 
ATTENTION
 
SENATOR RICHARD "DICK" GORDON
CHAIRMAN
Accountability of Public Officers & Investigations (Blue Ribbon)
 |
Friday, May 12, 2017
211TH PERSUASIVE APPEAL_12MAY2017_TO THE SCP JUSTICES : DRIBOL DRIBOL LANG ABSWELTO NA
Thursday, May 11, 2017
210TH PERSUASIVE APPEAL_11MAY17_TO THE SCP JUSTICES : INORDINATE DELAY DOCTRINE LEGAL HELP FOR CROOKS AND PLUNDERERS
RELATED SUPREME COURT DECISION
 
ATTENTION
SENATOR RICHARD "DICK" GORDON
CHAIRMAN
Accountability of Public Officers & Investigations (Blue Ribbon)
|
Wednesday, May 10, 2017
209TH PERSUASIVE APPEAL_10MAY2017_TO THE SCP JUSTICES : WHAT NOW THE TOWER OF GREED AND CORRUPTION?
   
ATTENTION
SENATOR RICHARD "DICK" GORDON
CHAIRMAN
Accountability of Public Officers & Investigations (Blue Ribbon)
|
Tuesday, May 9, 2017
TORRES VS. SANDIGAN BAYAN G.R. NOS- 221562-69, OCTOBER 05, 2016 : INORDINATE DELAY RULING BY THE SUPREME COURT
#NAKAW PA MORE
MY STUDY NOTES : RULING GOOD TO CITE FOR PLUNDERERS TO AVOID CONVICTION
Before the Court is a Petition for Certiorari filed under Rule 65 of the Rules of Court for the annulment of Sandiganbayan Resolutions dated August 27, 20151 and October 28, 2015,2 with prayer for the issuance of a status quo order or a temporary restraining order against the Sandiganbayan.
From 1991 to 1993, petitioner Commo. Lamberto R. Torres was the Assistant Chief of the Naval Staff for Logistics under the Flag Officer In Command of the Philippine Navy. Sometime in July 1991 until June 1992, the Commission on Audit (COA) conducted a special audit at the Headquarters of the Philippine Navy (HPN) pertaining to the procurement of drugs and medicine by emergency mode purchase, among others. On June 18, 1993, the COA issued Special Audit Report No. 92-128, uncovering an alleged overpricing of medicines at the HPN or its units, and triggering a Fact-Finding Investigation by the Office ofthe Ombudsman.
On December 11, 1996, the Office of the Ombudsman commenced a preliminary investigation against petitioner and several others or Illegal Use of Public Funds and Violation of Sec. 3 (e) of Republic Act No. (RA) 301 9, otherwise known as the Anti-Graft and Corrupt Practices Act, docketed as case number OMB-4-97-0789; and for Violation of Sec. 3 (e) of RA 3019, docketed as case number OMB-4-97-0790, based on an Affidavit by COA auditors.
In OMB-4-97-0789, it was alleged that the purchase of additional drugs and medicines worth P5.56 million was not properly supported and accounted for, and that additional drugs and medicines purchased were supposedly not included in the list of drugs and medicines received by the Supply Accountable Officer of the Hospital for that period. Petitioner was included as a respondent for being a signatory of the checks involved.
In OMB-4-97-0790, it was alleged that supplies and materials amounting to P6,663,440.70 were purchased but equipment were delivered, instead of the items indicated in the purchase orders. Petitioner was included as a respondent in the OMB-4-97-0790 because he allegedly recommended the approval of the purchase orders and signed the certificates of emergency purchases.
These cases, however, were dismissed against petitioner for lack of probable cause in a Joint Resolution dated March 8, 1999.
A few years after petitioner's retirement from the service in 2001, Tanodbayan Simeon V. Marcelo issued an Internal Memorandum dated October 11, 2004, recommending a new fact-finding investigation and preliminary investigation relative to other transactions in other units and offices of the Philippine Navy. Pursuant to this Internal Memorandum, a new Affidavit Complaint dated February 22, 2006 was filed by the Ombudsman against petitioner and several others, this time, for violation of Sections 3 (e) and (g) of RA 3019, docketed as case number OMB-P-C-06-0129-A.
Notices of the new preliminary investigation were, however, sent to petitioner's old address in Kawit, Cavite, which he had already vacated in 1980. Thus, petitioner was not informed of the proceedings in the new preliminary investigation. Unknown to petitioner, eight (8) Informations were filed by the Ombudsman against him and the other accused before the Sandiganbayan on August 5, 2011. The first set of Informations, consisting of four (4) Informations docketed as Crim. Case Nos. SB-11-CRM-0423, SB-11-CRM-0424, SB-11-CRM-0426 & SB-11-CRM-0427, charged petitioner and others with violation of Sec. 3 (e) of RA 3019, while the remaining four (4) Informations, docketed as Crim. Case Nos. SB-11-CRM-0429, SB-11-CRM-0430, SB-11-CRM-0432 & SB-11-CRM-0433, charged petitioner and others with violation of Sec. 3 (g) of RA 3019.
