Crimpro - Sept.22, 2011

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G.R. Nos. 120681-83 October 1, 1999

JEJOMAR C. BINAY, petitioner,vs.HON. SANDIGANBAYAN (Third Division) and the DEPARTMENT OF INTERIOR ANDLOCAL GOVERNMENT, respondents.

G.R. No. 128136 October 1, 1999

MARIO C. MAGSAYSAY, FRANCISCO B. CASTILLO, CRISTINA D. MABIOG, REGINO E.MALAPIT, ERLINDA I. MASANGCAY and VICENTE DE LA ROSA, petitioner,vs.HON. SANDIGANBAYAN, HON. OMBUDSMAN and its PROSECUTOR WENDELLBARERRAS-SULIT and STATE PROSECUTORS ERIC HENRY JOSEPH F. MALLONGAand GIDEON C. MENDOZA, respondents.

KAPUNAN, J.:

Pursuant to Section 4, Article XIII of the 1973 Constitution, Presidential Decree No. 1486created an Anti-Graft Court known as the Sandiganbayan. Since then the jurisdiction of theSandiganbayan has undergone variouschanges, 1 the most recent of which were effected through Republic Act Nos. 7975 2 and 8249.3

Whether the Sandiganbayan, under these laws, exercises exclusive original jurisdiction over criminal cases involving municipal mayors accused of violations of Republic Act No. 3019 4

and Article 220 of the Revised Penal Code 5 is the central issue in these consolidatedpetitions.

In G.R. Nos. 120681-83, petitioner Jejomar Binay seeks to annul, among others, theResolution of the Sandiganbayan denying his motion to refer Criminal Case Nos. 21001,21005 and 21007 to the Regional Trial Court (RTC) of Makati and declaring that theSandiganbayan has jurisdiction over said cases despite the enactment of R.A. No. 7975.

In G.R. No. 128136, petitioner Mario C. Magsaysay, et al . assail the October 22, 1996Resolution of the Sandiganbayan, reversing its Order of June 21, 1996 which suspended theproceedings in Criminal Case No 23278 in deference to whatever ruling this Court will laydown in the Binay cases.1âwphi1.nêt

The, facts, as gathered from the records, are as follows:

G.R . Nos. 120681-83

On September 7, 1994, the Office of the Ombudsman filed before the Sandiganbayan threeseparate informations against petitioner Jejomar Binay, one for violation of Article 220 of theRevised Penal Code, 6 and two for violation of Section 3 (e) of R.A. No. 3019. 7 Theinformations, which were subsequently amended on September 15, 1994, all alleged that theacts constituting these crimes were committed in 1987 during petitioner's incumbency asMayor of Makati, then a municipality of Metro Manila.

Thereafter, petitioner moved to quash the informations. He contented that the six-year delayfrom the time the charges were filed in the Office of the Ombudsman on July 27, 1988 to the

time the informations were filed in the Sandiganbayan on September 7, 1994 constituted aviolation of his right to due process. Arraignment of the accused was held in abeyancepending the resolution of this motion.

On March 29, 1995, the Sandiganbayan issued a Resolution denying petitioner's motion toquash. Petitioner's motion for reconsideration, which was opposed by the prosecution, waslikewise denied by the Sandiganbayan. The resolution denying the motion for reconsideration,however, was issued before petitioner could file a reply to the prosecution's opposition to themotion for reconsideration.

In the meantime, on March 31, 1995, the prosecution filed a "Motion to Suspend AccusedPendente Lite." The Sandiganbayan, in a Resolution dated April 25, 1995, granted the motionand ordered the suspension of petitioner for ninety days from receipt of the resolution. Thecourt ruled that the requisites for suspension pendente lite were present as petitioner wascharged with one of the offenses under Section 13 of R.A. No. 3019 8 and the informationscontaining these charges had previously been held valid in the resolution denying the motionto quash and the resolution denying the motion for reconsideration.

