioner further testified that on July 30, 1989, he submitted his Position
Paper19 before the Office of the Ombudsman, Cebu City and maintained that
the alleged cash shortage was only due to oversight. Petitioner argued that
the government did not suffer any damage or prejudice since the alleged
cash shortage was actually deposited with the Office of the Provincial
Treasurer as evidenced by official receipts.20
Petitioner completed his testimony on September 20, 1990. He rested his
case on October 20, 1990.21
Sandiganbayan Disposition
On September 24, 2003, the Sandiganbayan rendered a judgment of
conviction with a fallo reading:
WHEREFORE, judgment is hereby rendered finding the accused
ZENON R. PEREZ, GUILTY beyond reasonable doubt of the crime
of Malversation of Public Funds as defined in and penalized by
Article 217 of the Revised Penal Code and, there being one
mitigating circumstance without any aggravating circumstance to
offset the same, is hereby sentenced to suffer an indeterminate
penalty of from TEN (10) YEARS and ONE (1) DAY of prision
mayor as the minimum to FOURTEEN (14) YEARS and EIGHT (8)
MONTHS of reclusion temporal as the maximum and to suffer
perpetual special disqualification. The accused Zenon R. Perez is
likewise ordered to pay a FINE equal to the total amount of the
funds malversed, which is Seventy-Two Thousand Seven Hundred
Eighty-Four Pesos and Fifty-Seven Centavos (P72, 784.57).
SO ORDERED.22 (Emphasis in the original)
On January 13, 2004, petitioner filed a motion for reconsideration23 which the
prosecution opposed on January 28, 2004.24 Petitioner replied25 to the
opposition. On August 6, 2004, petitioner’s motion was denied with finality.
On September 23, 2004, petitioner resorted to the instant appeal26 raising
the following issues, to wit:
 I. THE HON. SANDIGANBAYAN BY UNDULY AND
UNREASONABLY DELAYING THE DECISION OF THE CASE
FOR OVER THIRTEEN (13) YEARS VIOLATED THE
PETITIONER’S RIGHT TO SPEEDY DISPOSITION OF HIS CASE
AND DUE PROCESS.
II. THE LAW RELIED UPON IN CONVICTING THE PETITIONER
AND THE SENTENCE IMPOSED IS CRUEL AND THEREFORE
VIOLATES SECTION 19 OF ARTICLE III (BILL OF RIGHTS) OF
THE CONSTITUTION.27 (Underscoring supplied)
Our Ruling
Before addressing petitioner’s twin assignment of errors, We first tackle the
propriety of petitioner’s conviction for malversation of public funds.
I. Petitioner was correctly convicted of malversation.
Malversation is defined and penalized under Article 217 of the Revised
Penal Code. The acts punished as malversation are: (1) appropriating public
funds or property, (2) taking or misappropriating the same, (3) consenting, or
through abandonment or negligence, permitting any other person to take
such public funds or property, and (4) being otherwise guilty of the
misappropriation or malversation of such funds or property.28
There are four elements that must concur in order that one may be found
guilty of the crime. They are:
(a) That the offender be a public officer;
(b) That he had the custody or control of funds or property by
reason of the duties of his office;
(c) That those funds or property involved were public funds or
property for which he is accountable; and
(d) That he has appropriated, took or misappropriated or consented
or, through abandonment or negligence, permitted another person
to take them.29
Evidently, the first three elements are present in the case at bar. At the time
of the commission of the crime charged, petitioner was a public officer, being
then the acting municipal treasurer of Tubigon, Bohol. By reason of his
public office, he was accountable for the public funds under his custody or
control.
The question then is whether or not petitioner has appropriated, took or
misappropriated, or consented or through abandonment or negligence,
permitted another person to take such funds.
We rule in the affirmative.
In malversation, all that is necessary to prove is that the defendant received
in his possession public funds; that he could not account for them and did
not have them in his possession; and that he could not give a reasonable
excuse for its disappearance. An accountable public officer may be
convicted of malversation even if there is no direct evidence of
misappropriation and the only evidence is shortage in his accounts which he
has not been able to explain satisfactorily.30
Verily, an accountable public officer may be found guilty of malversation
even if there is no direct evidence of malversation because the law
establishes a presumption that mere failure of an accountable officer to
produce public funds which have come into his hands on demand by an
officer duly authorized to examine his accounts is prima facie case of
conversion.31
Because of the prima facie presumption in Article 217, the burden of
evidence is shifted to the accused to adequately explain the location of the
funds or property under his custody or control in order to rebut the
presumption that he has appropriated or misappropriated for himself the
missing funds. Failing to do so, the accused may be convicted under the
said provision.
However, the presumption is merely prima facie and a rebuttable one. The
accountable officer may overcome the presumption by proof to the contrary.
If he adduces evidence showing that, in fact, he has not put said funds or
property to personal use, then that presumption is at end and the prima facie
case is destroyed.32
In the case at bar, petitioner was not able to present any credible evidence
to rebut the presumption that he malversed the missing funds in his custody
or control. What is extant in the records is that the prosecution, through
witness Arlene R. Mandin, was able to prove that petitioner malversed the
funds under his custody and control. As testified by Mandin:
Atty. Caballero:
Q: Was Mr. Zenon Perez actually and physically present during
the time of your cash examination?
Witness:
A. Yes, Sir.
Q: From December 28, to January 5, 1989?
A: He was present on December 28, 1988 and January 4 and 5,
1989, Sir.
Q: Did he not make any verbal explanation as the reason
why he was short of about P72,000.00, after you conducted the
cash count on January 5, 1989?
A: Yes, Sir, he did.
Q: What did he tell you?
A: He told us that he used some of the money to pay for the
loan of his brother and the other portion was spent for food of
his family; and the rest for his medicine.33 (Emphasis supplied)
Petitioner gave himself away with his first Answer filed at the Office of the
Provincial Treasurer of Bohol in the administrative case filed against him.
In that Answer, petitioner narrated how he disposed of the missing funds
under his custody and control, to wit: (1) about P30,000.00 was used to pay
the commercial loan of his late brother; (2) he spent P10,000.00 for the
treatment of his toxic goiter; and (3) about P32,000.00 was spent for food
and clothing of his family, and the education of his children. He there stated:
1. That the circumstances surrounding the cash shortage in the
total amount of P72,784.57 during the examination of the
respondent’s cash accounts by the Commission on Audit on
December 28-29, 1988 and January 4-5, 1989 are as follows, to
wit:
(a) That respondent paid the amount of about
P30,000.00 to the Philippine National Bank, Tagbilaran
Branch as interests of the commercial loan of his late
brother Carino R. Perez using respondent’s house and
lot as collateral thereof. If the interests would not be paid,
the loan would be foreclosed to respondent’s great
prejudice and disadvantage considering that he and his
family are residing in said house used as collateral;
(b) That respondent spent the amount of P10,000.00 in
connection with the treatment of his toxic goiter;
(c) That the rest of the amount amounting to about
P32,000.00 was spent by him for his family’s foods,
clothings (sic), and education of his children because
his monthly salary is not enough for the needs of his
family.34
By the explicit admission of petitioner, coupled with the testimony of Arlene
R. Mandin, the fourth element of the crime of malversation was duly
established. His conviction thus stands in terra firma.
True it is that petitioner filed another Answer on March 2, 1989 with the
Office of the Provincial Treasurer of Bohol, substantially changing the
contents of his earlier answer of February 22, 1989. His second Answer
averred:
3. That the truth of the matter is that the alleged total cash shortage
of P72,784.57 were still in the possession and custody of his
accountable personnel at the time of the examination held by the
auditor of the Commission on Audit;
4. That out of the alleged cash shortage of P72,784.57, almost all
of said amount were already remitted to him by his accountable
personnel after January 5, 1989, and only the remaining amount of
 P8,000.00 remains to be remitted to him by his accountable
personnel.35
The sudden turnaround of petitioner fails to convince Us. To Our mind,
petitioner only changed his story to exonerate himself, after realizing that his
first Answer put him in a hole, so to speak.
It is contended that petitioner’s first Answer of February 22, 1989 should not
have been given probative weight because it was executed without the
assistance of counsel.36
There is no law, jurisprudence or rule which mandates that an employee
should be assisted by counsel in an administrative case. On the contrary,
jurisprudence is in unison in saying that assistance of counsel is not
indispensable in administrative proceedings.
Walang batas, hurisprudensiya, o tuntunin na nagsasabi na ang isang
kawani ay dapat may tulong ng abogado sa isang kasong
administratibo. Sa katunayan, ang hurisprudensiya ay iisa ang
sinasabi na ang pagtulong ng isang abogado ay hindi kailangang-
kailangan sa kasong administratibo.
The right to counsel, which cannot be waived unless the waiver is in writing
and in the presence of counsel, is a right afforded a suspect or accused
during custodial investigation. It is not an absolute right and may be invoked
or rejected in a criminal proceeding and, with more reason, in an
administrative inquiry.37
Ang karapatang magkaroon ng abogado, na hindi maaaring talikdan
malibang ang waiver ay nakasulat at sa harap ng abogado, ay
karapatang ibinibigay sa suspek o nasasakdal sa isang custodial
investigation. Ito ay hindi lubos na karapatan at maaring hingin o
tanggihan sa isang prosesong kriminal, at lalo na sa isang
administratibong pagsisiyasat.
While investigations conducted by an administrative body may at times be
akin to a criminal proceeding, the fact remains that under existing laws, a
party in an administrative inquiry may or may not be assisted by counsel,
irrespective of the nature of the charges and of respondent’s capacity to
represent himself, and no duty rests on such body to furnish the person
being investigated with counsel.38
Thus, the right to counsel is not imperative in administrative investigations
because such inquiries are conducted merely to determine whether there
are facts that merit disciplinary measures against erring public officers and
employees, with the purpose of maintaining the dignity of government
service.39
Kung gayon, ang karapatang magkaroon ng abogado ay hindi sapilitan
sa isang administratibong imbestigasyon sapagkat ito ay ginagawa
lamang upang malaman kung may sapat na batayan na patawan ng
disiplina ang nagkasalang opisyal o empleyado, para mapanatili ang
dignidad ng paglilingkod sa pamahalaan.
There is nothing in the Constitution that says that a party in a non-litigation
proceeding is entitled to be represented by counsel and that, without such
representation, he shall not be bound by such proceedings. The assistance
of lawyers, while desirable, is not indispensable. The legal profession was
not engrafted in the due process clause such that without the participation of
its members, the safeguard is deemed ignored or violated. The ordinary
citizen is not that helpless that he cannot validly act at all except only with a
lawyer at his side.40
More than that, petitioner’s first Answer may be taken against him, as he
executed it in the course of the administrative proceedings below. This is
pursuant to Rule 130, Section 26 of the Rules of Court which provides that
the "act, declaration or omission of a party as to a relevant fact may be given
against him." In People v. Lising,41 the Court held:
Extrajudicial statements are as a rule, admissible as against their
respective declarants, pursuant to the rule that the act, declaration
or omission of a party as to a relevant fact may be given against
him. This is based upon the presumption that no man would
declare anything against himself, unless such declarations were
true. A man’s act, conduct and declarations wherever made,
provided they be voluntary, are admissible against him, for the
reason that it is fair to presume that they correspond with the truth
and it is his fault if they are not.
There is also no merit in the contention that petitioner’s sickness affected the
preparation of his first Answer. He presented no convincing evidence that his
disease at the time he formulated that answer diminished his capacity to
formulate a true, clear and coherent response to any query. In fact, its
contents merely reiterated his verbal explanation to the auditing team on
January 5, 1989 on how he disposed of the missing funds.
II. There is no violation of the rights to a speedy disposition of the case
and to due process of law.
We now discuss the right to a speedy trial and disposition, the balancing
test, due process, and cruel and unusual punishment.
Petitioner asserts that his right to due process of law and to speedy
disposition of his case was violated because the decision of the
Sandiganbayan was handed down after the lapse of more than twelve years.
The years that he had to wait for the outcome of his case were allegedly
spent in limbo, pain and agony.42
We are not persuaded.
Due process of law as applied to judicial proceedings has been interpreted
to mean "a law which hears before it condemns, which proceeds on inquiry,
and renders judgment only after trial."43 Petitioner cannot complain that his
right to due process has been violated. He was given all the chances in the
world to present his case, and the Sandiganbayan rendered its decision only
after considering all the pieces of evidence presented before it.
Petitioner’s claim of violation of his right to a speedy disposition of his case
must also fail.
The 1987 Constitution44 guarantees the right of an accused to speedy trial.
Both the 1973 Constitution in Section 16 of Article IV and the 1987
Constitution in Section 16 of Article III, Bill of Rights, are also explicit in
granting to the accused the right to speedy disposition of his case.45
In Barker v. Wingo,46 the United States Supreme Court was confronted for
the first time with two "rigid approaches" on speedy trial as "ways of
eliminating some of the uncertainty which courts experience protecting the
right."47
The first approach is the "fixed-time period" which holds the view that "the
Constitution requires a criminal defendant to be offered a trial within a
specified time period."48 The second approach is the "demand-waiver rule"
which provides that "a defendant waives any consideration of his right to
speedy trial for any period prior to which he has not demanded trial. Under
this rigid approach, a prior demand is a necessary condition to the
consideration of the speedy trial right."49
The fixed-time period was rejected because there is "no constitutional basis
for holding that the speedy trial can be quantified into a specific number of
days or months."50 The demand-waiver rule was likewise rejected because
aside from the fact that it is "inconsistent with this Court’s pronouncements
on waiver of constitutional rights,"51 "it is insensitive to a right which we have
deemed fundamental."52
The Court went on to adopt a middle ground: the "balancing test," in which
"the conduct of both the prosecution and defendant are weighed."53 Mr.
Justice Powell, ponente, explained the concept, thus:
A balancing test necessarily compels courts to approach
speedy trial cases on an ad hoc basis. We can do little more
than identify some of the factors which courts should assess in
determining whether a particular defendant has been deprived of
his right. Though some might express them in different ways,
we identify four such factors: Length of delay, the reason for
the delay, the defendant’s assertion of his right, and prejudice
to the defendant.
The length of the delay is to some extent a triggering mechanism.
Until there is some delay which is presumptively prejudicial, there is
no necessity for inquiry into the other factors that go into the
balance. Nevertheless, because of the imprecision of the right
to speedy trial, the length of delay that will provoke such an
inquiry is necessarily dependent upon the peculiar
circumstances of the case. To take but one example, the delay
that can be tolerated for an ordinary street crime is considerably
less than for a serious, complex conspiracy charge.
Closely related to length of delay is the reason the government
assigns to justify the delay. Here, too, different weights should be
assigned to different reasons. A deliberate attempt to delay the trial
in order to hamper the defense should be weighted heavily against
the government. A more neutral reason such as negligence or
overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility
for such circumstances must rest with the government rather than
with the defendant. Finally, a valid reason, such as a missing
witness, should serve to justify appropriate delay. We have already
discussed the third factor, the defendant’s responsibility to
assert his right. Whether and how a defendant asserts his right is
closely related to the other factors we have mentioned. The
 strength of his efforts will be affected by the length of the
delay, to some extent by the reason for the delay, and most
particularly by the personal prejudice, which is not always
readily identifiable, that he experiences. The more serious the
deprivation, the more likely a defendant is to complain. The
defendant’s assertion of his speedy trial right, then, is entitled to
strong evidentiary weight in determining whether the defendant is
being deprived of the right. We emphasize that failure to assert
the right will make it difficult for a defendant to prove that he
was denied a speedy trial.
A fourth factor is prejudice to the defendant. Prejudice, of
course, should be assessed in the light of the interests of
defendants which the speedy trial right was designed to
protect. This Court has identified three such interests: (i) to
prevent oppressive pretrial incarceration; (ii) to minimize
anxiety and concern of the accused; and (iii) to limit the
possibility that the defense will be impaired. Of these, the most
serious is the last, because the inability of a defendant adequately
to prepare his case skews the fairness of the entire system. If
witnesses die or disappear during a delay, the prejudice is obvious.
There is also prejudice if defense witnesses are unable to recall
accurately events of the distant past. Loss of memory, however, is
not always reflected in the record because what has been forgotten
can rarely be shown.54 (Emphasis supplied)
Philippine jurisprudence has, on several occasions, adopted the balancing
test.
In 1991, in Gonzales v. Sandiganbayan,55 this Court ruled:
It must be here emphasized that the right to a speedy disposition of
a case, like the right to speedy trial, is deemed violated only when
the proceeding is attended by vexatious, capricious, and
oppressive delays; or when unjustified postponements of the trial
are asked for and secured, or when without cause or justifiable
motive a long period of time is allowed to elapse without the party
having his case tried. Equally applicable is the balancing test used
to determine whether a defendant has been denied his right to a
speedy trial, or a speedy disposition of a case for that matter, in
which the conduct of both the prosecution and the defendant are
weighed, and such factors as length of the delay, reason for the
delay, the defendant’s assertion or non-assertion of his right, and
prejudice to the defendant resulting from the delay, are considered.
(Underscoring supplied)
Subsequently, in Dela Peña v. Sandiganbayan,56 this Court again
enumerated the factors that should be considered and balanced, namely: (1)
length of delay; (2) reasons for the delay; (3) assertion or failure to assert
such right by the accused; and (4) prejudice caused by the delay.57
Once more, in Mendoza-Ong v. Sandiganbayan,58 this Court reiterated that
the right to speedy disposition of cases, like the right to speedy trial, is
violated only when the proceedings are attended by vexatious, capricious
and oppressive delays.59 In the determination of whether said right has been
violated, particular regard must be taken of the facts and circumstances
peculiar to each case.60 The conduct of both the prosecution and defendant,
the length of the delay, the reasons for such delay, the assertion or failure to
assert such right by accused, and the prejudice caused by the delay are the
factors to consider and balance.61
Moreover, the determination of whether the delays are of said nature is
relative and cannot be based on a mere mathematical reckoning of time.62
Measured by the foregoing yardstick, We rule that petitioner was not
deprived of his right to a speedy disposition of his case.
More important than the absence of serious prejudice, petitioner himself did
not want a speedy disposition of his case.63 Petitioner was duly represented
by counsel de parte in all stages of the proceedings before the
Sandiganbayan. From the moment his case was deemed submitted for
decision up to the time he was found guilty by the Sandiganbayan, however,
petitioner has not filed a single motion or manifestation which could be
construed even remotely as an indication that he wanted his case to be
dispatched without delay.
Petitioner has clearly slept on his right. The matter could have taken a
different dimension if during all those twelve years, petitioner had shown
signs of asserting his right to a speedy disposition of his case or at least
made some overt acts, like filing a motion for early resolution, to show that
he was not waiving that right.64
Currit tempus contra decides et sui juris contempores: Time runs against the
slothful and those who neglect their rights. Ang panahon ay hindi panig sa
mga tamad at pabaya sa kanilang karapatan. Vigilantis sed non
dormientibus jura in re subveniunt. The law aids the vigilant and not those
who slumber in their rights. Ang batas ay tumutulong sa mga
mapagbantay at hindi sa mga humihimbing sa kanilang karapatan.
Pending his conviction by the Sandiganbayan, petitioner may have truly lived
in suspicion and anxiety for over twelve years. However, any prejudice that
may have been caused to him in all those years was only minimal. The
supposed gravity of agony experienced by petitioner is more imagined than
real.
This case is analogous to Guerrero v. Court of Appeals.65 There, the Court
ruled that there was no violation of petitioner’s right to speedy trial and
disposition of his case inasmuch as he failed seasonably to assert his rights:
In the present case, there is no question that petitioner raised the
violation against his own right to speedy disposition only when the
respondent trial judge reset the case for rehearing. It is fair to
assume that he would have just continued to sleep on his right – a
situation amounting to laches – had the respondent judge not taken
the initiative of determining the non-completion of the records and
of ordering the remedy precisely so he could dispose of the case.
The matter could have taken a different dimension if during all
those ten years between 1979 when accused filed his
memorandum and 1989 when the case was re-raffled, the accused
showed signs of asserting his right which was granted him in 1987
when the new Constitution took effect, or at least made some overt
act (like a motion for early disposition or a motion to compel the
stenographer to transcribe stenographic notes) that he was not
waiving it. As it is, his silence would have to be interpreted as a
waiver of such right.
While this Court recognizes the right to speedy disposition quite
distinctly from the right to a speedy trial, and although this Court
has always zealously espoused protection from oppressive and
vexatious delays not attributable to the party involved, at the same
time, we hold that a party’s individual rights should not work against
and preclude the people’s equally important right to public justice.
In the instant case, three people died as a result of the crash of the
airplane that the accused was flying. It appears to us that the delay
in the disposition of the case prejudiced not just the accused but
the people as well. Since the accused has completely failed to
assert his right seasonably and inasmuch as the respondent judge
was not in a position to dispose of the case on the merits due to the
absence of factual basis, we hold it proper and equitable to give the
parties fair opportunity to obtain (and the court to dispense)
substantial justice in the premises.
III. The law relied upon in convicting petitioner is not cruel and
unusual. It does not violate Section 19, Article III of the Bill of Rights.
What constitutes cruel and unusual punishment has not been exactly
defined.66 The Eighth Amendment of the United States Constitution,67 the
source of Section 19, Article III of the Bill of Rights68 of our own Constitution,
has yet to be put to the test to finally determine what constitutes cruel and
inhuman punishment.69
Cases that have been decided described, rather than defined, what is meant
by cruel and unusual punishment. This is explained by the pronouncement
of the United States Supreme Court that "[t]he clause of the Constitution, in
the opinion of the learned commentators, may be therefore progressive, and
is not fastened to the obsolete, but may acquire meaning as public opinion
becomes enlightened by a humane justice."70
In Wilkerson v. Utah,71 Mr. Justice Clifford of the United States Supreme
Court opined that "[d]ifficulty would attend the effort to define with exactness
the extent of the constitutional provision which provides that cruel and
unusual punishments shall not be inflicted; but it is safe to affirm that
punishments of torture, x x x and all others in the same line of unnecessary
cruelty, are forbidden by that amendment to the constitution."72
In In Re: Kemmler,73 Mr. Chief Justice Fuller of that same Court stated that
"[p]unishments are cruel when they involve torture or a lingering death; but
the punishment of death is not cruel within the meaning of that word as used
in the constitution. It implies x x x something more inhuman and barbarous,
something more than the mere extinguishment of life."74
Again, in Weems v. U.S.,75 Mr. Justice McKenna held for the Court that
cadena temporal and its accessory penalties "has no fellow in American
legislation. Let us remember that it has come to us from a government of a
different form and genus from ours. It is cruel in its excess of imprisonment
and that which accompanies and follows imprisonment. It is unusual in
character. Its punishments come under the condemnation of the Bill of
Rights, both on account of their degree and kind. And they would have those
bad attributes even if they were found in a Federal enactment, and not taken
from an alien source."
In Echegaray v. Executive Secretary,76 this Court in a per curiam Decision
held that Republic Act No. 8177,77 even if it does not provide in particular the
details involved in the execution by lethal injection, is not cruel, degrading or
inhuman, and is thus constitutional. Any infliction of pain in lethal injection is
merely incidental in carrying out the execution of the death penalty and does
not fall within the constitutional proscription against cruel, degrading or
inhuman punishment.78
The Court adopted the American view that what is cruel and unusual is not
fastened to the obsolete but may acquire meaning as public opinion
becomes enlightened by humane justice and must draw its meaning from
the evolving standards of decency that mark the progress of a maturing
society.79
In his last ditch effort to exculpate himself, petitioner argues that the penalty
meted for the crime of malversation of public funds "that ha[ve] been
replenished, remitted and/or returned" to the government is cruel and
therefore unconstitutional, "as government has not suffered any damage."80
The argument is specious on two grounds.
First. What is punished by the crime of malversation is the act of a public
officer who, by reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take and
misappropriate or shall consent, or through abandonment or negligence
shall permit any other person to take such public funds or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or malversation
of such funds or property.81
Payment or reimbursement is not a defense for exoneration in malversation;
it may only be considered as a mitigating circumstance. This is because
damage is not an element of malversation.
Second. There is strong presumption of constitutionality accorded to
statutes.
It is established doctrine that a statute should be construed whenever
possible in harmony with, rather than in violation of, the Constitution.82 The
presumption is that the legislature intended to enact a valid, sensible and
just law and one which operates no further than may be necessary to
effectuate the specific purpose of the law.83 It is presumed that the legislature
has acted within its constitutional powers. So, it is the generally accepted
rule that every statute, or regularly accepted act, is, or will be, or should be,
presumed to be valid and constitutional.84
He who attacks the constitutionality of a law has the onus probandi to show
why such law is repugnant to the Constitution. Failing to overcome its
presumption of constitutionality, a claim that a law is cruel, unusual, or
inhuman, like the stance of petitioner, must fail.
IV. On the penalty
The Sandiganbayan sentenced petitioner to an indeterminate sentence of
ten (10) years and one (1) day of prision mayor, as minimum, to fourteen
(14) years and eight (8) months of reclusion temporal, as maximum. In
imposing the penalty, it found that petitioner was entitled to the mitigating
circumstance of payment which is akin to voluntary surrender.
Article 217 penalizes malversation in the following tenor:
Article 217. Malversation of public funds or property. – Presumption
of malversation. – Any public officer who, by reason of the duties of
his office, is accountable for public funds or property, shall
appropriate the same, or shall take and misappropriate or shall
consent, or through abandonment or negligence shall permit any
other person to take such public funds or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property.
xxxx
4. The penalty of reclusion temporal in its medium and
maximum periods, if the amount involved is more than
12,000 but is less than 22,000 pesos. If the amount
exceeds the latter, the penalty shall be reclusion temporal
in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the
penalty of perpetual special disqualification and a fine equal to the
amount of the funds malversed or equal to the total value of the
property embezzled.
The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable upon demand by any
 duly authorized officer, shall be prima facie evidence that he has
put such missing funds or property to personal uses. (Underscoring
supplied)
The amount malversed totalled P72,784.57. The prescribed penalty is
reclusion temporal in its maximum period to reclusion perpetua, which has a
range of seventeen (17) years, four (4) months and one (1) day to forty (40)
years.
However, the commission of the crime was attended by the mitigating
circumstance akin to voluntary surrender. As correctly observed by the
Sandiganbayan, petitioner restituted the full amount even before the
prosecution could present its evidence. That is borne by the records.
It bears stressing that the full restitution of the amount malversed will not in
any way exonerate an accused, as payment is not one of the elements of
extinction of criminal liability. Under the law, the refund of the sum
misappropriated, even before the commencement of the criminal
prosecution, does not exempt the guilty person from liability for the crime.85
At most, then, payment of the amount malversed will only serve as a
mitigating circumstance86 akin to voluntary surrender, as provided for in
paragraph 7 of Article 1387 in relation to paragraph 1088 of the same Article of
the Revised Penal Code.
But the Court also holds that aside from voluntary surrender, petitioner is
entitled to the mitigating circumstance of no intention to commit so grave a
wrong,89 again in relation to paragraph 10 of Article 13.90
The records bear out that petitioner misappropriated the missing funds under
his custody and control because he was impelled by the genuine love for his
brother and his family. Per his admission, petitioner used part of the funds to
pay off a debt owed by his brother. Another portion of the misappropriated
funds went to his medications for his debilitating diabetes.
Further, as shown earlier, petitioner restituted all but Eight Thousand Pesos
(P8,000.00) of the funds in less than one month and a half and said small
balance in three (3) months from receipt of demand of COA on January 5,
1999. Evidently, there was no intention to commit so grave a wrong.
Of course, the end does not justify the means. To condone what petitioner
has done because of the nobility of his purpose or financial emergencies will
become a potent excuse for malefactors and open the floodgates for more
corruption in the government, even from "small fry" like him.
The bottom line is a guilty person deserves the penalty given the attendant
circumstances and commensurate with the gravity of the offense committed.
Thus, a reduction in the imposable penalty by one degree is in order. Article
64 of the Revised Penal Code is explicit:
Art. 64. Rules for the application of penalties which contain three
periods. – In cases in which the penalties prescribed by law
contains three periods, whether it be a single divisible penalty or
composed of three difference penalties, each one of which forms a
period in accordance with the provisions of Articles 76 and 77, the
courts shall observe for the application of the penalty, the following
rules, according to whether there are no mitigating or aggravating
circumstances:
xxxx
5. When there are two or more mitigating circumstances
and no aggravating circumstances are present, the court
shall impose the penalty next lower to that prescribed by
law, in the period that it may deem applicable, according
to the number and nature of such circumstances.
(Underscoring supplied)
Considering that there are two mitigating circumstances, the prescribed
penalty is reduced to prision mayor in its maximum period to reclusion
temporal in its medium period, to be imposed in any of its periods. The new
penalty has a range of ten (10) years and one (1) day to seventeen (17)
years and four (4) months. Applying the Indeterminate Sentence Law,91 the
maximum term could be ten (10) years and one (1) day of prision mayor
maximum, while the minimum term is again one degree lower92 and could be
four (4) years, two (2) months and one (1) day of prision correccional
maximum.
In the 1910 case of U.S. v. Reyes,93 the trial judge entered a judgment of
conviction against the accused and meted to him the penalty of "three years’
imprisonment, to pay a fine of P1,500.00, and in case of insolvency to suffer
subsidiary imprisonment at the rate of one day for every P2.50 that he failed
to pay, which subsidiary imprisonment, however, should not exceed one third
of the principal penalty" and to be "perpetually disqualified for public office
and to pay the costs." This was well within the imposable penalty then under
Section 1 of Act No. 1740,94 which is "imprisonment for not less than two
months nor more than ten years and, in the discretion of the court, by a fine
of not more than the amount of such funds and the value of such property."