Petitioner and his co-accused were charged for allegedly g1vmg unwarranted benefit to several pharmaceutical companies, certifying the existence of an emergency, and approving the emergency purchase of overpriced medicines without the proper bidding. It was determined that no emergency existed and the overpriced items bought were only kept in stock and were, essentially, over-the-counter drugs.
More particularly, petitioner's participation is limited to his issuance of the Certificates of Emergency Purchase3 that do not indicate the actual condition obtaining at the time of the purchase to justify the emergency purchase.
It was only sometime in July 2014, when petitiOner was about to travel to the United States, that he learned of the pending cases before the Sandiganbayan by virtue of a hold departure order issued against him. Thus, petitioner filed a Motion for Reduction of Bail with Appearance of Counsel and Motion for Preliminary Investigation before the Sandiganbayan. With his motion granted, the proceedings before the Sandiganbayan were deferred with respect to petitioner and a new preliminary investigation for petitioner was conducted.
Petitioner was thereafter allowed to file a Counter-Affidavit before the Office of the Ombudsman, where he prayed for the dismissal of the case on the ground that his constitutional rights to due process and speedy trial were violated by the inordinate delay of the case.
In its May 7, 2015 Resolution, the Ombudsman nonetheless resolved to maintain the Informations filed against petitioner. According to the Ombudsman, the Affidavit Complaint filed on February 22, 2006, which resulted in the filing of the August 5, 2011 Informations, was based on a new investigation. Thus, petitioner's "inordinate delay" argument does not apply.
Aggrieved, petitioner filed a Motion to Quash the Informations before the Sandiganbayan, claiming that the Ombudsman had no authority to file the Informations having conducted the fact-finding investigation and preliminary investigation for too long, in violation of his rights to a speedy trial and to due process. According to petitioner, the protracted conduct of the fact-finding and preliminary investigations lasted for eighteen (18) years.
Hence, it was inordinate and oppressive. Petitioner argued that "'there was already this case to speak of pending against" him since both sets of factfinding and preliminary investigations conducted by the Ombudsman were triggered by the same COA report.
The Ombudsman filed its Comment and/or Opposition, arguing that the preliminary investigations conducted against petitioner in the different periods (from 1996 to 1999 and from 2006 to 2011) involved different transactions pursuant to the various findings embodied in the COA Special Audit Report of 1993. In fact, so the Ombudsman argued, the COA Audit Report is not a prerequisite to any of its investigation and it may conduct fact-finding and/or preliminary investigation with or without said repmi.
In his Reply to the Ombudsman's Comment and/or Opposition, petitioner insisted, among others, that it still took the Ombudsman another six (6) years to file the Informations against him.
In a Resolution dated August 27, 2015, the Sandiganbayan denied petitioner's Motion to Quash and sustained the prosecution's position. The dispositive portion of the Resolution reads:ChanRoblesVirtualawlibrary
WHEREFORE, in light of all the foregoing, the Motion to Quash is hereby DENIED.
Petitioner filed a Motion for Reconsideration, but the same was denied in the Sandiganbayan Resolution dated October 28, 2015.
Hence, this petition.
Petitioner asserts that the Sandiganbayan committed grave abuse of discretion amounting to lack of jurisdiction when it denied his Motion to Quash. He argues that the eight (8) Informations should have been quashed by the Sandiganbayan considering that the Ombudsman had lost its authority to file them since petitioner's constitutional rights to both the speedy disposition of cases and to due process were grossly violated by the inordinate delay of almost 18 years in conducting the fact-finding and preliminary investigations. Petitioner further argues that, with the Ombudsman losing its authority to file the Information, the Sandiganbayan also lost its jurisdiction over the crimes charged in consequence.
In its Comment,4 respondent People of the Philippines prays for the dismissal of the petition, arguing that petitioner's constitutional rights to speedy disposition of cases and to due process were not violated. Respondent stresses that, prior to 2006, petitioner had no case to speak of since it was only in 2007 when the Ombudsman recommended his indictment. It differentiated COA's audit investigation from 1993 to 1996 as administrative in nature, from the preliminary investigation from 1996 to 2006 for the cases which were dismissed in favor of petitioner, and from the preliminary investigation conducted from 2006 to 2011 where petitioner's involvement was established.
Respondent further asserts that the Sandiganbayan did not abuse its discretion in issuing the assailed Resolution since it was "firmly anchored on a judicious appreciation of the facts and relevant case law."