Petitioner thus filed before this Court a petition for certiorari , 9 to set aside the resolutiondenying his motion for reconsideration, claiming that he was denied due process when theSandiganbayan ordered his suspension pendente lite before he could file a reply to theprosecution's opposition to his motion for reconsideration of the resolution denying the motionto quash. In a Resolution dated April 28, 1995, the Court directed the Sandiganbayan to,

among other things, permit petitioner to file said reply.

After allowing and considering petitioner's reply, the Sandiganbayan, on June 6, 1995, issueda Resolution reiterating the denial of his motion for reconsideration of the denial of the motionto quash. On the same day, the Sandiganbayan issued another resolution reiterating the order suspending petitioner pendente lite.

Meanwhile, R.A. No. 7975, redefining the jurisdiction of the Sandiganbayan, took effect onMay 16, 1995. 10

On June 13, 1995, petitioner filed before the Sandiganbayan a motion to refer his cases to the"proper court" for further proceedings, alleging that when the two Resolutions, both dated June6, 1995, were issued by the Anti-Graft Court, it had already lost jurisdiction over the subjectcases. The Sandiganbayan, in a Resolution dated July 4, 1995, denied petitioner's motion,

holding thus:

There is no question that Municipal Mayors are classified as Grade "27" under theCompensation & Position Classification Act of 1989. Since, at the time of the commission of the offenses charged in the above-entitled cases, the accused Mayor Jejomar C. Binay was aMunicipal Mayor, although in an acting or interim capacity, the Sandiganbayan, has, under Section 4 (e) 5, original jurisdiction over the cases therein filed against him. The allegation thatMayor Binay ought to have been classified with a salary grade lower than Grade "27",because at the time of the commission of the offenses charged he was paid a salary whichmerits a grade lower than Grade "27" does not hold water. In 1986 when the herein offenseswere committed by the accused, the Compensation & Position Classification Act of 1989 wasnot as yet in existence. From the very definition of the very Act itself, it is evident that the Actwas passed and had been effective only in 1989. The Grade classification of a public officer,whether at the time of the commission of the offense or thereafter, is determined by hisclassification under the Compensation & Position Classification Act of 1989. Thus since the

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accused Mayor Jejomar C. Binay was a Municipal Mayor at the time of the commission of theoffenses and the Compensation & Position Classification Act of 1989 classifies MunicipalMayors as Grade "27", it is a conclusion beyond cavil that the Sandiganbayan has jurisdictionover the accused herein.

As of July 1, 1989, when Republic Act No. 6758 took effect, Municipal Mayor Jejomar C. Binayhad begun receiving a monthly salary of P15,180.00 which is equivalent to Grade "28" under the salary scale provided for in Section 27 of the said Act. Under the Index of OccupationalServices, the position titles and salary grades of the Compensation & Position Classification

system prepared by the Department of Budget and Management pursuant to Section 6 of Republic [A]ct No. 6758, the position of Municipal Mayor had been classified as Grade "27." 11

On July 7, 1995, petitioner filed the present petition for certiorari , prohibition and mandamusquestioning the jurisdiction of the Sandiganbayan over Criminal Case Nos. 21001, 21005 and21007. He prayed, among others, that the Court annul and set aside: (1) the Resolution of theSandiganbayan dated June 6, 1995 reiterating the denial of the motion for reconsideration of the motion to quash; (2) the Resolution of the same court also dated June 6, 1995 reiteratingthe order suspending petitioner pendente lite; and (3) the Resolution of the Sandiganbayandated July 4, 1995 denying the motion to refer case to the RTC. Petitioner also asked that theCourt issue a temporary restraining order preventing the suspension and arraignment of petitioner. The Court on July 7, 1995, resolved, among others, to issue the temporaryrestraining order prayed for.