On appeal to the Supreme Court, the accused’s conviction was affirmed but
his sentence was modified and reduced to six months. The court, per Mr.
Justice Torres, reasoned thus:

For the foregoing reasons the several unfounded errors assigned to

the judgment appealed from have been fully refuted, since in
conclusion it is fully shown that the accused unlawfully disposed of
a portion of the municipal funds, putting the same to his own use,
and to that of other persons in violation of Act. No. 1740, and
consequently he has incurred the penalty therein established as
principal of the crime of misappropriation; and even though in
imposing it, it is not necessary to adhere to the rules of the Penal
Code, the court in using its discretional powers as authorized by
law, believes that the circumstances present in the commission of
crimes should be taken into consideration, and in the present case
the amount misappropriated was refunded at the time the funds
were counted.95 (Underscoring supplied)

We opt to exercise an analogous discretion.

WHEREFORE, the Decision of the Sandiganbayan dated September 24,

2003 is AFFIRMED with the MODIFICATION that petitioner is hereby
sentenced to suffer the indeterminate penalty of four (4) years, two (2)
months and one (1) day of prision correccional, as minimum term, to ten (10)
years and one (1) day of prision mayor, as maximum term, with perpetual
special disqualification. He is likewise ORDERED to pay a fine of
P72,784.57, the amount equal to the funds malversed.

Costs against petitioner.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, appellee, vs. JONATHAN BESONIA,

appellant.