Thereafter, petitioner filed a Reply to Comment (On Petition for Certiorari With Application for Status Quo Order and/or Temporary Restraining Order) asserting that respondent is guilty of "hair-splitting" by distinguishing between the fact-finding investigations and preliminary investigations conducted in 1999 and in 2006 since they both originated from the June 18, 1993 COA Special Audit Report No. 92-128.
Essentially, the principal issue is whether the Sandiganbayan committed grave abuse of discretion in denying petitioner's Motion to Quash, anchored on the alleged violation of petitioner's right to speedy disposition of cases.
The petition is meritorious.
There is grave abuse of discretion when an act of a court or tribunal is whimsical, arbitrary, or capricious as to amount to an "an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law, such as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility."5 Grave abuse of discretion was found in cases where a lower court or tribunal violates or contravenes the Constitution, the law, or existing jurisprudence.6chanrobleslaw
In his Motion to Quash, petitioner invoked Section 3, paragraph (d) of Rule 117, asserting that the Ombudsman had lost its authority to file the Infonnations against him for having conducted the fact-finding and preliminary investigations too long. He raised a similar argument in the present petition-that the Ombudsman had no more authority to file the Informations since petitioner's rights to speedy disposition of cases and to due process were violated.
In denying the Motion to Quash, the Sandiganbayan ruled:ChanRoblesVirtualawlibrary
Ultimately, the results of the 2006 preliminary investigation itself may not be impugned due to inordinate delay that would rise to the level of being violative of herein accused's right to speedy disposition of cases protected under the Constitution. If ignorance is bliss, the accused had been spared from the travails of the preliminary investigation which started in 2006, not like the other respondents who showed up or were involved therein. By this Court's reckoning it took the OMB-MOLEO only two (2) years, six (6) months and nineteen (days) [sic] from August 7, 2007 after the issues were joined with the filing of the last counteraffidavit therein and the issuance of the Resolution by Graft Investigator & Prosecution Officer Marissa S. Bernal on February 25, 2010, which terminated the preliminary investigation process, finding probable cause. Furthermore, as requested by the accused, the OMB-Office of the Special Prosecutor again conducted a new or another preliminary investigation upon order of this Court, resulting in a new resolution, dated May 7, 2015, which maintained the informations herein. This was approved by Ombudsman Conchita Carpio Morales on May 15, 2015. This investigation only took a little over than six (6) months and, therefore. could not be said to be violative of movant's right to a speedy disposition of his case. There is no showing that movant was made to endure any vexatious process during the said periods of investigation.
We disagree.
In Isabelo A. Braza v. The Honorable Sandiganbayan (First Division),7 this Court has laid down the guiding principle in determining whether the right of an accused to the speedy disposition of cases had been violated:ChanRoblesVirtualawlibrary
Section 16, Atiicle lil of the Constitution declares in no uncertain tenns that "[A]ll persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." The right to a speedy disposition of a case 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 when without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried. The constitutional guarantee to a speedy disposition of cases is a relative or flexible concept. It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory.
In the present case, the lapse of time in the conduct of the proceedings is tantamount to a vexatious, capricious, and oppressive delay, which We find to be in violation of petitioner's constitutional right to speedy disposition of cases. Below is a summary of the proceedings conducted:ChanRoblesVirtualawlibrary
Respondents claim that the investigation conducted by the COA from 1993 to 1996 was a "special audit which is administrative in nature"; thus, it should not be included in counting the number of years lapsed. They further contend that the preliminary investigations conducted from 1996 to 2006 which pertain to the "overpricing of medicines" procured through emergency purchase never included petitioner, but involved other PN officials, employees, and a private individual. Respondents maintain that it was only in 2006 that petitioner was implicated in said questionable transactions. Moreover, the preliminary investigations conducted from 1993 to 1996 against petitioner refer to different transactions, specifically, for Unaccounted Drugs and Medicines (docketed as OMB-4-97-0789) and for Conversion (docketed as OMB-4-97-0790), thus, cannot be considered in determining if his right to speedy disposition of cases had been violated.
While it may be argued that there was a distinction between the two sets of investigations conducted in 1996 and 2006, such that they pertain to distinct acts of different personalities, it cannot be denied that the basis for both sets of investigations emanated from the same COA Special Audit Report No. 92-128, which was issued as early as June 18, 1993. Thus, the Ombudsman had more than enough time to review the same and conduct the necessary investigation while the individuals implicated therein, such as herein petitioner, were still in active service.
Even assuming that the COA Special Audit Report No. 92-128 was only turned over to the Ombudsman on December 11, 1996 upon the filing of the Affidavit ofthe COA Auditors, still, it had been in the Ombudsman's possession and had been the subject of their review and scrutiny for at least eight (8) years before Tanodbayan Marcelo ordered the conduct of a preliminary investigation, and at least sixteen (16) years before the Ombudsman found probable cause on February 25, 2010.