On July 14, 1995, petitioner filed an "Addendum to Petition (To allow the introduction of alternative reliefs)," praying that, should this Court hold that the Sandiganbayan has jurisdiction over the cases, the criminal cases filed against him be dismissed just the same onthe ground that the long delay of the preliminary investigation before the Ombudsman prior tothe filing of the informations, deprived him of his right to due process; and that, moreover,there was no probable cause to warrant the filing of the informations.

G.R . No. 128136

Petitioner Mario Magsaysay is the Mayor of the Municipality of San Pascual, Batangas. Savefor petitioner Vicente dela Rosa, all of Mayor Magsaysay's co-petitioners are officials of thesame municipality.

In a complaint dated April 16, 1994, Victor Cusi, then Vice-Mayor of San Pascual, Batangas,

charged petitioners along with Elpidia Amada, Jovey C. Babago, and Brigido H. Buhain, alsoofficials of San Pascual Batangas, with violation of R.A. No. 3019, as amended. The complaintcharged the respondent municipal officials of overpaying Vicente de la Rosa of TDRConstruction for the landscaping project of the San Pascual Central School. This case wasdocketed in the Office of the Ombudsman as OMB-1-94-1232.

In a Resolution dated June 14, 1995, Graft Investigation Officer Lourdes A. Alarillarecommended the filing of an information for violation of Section 3(e) and (g) of R.A. No. 3019,as amended, against petitioners with the Sandiganbayan. Director Elvis John S. Asuncionconcurred in the resolution, and Manuel C. Domingo, Deputy Ombudsman for Luzon,recommended approval of the same. The resolution was approved by then ActingOmbudsman Francisco A. Villa with the following marginal note:

Authority is given to the Deputy Ombudsman for Luzon to cause the preparation of the

information and to approve the same for filing with the proper court.12

On August 11, 1995, an Information for violation of Section 3(e) and (g) was filed againstpetitioners and Jovey C. Babago, not with the Sandiganbayan per the June 14, 1995Resolution, but with the RTC of Batangas City. The information was signed by Lourdes A.Alarilla, the same Graft Investigation Officer who recommended the filing of the informationwith the Sandiganbayan.

In the meantime, a group denominated as the Concerned Citizens of San Pascual, Batangasfiled a complaint before the Ombudsman against petitioners, and Elpidia Amada and BrigidoBuhain, with violations of R.A. No. 3019. The complaint also alleged, among others, the

overpricing of the landscaping project of San Pascual Central School. The case was docketedas OMB-0-94-0149.

In a Resolution dated July 27, 1995, Graft Investigation Officer Ernesto M. Nocosrecommended the filing of an information charging petitioners with violation of Section 3(e)and (g) of R.A. No. 3019, as amended "with the proper court." The resolution, which wasrecommended for approval by Nicanor J. Cruz, OIC-Deputy Ombudsman for Luzon, andapproved by Ombudsman Aniano A. Desierto, adopted the findings and conclusions in theresolution in OMB-1-94-1232 that the landscaping project was overpriced.

On February 9, 1996, another Information for violation of Section 3(e)of R.A. No. 3019, asamended, was filed against petitioners for the overpricing of the landscaping project, this timebefore the Sandiganbayan. The information was subsequently amended on May 17, 1996.Except for the date the alleged crime was committed, the information charged essentially the

same inculpatory facts as the information filed in the RTC. The case was docketed in theSandiganbayan as Crim. Case No. 22378.

On June 1, 1996, the accused filed with the Sandiganbayan a motion to quash the informationin Crim. Case No. 22378 on the following grounds: that the Sandiganbayan had no jurisdictionover the case; that the accused were charged with the same offense in two informations; andthat the proceedings in the Sandiganbayan would expose petitioners to double jeopardy. TheSandiganbayan denied the accused's motion to quash in a Resolution dated June 21, 1996.The court, however, suspended proceedings in the case until the Supreme Court resolved thequestion of the Sandiganbayan's jurisdiction involved in the Binay petition.