DECISION

DAVIDE, JR., C.J.:

From just a three-page, double-spaced decision22[1] of the Regional Trial
Court of Iloilo City, Branch 23, emanates the fiat sentencing appellant
Jonathan Besonia to two counts of the most severe penalty of death for
having committed two counts of murder. The decision leaves much to be
desired. More than half of it was devoted to the narration about Besonias
plea of guilty and the consequent searching inquiry conducted by the trial
court. After that narration is a statement that he was not authorized to carry
the fatal weapon recovered from him, which is immediately followed by the
dispositive portion, thus:
In the light of the evidence thus far adduced by the prosecution, both oral,
real and documentary and with the attendant qualifying aggravating
circumstance of evident premeditation as well as the aggravating
circumstance of the use of an unlicensed firearm, the plea of guilty
notwithstanding, judgment is hereby rendered finding the accused GUILTY
beyond reasonable doubt of the crime of Murder for two (2) counts in
Criminal Cases Nos. 00-52307 and 00-52308, hereby sentencing the
accused to two (2) counts of the Supreme Penalty of Death, further
condemning the said accused to indemnify the heirs of the victims Ernesto
Mospa Nieles and Jerry Sampiano the amount of P50,000.00 by way of
death compensation and P30,000.00 moral damages in each case.23[2]
Besonia was charged with murder in two separate informations docketed as
Criminal Cases Nos. 00-52307 and 00-52308. Upon his arraignment on 22
August 2000, Besonia entered a plea of not guilty in each case. 24[3] Pre-trial
was then held, where the following facts were admitted by both the
prosecution and the defense:
1. The identities of the victims Ernesto Mospa Nie[l]es and Jerry
Sampiano as well as that of the accused Jonathan Besonia;
2. The date and time of the incident, which is June 27, 2000 at 3:30
oclock in the afternoon;
3. The place of the incident which is at Guzman Street, Mandurriao,
Iloilo City;
22
23
24
4. That the weapon used during the incident which resulted to the
killing of the victims Ernesto Mospa Nie[l]es and Jerry Sampiano was an
unlicensed firearm; and
5. That Jerry Sampiano was a construction worker of the aunt of the
accused at the time of the incident.25[4]
On 6 March 2001, before the start of the trial, Besonia, through his counsel
Atty. Calixto Perez, manifested that he would enter a plea of guilty to the
lesser offense of homicide after a medical operation on his gall bladder.26[5]
Thereafter, the trial court ordered the prosecution to begin presenting its
evidence. The prosecution thereupon presented as witnesses Dr. Tito
Doromal and SPO1 Ricardo Clarete.
Dr. Tito Doromal, the medico-legal officer who conducted an autopsy on the
cadaver of the victim Ernesto Mospa Nieles, testified that his autopsy
findings revealed that Nieles had a bullet wound on the left side of his head
and another one on the thoraco-abdominal region at the left side of his body.
He declared that the two bullet slugs recovered from the body of Nieles
came from a .38 caliber firearm, and that the cause of his death was the
laceration of the brain and internal hemorrhage secondary to bullet
wounds.27[6]
SPO1 Ricardo Clarete, the duly authorized representative of the PNP
Firearms and Explosives Division, declared that based on the certification
issued by his office after a verification from available records, 28[7] Besonia
was not a licensed or registered holder of a firearm of any kind and caliber.
At the continuation of the trial, Dr. Agustin P. Vencer testified that he
examined the other victim Jerry Sampiano at the West Visayas Medical
Center on 27 June 2000. Sampiano had gunshot wounds on the right arm,
extending to the right lung and liver; and on the right eye, which extended to
the respiratory center of the brain.29[8] Since Sampianos abdomen was
distended, he was operated on twice. But a day after his second operation,
or on 30 June 2000, he expired.
25
26
27
28
29
On 29 May 2001, Besonia manifested his desire to enter a plea of guilty to
murder. Re-arraignment was then scheduled on 5 June 2001.30[9] On his re-
arraignment, Besonia pleaded guilty to the two charges of murder.31[10] The
trial court forthwith conducted a searching inquiry to determine the
voluntariness and full comprehension of his plea.32[11]
Thereafter, the prosecution presented PO3 Efren Feliprada and PO3 Hilarion
Roga, Jr., as additional witnesses to testify on the aggravating circumstance
of use of unlicensed firearm in perpetrating the crimes charged.
PO3 Feliprada testified that at about 3:30 p.m. of 27 June 2000 he, together
with PO3 Gerardo Jison and PO2 Hagmay Dignadice, responded to a report
of a shooting incident in Guzman St., Mandurriao, Iloilo City. Later, while his
companions were carrying the body of Sampiano to be brought to the
hospital, he gathered information from the bystanders, who readily identified
Besonia as the assailant. He was also informed that Besonia boarded a
passenger jeep en route to Leon, Iloilo. He and PO2 Dignadice immediately
chased the jeep. In Barangay Buhay, Alimodian, they saw Besonia alight.
Upon noticing them, Besonia attempted to escape, but to no avail. PO2
Dignadice recovered from Besonias waist a .38 caliber revolver with marking
.38JB,33[12] which was loaded with three live ammunition and two empty
shells. Thereafter, Besonia was brought to the police station for
investigation, and the firearm was submitted to the crime laboratory for
gunpowder residue examination.
PO3 Hilarion Roga, the forensic examiner who examined the firearm subject
of these cases, testified that he conducted the test fire ballistic examination
on the firearm and found that the three live ammunition and two empty shells
recovered by the police and submitted for examination came from the same .
38 caliber firearm.34[13]
When recalled to the witness stand, PO3 Feliprada testified that the firearm
examined by PO3 Roga and presented before the trial court was the same
firearm recovered from Besonia.35[14]
30
31
32
33
34
35
After the prosecution had rested its case, the defense manifested that it
would not present any evidence. On 26 June 2001, the trial court
promulgated judgment which is now the subject of this automatic review.
In the Appellants Brief, Besonia, through his new counsel de parte Atty. Jose
B. Tiangco, prays for the reversal of the judgment of conviction and his
acquittal based on this sole assignment of error:
THE TRIAL COURT ERRED BY VIOLATING THE CONSTITUTIONAL
RIGHT OF [THE] ACCUSED NOT TO BE COMPELLED TO TESTIFY
AGAINST HIMSELF, AND HAVING SO COMPELLED HIM, RENDERED
JUDGMENT SENTENCING HIM TO DEATH.36[15]
Besonia argues that the finding of guilt by the trial court was based mainly
on his confession, which is inadmissible for having been obtained in gross
violation of his constitutional right against self-incrimination. Moreover, the
prosecution endeavored to prove the charges for murder by evidence other
than the testimonies of the proclaimed eyewitnesses. In the absence of
evidence proving his guilt, he should be acquitted.
On the other hand, the Office of the Solicitor General (OSG) maintains that
Besonias voluntary confession in open court is valid in all respects. There is
no indication that he was forced, intimidated, coerced, or lured by anybody
into admitting the crimes. His judicial confession is buttressed by the
prosecution evidence that the .38 caliber revolver taken from him was the
same gun that fired the two slugs recovered from the cadaver of Nieles.
However, his admission that he planned the killing a couple of months before
its perpetration is insufficient to prove the qualifying circumstance of evident
premeditation. Hence, the OSG recommends the downgrading in each case
of (1) the crime from murder to homicide, aggravated by the use of an
unlicensed firearm, and (2) the penalty from death to an indeterminate
sentence of prision mayor in its maximum period, as minimum, to reclusion
temporal in its maximum period, as maximum. It also recommends that
temperate damages of P10,000 be awarded in each case in favor of the
victims heirs, and that the award of moral damages be increased from
P30,000 to P50,000.
In his Reply Brief,37[16] Besonia claims that his re-arraignment was
notoriously flawed in that despite his endeavor to plead guilty to the lesser
crime of homicide, the trial court paid no attention to it, thus depriving him of
36
37
the opportunity to make such plea. Moreover, there is no basis for the
recommendation of the OSG to hold Besonia guilty of the lesser crime of
homicide because of the failure of the prosecution to prove his guilt and the
precise degree of his culpability. The only support for such recommendation
is the testimony of Besonia himself, which was obtained in gross violation of
his right not to be compelled to testify against himself. He then prays that the
judgment in these cases be set aside and that the cases be remanded to the
trial court for re-arraignment and further proceedings.
We cannot fault the trial court for not acting on the manifestation of Besonia
before the start of the trial on 6 May 2001 that he would plead guilty to the
lesser crime of homicide.38[17] It must be recalled that the intended change
of plea was still subject to a suspensive condition, i.e. after the operation on
Besonias gall bladder, which nobody knew when. The trial court could not
afford to hold the trial in abeyance for an indefinite period of time. Besides,
under Section 2 of Rule 116 of the Revised Rules of Criminal Procedure, as
amended, a plea to a lesser offense that is necessarily included in the crime
charged must be with the consent of the offended party and the prosecutor.
And as can be gleaned from the use of the word may in the second
sentence of that Section, it is discretionary upon the trial court whether to
allow him to make such plea. In any case, when two months later, or on 29
May 2001, Besonia again manifested his desire to enter a plea of guilty, but
this time, to the crime of murder, 39[18] the trial court set the re-arraignment to
5 June 2001.
We do not find anything irregular in the re-arraignment on 5 June 2001. It
complied with Section 1 of Rule 116 of the Revised Rules of Criminal
Procedure, as amended. Before Besonia pleaded guilty to both charges, the
two informations for murder were first read and translated to Ilonggo dialect,
which was the language known to him.
The two informations, to which Besonia pleaded guilty, allege that the killing
was attended by the qualifying circumstance of evident premeditation and
the aggravating circumstance of use of an unlicensed firearm, which if
proved would warrant the penalty of death. With such a plea of guilty to a
capital offense, Section 3, Rule 116 of the Revised Rules of Criminal
Procedure will apply. The said Section reads:
Sec. 3. Plea of guilty to capital offense; reception of evidence. - When the
accused pleads guilty to a capital offense, the court shall conduct a
38
39
searching inquiry into the voluntariness and full comprehension of the
consequences of his plea and shall require the prosecution to prove his guilt
and the precise degree of culpability. The accused may present evidence in
his behalf.
We have already outlined, as early as in the case of People v. Camay,40[19]
how compliance with the said rule could be attained by the trial court, thus:
1. The court must conduct a searching inquiry into the voluntariness
and full comprehension [by the accused] of the consequences of his plea;
2. The court must require the prosecution to present evidence to
prove the guilt of the accused and precise degree of his culpability; and
3. The court must ask the accused whether he desires to present
evidence in his behalf, and allow him to do so if he so desires.
A searching inquiry must focus on the voluntariness of the plea and the full
comprehension by the accused of the consequences of the plea so that the
plea of guilty can truly be said to be based on a free and informed judgment.
While there can be no hard and fast rule as to how a judge may conduct a
searching inquiry, we declared in People v. Aranzado, 41[20] citing a plethora
of cases, that it would be well for the court to do the following:
(1) Ascertain from the accused himself (a) how he was brought into the
custody of the law; (b) whether he had the assistance of a competent
counsel during the custodial and preliminary investigations; and (c) under
what conditions he was detained and interrogated during the investigations.
These the court shall do in order to rule out the possibility that the accused
has been coerced or placed under a state of duress by actual threats of
physical harm coming from malevolent or avenging quarters.
(2) Ask the defense counsel a series of questions as to whether he had
conferred with, and completely explained to, the accused the meaning and
consequences of a plea of guilty.
(3) Elicit information about the personality profile of the accused, such
as his age, socio-economic status, and educational background, which may
40
41
serve as a trustworthy index of his capacity to give a free and informed plea A 28.
of guilty.
Q What is your work, if any?
(4) Inform the accused the exact length of imprisonment or nature of
the penalty under the law and the certainty that he will serve such sentence. A In Mindanao.
Not infrequently indeed an accused pleads guilty in the hope of a lenient
treatment or upon bad advice or because of promises of the authorities or
parties of a lighter penalty should he admit guilt or express remorse. It is the Q What is your work there?
duty of the judge to see to it that the accused does not labor under these
mistaken impressions. A What work I could find, I work.

(5) Require the accused to fully narrate the incident that spawned the Q Like for example, what kind of work?
charges against him or make him reenact the manner in which he
perpetrated the crime, or cause him to supply missing details of significance. A Bodyguard.

Moreover, in some cases,42[21] we ruled that the trial court should also
explain to the accused the essential elements of the crime charged, as well
as the penalty and civil liabilities.
We quote in full the searching inquiry that was conducted by the trial court,
thus:
Q Now Mr. Jonathan Besonia, did anybody threaten[] you so that you
will enter plea of guilty to these two (2) charges?
Q What is your highest educational attainment?
A Third year high school.
Q Now Mr. Besonia, I will explain to you the elements of Murder as
mandated by the Supreme Court that the Court should explain to the
accused the elements of the crime. Now, the elements of Murder are: 1) that
[a] person was killed; 2) that the accused killed him. In these cases, do you
know the persons who were killed, in Crim. Case No. 00-52307?

A No, Your Honor. A Yes, Your Honor.

Q Did anybody offer[] a promise or reward in terms of money or Q Whats the name?
property for you to plead guilty?

A Ernesto Nieles alias Maymay.

A None, Your Honor.

Q In Crim. Case No. 00-52308, who was the victim, who was killed?
Q Now, do you fully understand the implication of entering into a plea
of guilty to the capital offense of Murder?
A Jerry Sampiano.
A Yes, Your Honor.
Q Now, who killed these two (2) victims?
Q Now, how old are you?
A I myself, Your Honor.

42
Q Now, the Informations in these cases allege that you killed Ernesto A Yes, Your Honor.
Mospa Nieles and Jerry Sampiano with evident premeditation and using an
unlicensed firearm. What can you say to that? Q Tell the Court.

A Yes, Your Honor. One thing important there is I killed him. A Dignadice and Sir Efren.

Q You know the Information alleges evident premeditation to qualify Q Please give the full name[s] of the arresting officers?
the killing from Homicide to Murder. Evident premeditation means that you
have mold [sic] the idea or you entertain[ed] the idea before or you plan[ned]
way before in killing the victims, do you understand that? A PO3 Efren Feliprada and PO2 Hagmay Dignadice of Police
Precinct 5.
A It [[was] my plan [for a] long time already to kill them. I just want to
let them know. Q Both of them?

Q With respect to Ernesto Mospa Nieles, how long before June 27, A Yes, Your Honor.
2000 when the incident happened did you plan to kill him, how long before?
Q Of Iloilo City?
A Two (2) months.
A Of Mandurriao.
Q How about in the case of Jerry Sampiano, how long before June
27, 2000 did you plan to kill him? Q Now Jonathan, how were you arrested by the two (2)?

A The same, Your Honor. Together. A Because they are my friends.

Q Now, are you at liberty to tell the Court why did you plan to kill him? Q So you voluntarily surrendered?

A Because they planned to kill me so I know their plan that is why I A No, they arrested me.
killed them ahead.
Q When they arrested you, did you resist or not?
Q When were you actually arrested?
A No, You Honor. I go [sic] with them because they are also my
A June 27, Tuesday, year 2000. group.

Q Right in that day? Q After you were arrested, were you investigated or interrogated?

A After the incident. A Yes, Your Honor.

Q Now, do you know who was that person who arrested you? Q Do you know who investigated you? The name of the police officer?
A I know him if I will see him but I forgot the name.
Q Where were you investigated?
A Mandurriao Police Station.
Q When, after you were arrested?
A They brought me to the Police Station.
Q And after you were arrested you were brought to the Police Station
where you were investigated?
A After the investigation was conducted, I was put inside the cell.
Q Do you know whether the incident that led to the death of the two
(2) victims was recorded in the Police Blotter?
A It was blottered. I was even told by Sir Duco that if its not blottered
they could release me.
Q So you agree [with] the entry in the Police Blotter regarding these
cases?
A Yes, Your Honor.
Q The rule specifically provides that if a person commits the crime of
Murder using an unlicensed firearm, the penalty is death, do you know that?
A Yes, Your Honor. I [am] even in fact asking [for] a penalty in order to
make them happy.
Q So you are asking the Court to impose the death penalty just to
make the complainant happy?
A Yes, Your Honor.
Q Whom would you want to please?
A My family, Your Honor. And I will kill them if they will touch my
relatives, my family.
Q Now, the law also provides that aside from being sentenced either
to a life imprisonment or death, you should also pay compensation to the
surviving heirs of the victims in the amount of no less than P50,000.00 each
by way of death indemnity, do you know that?
A How could I pay when I am already sentenced. I know, Your Honor.
Q Now, so you are assisted here by Atty. Calixto Perez, your counsel?
A Yes, Your Honor.
COURT:
Now, the Court hereby orders that the accused and counsel be
furnished with copy of the Complaint together with the list of witnesses.
Q Now, so you are therefore warned that if you enter[] the plea of
guilty to the capital offense, you may be sentenced to death under Rule [sic]
7659 if the evidence of [the] prosecution will warrant that imposition of
penalty.
A Yes, Your Honor.
Q I am likewise informing you that your plea of guilty will not affect or
reduce the death penalty under Section 20-a of Republic Act 7659?
A Yes, Your Honor.
Q Now, next. You are also informed that after being sentenced guilty
[of] the crime of Murder and in the event that the death sentence [would] be
imposed upon you before it is implemented you are required to serve or
confine at Muntinlupa Penal Colony?
A I know, sir.
Q Now, let us briefly hear again. Now, could you briefly relate to the
Court how and why you killed Ernesto Mospa Nieles on June 27, 2000?
A I shot him. Q How about during the time when you were investigated before the
Fiscals Office, do you know if a lawyer assisted you there?
Q Where was he situated when you shot him?
A No, Your Honor.
A Inside the compound of the house of my aunt.
PROS. MADERO:
Q What weapon did you use in shooting?
Atty. Richelle Baldoza, Your Honor.
A .38 caliber revolver.
ACCUSED:
Q Who owns that firearm?
A There was Your Honor, I only forgot.
A I am the owner of that, Your Honor.
COURT:
Q Is it licensed in your name?
Q Can you recall what is the name of your lawyer before the Fiscals
A No, Your Honor. Office?

Q Was the victim Ernesto Mospa Nieles armed during that time? A I cannot remember but she is a lawyer. Lady, Your Honor.

A I do not know Your Honor but I know they planned to kill me and Q Can you also tell us briefly how did you shoot Jerry Sampiano and
since they planned to kill me that means they were also armed. where?

Q Before you shot Ernesto was there any altercation or argument that A During that same occasion, Your Honor but Jerry was ahead to fell
ensued between you and Ernesto? [sic] down.

A There was a rumble and fist fight. Q In the same place?

Q When you were confined there before this case was filed in Court, A Yes, Your Honor.
were you present during the preliminary investigation before the Fiscals
office? Q You used the same weapon?

A Yes, Your Honor. A Yes, Your Honor.