Nevertheless, even if we start counting from Tanodbayan Marcelo's issuance of Internal Memorandum on September 30, 2004, there was still at least six (6) years which lapsed before the Ombudsman issued a Resolution finding probable cause.
We find it necessary to emphasize that the speedy disposition of cases covers not only the period within which the preliminary investigation was conducted, but also all stages to which the accused is subjected, even including fact-finding investigations conducted prior to the preliminary investigation proper. We explained in Dansal v. Fernandez, Sr.:8
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. (citations omitted; Emphasis supplied)
Considering that the subject transactions were allegedly committed in 1991 and 1992, and the fact-finding and preliminary investigations were ordered to be conducted by Tanodbayan Marcelo in 2004, the length of time which lapsed before the Ombudsman was able to resolve the case and actually file the Informations against petitioner was undeniably long-drawnout.
Any delay in the investigation and prosecution of cases must be duly justified. The State must prove that the delay in the prosecution was reasonable, or that the delay was not attributable to it.9 Our discussion in Coscolluela v. Sandiganbayan (First Division)10 is instructive:ChanRoblesVirtualawlibrary
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."
In the present case, respondents failed to submit any justifiable reason for the protracted conduct of the investigations and in the issuance of the resolution finding probable cause. Instead, respondents submit that "the cases subject of this petition involve issues arising from complex procurement transactions that were conducted in such a way as to conceal overpricing and other irregularities, by conniving PN officers from different PN units and private individuals."
A review of the COA Special Audit Report No. 92-128, however, shows that it clearly enumerated the scope of the audit, the transactions involved, the scheme employed by the concemed PN officers, and the possible basis for the filing of a complaint against the individuals responsible for the overpricing. Respondents' argument that the case involves "complex procurement transactions" appears to be unsupported by the facts presented.
There is no question that petitiOner asserted his right to a speedy disposition of cases at the earliest possible time. In his Counter-Affidavit filed before the Ombudsman during the reinvestigation of the case in 2014, petitioner had already argued that dismissal of the case is proper because the long delayed proceedings violated his constitutional right to a speedy disposition of cases. This shows that petitioner wasted no time to assert his right to have the cases against him dismissed.
As for the prejudice caused by the delay, respondents claim that no prejudice was caused to petitioner from the delay in the second set of investigations because he never participated therein and was actually never even informed of the proceedings anyway. We cannot agree with this position. A similar assertion was struck down by this Court in Coscolluela, to wit:ChanRoblesVirtualawlibrary
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. 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. Sandiganbayan (Corpuz)illumined:ChanRoblesVirtualawlibrary
Adopting respondents' position would defeat the very purpose of the right against speedy disposition of cases. Upholding the same would allow a scenario where the prosecution may deliberately exclude certain individuals from the investigation only to file the necessary cases at another, more convenient time, to the prejudice of the accused. Clearly, respondents' assertion is subject to abuse and cannot be countenanced.
In the present case, petitioner has undoubtedly been prejudiced by virtue of the delay in the resolution of the cases filed against him. Even though he was not initially included as a respondent in the investigation conducted from 1996 to 2006 pertaining to the "overpricing of medicines'' procured through emergency purchase, he has already been deprived of the ability to adequately prepare his case considering that he may no longer have any access to records or contact with any witness in support of his defense. This is even aggravated by the fact that petitioner had been retired for fifteen (15) years. Even if he was never imprisoned and subjected to trial, it cannot be denied that he has lived under a cloud of anxiety by virtue of the delay in the resolution of his case.
WHEREFORE, the petition is hereby GRANTED. The Resolutions dated August 27, 2015 and October 28, 2015 of the Sandiganbayan First Division in Criminal Case Nos. SB-11-CRM-0423, 0424, 0426, 0427, 0429, 0430, 0432, and 0433 are hereby ANNULLED and SET ASIDE.
The Sandiganbayan is likewise ordered to DISMISS Criminal Case Nos. SB-11-CRM-0423, 0424, 0426, 0427, 0429, 0430, 0432, and 0433 for violation of the constitutional right to speedy disposition of cases of petitioner Commo. Lamberto R. Torres (Ret.).
SO ORDERED.chanRoblesvirtualLawlibrary
Peralta, Perez, Reyes, and Jardeleza, JJ., concur.
Endnotes:
1Rollo, pp. 170-177. Penned by Associate Justice Rafael R. Lagos and concurred in by Associate Justices Efren N. De La Cruz and Rodolfo A. Ponferrada.  | ||||||||||||||||||||||||||||||||||||||
208TH PERSUASIVE APPEAL_9MAY2017_TO THE SCP JUSTICES : BLIGHT TO THE NATIONAL HERITAGE, MENACE TO THE ENVIRONMENT
  
ATTENTION
SENATOR RICHARD "DICK" GORDON
CHAIRMAN
Accountability of Public Officers & Investigations (Blue Ribbon)
|
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