Meanwhile, on June 7, 1996, Prosecutor Eric Mallonga filed a motion before the RTC to refer the R.A. No. 3019 case pending therein to the Sandiganbayan, arguing that under R.A. No.7975 the Sandiganbayan, not the RTC, had jurisdiction over the case. On July 3, 1996, theRTC issued an order holding in abeyance the resolution of the motion to refer the case sincethe issue of jurisdiction was pending before the Sandiganbayan.

Back at the Sandiganbayan, the prosecution, on July 24, 1996, filed a motion for reconsideration of the Sandiganbayan's Order dated June 21, 1996. On August 2, 1996, filedtheir own motion for the reconsideration of the same order. On October 22, 1996, theSandiganbayan granted the motion for reconsideration filed by the prosecution and set thecase for arraignment. Petitioners moved for a reconsideration of the October 22, 1996Resolution ordering their arraignment, which motion was denied on February 17, 1997.

On February 27, 1997, the accused filed the present petition.

On October 1, 1997, the Court resolved to issue a temporary restraining order to preventrespondents from further proceeding with Crim. Case No. 23278 of the Sandiganbayan.

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The petition raises the following issues:

I

Had the Sandiganbayan been ousted of its jurisdiction over the case of municipal mayor after the passage of Republic Act No. 7975, coupled with the filing earlier of an information for thesame offense before the Regional Trial Court having territorial jurisdiction and venue of thecommission of the offense?

II

Are the respondents Ombudsman and the prosecutors estopped by laches or waiver fromfiling and prosecuting the case before respondent Sandiganbayan after the filing earlier of theinformation in the proper court, thereafter repudiating it, seeking another court of the samecategory and finally to respondent court?

III

Whether or not the filing of two (2) informations for the same offense violated the rule onduplicity of information?

IV

Whether or not the trial to be conducted by respondent court, if the case shall not bedismissed, will expose the petitioners who are accused therein to double jeopardy?

V

Under the circumstances, are the respondent Ombudsman and the prosecutors guilty of forumshopping? 13

On October 6, 1997, the Court resolved to consolidate G.R. No. 128136 (the Magsaysaypetition) with G.R. Nos. 120681-83 (the Binay petition).

In resolving these consolidated petitions, the Court shall first address the common question of the Sandiganbayan's jurisdiction.

I

The Court rules that it is the Sandiganbayan which has jurisdiction over the subject cases.

The informations against Mayor Binay were filed in the Sandiganbayan on July 7, 1994pursuant to Presidential Decree No. 1606, 14 as amended by Presidential Decree No. 1861, 15

the pertinent provisions of which state:

Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise:

(a) Exclusive original jurisdiction in all cases involving:

(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft andCorrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of theRevised Penal Code;

(2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than

prision correccional or imprisonment for six (6) years, or a fine of P6,000.00; PROVIDED ,HOWEVER , that offenses or felonies mentioned in this paragraph where the penaltyprescribed by law does not exceed prision correccional or imprisonment for six (6) years or afine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court andMunicipal Circuit Trial Court.

xxx xxx xxx

On May 16, 1995, R.A. No. 7975 took effect. At this time, Mayor Binay had not yet beenarraigned in the Sandiganbayan. On the other hand, R.A. No. 7975 was already in effect whenthe information against Mayor Magsaysay et al ., was filed on August 11, 1995 in the RTC of Batangas City.