Q Were you represented by a lawyer during the preliminary
investigation?
A A lawyer was given to me Your Honor and it [sic] was already here
in Court.
Q Was Jerry Sampiano armed during that time?
A He was armed but I was not able to see it.
Q Did you see his firearm?
A Tucked on his waist but I did not allow him to draw first.
Q Was there any exchange of words or arguments that took place
before you shot Jerry Sampiano?
A None, Your Honor. And he was one also who planned to kill me.
Q So it is now clear that you voluntarily is [sic] entering the plea of
guilty to these two (2) criminal charges for Murder?
A Yes, sir.
Q And that nobody forced you or threatened you into entering a plea
of guilty to these charges?
A None, Your Honor. It is my own decision to make them happy.
Q [sic] The Court is satisfied with your answer and hereby ordered [sic] the
prosecution to present their evidence in order to prove the guilt or degree of
culpability of the accused for the use of unlicensed firearm.43[22]
Clearly, the trial court has substantially followed the aforementioned
parameters for the conduct of a searching inquiry.
We cannot subscribe to Besonias claim that his confession and admissions
during the searching inquiry were elicited in violation of his constitutional
right not to be compelled to testify against himself. The right against self-
incrimination44[23] is intended to prevent the State, with all its coercive
powers, from extracting from the suspect testimony that may convict him and
to avoid a person subjected to such compulsion to perjure himself for his
own protection.45[24] It does not apply where, as in these cases, the
testimony was freely and voluntarily given by the accused himself without
any compulsion from the agents of the State. There is nothing in the records
that would indicate that Besonia was forced, intimidated, or compelled by the
trial court or by anybody into admitting the crimes. At any rate, his plea of
guilty and confession or admissions during the searching inquiry cannot be
the sole basis for his conviction.
43
44
45
It must be stressed that a plea of guilty is only a supporting evidence or
secondary basis for a finding of culpability, the main proof being the
evidence presented by the prosecution to prove the accuseds guilt beyond
reasonable doubt. Once an accused charged with a capital offense enters a
plea of guilty, a regular trial shall be conducted just the same as if no such
plea was entered.46[25] The court cannot, and should not, relieve the
prosecution of its duty to prove the guilt of the accused and the precise
degree of his culpability by the requisite quantum of evidence. The reason
for such rule is to preclude any room for reasonable doubt in the mind of the
trial court, or the Supreme Court on review, as to the possibility that the
accused might have misunderstood the nature of the charge to which he
pleaded guilty, and to ascertain the circumstances attendant to the
commission of the crime which may justify or require either a greater or
lesser degree of severity in the imposition of the prescribed penalties.
In these cases, the trial court did not comply with the second requisite
mentioned in Section 3 of Rule 116 of the Revised Rules of Criminal
Procedure, which is to order the prosecution to prove the guilt of the
accused and the precise degree of his culpability. It only required the
prosecution to present evidence to prove the guilt or degree of culpability of
the accused for the use of [an] unlicensed firearm. Thus, the evidence
presented by the prosecution were merely the testimonies of the police
officers on the aggravating circumstance of use of unlicensed firearm in the
commission of the crime, apart from those of the doctors on the injuries
sustained by the victims. Doubtless, they are insufficient to establish the guilt
of Besonia.
It must be noted that among the witnesses listed in the complaint for murder
was Mildred Besonia, the aunt of Besonia who was allegedly an eyewitness
to the crime and who had executed an affidavit 47[26] narrating the shooting
incident and identifying the appellant as the perpetrator thereof. On the
hearing of 16 April 2001, the trial court ordered the issuance of a subpoena
for her to testify in court. 48[27] However, she was not made to testify
anymore obviously because of the plea of guilt of Besonia.
Worth noting also is that, apart from the Besonias admissions during the
searching inquiry, the only evidence mentioned by the trial court in the
decision subject of this automatic review were the testimonies regarding the
use of an unlicensed firearm. There was neither a discussion on the guilt of
46
47
48
the appellant, the reasons for the appreciation of the qualifying circumstance
of evident premeditation, the penalty, and the civil liabilities.
Apparently, the trial court and the prosecution unduly relied on Besonias
plea of guilty and his admissions made during the searching inquiry. The
prosecution did not discharge its obligation as seriously as it would have had
there been no plea of guilt on the part of Besonia. 49[28] Its presentation of its
case was lacking in assiduity that is necessarily expected in a prosecution
for a capital offense; it was too meager to be accepted as being the standard
constitutional due process at work enough to forfeit a human life. 50[29] It has
been held that where the plea of guilt to a capital offense has adversely
influenced or impaired the presentation of the prosecutions case, the
remand of the case to the trial court for further proceedings is imperative. 51
[30]
Additionally, we observe that Besonias defense counsel Atty. Perez merely
performed a lackadaisical and perfunctory representation of the appellant
before and during the trial. First, he failed to question before the arraignment
the legality of Besonias arrest, which failure is deemed as a waiver of the
right to raise that question once an accused enters a plea. Second, he failed
to object to the admissibility of the firearm seized after Besonias arrest.
Third, there is no showing that he advised Besonia of the consequences of
his plea of guilty to the crimes of murder. Fourth, he remained silent
throughout the searching inquiry. Fifth, he did not cross-examine the police
officers,52[31] and his cross-examination of the two doctors was limited to
only two questions each.53[32] Lastly, he did not present any evidence on
behalf of Besonia. These are all indicative of his failure to effectively provide
Besonia with qualified and competent representation. His behavior
irrefutably falls short of the demanding mandate required of a lawyer to
defend an accused no matter how guilty the latter may seem to be. In short,
his deportment evinces an apparent disregard of his fidelity to his oath as a
lawyer and responsibility as an officer of the court to aid in the administration
and dispensation of justice.
Enlightening is the Courts discourse on a counsels avowed passionate
dedication and resolve in his duty, viz.:
49
50
51
52
53
The right to counsel proceeds from the fundamental principle of due process
which basically means that a person must be heard before being
condemned. The due process requirement is a part of a persons basic
rights; it is not a mere formality that may be dispensed with or performed
perfunctorily.
The right to counsel must be more than just the presence of a lawyer in the
courtroom or the mere propounding of standard questions and objections.
The right to counsel means that the accused is amply accorded legal
assistance extended by a counsel who commits himself to the cause for the
defense and acts accordingly. The right assumes an active involvement by
the lawyer in the proceedings, particularly at the trial of the case, his bearing
constantly in mind of the basic rights of the accused, his being well-versed
on the case, and his knowing the fundamental procedures, essential laws
and existing jurisprudence. The right of an accused to counsel finds
substance in the performance by the lawyer of his sworn fidelity to his client.
Tersely put, it means an efficient and truly decisive legal assistance and not
a simple perfunctory representation. 54[33]
We reiterate that the constitutional behest that no person shall be deprived
of life, liberty, or property without due process of law is solemn and inflexible.
Absolute heedfulness of this constitutional injunction is most pronounced in
criminal cases where the accused is in the gravest jeopardy of losing his life.
It constantly behooves the courts to proceed with utmost care in each and
every case before them; but perhaps nothing can be more demanding of
judges in that respect than when the punishment is in its severest form death
-- a penalty that, once carried out, is irreversible and irreparable.55[34]
Therefore, given the attendant circumstances, we are constrained to remand
these cases to the court a quo for further reception of evidence. No matter
how outrageous the crimes charged might be or how depraved the offender
would appear to be, the uncompromising demand of due process and of the
rule of law must still prevail.56[35]
WHEREFORE, the decision of the Regional Trial Court of Iloilo City, Branch
23, in Criminal Cases Nos. 00-52307-08, finding appellant Jonathan Besonia
guilty of two counts of murder and sentencing him to suffer the penalty of
death in each case is hereby SET ASIDE, and Criminal Cases Nos. 00-
54
55
56
52307 and 00-52308 are hereby ordered REMANDED to the trial court for
further reception of evidence and rendition of a new judgement.

Costs de oficio.

SO ORDERED.

JESUS T. TANCHANCO and G.R. Nos. 141675-96

ROMEO R. LACSON,
Petitioners, Present:

- versus - PUNO, J.
Chairman,
AUSTRIA-MARTINEZ,
THE HONORABLE SANDI- CALLEJO, SR.,
GANBAYAN (Second Division), TINGA, and
Respondent. CHICO-NAZARIO, JJ.

Promulgated:

November 25, 2005

x -----------------------------------------------------------------------x

DECISION

TINGA, J.:

The Courts duty to enforce the law takes on greater imperative when in so
doing, it compels the execution of commitments made by the State to its
citizens. However the modality a right or privilege is granted by the State to a
personwhether under the Constitution, a statute or a mere
contractrecognition thereof is required by the government and, if need be,
mandated by this Court.