Sec. 2 of R.A. No. 7975 amended Section 4 of P.D. No. 1606 to read as follows:

Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise original jurisdiction in all casesinvolving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft andCorrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of theRevised Penal Code, where one or more of the principal accused are officials occupying thefollowing positions in the government, whether in a permanent, acting or interim capacity, atthe time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher,otherwise classified as grade "27" and higher, of the Compensation and Position ClassificationAct of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, andprovincial treasurers, assessors, engineers, and other provincial department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlunsod , city treasurers,assessors, engineers, and other city department heads;

(c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

(e) PNP chief superintendent and PNP officers of higher rank;

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(f) City and provincial prosecutors and their assistants, and officials and prosecutors in theOffice of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlledcorporations, state universities or educational institutions or foundations;

(2) Members of Congress and officials thereof classified as Grade "27" and up under theCompensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisionsof the Constitution; and

(5) All other national and local officials classified as Grade "27" and higher under theCompensation and Position Classification Act of 1989.

b. Other offenses or felonies committed by the public officials and employees mentioned insubsection (a) of this section in relation to their office.

c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2,

14 and 14-A.

In cases where none of the principal accused are occupying positions corresponding to salarygrade "27" or higher, as prescribed in the said Republic Act No. 6758, or PNP officersoccupying the rank of superintendent or higher, or their equivalent, exclusive jurisdictionthereof shall be vested in the proper Regional Trial Court, Metropolitan Trial Court, MunicipalTrial Court, and Municipal Circuit Trial Court, as the case may be, pursuant to their respective

jurisdiction as provided in Batas Pambansa Blg. 129.

xxx xxx xxx

While the cases against petitioners were pending in this Court, Congress enacted R.A. No.8249, again redefining the jurisdiction of the Anti-Graft Court. This law took effect, per Section10 thereof, on February 23, 1997, fifteen days after its complete publication on February 8,

1997 in the Journal and Malaya, two newspapers of general circulation.

As further amended by Section 4 of R.A. No. 8249, Section 4 of P.D. No. 1606 now reads:

Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise exclusive original jurisdiction in allcases involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft andCorrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying thefollowing positions in the government, whether in a permanent, acting or interim capacity, atthe time of the commission of the offense:

(1) Officials of the executive branch occupying the position of regional director and higher,otherwise classified as grade "27" and higher, of the Compensation and Position ClassificationAct of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, andprovincial treasurers, assessors, engineers, and other provincial department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlunsod , city treasurers,assessors, engineers, and other city department heads;

(c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in theOffice of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled

corporations, state universities or educational institutions or foundations.

(2) Members of Congress and officials thereof classified as Grade "27" and up under theCompensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisionsof the Constitution; and

(5) All other national and local officials classified as Grade "27" and higher under theCompensation and Position Classification Act of 1989.

b. Other offenses or felonies whether simple or complexed with other crimes committed by thepublic officials and employees mentioned in subsection (a) of this section in relation to their office.

d. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2,14 and 14-A, issued in 1986.

In cases where none of the accused are occupying positions corresponding to salary grade"27" or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officersmentioned above, exclusive original jurisdiction thereof shall be vested in the proper regionaltrial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as thecase may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg .129, as amended.

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Petitioners contend that they do not come under the exclusive original jurisdiction of theSandiganbayan because:

(1) At the alleged time of the commission of the crimes charged, petitioner municipal mayorswere not classified as Grade 27.

(2) Municipal mayors are not included in the enumeration in Section 4a(1) of P.D. No. 1606, asamended by R.A. No. 7975.

(3) Congressional records reveal that the law did not intend municipal mayors to come under the exclusive original jurisdiction of the Sandiganbayan.

A

In support of his contention that his position was not that of Grade 27, Mayor Binay argues:

. . . The new law's consistent and repeated reference to salary grades show[s] an intention tobase the separation of jurisdiction between the Sandiganbayan and the regular courts on payscale. Grades are determined by compensation. The essence of grades is pay scales.Therefor, pay scales determine grades. 16

Mayor Binay, thus, presented a Certification

17

from the City Personnel Officer of Makati statingthat petitioner as mayor received a monthly salary of only P10,793.00 from March 1987 toDecember 31, 1988. This amount was supposedly equivalent to Grade 22 under R.A. No.6758.