Presently for consideration is what appears to be a broken covenant by the

State, made particularly by the Presidential Commission on Good
Government (PCGG) to former National Food Authority (NFA) Administrator
Jesus Tanchanco (Tanchanco), one of the petitioners at bar. Granted, it is a
covenant that should not be lightly undertaken, involving as it does the grant
of criminal immunity. Notwithstanding, the legal order has never subscribed
to the notion that promises are meant to be broken.
We begin with the facts.
Tanchanco served as NFA Administrator from 1972 to 1986, during the
presidency of Ferdinand Marcos. His co-petitioner Romeo Lacson (Lacson)
was the Deputy Administrator of the NFA when he was the Administrator.
On 6 May 1988, Tanchanco and the PCGG entered into a Cooperation
Agreement,[1] occasioned by the desire of Tanchanco to cooperate with the
Philippine government in connection with the latters efforts in the location
and pursuit of government properties purloined by Ferdinand and Imelda
Marcos, their agents and others who hold property on their behalf. In the
Cooperation Agreement, the parties stipulated as follows:
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and intending to be legally bound hereby, the parties agree as
follows:
1. Tanchanco shall cooperate with any and all Philippine
Government investigations or prosecutions pursuant to Executive Order No.
1.
2. Cooperation means that Tanchanco shall provide complete,
candid and absolutely truthful disclosures, in response to any and all
questions and inquiries that may be put to him/her in connection with the
Philippines investigations, civil actions, criminal prosecutions, or any other
proceedings whether in the Philippines, the United States or elsewhere.
Further, upon the request of the Philippines, Tanchanco will offer such
cooperation in investigations and proceedings brought by other
governments, including but not limited to the United States and Switzerland.
Cooperation also means a disgorgement of assets, if any, acquired in
violation of Philippine laws, rules and regulations. Cooperation further means
a full disclosure of assets and liabilities, beneficially owned by Tanchanco.
Any assets not therein listed as Tanchancos personal property, and
thereafter discovered to be in Tanchancos name or under his/her legal or
beneficial control, directly or indirectly, as of the date of this Agreement, shall
become the property of the PCGG.
3. Should any of Tanchancos statements or testimonies be false,
misleading or materially incomplete, or should Tanchanco knowingly fail to
act with total honesty and candor in any such matters, the Philippines shall
no longer be bound by any of its representations contained herein.
Immunities and other considerations granted in reliance thereof, shall be null
and void.
In return for the above, the Philippines hereby represents and agrees as
follows:
(1) At a time to be mutually agreed upon between Tanchanco
and the Philippines, the Philippines shall move to dismiss all actions
that are presently pending against Tanchanco before the
Sandiganbayan and any such other courts;
(2) The Philippines shall lift any sequestration orders against
Tanchancos properties, if any, and rescind hold orders it may have
issued against his/her actions;
(3) The Philippines shall not bring any additional civil or
criminal charges against Tanchanco, arising from:
(A) Service in or for the Marcos government;
(B) Any other actions revealed by Tanchanco pursuant to
his/her cooperation as defined in this Agreement.
Except as expressly set forth herein, there is no understanding or agreement
of any kind between the Philippines or its counsel, and Tanchanco,
concerning the possible use(s) of his/her liability for criminal or civil
prosecution by the Philippines, or any other jurisdiction.
Nothing in this Agreement between the Philippines and Tanchanco is
conditioned on the result of any proceedings that might be brought or have
been brought against Ferdinand or Imelda Marcos or others in connection
with the information provided or to be provided. Thus none of the obligations
or undertakings described above are in any way dependent upon a jurys or
courts verdict at any trial, or the success of any criminal or civil prosecution.
[2]
Significantly, Tanchanco was called upon as one of the witnesses for the
prosecution in the case filed against Imelda Marcos in New York for violation
of the so-called RICO Act. It appears that his testimony was elicited
concerning the transfer of P10,000,000.00 rebate obtained by the NFA from
the Philippine National Lines to the Security Bank, as well as the matter of
the use of discretionary and/or intelligence funds by the Marcos
administration involving the funds of the NFA during Tanchancos
administration.[3]
Nonetheless, a criminal case, docketed as Criminal Case No. 16950, was
filed in 1991 against Tanchanco with the Sandiganbayan for malversation of
public funds in the amount of P10,000,000.00 from the Philippine National
Bank. Tanchanco filed a Motion for Reinvestigation, wherein he argued that
the case should be dismissed as he had been granted immunity from the
said suit by the PCGG. Eventually, the Sandiganbayan First Division agreed
with Tanchanco and in a Resolution dated 27 October 2000, the case was
ordered dismissed.
However, Criminal Case No. 16950 proved to be only just one of several
attempts of the government to prosecute Tanchanco. In 1997, a total of 22
Informations were filed with the Sandiganbayan against Tanchanco. He was
charged with 21 counts of Malversation of Public Funds under Article 217 of
the Revised Penal Code, and one count of Failure of Accountable Officer to
Render Accounts under Article 218 of the same Code.[5] Lacson was
charged as a co-defendant in four of the informations for Malversation of
Public Funds.[6] These cases were consolidated and raffled to the
Sandiganbayan Second Division. On 2 September 1997, Tanchanco and
Lacson pleaded not guilty to all of the charges.[7]
On 26 November 1997, Tanchanco and Lacson filed a Motion to Quash
and/or Dismiss all 22 cases, citing as basis the Cooperation Agreement
which was said to have granted immunity to Tanchanco from criminal
prosecution. They likewise presented an affidavit executed by former Vice-
President Emmanuel Pelaez, who was serving as Philippine Ambassador to
the United States at the time of the New York trial of Imelda Marcos. In his
affidavit, Ambassador Pelaez relevantly stated:
2. During my incumbency as Ambassador, I had the privilege to assist the
Philippine Government thru the Presidential Commission on Good
Government (PCGG) in obtaining the full cooperation of Mr. Jesus
Tanchanco relative to its investigation on the transfer of TEN MILLION
PESOS (P10,000,000.00) rebate obtained by the National Food Authority
(NFA) from the Philippine National Lines (PNL) to the Security Bank. The
scope of investigation also encompassed the controversial use of
discretionary and/or intelligence funds by the Marcos Administration
particularly involving the funds of NFA during the administratorship of Mr.
Tanchanco.
3. In this regard, sometime May 1990, I invited Mr. Jesus Tanchanco, on
behalf of PCGG, to my office in Washington, D.C. to have an investigative
meeting with Atty. Severina Rivera and Atty. Labella, both of whom
presented PCGG in cases against the Marcoses in the U.S. On this
occasion, it was explained to Mr. Tanchanco that his disclosure/testimony on
the adverted P10M fund transfer and the matter of discretionary and
intelligence funds of the NFA were indispensable to the Philippine
Governments case against the Marcoses. I urged him to cooperate with the
Government and he signified his willingness to do so.
4. After a time of reflection, Mr. Tanchanco obliged, and he thereafter had
lengthy question and answer sessions with Attys. Rivera and Labella on the
aforesaid major and other collateral issues.[8]
Still, the motion was denied by the Sandiganbayan Second Division in a
Resolution dated 5 March 1999.[9] The Sandiganbayan examined Section 5
of Executive Order (E.O.) No. 14, which empowered the PCGG to grant
immunity from criminal prosecution, and ruled that the grant of immunity by
the PCGG pertained only to offenses which may arise from the act of a
person testifying or giving information in connection with the recovery of
supposed ill-gotten wealth.
Respondent court declared that the charges of malversation and failure to
render an accounting could not be considered as falling within the immunity
granted to Tanchanco as the offenses were not related or connected to the
testimony or information furnished by Tanchanco in a proceeding concerning
the recovery of the purported ill-gotten wealth of the Marcoses. The
Sandiganbayan opined that the PCGG could not have intended the grant of
immunity to extend to any other crime which Tanchanco may have
committed while serving the Marcos Administration, such as bribery and
rape, since such was beyond the scope of the PCGG to bestow. To construe
the grant of immunity so broadly, held the Sandiganbayan, would violate the
equal protection clause of the Constitution, as well as the due process
clause.[10]
The Sandiganbayan likewise concluded that even assuming the immunity
granted by the Cooperation Agreement covered the offenses charged
against Tanchanco, the same could not benefit Lacson, as he was not a
party to the immunity agreement.[11]
A Motion for Reconsideration filed by Tanchanco and Lacson was denied in
a Resolution dated 28 December 1998, the Sandiganbayan declaring therein
that the crimes to which petitioners were charged are beyond the authority
and mandate of the PCGG.[12]
Petitioners now argue before this Court that the grant of immunity under the
Cooperation Agreement encompassed the subject charges. They note that
Tanchanco had given testimony in the United States regarding the
intelligence fund of the NFA, which was used by President Marcos for his
own personal benefit. Petitioners advert to the affidavit attesting to such
testimony by Ambassador Pelaez. It is argued that Tanchanco had complied
with all his commitments made in the Cooperation Agreement, and it would
be the height of gross distortion of justice and both moral and legal outrage
for the government now to welch on the said Agreement after Tanchanco
had already testified against the Marcoses. Petitioners likewise cite the
relevant jurisprudence concerning the grant of immunity from criminal
prosecution by the PCGG.
The Office of the Special Prosecutor, on behalf of the People of the
Philippines, cites the comment filed by the PCGG to the Motion to Quash
and/or Dismiss before the Sandiganbayan, wherein it alleged that contrary to
the terms of the Cooperation Agreement, Tanchanco had not yet provided
the PCGG a full disclosure of assets and liabilities beneficially owned by
Tanchanco.[13] This claim is countered by petitioners, who assert before this
Court that he had already submitted such disclosure to the PCGG even prior
to the execution and signing of the Cooperation Agreement.[14]
The Office of the Solicitor General (OSG), representing respondent
Sandiganbayan, provides a different argument against petitioners. The OSG
reiterates the position of the Sandiganbayan that the 22 charges against
Tanchanco were not covered by the immunity granted by the PCGG, which
pertained only to offenses which may arise from his act in testifying or giving
information in connection with the recovery of ill-gotten wealth.[15]
Before delving into the merits, we make two preliminary qualifications. First,
the general rule under Rule 117 of the Rules of Criminal Procedure is that
the accused may move to quash the complaint or information at any time
before entering his plea and the failure of the accused to assert any ground
of a motion to quash before he pleads to the complaint or information shall
be deemed a waiver of any objection.[16] In this case, Tanchanco and
Lacson had pleaded not guilty in all the subject cases on 2 September 1997,
two months before they filed the instant Motion to Quash and/or Dismiss in
November of 1997. Nonetheless, Section 9 of Rule 117 expressly qualifies
that the failure to timely raise the objection of lack of jurisdiction over the
offense charged cannot be waived,[17] and may be raised or considered
motu proprio by the court at any stage of the proceedings or on appeal.[18]
Such objection could be raised through a motion to dismiss when it is no
longer timely to file a motion to quash.[19] We have no doubt that a claim of
immunity from prosecution arising from an immunity statute or agreement is
a jurisdictional question. A statutory grant of immunity enjoins the
prosecution of a criminal action and thus deprives the court of jurisdiction to
proceed.[20]
Accordingly, the invocation of immunity may have been the proper subject of
petitioners instant motion, and properly cognizable by the Sandiganbayan
even after the plea had been entered. We need not belabor this point further,
especially since none of the parties, and certainly not the Sandiganbayan,
have either raised or considered this aspect of the case.
Second, we note that different circumstances obtain between Tanchanco
and Lacson, the latter being evidently not a party to any immunity agreement
with the Philippine government. Thus, it is proper to treat their cases
separately. We first rule on Tanchancos claim of immunity.
The Plain Meaning of the
Cooperation Agreement
Our first point of reference understandably is the Cooperation Agreement.
Therein, we note that the grant of immunity to Tanchanco is deliberately
broad. It is stipulated that the government shall not bring any additional civil
or criminal charges against Tanchanco arising from: (a) service in or for the
Marcos government; and (b) any other actions revealed by Tanchanco
pursuant to his/her (sic) cooperation as defined in this Agreement.[21]
The undertakings expressed by the Philippine government through the
PCGG in the Cooperation Agreement are quite clear-cut, even if broad in
scope. Facially, it seemingly encompasses three classes of actions
committed by Tanchanco: those committed while he was in the service of the
Marcos government; those committed in behalf of the Marcos government;
and any other act revealed by him in the course of his cooperation with the
PCGG.
Especially telling are the segregations made in the classification of the acts
covered by the grant of criminal immunity. First, the distinction is laid, as
signified by the conjunctive or, between those acts committed by Tanchanco
arising from service in the Marcos government and those committed for or in
behalf of the Marcos government. The difference between those two classes
of acts is crucial, for if the agreement is construed plainly, the immunity
covers not only those acts committed by Tanchanco for the benefit or under
the instruction of the Marcoses, but even those acts of Tanchanco which
may not have been tinged with the involvement of Marcos or his government
yet which nevertheless occurred during Tanchancos term as NFA
Administrator.
On the face of the document, we cannot simply say that the clause should
be read as covering only those acts of Tanchanco which he committed for
the Marcos government while he was in service as NFA Administrator. The
use of the word or signifies the joinder of two distinct concepts: service in
and service for, and it is our conclusion that the PCGG and Tanchanco, in
forging the Cooperation Agreement purposively intended to segregate acts
arising from service in and acts arising from service for the Marcos
government.
The Cooperation Agreement also utilizes a distinction between these acts
arising from service in or for the Marcos government, and any other actions
revealed by Tanchanco pursuant to [his] cooperation as defined in the
Agreement. This qualification is again crucial, as it is the contention of the
OSG that the scope of immunity is limited only to those offenses which may
arise from his act in testifying or giving information in connection with the
recovery of ill-gotten wealth. Immunity from criminal prosecution arising from
those acts elicited from Tanchanco in the course of his cooperation falls
squarely within the second ground for immunity, any other actions revealed
by Tanchanco pursuant to [his] cooperation. If indeed, as the OSG suggests,
the scope of immunity is limited to those offenses that arise from
Tanchancos act in testifying or giving information, then why the provision of
the first ground of immunity under the Cooperation Agreement, for acts
arising from service in or service for the Marcos government? The provision
is there to effectuate what it declares.
Other provisions of the Cooperation Agreement likewise indicate that the
intent of the PCGG, as representative of the Philippine government, was to
offer Tanchanco broad protection from criminal prosecution. The Second
Whereas Clause expresses that both Tanchanco and the PCGG are
desirous of resolving their differences and settling all litigation between
them.[22] Moreover, it is stipulated that none of the obligations or
undertakings described [herein] are in any way dependent upon a jurys or
courts verdict at any trial, or the success of any criminal or civil prosecution.
[23]
We thus cannot accept the conclusion that the intent of the parties to the
Cooperation Agreement was to limit the scope of immunity to cover only
offenses arising from the testimony or information given by Tanchanco
pursuant to his cooperation; or that said agreement pertains only to those
offenses committed by Tanchanco in behalf of the Marcos government. Such
limited construction is belied by the clear terms of the Cooperation
Agreement.
The reasons or motives of the PCGG in agreeing to so broad an immunity
agreement are not evidently determinable, yet ultimately excluded from the
scope of judicial inquiry. In Mapa v. Sandiganbayan,[24] the Court was asked
to rule on the range and power of the courts to review the exercise of
discretion of the PCGG in granting immunity pursuant to Section 5 of E.O.
No. 14. The Court, speaking through now Senior Associate Justice Reynato
S. Puno, ruled that such review can go no further than to pass upon [the
immunity grants] procedural regularity, and is especially limited to the
questions of (a) whether the person claiming immunity has provided
information or testimony in any investigation conducted by the PCGG in the
discharge of its functions; (b) whether in the bona fide judgment of the
PCGG, the information or testimony given would establish the unlawful
manner in which the respondent, defendant or accused has acquired or
accumulated the property or properties in question; and (c) whether in the
bona fide judgment of the PCGG, such information or testimony is necessary
to ascertain or prove the guilt or civil liability of the respondent, defendant or
accused.[25]
The ruling in Mapa, which was ignored by the Sandiganbayan, establishes
several principles that govern this case as seen in our subsequent
discussion. But the first integral point which we now invoke is that the
reasons or motives of the PCGG in granting broad criminal immunity to
Tanchanco are beyond the scope of judicial review. The more appropriate
legal question now lies as to whether the PCGG, in entering into the
Cooperation Agreement, acted within the scope of its statutory authority to
extend immunity in the first place? Does such authority encompass the
broadly granted immunity as so plainly expressed in the Cooperation
Agreement?
Statutory Authority of PCGG
To Extend Criminal Immunity
Before we examine the particular statutory authority of the PCGG to extend
criminal immunity, it is useful to recall the unique nature and mandate of the
PCGG itself. The seminal case of BASECO v. PCGG[26] explained the
background behind the creation of the PCGG through E.O. No. 1.
The impugned executive orders are avowedly meant to carry out the explicit
command of the Provisional Constitution, ordained by Proclamation No. 3,
that the President in the exercise of legislative power which she was
authorized to continue to wield "(u)ntil a legislature is elected and convened
under a new Constitution" "shall give priority to measures to achieve the
mandate of the people," among others to (r)ecover ill-gotten properties
amassed by the leaders and supporters of the previous regime and
protect the interest of the people through orders of sequestration or
freezing of assets or accounts."
xxx
Executive Order No. 1 stresses the "urgent need to recover all ill-gotten
wealth," and postulates that "vast resources of the government have
been amassed by former President Ferdinand E. Marcos, his immediate
family, relatives, and close associates both here and abroad." Upon
these premises, the Presidential Commission on Good Government
was created, "charged with the task of assisting the President in regard to . .
. (certain specified) matters," among which was precisely
". . . The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the Philippines
or abroad, including the takeover or sequestration of all business
enterprises and entities owned or controlled by them, during his
administration, directly or through nominees, by taking undue
advantage of their public office and/or using their powers, authority,
influence, connections or relationship."
In relation to the takeover or sequestration that it was authorized to
undertake in the fulfillment of its mission, the PCGG was granted "power and
authority" to do the following particular acts, to wit:
1. "To sequester or place or cause to be placed under its control or
possession any building or office wherein any ill-gotten wealth or properties
may be found, and any records pertaining thereto, in order to prevent their
destruction, concealment or disappearance which would frustrate or hamper
the investigation or otherwise prevent the Commission from accomplishing
its task."
"2. "To provisionally take over in the public interest or to prevent the disposal
or dissipation, business enterprises and properties taken over by the
government of the Marcos Administration or by entities or persons close to
former President Marcos, until the transactions leading to such acquisition
by the latter can be disposed of by the appropriate authorities.
"3. "To enjoin or restrain any actual or threatened commission of acts by any
person or entity that may render moot and academic, or frustrate or
otherwise make ineffectual the efforts of the Commission to carry out its task
under this order."
So that it might ascertain the facts germane to its objectives, it was granted
power to conduct investigations; require submission of evidence by
subpoenae ad testificandum and duces tecum; administer oaths; punish for
contempt. It was given power also to promulgate such rules and regulations
as may be necessary to carry out the purposes of . . . (its creation.)."
xxx
Executive Order No. 2 gives additional and more specific data and directions
respecting "the recovery of ill-gotten properties amassed by the leaders and
supporters of the previous regime." It declares that:
1) ". . . the Government of the Philippines is in possession of evidence
showing that there are assets and properties purportedly pertaining to former
Ferdinand E. Marcos, and/or his wife Mrs. Imelda Romualdez Marcos, their
close relatives, subordinates, business associates, dummies, agents or
nominees which had been or were acquired by them directly or indirectly,
through or as a result of the improper or illegal use of funds or properties
owned by the government of the Philippines or any of its branches,
instrumentalities, enterprises, banks or financial institutions, or by taking
undue advantage of their office, authority, influence, connections or
relationship, resulting in their unjust enrichment and causing grave damage
and prejudice to the Filipino people and the Republic of the Philippines;" and
2) ". . . said assets and properties are in the form of bank accounts, deposits,
trust accounts, shares of stocks, buildings, shopping centers, condominiums,
mansions, residences, estates, and other kinds of real and personal
properties in the Philippines and in various countries of the world."
xxx
A third executive order is relevant: Executive Order No. 14, by which the
PCGG is empowered, "with the assistance of the Office of the Solicitor
General and other government agencies, . . . to file and prosecute all cases
investigated by it . . . as may be warranted by its findings." All such cases,
whether civil or criminal, are to be filed "with the Sandiganbayan, which shall
have exclusive and original jurisdiction thereof." Executive Order No. 14 also
pertinently provides that "(c)ivil suits for restitution, reparation of damages, or
indemnification for consequential damages, forfeiture proceedings provided
for under Republic Act No. 1379, or any other civil actions under the Civil
Code or other existing laws, in connection with . . . (said Executive Orders
Numbered 1 and 2) may be filed separately from and proceed independently
of any criminal proceedings and may be proved by a preponderance of
evidence;" and that, moreover, the "technical rules of procedure and
evidence shall not be strictly applied to . . . (said) civil cases."[27]
Executive Order No. 14, as amended by E.O. No. 14-A, defines the
jurisdiction over cases involving the ill-gotten wealth of former President
Ferdinand E. Marcos, Mrs. Imelda R. Marcos, members of their immediate
family, close relatives, subordinates, close and/or business associates,
dummies, agents and nominees.[28] It is Section 5 thereof, as amended,
which authorizes the PCGG to grant immunity from criminal prosecution, in
the following manner:
Sec. 5. The Presidential Commission on Good Government is
authorized to grant immunity from criminal prosecution to any person
who provides information or testifies in any investigation conducted by
such Commission to establish the unlawful manner in which any
respondent, defendant or accused has acquired or accumulated the
property or properties in question in any case where such information
or testimony is necessary to ascertain or prove the latter's guilt or his
civil liability. The immunity thereby granted shall be continued to protect the
witness who repeats such testimony before the Sandiganbayan when
required to do so by the latter or by the Commission.[29]
From these premises, we can draw useful conclusions. Section 5 is worded
in such a manner as it does not provide any express limitations as to the
scope of immunity from criminal prosecution that the PCGG is authorized to
grant. The qualifications that Section 5 do provide relate to the character of
the information or testimony before the PCGG of the grantee of immunity,
namely, that it establish[es] the unlawful manner in which any respondent,
defendant or accused has acquired or accumulated the property or
properties in question in any case where such information or testimony is
necessary to ascertain or prove the latter's guilt or his civil liability.
While there is no doubt that the information or testimony of the grantee must
pertain to the manner of acquisition of ill-gotten wealth by the Marcoses,
their close relatives and associates, the question now before us is whether
the available immunity from criminal prosecution relates only to the
prosecution of the grantee in like minded cases. The Sandiganbayan opined
in the affirmative, declaring that [t]he charges of malversation and failure to
render an account cannot be considered within the purview of the immunity
granted to Tanchanco by the PCGG, since the offenses are not related to or
connected with the testimony or information furnished by Tanchanco in a
proceeding concerning the recovery of the purported ill-gotten wealth of the
former President, his relatives and associates.[30] We are constrained to
disagree.
The Court has been called upon before to construe Section 5 of E.O. No. 14-
A. As earlier noted, the Court in Mapa[31] held that the power of the
Sandiganbayan to review such grant of immunity by the PCGG could go no
further than to pass upon its procedural regularity. In Chavez v. PCGG,[32]
the Court reiterated that the conditions under which the PCGG may grant
criminal immunity were: (1) the person to whom criminal immunity is granted
provides information or testifies in an investigation conducted by the
Commission; (2) the information or testimony pertains to the unlawful
manner in which the respondent, defendant or accused acquired or
accumulated ill-gotten property; and (3) such information or testimony is
necessary to ascertain or prove guilt or civil liability of such individual.[33]
The Court in both cases adverted to the same characterization of criminal
immunity under Section 5. Notably, the Court did not affirm the belief that the
scope of criminal immunity was limited to any class of criminal acts,
offenses, or casesunderstandable considering that Section 5 does not make
any such qualification. Moreover, our ruling in Mapa went as far as to
squarely characterize the witness under Section 5 of E.O. No. 14-A as
completely immunized from prosecution.[34] In the same case, the Court
even upheld the immunity granted to petitioners Mapa and Vergara despite
the fact that the PCGG subsequently reversed track and acceded to the
prosecution of the said petitioners.
To be certain, the Sandiganbayans conclusion in this case is not entirely off-
base. We have recognized in this jurisdiction that American common law
generally recognizes two kinds of statutory criminal immunity available to a
witness: transactional immunity and the use-and-derivative-use immunity.
[35] Transactional immunity is broader in the scope of its protection. By its
grant, a witness can no longer be prosecuted for any offense whatsoever
arising out of the act or transaction to which the testimony relates. In
contrast, by the grant of use-and-derivative-use immunity, a witness is only
assured that his or her particular testimony and evidence derived from it will
not be used against him or her in a subsequent prosecution.[36]
Applying the broader standard of transactional immunity, it might be argued
that the immunity which the PCGG is authorized to grant to Tanchanco
should pertain only to those acts or offenses which are the subject of the
information or testimony given by him. Considering though that the
applicable law at hand does not make such a qualification, the adoption of
that view would force us into a concession that the legislative authority to
grant criminal immunity is limited to transactional or use-and-derivative-use
immunity. We cannot accept the proposition.
Transactional immunity derives from common-law tradition, which gives
greater deference to the weight of judicial precedents since the codification
of laws by the legislature is atypical in practice. In our jurisdiction though, the
definition of crimes and provision of criminal penalties are ineluctably within
the sole province of the legislative branch of government. It thus follows that
this prerogative necessarily empowers the legislative to enact conditions
under which a class of persons may be immune from criminal or civil
prosecution. Since the legislature possesses sole discretion to enact
statutes to such effect, it is not obliged to conform with judge-made
standards, or even traditional modalities concerning the grant of criminal
immunity. The solitary limitation on legislative grant of immunity, as with all
other legislative acts, is adherence to the Constitution.
Another consideration impels us to sustain this broad application of immunity
under Section 5 of E.O. No. 14-A. We cannot ignore the special
circumstances under which the PCGG was created, and the extra-ordinary
powers with which it was vested. The Freedom Constitution itself, under
which regime the body was created, recognized the need to [r]ecover ill-
gotten properties amassed by the leaders and supporters of the [Marcos]
regime. It has been acknowledged that the PCGG is charged with the
herculean task of bailing the country out of the financial bankruptcy and
morass of the previous regime and returning to the people what is rightfully
theirs.[37] For this reason, the PCGG was granted quasi-judicial
functions[38] encompassing special investigatory and prosecutorial powers,
among them, the power to grant immunity.
In tracing and recovering the colossal sums of ill-gotten wealth, the PCGG
would inevitably collide with powerful interests. Persons who would be able
to assist in the prosecution of cases of ill-gotten wealth may understandably
be hesitant to cooperate with the PCGG without the assurance of some
protection, or perhaps corresponding benefit on their part. There may be
some inherent unease with the notion that persons may acquit themselves of
their own criminal culpability by striking a deal with the government, yet the
process of compromise has long been allowed in our jurisdiction, and in the
jurisdiction of other states as well.[39] This holds especially true in the
prosecution of ill-gotten wealth cases, which not only involve monumental
amounts, but have also ineluctably acquired immense symbolic value.
The overwhelming need to prosecute the ill-gotten wealth cases is
entrenched in statute and public policy. The stakes being as they are, the
need is apparent for a highly conducive environment under which witnesses
may be induced to cooperate with the PCGG in the prosecution of the ill-
gotten wealth cases. The authorization of the PCGG to broadly extend
criminal immunity, as is apparent in the language of Section 5, is attuned to
such aims. Certainly, Section 5 as constructed leads to a reasonable
conclusion that the scope of criminal immunity which the PCGG may offer
need not be limited to prosecution relating to the information or testimony
offered by the witness. And it is apparent on the face of the Cooperation
Agreement with Tanchanco that the PCGG understood just as well that it
had the power to grant criminal immunity even over such acts which did not
directly bear on the information or testimony.
Our conclusion is also supported by the fact that based on the PCGG
immunity agreements which have come before this Court, the scope of
offered immunity has proven variable. For example, the grant of immunity
accorded by the PCGG to Jose Yao Campos and his family was qualified
only by reference to Section 5 of E.O. No. 14[40]. On the other hand, the
immunity received by Placido Mapa and Lorenzo Vergara was limited over
any offense with reference to which [their] testimony and information are
given, including any offense and commission of which any information,
directly or indirectly derived from such testimony or other information is used
as basis thereof, except a prosecution for perjury and/or giving false
testimony.[41] In Tanchancos case, his entitlement to criminal immunity
applies to three determinate circumstances: for acts committed while he was
in the service of the Marcos government; acts committed in behalf of the
Marcos government; and any other act revealed by him in the course of his
cooperation with the PCGG.
These variances are indicative of the fact that the PCGG has the discretion
to vest appropriate levels of criminal immunity according to the particular
witness. There are several factors that may affect this choice, which may
include the relative importance of the witness to the prosecution of ill-gotten
wealth cases, the degree of culpability of such cases, or even the conditions
expressed by the witness as sufficient to induce cooperation. Given the
language of Section 5, we do not doubt the latitude afforded to the PCGG in
determining the extent of criminal immunity it can afford the cooperative
witness. Such is conformable to the unprecedented power of the PCGG to
grant criminal immunity. We made the following pertinent observations in
Mapa:
We observe that in contrast to our other laws on immunity, section 5 of E.O.
No. 14, as amended, confers on the PCGG the power to grant immunity
alone and on its own authority. The exercise of the power is not shared with
any other authority. Nor is its exercise subject to the approval or disapproval
of another agency of government. The basic reason for vesting the power
exclusively on the PCGG lies in the principles of separation of power. The
decision to grant immunity from prosecution forms a constituent part of the
prosecution process. It is essentially a tactical decision to forego prosecution
of a person for government to achieve a higher objective. It is a deliberate
renunciation of the right of the State to prosecute all who appear to be guilty
of having committed a crime. Its justification lies in the particular need of the
State to obtain the conviction of the more guilty criminals who, otherwise, will
probably elude the long arm of the law. Whether or not the delicate power
should be exercised, who should be extended the privilege, the timing of its
grant, are questions addressed solely to the sound judgment of the
prosecution. The power to prosecute includes the right to determine who
shall be prosecuted and the corollary right to decide whom not to prosecute.
In reviewing the exercise of prosecutorial discretion in these areas, the
jurisdiction of the respondent court is limited. For the business of a court of
justice is to be an impartial tribunal, and not to get involved with the success
or failure of the prosecution to prosecute. Every now and then, the
prosecution may err in the selection of its strategies, but such errors are not
for neutral courts to rectify, any more than courts should correct the blunders
of the defense. For fairness demands that courts keep the scales of justice
at equipoise between and among all litigants. Due process demands that
courts should strive to maintain the legal playing field perfectly even and
perpetually level.[42]
Certainly, especially since nothing in Section 5 mandates a minimum
standard of criminal immunity, the PCGG was not obliged to grant
Tanchanco so broad an exemption. Yet the extent to which it did is
permissible under E.O. No. 14-A, and we are wont to uphold the broad
grant, especially as it favors a criminal defendant. Ambiguities in immunity
agreements must be construed against the State,[43] and any question of
interpretation must be resolved in favor of the defendant,[44] following the
underlying fundamental principle that all doubts must be resolved in favor of
the accused.
We are not in accord with the behavior of both the government and the
Sandiganbayan in this case. We have reviewed the pertinent memoranda
prepared respectively by the Commission on Audit and the Office of the
Special Prosecutor which eventually served as the basis for the institution of
the cases. From these documents, it is clear that no consideration was given
to the possible effects of the Cooperation Agreement on the viability of
prosecuting Tanchanco. The attitude of the investigators and prosecutors
appears to have been to pretend that the Cooperation Agreement did not
exist at all. This fact weakens the believability of belated claims, raised in
opposition to the instant motion to quash/dismiss, that Tanchanco had
actually violated portions of the Cooperation Agreement. The indications are
that the prosecutors, prior to the institution of the case, had not considered
such agreement at all as a factor, despite the clear language therein.
If indeed the government had known as a fact that Tanchanco had violated
his obligations under the Cooperation Agreement, the very least it could
have done was to notify him of such violations, or of its intent to rescind the
Cooperation Agreement. Vested rights were at stake which affected the
liberty of a person, and any deprivation or revocation therein could not be
effected in so blithe a fashion as that which occurred in this case.
Neither does it appear that the Sandiganbayan had given careful
consideration to the Cooperation Agreement when it ruled on the motion to
quash/dismiss. It resorted to generalizations such as the offenses are not
related to or connected with the testimony or information furnished by
Tanchanco[45] or the subject matter of the informations are NFA funds and
the records do not indicate that they have any relation whatsoever to the ill-
gotten wealth of the Marcoses or their cronies.[46]
Yet from the results of the investigations that led to the institution of the
charges, it is clear that the cases against Tanchanco arose from the
following acts or irregularities: (1) the transfer of NFA funds either to
Tanchancos personal account, the account of Oplan
Wag-Wag, or a private institution; (2) the failure to account for several
classes of funds received by Tanchanco, including discretionary funds,
amounts contributed to the Food Production and Nutrition Fund, and other
donations. From the Pelaez affidavit, it is clear that the PCGG had precisely
investigated the anomalous transfer of NFA funds during the Marcos
Administration, particularly the use of discretionary or intelligence funds of
the NFA, and that Tanchanco had given information relating to such
investigation.
Faced with these facts, the conclusion of the Sandiganbayan that the subject
informations bore no relation either to the acquisition of ill-gotten wealth or
the investigations of the PCGG is questionable. It may be within the realm of
possibility that at least some of the charges against Tanchanco pertain to
acts he performed for his own personal benefit, without regard to the
scheme implemented for the acquisition of ill-gotten wealth. Still, neither the
Sandiganbayan nor the prosecution appears to have seriously considered or
laid down such a distinction. And besides, as earlier stated, the scope of the
Cooperation Agreement itself precludes the prosecution of Tanchanco under
the subject charges.
We should observe that the Sandiganbayan First Division, in a different
case, had also considered the application of the Cooperation Agreement in
the criminal prosecution of Tanchanco. The disposition of the instant motion
to quash and/or dismiss of the Sandiganbayan Second Division pales in
comparison to the judicious deliberation of the First Division, through the late
Presiding Justice Francis Garchitorena. Particularly admirable was how the
First Division had applied this Courts precedents on the authority of the
PCGG to grant criminal immunity, especially Mapa. The First Division cited
the threefold test laid down in Mapa on the parameters under which the
Sandiganbayan could review the grant of immunity, and arrived at the
following crucial conclusions, namely: (i) that Tanchanco had cooperated
with the PCGG in obtaining information on the Marcos wealth; and (ii) that
the PCGG exercised bona fide judgment in deciding to grant immunity to
Tanchanco. In contrast, the Sandiganbayan Second Division, without
considering Mapa and other relevant precedents, rashly concluded without
palpable basis that the Cooperation Agreement did not cover the subject
charges.[47]
We thus hold that the Cooperation Agreement, validly undertaken between
the PCGG and Tanchanco as it was, precludes the prosecution of
Tanchanco under the subject charges. The Sandiganbayan acted with grave
abuse of discretion in refusing to dismiss the charges despite its lack of
jurisdiction to continue hearing the cases against Tanchanco. The present
petition, insofar as it relates to Tanchanco, must be granted. It goes without
saying though that this ruling does not shield all grantees under Section 5 of
E.O. No. 14-A from all kinds
of criminal prosecution. The extent of immunity available to each particular
grantee depends on their respective immunity agreements with the PCGG
and the surrounding facts.
Lacson Not Entitled To Immunity
A different result must obtain for petitioner Lacson. There is no legal basis
that would preclude his prosecution under the subject informations. The
reason is simple. There is no subsisting agreement by virtue of which the
State granted any kind of immunity from criminal prosecution to Lacson.
Certainly, Lacson could not inveigh that Tanchancos Cooperation Agreement
also applies as to him since he was not a party thereto. Nor is there, on the
face of the Cooperation Agreement, any evident intention on the part of the
PCGG and Tanchanco to extend the grant of immunity to other persons as
well. Besides, even if there was such intent, it may be of doubtful validity
since the authority of the PCGG to grant immunity under Section 5-A of E.O.
No. 14-A is limited to person[s] who provide information or testif[y] in any
investigation conducted by [the PCGG].[48]
Criminal immunity must be specifically granted.[49] We cannot uphold a
grant of criminal immunity to a person whom the State never intended to
exempt from prosecution, or who performed no act to the benefit of the State
that may have served as basis for a possible grant of exemption. It should
be emphasized that the grant of immunity to Tanchanco did not have the
effect of obviating all consequential culpabilities arising from Tanchancos
acts. Only Tanchancos own criminal liability was extirpated, for the reason
that the government saw a higher social value in eliciting information from
him rather than engaging in his prosecution. No correlative tradeoff occurred
as to Lacson, so we do not see any reason in law or in equity to exempt him
as well.

It may seem unsettling to some that Lacson will have to endure criminal
prosecution while Tanchanco would be discharged, or that Tanchanco will
need not answer for whatever culpable acts of his during his service in the
G.R. No. 138335 May 20, 2004
Marcos government. Yet the Court is not the guarantor of karmic warrants,
but only of legal ones. The Cooperation Agreement, entered into in the
judgment of the State that it would serve a higher end of justice, is a valid THE PEOPLE OF THE PHILIPPINES, appellee,
document, enforceable as to Tanchanco before this Court and other courts vs.
of the land. OSCAR ALCANZADO, appellant.

WHEREFORE, the petition is GRANTED IN PART. The Court hereby orders DECISION
the DISMISSAL of the SUBJECT CRIMINAL CASES INSOFAR AS
PETITIONER JESUS TANCHANCO IS CONCERNED. No pronouncement
as to costs. AUSTRIA-MARTINEZ, J.:

SO ORDERED. Before this Court is a petition for review on certiorari under Rule 45 of the
Rules of Court assailing the decision1 dated April 5, 1999 issued by the
Regional Trial Court (Branch 66) of Makati City (RTC for brevity) in Criminal
Case No. 98-1634, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, judgment is hereby rendered

finding accused OSCAR ALCANZADO y ORQUEZA GUILTY
beyond reasonable doubt of MURDER, with the qualifying
circumstance of treachery, and the Court hereby sentences him to
suffer the penalty of Reclusion Perpetua and to pay the heirs of the
unidentified victim the sum of ₱50,000.00 as moral damages.

SO ORDERED.