Mayor Magsaysay, for his part, submitted a similar Certification 18 from the Municipal Treasurer of San Pascual, Batangas, stating:

. . . that the basic monthly salary received by Mario C. Magsaysay Municipal Mayor of SanPascual, Batangas with Salary Grade 27 is ELEVEN THOUSAND EIGHT HUNDREDTWENTY EIGHT PESOS (P11,828.00) per month as of November 3, 1993 equivalent only toGrade 25, Step 5 of RA 6758, the Compensation and Position Classification Act of 1989.

Sec. 444(1) (Grad[e] 27) of RA 6758 is not as yet implemented due to budgetary constraints.

This certification is issued to Mayor Mario C. Magsaysay this 30th day of May 1996 at SanPascual, Batangas for whatever legal purpose and/or purposes it may serve.

The Court does not subscribe to the manner by which petitioners classify Grades.

The Constitution 19 states that in providing for the standardization of compensation of government officials and employees, Congress shall take "into account the nature of theresponsibilities pertaining to, and the qualifications required for their positions," thus:

The Congress shall provide for the standardization of compensation of government officials,including those in government-owned or controlled corporations with original charters, takinginto account the nature of the responsibilities pertaining to, and the qualifications required for their positions.

Corollary thereto, Republic Act No. 6758 20 provides in Section 2 thereof that differences in pay are to be based "upon substantive differences in duties and responsibilities, and qualification requirements of the positions." In short, the nature of an official's position should be the determining factor in the fixing of his or her salary . This is not only mandated by law butdictated by logic as well.

Consistent with these policies, the law employs the scheme known as the "grade" defined inPresidential Decree No. 985 21 as including

. . . all classes of positions which, although different with respect to kind or subject matter of work, are sufficiently equivalent as to level of difficulty and responsibilities and level of qualification requirements of the work to warrant the inclusion of such classes of positionswithin one range of basic compensation. 22

The grade, therefore, depends upon the nature of one's position — the level of difficulty,responsibilities, and qualification requirements thereof — relative to that of another position. It is the official's Grade that determines his or her salary , not the other way around.

It is possible that a local government official's salary may be less than that prescribed for hisGrade since his salary depends also on the class and financial capability of his or her respective local government unit. 23 Nevertheless, it is the law which fixes the official's grade.

Thus, Section 8 of R.A. No. 6758 fixes the salary grades of the President, Vice-President,Senate President, Speaker, Chief Justice, Senators, Members of the House of Representatives, Associate Justices of the Supreme Court, as well as the Chairmen andMembers of the Constitutional Commissions. Section 8 also authorizes the Department of Budget and Management (DBM) to "determine the officials who are of equivalent rank to theforegoing officials, where applicable" and to assign such officials the same Salary Gradessubject to a set of guidelines found in said section.

For positions below those mentioned under Section 8, Section 9 instructs the DBM to preparethe "Index of Occupational Services" guided by the Benchmark Position prescribed in Section9 and the factors enumerated therein.

To determine whether an official is within the exclusive original jurisdiction of theSandiganbayan, therefore, reference should be made to R.A. No. 6758 and the Index of Occupational Services, Position Titles and Salary Grades. Salary level is not determinative. Anofficial's grade is not a matter of proof, but a matter of law , of which the Court must take

judicial notice. 24

As both the 1989 and 1997 versions of the Index of Occupational Services, Position Titles andSalary Grades list the Municipal Mayor under Salary Grade 27, petitioner mayors come withinthe exclusive original jurisdiction of the Sandiganbayan. Petitioner mayors are "local officialsclassified as Grade "27" and higher under the Compensation and Position Classification Act of 1989," under the catchall provision, Section 4a(5) of P.D. No. 1606, as amended by R.A. No.7975. More accurately, petitioner mayors are "[o]fficials of the executive branch occupying thepositions of regional director and higher, otherwise classified as grade "27" and higher, of theCompensation and Position Classification Act of 1989," under Section 4a(1) of P.D. No. 1606,as amended by R.A. No. 7975. 25

B

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Petitioners, however, argue that they are not included in the enumeration in Section 4a(1).They invoke the rule in statutory construction expressio unius est expressio alterius. As whatis not included in those enumerated is deemed excluded, municipal officials are excluded fromthe Sandiganbayan's exclusive original jurisdiction.

Resort to statutory construction, however, is not appropriate where the law is clear andunambiguous. 26 The law is clear in this case. As stated earlier, Section 4a(1) of P.D. No.1606, as amended by R.A. No. 7975, speaks of "[o]fficials of the executive branch occupyingthe positions of regional director and higher, otherwise classified as grade "27" and higher, of

the Compensation and Position Classification Act of 1989."

The Court fails to see how a different interpretation could arise even if the plain meaning rulewere disregarded and the law subjected to interpretation.

The premise of petitioners' argument is that the enumeration in Section 4a(1) is exclusive. It isnot. The phrase "specifically including" after "[o]fficials of the executive branch occupying thepositions of regional director and higher, otherwise classified as grade "27" and higher, of theCompensation and Position Classification Act of 1989" necessarily conveys the very idea of non-exclusivity of the enumeration. The principle of expressio unius est exclusio alterius doesnot apply where other circumstances indicate that the enumeration was not intended to beexclusive, 27 or where the enumeration is by way of example only. 28 In Conrado B. Rodrigo, et al . vs. The Honorable Sandiganbayan (First Division), supra, the Court held that the catchall inSection 4a(5) was "necessary for it would be impractical, if not impossible, for Congress to listdown each position created or will be created pertaining to Grades 27 and above." The samerationale applies to the enumeration in Section 4a(1). Clearly, the law did not intend saidenumeration to be an exhaustive list.

Should there be any doubt as to whether petitioner mayors are under the category of Grade27, Section 444(d) of the Local Government Code settles the matter:

The municipal mayor shall receive a minimum monthly compensation corresponding to SalaryGrade twenty-seven (27) as prescribed under R.A. No. 6758 and the implementing guidelinesissued pursuant thereto.

In the Court's Resolution in Rodrigo dated July 2, 1999 denying the motion for reconsideration,we treated the above provision as "confirmatory of the Salary Grade assigned by the DBM toMunicipal Mayors."

C

Petitioner Binay cites previous bills 29 in Congress dealing with the jurisdiction of theSandiganbayan. These bills supposedly sought to exclude municipal officials from theSandiganbayan's exclusive original jurisdiction to relieve these officials, especially those fromthe provinces, of the financial burden brought about by trials in Manila.

The resort to congressional records to determine the proper application of the law in this caseis unwarranted in this case for the same reason that the resort to the rule of inclusio unius est expressio alterius is inappropriate.

Verily, the interpretation of the law desired by the petitioner may be more

humane but it is also an elementary rule in statutory construction that

when the words and phrases of the statute are clear and unequivocal,their meaning must be determined from the language employed and thestatute must be taken to mean exactly what it says. (Baranda v. Gustilo,165 SCRA 758-759 [1988]). The courts may not speculate as to theprobable intent of the legislature apart from the words (Aparri v. CA, 127SCRA 233 [1984]). When the law is clear, it is not susceptible tointerpretation. It must be applied regardless of who may be affected, evenif the law may be harsh or onerous. (Nepomuceno, et al . v. FC, 110 Phil.42). And even granting that exceptions may be conceded, the same as ageneral rule, should be strictly but reasonably construed; they extend only

so far as their language fairly warrants, and all doubts should be resolvedin favor of the general provisions rather than the exception. Thus, where ageneral rule is established by statute, the court will not curtail the former nor add to the latter by implication (Samson v. C.A., 145 SCRA 654[1986]). 30

Thus, in Rodrigo, petitioners therein argued in their motion for reconsideration:

. . . that the inclusion of Municipal Mayors within the jurisdiction of theSandiganbayan would be inconvenient since the witnesses in their casewould come from Baguio City and San Nicolas, Pangasinan. This,according to petitioners, would defeat one of the purposes of R.A. No.7975, that is, the convenience of the accused.