Makati City, Metro Manila, April 5, 1999.2

However, a careful examination of the records reveals that the assailed

decision will have to be set aside and the records remanded back to the
RTC for reception of evidence for the defense.
Appellant pleaded not guilty during his arraignment on July 30, 1998. Trial on
the merits ensued. The prosecution rested its case on October 13, 1998. 3
Upon motion of appellant, the RTC issued an Order dated November 10,
1998 allowing appellant to file a demurrer to evidence.4 On November 19,
1998, appellant filed his Demurrer to Evidence 5 which was opposed by the
prosecution.6 On April 22, 1999, the RTC promulgated herein assailed
decision convicting appellant.7
The RTC committed a very serious error in promulgating a decision after
denying the demurrer to evidence filed by appellant upon prior leave of
court, without first giving appellant the opportunity to present his evidence.
Section 15, Rule 119 of the Rules of Court provides:
SEC. 15. Demurrer to evidence. – After the prosecution has rested
its case, the court may dismiss the case on the ground of
insufficiency of evidence: (1) on its own initiative after giving the
prosecution an opportunity to be heard; or (2) on motion of the
accused filed with prior leave of court.
If the court denies the motion for dismissal, the accused may adduce
evidence in his defense. When the accused filed such motion to dismiss
without express leave of court, he waives the right to present evidence and
submits the case for judgment on the basis of the evidence for the
prosecution.
Contrary to the RTC’s assertion in its decision that the demurrer to evidence
was denied,8 the records of the case do not reveal that there was any prior
order denying appellant’s demurrer to evidence before the rendition of the
assailed judgment. Evidently, the trial court violated the aforequoted
provisions of Section 15, Rule 119. Appellant had filed a motion for leave to
file a demurrer to evidence which was granted by the RTC and therefore
upon denial of his demurrer, if indeed it was denied, the trial court should
have given appellant the opportunity to present his evidence. Equally
astonishing is the fact that appellant’s counsel did not raise said irregularity
as an issue in the RTC or in this Court. In effect, appellant has not been
accorded due process.
Due to the procedural unfairness and complete miscarriage of justice in the
handling of the proceedings in the RTC, 9 a remand of the case for reception
of defense evidence is warranted. The constitutional right of the accused to
be heard on his defense has been violated.10
So that appellant may be spared from further delay, the Court deems it
necessary to treat the herein assailed judgment as a mere resolution
denying the demurrer to evidence and ascertain whether the RTC has
committed grave abuse of discretion in not granting the same.
The RTC made the following findings of fact and law, viz:
In brief, the evidence for the prosecution show that on the early
morning of June 17, 1998, the Barangay Tanods of Bel-Air, while on
duty, which is adjacent to TGIF American Bar, heard two (2) shots;
when they investigated they found a dead body of the victim with
two (2) gunshot wounds inside the storeroom of TGIF being
guarded by the accused. The accused, who was the security guard
of the TGIF, surrendered his service firearm (Exhibit "D") to
policeman Bagon which was found to have spent two (2) spent
shells. The ballistic report states that the two (2) spent shells were
fired from the gun surrendered by the accused to policeman Bagon.
The accused opted to file demurrer to evidence which was denied
by the Court, instead of testifying and could have explained what
really happened and why he surrendered his service firearm.
The Court finds the presence of a qualifying circumstance of
treachery, when the accused fired at the victim one on his shoulder
and another at his head in close range (TSN dated October 13,
1998, p. 36).11
There was no eye-witness to the shooting incident. The RTC relied
principally on the admission of appellant to the police officer that he shot the
unknown victim when he surrendered his service firearm.
In his demurrer to evidence, appellant pointed out the following:
I. There is no evidence that the firearm marked and offered as
Exhibit D belonged or was assigned to the accused.
II. There is no evidence that the accused had recently fired a gun in
the early morning of June 17, 1998.
III. There is no evidence that the firearm marked and offered as
Exhibit D was the same firearm that killed the unknown victim in
this case.
 IV. There is reasonable doubt that the body examined by the
medico-legal witness was the same body recovered from the scene
of the killing.
V. The extrajudicial admission made by the accused to the police
officer and his alleged voluntary surrender of the .38 caliber
revolver cannot be admitted in evidence against the accused for
having been obtained in violation of his constitutional rights.
VI. Without any admission on the part of the accused or an
unbroken chain of incriminating circumstances, the accused is
entitled to acquittal since the prosecution failed to prove his
culpability for the death of the unknown victim here beyond a
reasonable doubt.12
Considering that the first four items as above enumerated involve questions
of fact, the Court will not pre-empt the RTC in rendering its findings of fact
after it shall have received the defense evidence as well as rebuttal and sur-
rebuttal evidence, if parties find it necessary.
However, the Court is constrained to resolve the question arising from the
fifth and sixth claims of appellant, which is: Whether or not the admission
made by appellant to the police officer is admissible in evidence. It is the
only link that would positively connect appellant to the shooting of the victim,
for the service gun may belong to him and it may have been used in the
shooting of the victim, but the missing link is the ascertainment of whether
he was the one who shot the victim. Without the testimony of the police
officer that appellant had verbally acknowledged to him having shot the
victim, the herein-before quoted circumstantial evidence enumerated by the
RTC do not support the conviction of appellant beyond reasonable doubt.
Section 12 (1) and (3), Article III of the 1987 Constitution provides:
Section 12. (1) Any person under investigation for the commission
of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. The rights
cannot be waived except in writing and in the presence of counsel.
...
(3) Any confession or admission obtained in violation of this or the
preceding section shall be inadmissible in evidence against him.
The rights of the accused as provided therein may be invoked only when a
person is under "custodial investigation" or is "in custody investigation" 13
which has "been defined as the "questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way" [People vs. Caguioa, G.R. No.
L-38975, January 17, 1980, 95 SCRA 2, 9 citing Miranda v. Arizona, 384
U.S. 436].14
SPO1 Rolando Bagon, the police officer of Precinct 9, Makati City, who
responded to the report of the shooting incident, testified as follows:
Q: What time did you arrive there at TGI Friday’s Restaurant?
A: When we arrived there it was at around 5:15 to 6:00.
Q: A.M.?
A: June 17, Sir.
Q: When you arrived there, what did you do, Mr. Witness?
A: The barangay tanod present at that time pointed to us and
turned over to us the alleged suspect who is the security guard of
the said establishment then we went to the security guard and he
voluntarily surrendered himself to us, together with the firearm, a .
38 caliber.
Q: What did he tell you when he surrendered and gave to you his .
38 caliber Mr. Witness?
...
WITNESS A: That he allegedly hold (sic) a robber inside "while
stealing" according to him a cash register of the bar and some
assorted goods.
COURT:
 Q: Who told you that? A: Yes sir.

WITNESS: Atty. Alikpala:

A: The security guard, the alleged suspect Sir. And at that scene at that time was the accused in this case, Osca
Alcanzado, is that correct?
FISCAL FLORES:
Witness:
Q: What else did he tell you?
Yes sir.
A: Nothing Sir, he fired his gun at the victim.
...
...
Atty. Alikpala:
FISCAL FLORES:
Mr. Witness, isn’t it also true that at that time you conducted an
Q: After the said accused surrendered himself and his firearm, what investigation you spoke with the accused in this case?
else did you do at the said bar?
Witness:
A: Sir, we invited him to our precinct to shed light or to answer what
he committed.15 (Emphasis supplied). Yes sir.

and, on his cross-examination, he testified as follows: Atty. Alikpala:

Q: Is it not true that when the accused Oscar Alcanzado in this case
approached you, he was not evasive and that he voluntarily turned
over the firearm and his person to you?
A: Yes, Sir.16
The cross-examination of homicide investigator PO2 Rio S. Bucalan who
proceeded to the shooting incident, revealed the following:
And when you spoke to the accused, did you tell him about his right
to remain silent and his right to counsel?
Witness:
He is not still turn-over to me by the police officer.
...

Q: Mr. Witness, when you arrived at the scene of the incident in Atty. Alikpala:
questioned in this case, is it correct to say that you conducted the
investigation right there and then?
Mr. Witness, so at that time that you conducted your investigation,
you spoke to the accused?
Witness:
Witness:
Yes sir. Atty. Alikpala:

Atty. Alikpala: And this was in the course of your investigation, correct?

And did you tell him about his right to remain silent and his right to Witness:
counsel?
Yes sir.
Witness:
Atty. Alikpala:
In fact I don’t know that he is the accused during my initial inquiry.
And the accused in this case, did not execute any written waiver of
Atty. Alikpala: his right to remain silent, is that correct?

But you knew that he was a Security Guard? Witness:

Witness: No sir.

Yes sir. Atty. Alikpala:

Atty. Alikpala: And also the accused in this case did not execute any written
waiver of his right to counsel, is that correct?
And so could you tell us what happened when you talked to him?
Witness:
Witness:
No sir.
During the initial inquiry he claimed that . . . . he verbally
claimed that he shot the victim because of self-defense. COURT:

... What do you mean no?

COURT: Witness:

He claimed that he shot the victim? He did not execute, sir.

Witness: Atty. Alikpala:

Yes, Your Honor. And it is also correct that the time he was talking to you there was
no lawyer present assisting the accused, is that correct?
 Witness:
Yes sir.17
Under the above circumstances, the Court finds that while the admission
made by appellant to PO2 Bucalan may not be admitted in evidence
considering that the alleged verbal admission made by appellant before him
as homicide investigator was made without appellant being informed of his
right to remain silent and right to counsel and after appellant had been
established as the suspect by the police officers who had arrived at the
scene of the crime before PO2 Bucalan came.
However, the Court cannot disregard the testimony of SPO1 Bagon who,
together with his co-police officers, responded to the call of the barangay
tanod and immediately upon his arrival, appellant spontaneously told him
that he had shot the victim. This particular admission was made when
appellant has not been taken into custody by the police officers and
therefore admissible in evidence. The constitutional procedures on custodial
investigation do not apply to a spontaneous statement not elicited through
questioning by the authorities but given in an ordinary manner whereby the
accused readily admitted having committed the crime.18
Consequently, for purposes of determining whether the demurrer to
evidence should have been granted, the connection between the service
gun and appellant as the perpetrator of the shooting, without any
countervailing evidence, had been sufficiently established. Thus, the RTC
did not commit any grave abuse of discretion in denying the demurrer to
evidence BUT it committed grave abuse of discretion in outrightly convicting
appellant of the crime of murder and sentencing him to suffer reclusion
perpetua when appellant has not been given the opportunity to adduce
evidence in his defense, pursuant to Section 15, Rule 119 of the Rules of
Court.
Further, the attendant justifying, mitigating or aggravating circumstance such
as self-defense, treachery and voluntary surrender could only be ascertained
fully after the defense evidence, rebuttal and sur-rebuttal, if any, shall have
been adduced and evaluated by the RTC in the rendition of its judgment on
the case.
Had Presiding Judge Rosario, Jr. not compulsorily retired from the Judiciary,
he could have been admonished to be more circumspect in the performance
of his duties.
WHEREFORE, the petition is GRANTED. The decision dated April 5, 1999
of the Regional Trial Court (Branch 66), Makati City is SET ASIDE for being
null and void. Let the records of Criminal Case No. 98-1634 be remanded to
said trial court for reception of defense evidence and further proceedings.
The presiding judge is directed to conduct the trial of the case and render
judgment thereon with immediate dispatch.
SO ORDERED.
G.R. No. 139456 July 7, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
ADONES ABATAYO, appellant.
DECISION
CALLEJO, SR., J.:
On appeal is the Decision1 of the Regional Trial Court of Mandaue City,
Branch 56, in Criminal Case No. DU-4381 finding appellant Adones Abatayo
guilty beyond reasonable doubt of two counts of murder and sentencing him
to suffer reclusion perpetua for each count.
The appellant was charged with the crime of double murder in an
Information dated January 31, 1994. The indictment reads:
That on or about the 10th day of September 1993, in the City of
Mandaue, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused with deliberate intent to kill and
with treachery and evident premeditation, did then and there
wil[l]fully, unlawfully and feloniously attack, assault and strike
Dominador Basalan and Teofredo Basalan with the use of a GI
 pipe, thereby inflicting upon them mortal wounds in (sic) their
head[s] which caused their instantaneous death.
CONTRARY TO LAW.2
Upon arraignment, the appellant, assisted by counsel, pleaded not guilty.3
The first witness for the prosecution was Juanito Gutang, whose direct
examination was terminated during the trial of November 22, 1994. The
appellant’s counsel commenced with his cross-examination of the witness,
but later prayed for a resetting as he still had many questions for the said
witness. The court granted the motion. However, during the continuation of
the trial on January 23, 1995, Juanito failed to appear due to fever. The
public prosecutor then asked the court to defer the further cross-examination
of Juanito until he recovered from his illness, and that he be allowed to
present his second witness, Apolonio Quilag. The appellant did not object.
The court granted the motion, but warned the public prosecutor that if
Juanito would not appear to continue with his testimony by the next trial
date, his testimony would be stricken off the record.4 However, such warning
was not contained in the order issued by the court on even date.
During the trial on March 2, 1995, the public prosecutor presented PO2
Alfredo Andales, and thereafter, the victims’ mother, Silvina Basalan. Both
testimonies were completed. The hearing of April 17, 1995 was cancelled,
after the parties admitted the authenticity of Dr. Ladislao Diola, Jr.’s necropsy
report and agreed to dispense with his testimony thereon. The public
prosecutor announced that he would rest his case on May 22, 1995.5
During the trial on May 22, 1995, the public prosecutor manifested that he
was ready to offer his documentary evidence and rest his case thereafter.
He offered in evidence the affidavit of Juanito as part of his documentary
evidence. The appellant objected to the admission of the affidavit for the
purpose for which it was offered. The court nevertheless admitted the
affidavit and the public prosecutor rested his case. On motion of the
appellant, trial was set at 8:30 a.m. of June 26, 1995 for the presentation of
the witnesses for the defense.
The Case for the Prosecution6
Teofredo Basalan and his brother Dominador Basalan, aged 24 and 26,
respectively, lived with their mother Silvina Basalan in Colon, Naga, Cebu
City.7 They were stay-in construction workers at the construction site of the
Gaisano FCDC at Ibabao, Mandaue City.8
At around 7:00 p.m. of September 9, 1993, after a hard day’s work at the
construction site, laborers Juanito Gutang, Apolonio Quilag and Pedro
Esconia, as well as an unidentified co-worker, retired early in their quarters.9
At around 3:00 a.m. the following day,10 Juanito was awakened by an
unusual thud, similar to that produced by someone "striking somebody."11
He got up and saw the appellant, from a distance of about three (3)
meters,12 hitting Teofredo and Dominador with a lead pipe.13 Juanito woke
up his co-workers and told them what he had just witnessed.14 Apolonio
saw the victims, already lying in a pool of blood.15 Juanito and his co-
workers immediately reported the incident to the security guards on duty
who, in turn, called up the Mandaue City police station.16
Meanwhile, the appellant hurriedly left the job site, bringing with him his
personal belongings.17
PO2 Alfredo Andales, who was assigned to the case, forthwith conducted an
on-the-spot investigation. At the crime scene, he found the victims’ bloodied
corpses, with their respective heads smashed. He also found a galvanized
iron (G.I.) pipe, the weapon used to kill the victims.18 His investigation
revealed that the night before the victims were killed, they had an
acrimonious quarrel with the appellant over some misplaced construction
tools which were later recovered.19 The policemen had the incident
recorded in the police blotter20 with the appellant as the prime suspect.
In the afternoon of that same day, the bodies of the victims were brought to
the Cosmopolitan Funeral Homes where Dr. Ladislao V. Diola, Jr., conducted
a post mortem examination. He signed a necropsy report stating that the
victims died due to "cardio respiratory arrest due to shock and hemorrhage
secondary to injuries to the head."21 By agreement of the parties, the
testimony of Dr. Diola was dispensed with after the defense admitted the
findings contained in the doctor’s post mortem report.22 On September 16,
1993, Juanito and Apolonio subscribed and swore to the truth of their
respective affidavits before the public prosecutor.23
Silvina testified that she fainted when she learned of the death of her two
sons. She spent around P50,000.00 for the wake and funeral. She also
testified that the death of her two sons caused her emotional pain, but when
asked to translate her pain into monetary terms, she left it for the court to
determine.24
The Evidence of the Appellant25
The appellant testified that he started working for Super Metro Gaisano as a
construction worker sometime in mid-August 1993. On September 9, 1993,
after rendering overtime work for two hours, he decided to go home. He left
the job site at around 7:00 p.m., and hitched a ride home in the company’s
vehicle driven by Charmel Ralago, who happened to be his neighbor. He
finally arrived home at about 9:00 p.m. The following morning, his uncle
dropped by his place and asked to be accompanied to Carcar, Cebu, as it
was the town’s fiesta. The appellant readily acquiesced. Consequently, he
absented himself from work, and requested a co-worker to get his salary.
After the fiesta, he went back home but no longer reported for work. Instead,
he went to Bohol. He returned home in December 1993 in time for the
holiday season. He was surprised when he was arrested in August 1994 for
the killings of the Basalan brothers.26
Bernabe Hinario, 23 years old, erstwhile taho peddler and next-door
neighbor of the appellant, corroborated the latter’s alibi. He testified that at
about 9:00 p.m. on September 9, 1993, as he was whiling away the time in
the neighborhood, he saw the appellant arrive from work as usual. The
appellant greeted him and invited him to attend the fiesta in Carcar, Cebu,
the next day. He declined because of his work. Thereafter, they parted ways,
as the appellant proceeded to his house.27
Leonora Abatayo, the appellant’s mother, testified that she was in their
house when the appellant arrived home at about 9:00 p.m. on September 9,
1993. After taking his dinner, the appellant slept. The following morning, after
breakfast, the appellant left with his uncle, Fransico Malubay, to attend the
fiesta in Carcar, Cebu.28
After trial, the court rendered a decision, the dispositive portion of which
reads:
Foregoing considered and in the light of Prosecution witness
Juanito Gutang’s positive identification and eyewitness account of
the killing, the Court is constrained and so finds the Accused
GUILTY of the crime of two counts of Murder. Accordingly, Accused
is sentenced to suffer the penalty of Reclusion Perpetua for each
count of Murder. Accused is, likewise, ordered to:
1. Reimburse the victim’s kin for actual expenses in the
sum of Seventeen Thousand Pesos (P17,000.00);
2. Pay damages in the total sum of Two Hundred
Thousand Pesos (P200,000.00) plus costs.
SO ORDERED.29
In convicting the appellant, the trial court relied on the testimony of Apolonio
and eyewitness Juanito Gutang, which were corroborated by the medical
findings showing the nature and the location of the wounds inflicted on the
victims. The court brushed aside as dubious and weak the denial and alibi
interposed by the appellant. According to the court, such defenses could not
prevail over the positive identification made by Juanito of the appellant as
the perpetrator of the crime.30
The appellant now assails his conviction, asserting that:
I
THE TRIAL COURT ERRED IN NOT ORDERING THE STRIKING
OUT OF THE ENTIRE TESTIMONY OF THE PROSECUTION[’S]
ALLEGED EYEWITNESS JUANITO GUTANG ANENT THE CRIME
CHARGED IN VIEW OF HIS UNJUSTIFIED FAILURE TO ALLOW
HIMSELF TO BE FURTHER CROSS-EXAMINED PURSUANT TO
ITS ORDER DATED JANUARY 23, 1995.
II
THE TRIAL COURT ERRED IN GIVING PROBATIVE VALUE TO
THE UNFINISHED TESTIMONY OF THE PROSECUTION
WITNESS JUANITO GUTANG DESPITE ITS INHERENT
IMPLAUSIBILITY AND IN DISREGARDING THE EVIDENCE
INTERPOSED BY [THE] ACCUSED-APPELLANT WHICH WAS
AMPLY CORROBORATED ON MATERIAL POINTS.
III
THE TRIAL COURT ERRED IN RENDERING A VERDICT OF
CONVICTION NOTWITHSTANDING THE FACT THAT ACCUSED-
APPELLANT’S GUILT WAS NOT PROVEN BEYOND
REASONABLE DOUBT.31
The Ruling of the Court
We affirm the findings of the trial court and sustain the conviction of the
appellant with modifications.
The Incomplete Cross-Examination of Juanito Gutang
The appellant insists that the trial court should not have given credence to
the story of the lone eyewitness for the prosecution, Juanito Gutang,
considering that his counsel was not able to continue cross-examining the
witness. He strongly argues that his constitutional and procedural right to
confront the witness against him was thereby impaired. Citing Ortigas, Jr. v.
Lufthansa German Airlines32 as the case in point, the appellant faults the
trial court for relying on Juanito’s testimony despite the warning it made
during the trial of January 23, 1995, that it would consider the entire
testimony of Juanito stricken off the record for lack of proper cross-
examination.33
The Office of the Solicitor General (OSG), for its part, asserts that while the
appellant has the constitutional right to cross-examine the witnesses against
him, he waived such right when he failed to invoke the same after his initial
cross-examination of Juanito.
We agree with the OSG.
Under Article III, Section 14(2) of the 1987 Constitution, the appellant has
the right to meet the witnesses against him face to face. Under Rule 115,
Section 1(f) of the Rules of Court, he has the right to confront and cross-
examine the witnesses against him at the trial, a fundamental right which is
part of due process. However, the right of confrontation and cross-
examination is a personal one. It is not an absolute right which a party can
claim at all times.34
In Savory Luncheonette v. Lakas ng Manggagawang Pilipino,35 we ruled
that the right to confront the witness may be waived by the accused,
expressly or impliedly.
The right of a party to confront and cross-examine opposing
witnesses in a judicial litigation, be it criminal or civil in nature, or in
proceedings before administrative tribunals with quasi-judicial
powers, is a fundamental right which is part of due process.
However, the right is a personal one which may be waived,
expressly or impliedly, by conduct amounting to a renunciation of
the right of cross-examination. Thus, where a party has had the
opportunity to cross-examine a witness but failed to avail himself of
it, he necessarily forfeits the right to cross-examine and the
testimony given on direct examination of the witness will be
received or allowed to remain in the record.
The conduct of a party which may be construed as an implied
waiver of the right to cross-examine may take various forms. But
the common basic principle underlying the application of the rule on
implied waiver is that the party was given the opportunity to
confront and cross-examine an opposing witness but failed to take
advantage of it for reasons attributable to himself alone.36
In the later case of Fulgado v. Court of Appeals,37 we ruled that the task of
recalling a witness for cross-examination is imposed on the party who
wishes to exercise said right, and stressed that it should be the opposing
counsel who should move to cross-examine the plaintiff’s witness. Thus:
The task of recalling a witness for cross-examination is, in law,
imposed on the party who wishes to exercise said right. This is so
because the right, being personal and waivable, the intention to
utilize it must be expressed. Silence or failure to assert it on time
amounts to a renunciation thereof. Thus, it should be the counsel
for the opposing party who should move to cross-examine plaintiff’s
witnesses. It is absurd for the plaintiff himself to ask the court to
schedule the cross-examination of his own witnesses because it is
not his obligation to ensure that his deponents are cross-examined.
Having presented his witnesses, the burden shifts to his opponent
who must now make the appropriate move. Indeed, the rule of
placing the burden of the case on plaintiff’s shoulders can be
construed to extremes as what happened in the instant
proceedings.38
In this case, we are convinced that the appellant waived his right to further
cross-examine Juanito. The records show that Juanito testified for the
prosecution on direct examination on November 22, 1994. Thereafter, the
appellant’s counsel cross-examined the witness on the corpus delicti. He
then moved for a resetting as he still had many questions to ask the witness.
Juanito failed to attend the trial on January 23, 1995 for the continuation of
his cross-examination because he had a fever. The appellant did not object
to the deferment of Juanito’s cross-examination; neither did he object to the
public prosecutor’s presentation of Apolonio Quilag as its second witness.
The trial was reset to March 2, 1995 for the continuation of Juanito’s cross-
examination.39 However, no subpoena ad testificandum was issued to
Juanito for the said trial. There is, likewise, no showing whether Juanito was Q Mr. Juanito Gutang, you are a construction worker of what
in court on March 2, 1995 when the case was called. Furthermore, the company?
appellant did not object when the public prosecutor presented PO2 Andales
and Silvina Basalan as witnesses. A FCDC.

During the trial on April 17, 1995, the public prosecutor manifested, following ...
the stipulation of the parties on the authenticity of Dr. Ladislao Diola, Jr.’s
necropsy report, that he would be ready to rest his case by the next trial.
Again, the appellant did not call the attention of the court on the fact that he Q On the said date, September 10, 1993, at around 3:00 o’clock in
had not yet finished his cross-examination of Juanito. He did not ask to be the evening (sic) where were you?41
allowed to terminate the cross-examination of the witness first before
allowing the prosecution to rest its case. Neither did the appellant ask the …
court to strike Juanito’s testimony on direct and cross-examination from the
records. When the case was called for trial on May 22, 1995, the public ATTY. SURALTA
prosecutor announced that he had no more witness to present and was
ready to formally offer his documentary evidence. There was no objection
from the appellant. Neither did the appellant object to the offer of Juanito’s Misleading, there is no such time.
affidavit40 as part of his testimony, on the ground that he was deprived of his
right to complete his cross-examination of the said witness. Moreover, when FISCAL MATA
he testified, the appellant disputed the testimony of Juanito that he killed the
victims, claiming that he was at home when the victims were killed. The
Q At 3:00 o’clock dawn or in the morning?
appellant adduced testimonial evidence corroborating his alibi.

A In our bunk house.

All the foregoing instances conclusively show that the appellant had waived
his right to further cross-examine Juanito. From the conduct of the
appellant’s counsel, it can be fairly inferred that he considered the initial Q What do you mean by bunk house?
cross-examination of Juanito adequate, and that there was no longer a need
to further cross-examine the witness. A The place where we slept.42

Credibility of Witnesses and Sufficiency of Prosecution’s Evidence ...

Reviewing the records, we find that the prosecution has proven beyond Q Do you know of any incident on September 10, at around 3:00
doubt that the appellant killed the victims. He was positively identified by the o’clock early in the morning?43
lone eyewitness, Juanito Gutang. The testimony of this lone eyewitness is
clear, straightforward, categorical and consistent, without any tinge of
...
falsehood or sign of fabrication. In his testimony, he narrated the nightmarish
events that transpired in that unholy hour of 3:00 a.m. on September 10,
1993, thus: Q Now, what was that incident you mentioned all about?

FISCAL MATA (on direct) A I was awakened by a sound striking somebody, and when I got
up, I saw Adones holding a pipe.
...
Q You mentioned Adones, who is this Adones?
 A Adones Abatayo.44
...
COURT (to witness)
Q What was he doing with the pipe?
A He was striking it against my companions who were sleeping?
COURT:
Proceed.
Q Who are these companions you mentioned?
A The brothers, Teofredo and Dominador.
Q What are their family names?
A Basalan.
Q Where are these Teofredo and Dominador Basalan now?
A They are already dead.45
No evil motive has been imputed against Juanito Gutang for testifying
against appellant. As a matter of fact, the latter admitted that no bad blood
existed between them, and he knew of no reason why the former would
testify against him.46 In such a situation, the rule is that where there is no
evidence, and nothing to indicate that the principal witness for the
prosecution was actuated by improper motives, the presumption is that he
was not, and his testimony is entitled to full faith and credit.47 Furthermore,
it is unlikely that this witness could relate all the details of the crime with
clarity and lucidity if he had not actually witnessed the killings of the Basalan
brothers.
It is well-established that the trial court’s calibration of the credibility of
witnesses should not be disturbed on appeal since the said court is in a
better position to decide the question, having itself heard and observed the
demeanor of the witnesses on the stand, unless it has plainly overlooked
certain facts of substance and value, which, if considered, could alter and
affect the result of the case.48 In the case at bar, we find no reason to
depart from this rule, given the trustworthiness of the testimony of the
witness.
The Prosecution Failed
To Prove Treachery and
Evident Premeditation
Beyond Reasonable Doubt
The trial court found the appellant guilty of murder and sentenced him to
suffer the penalty of reclusion perpetua in each case, without finding any
circumstance attendant to the crime to qualify the killings to murder. Section
1,49 Rule 120 of the Revised Rules of Court, requires that after an
adjudication of guilt by the court, it should impose the proper penalty and
civil liability provided for by law. Further, Section 250 of the same Rule
mandates that the judgment of conviction should state, among others, the
aggravating or mitigating circumstances attendant to the commission of the
crime, if there are any, to enable the Court to determine the proper penalty
on the appellant. Judges who faithfully observe this duty contribute to the
orderly administration of justice.51
Treachery cannot be appreciated in this case where the lone eye-witness to
the killing, Juanito Gutang, was not able to see how the assault started. The
fact that the incident happened in an unholy hour, around 3:00 a.m., did not
prove that the victims were sleeping when they were killed. As Juanito
Gutang testified, he was asleep when appellant started the attack on his
victims and he was only awakened by thudding sounds, as the appellant
struck the victims with a pipe. The importance of such testimony cannot be
overemphasized, considering that treachery cannot be presumed nor
established from mere suppositions.52
Under our penal law, there is treachery when the offender commits any of
the crimes against persons, employing means, methods or forms in the
execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party
might make.53 It requires the concurrence of two conditions: 1) employment
of means of execution that gives the person attacked no opportunity to
defend himself, much less to retaliate; and, 2) deliberate or conscious
adoption of the means of execution.54 The essence of treachery is the
sudden and unexpected attack by an aggressor on an unsuspecting victim,
depriving the latter of any real chance to defend himself and thereby
ensuring its commission without risk to himself.55
It is settled that if the victim, when killed, was sleeping or had just awakened,
the killing is with treachery because in such cases, the victim was not in a
position to put up any form of defense.56 However, when the lone
eyewitness for the prosecution did not see how the attack commenced, the
trial court cannot presume from the circumstances of the case that there was
treachery. Circumstances which qualify criminal responsibility cannot rest on
mere conjectures, no matter how reasonable or probable, but must be based
on facts of unquestionable existence.57 Thus, treachery cannot be deduced
from mere conjectures, presumption or sheer speculation.58 Mere
probabilities cannot substitute for proof required to establish each element
necessary to convict. Settled is the rule that treachery cannot be presumed
but must be proved by clear and convincing evidence, or as conclusively as
the killing itself.59
Like treachery, evident premeditation should be established by clear and
positive evidence. Mere inferences or presumptions, no matter how logical
and probable they might be, would not be enough. In the case at bar, evident
premeditation was, likewise, not proven. The prosecution did not even
attempt to prove the three elements necessary before evident premeditation
may be appreciated as a qualifying aggravating circumstance, namely: (a)
the time when the accused determined to commit the crime; (b) an act
manifestly indicating that the accused has clung to his determination; and,
(c) a sufficient lapse of time between such a determination and execution to
allow him to reflect upon the consequences of his act.60 A police report of a
prior spat61 between the appellant and the victims is not enough, as nothing
in the records show that the appellant planned in advance the commission of
the crime. The principal eyewitness was not even aware of any prior incident
or possible reason which could have led the appellant to attack the victims.
The Defenses of Alibi and Denial
The appellant insists that the trial court erred in disbelieving his alibi. He
contends that the testimony of Bernabe Hinario, a neighbor, being a
disinterested witness, should have been given more weight than the
untested words of Juanito Gutang.62
The trial court certainly could not be faulted for not giving probative weight to
the appellant’s alibi. Besides being inherently weak for not being airtight, the
appellant’s alibi cannot prevail as against the positive identification made by
the prosecution witness. On top of its inherent weakness, alibi becomes less
plausible as a defense when it is corroborated only by a relative or a close
friend of the accused.63 At any rate, it was for the trial judge, using his
discretion and his observations at the trial, to determine whom to believe
among the witnesses who disputed the whereabouts of the appellant in the
unholy morning of September 10, 1993.
On the appellant’s denial, suffice it to say, that said defense cannot prevail
over the positive identification by the eyewitness who had no improper
motive to falsely testify against him as we have mentioned above.64 It is
negative and self-serving, and cannot be given greater evidentiary weight
over the testimony of a credible witness who testifies on affirmative
matters.65
The appellant’s flight after the said incident could be taken as a clear and
positive indication of guilt. It is a sage observation that the flight of an
accused from the scene of the crime and his act of hiding himself until he is
arrested are circumstances highly indicative of guilt.66 For, as wisely said,
the "wicked flee even when no man pursueth but the righteous are as bold
as a lion." The appellant’s sudden and unexplained trip following the killing of
the victims was unmistakably a flight from justice.
Duplicity of the
Information and the
Proper Penalty
It must be noted that only one Information (for double murder) was filed with
the trial court. The records are bereft of any showing that the appellant
objected to the duplicity of the information by filing a motion to quash before
his arraignment. Hence, he is deemed to have waived such defect.67 In this
connection, Section 3 of Rule 120 of the Rules of Court provides:
SEC. 3. Judgment for two or more offenses. – When two or more
offenses are charged in a single complaint or information, and the
accused fails to object to it before trial, the court may convict him of
as many offenses as are charged and proved, and impose on him
the penalty for each offense, setting out separately the findings of
fact and law in each offense.
Under Article 249 of the Revised Penal Code, homicide is punishable by
reclusion temporal which has a range of twelve (12) years and one (1) day to
twenty (20) years. There being no mitigating nor aggravating circumstance
that attended the commission of the crimes, the maximum period of the
imposable penalty should be taken from the medium period of reclusion
temporal, the range of which is from fourteen (14) years, eight (8) months
and one (1) day to seventeen (17) years and four (4) months. The minimum
of the indeterminate penalty should be taken from the full range of prision
mayor, which is one degree lower than reclusion temporal. Applying the
Indeterminate Sentence Law,68 the appellant may be meted an
indeterminate sentence of from eight (8) years and one (1) day of prision
mayor, in its medium period, as minimum, to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal in its medium period, as
maximum, for each count of homicide.
Amount of Damages
The amount of damages awarded by the trial court must be modified, as it
awarded P17,000.00 for actual damages despite the absence of any
documentary evidence to prove the same. The award shall be deleted.
However, temperate damages may be recovered under Art. 2224 of the Civil
Code, when the court finds that some pecuniary loss has been suffered but
its amount cannot, from the nature of the case, be proved with certainty. In
this case, the amount of P25,000.00 would be sufficient, considering that it is
undisputed that the family incurred expenses for the wake and burial of the
victims.69
Under Article 2206 of the Civil Code, the heirs of the victims are entitled to
indemnity for loss of earning capacity. Ordinarily, documentary evidence is
necessary for the purpose. By way of exception, testimonial evidence may
suffice if the victim was either (1) self-employed, earning less than the
minimum wage under current labor laws, and judicial notice may be taken of
the fact that in the victim's line of work, no documentary evidence is
available; or (2) employed as a daily-wage worker earning less than the
minimum wage under current labor laws.70 In the case at bar, however,
while the victims’ mother testified that her sons remitted to her their income,
she did not indicate how much her sons were then earning.71 Thus, this
case does not fall under any of the exceptions.
Proof of moral damages was presented through the testimony of the mother
of the victims. Moral damages may be awarded in favor of the heirs of the
victims upon sufficient proof of physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation and similar injury.73 Considering the pain and anguish of
the victims’ family brought about by their death, the award of P50,000.00 for
each offense is justified.74
WHEREFORE, the Decision of the Regional Trial Court of Mandaue City,
Branch 56, is hereby AFFIRMED with MODIFICATIONS. The appellant is
found GUILTY beyond reasonable doubt of two (2) counts of homicide as
defined and penalized in Article 249 of the Revised Penal Code, as
amended, and is sentenced to suffer an indeterminate penalty of Eight (8)
Years and One (1) day of prision mayor, in its medium period, as minimum,
to Fourteen (14) Years, Eight (8) Months and One (1) Day of reclusion
temporal in its medium period, as maximum, for each count of homicide. The
appellant is ORDERED to pay the heirs of each of the victims, Teofredo
Basalan and Dominador Basalan, the sums of P50,000.00 representing
temperate damages; P100,000.00 as indemnity ex delicto; and, P100,000.00
as moral damages.
No costs.
SO ORDERED.

In its decision, the trial court, likewise, awarded the sum of P200,000.00 by
way damages without specifying the amount of each item. In accordance
with prevailing jurisprudence relative to Article 2206 of the Civil Code, the
heirs of the victims are entitled to the total amount of P100,000.00 by way of
civil liability. Civil indemnity is automatically imposed upon the accused
without need of proof other than the fact of the commission of murder or
homicide.72