The Court, in denying the motion for reconsideration, held, among others, that:

The legislature has nevertheless chosen the mode and standard by whichto implement its intent, and courts have no choice but to apply it.Congress has willed that positions with Grade 27 and above shall comewithin the jurisdiction of the Sandiganbayan and this Court is duty-boundto obey the congressional will.

Petitioner Binay also quotes the Sponsorship Speech of Senator Roco, stating:

Since February 1979, when the Sandiganbayan was established up to thepresent, the Court has been confronted with the problem of thoseaccused who are of limited means who stand trial for "petty crimes," the

so-called "small fry" — the barangay officials, the municipal officials and employees, postal clerks and letter carriers and the like — who areinvolved with "nickel-and-dime" cases and money-related cases such asmalversation, estafa and theft. . . .1âwphi1.nêt

xxx xxx xxx

Senate Bill No. 1353 modifies the present jurisdiction of theSandiganbayan such that only those occupying high positions in theGovernment and the military fall under the jurisdiction of the court . 31

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It is not clear, however, whether Senator Roco meant that all municipal officials are excludedfrom the jurisdiction of the Sandiganbayan. In any case, courts are not bound by a legislator'sopinion in congressional debates regarding the interpretation of a particular legislation. It isdeemed a mere personal opinion of the legislator. 32 Such opinions do not necessarily reflectthe view of the entire Congress. 33

D

From the foregoing discussion, it is clear that the cases against petitioner Binay cannot be

referred to the regular courts under Section 7 of R.A. No. 7975, which provides:

Sec. 7. Upon effectivity of this Act, all criminal cases in which trial has not begun in theSandiganbayan shall be referred to the proper courts.

In construing the correct import of Section 7, it may be helpful to refer to the guidelines indetermining jurisdiction laid down in Bengzon vs. Inciong : 34

The rule is that where a court has already obtained and is exercising jurisdiction over acontroversy, its jurisdiction to proceed to the final determination of the cause is not affected bynew legislation placing jurisdiction over such proceedings in another tribunal. The exception tothe rule is where the statute expressly provides, or is construed to the effect that it is intendedto operate as to actions pending before its enactment. Where a statute changing the

jurisdiction of a court has no retroactive effect, it cannot be applied to a case that was pendingprior to the enactment of the statute.

R.A. No. 7975, by virtue of Section 7, belongs to the exception rather than the rule. Theprovision is transitory in nature and expresses the legislature's intention to apply its provisionson jurisdiction to "criminal cases in which trial has not begun in the Sandiganbayan." To thisextent, R.A. 7975 is retroactive.

Such a transitory provision is not peculiar to R.A. No. 7975; similar provisions are found inother laws reallocating the jurisdiction of the courts. 35 There is no reason why Section 7 of R.A. No. 7975 should be any different.

The term "proper courts," as used in Section 7, means "courts of competent jurisdiction," andsuch jurisdiction is defined in Section 4 of P.D. No. 1606, as amended by R.A. No. 7975. The

former should not be read in isolation but construed in conjunction with the latter.

The term "proper courts" as used in Section 7, therefore, is not restricted to " regular courts,"but includes as well the Sandiganbayan, a special court. If the intent of Congress were to refer all cases the trials of which have not begun to the regular courts, it should have employed theterm "proper regular courts" or "regular courts" instead of "proper courts." Accordingly, the lawin the third paragraph of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No.7975, uses the term "regular courts," not "proper courts":

The Sandiganbayan shall exercise exclusive appellate jurisdiction on appeals from the final judgments, resolutions or orders of regular courts where all the accused are occupyingpositions lower than salary grade "27," or not otherwise covered by the precedingenumeration. [emphasis supplied.]

Construed thus, the effects of Section 7 may be summarized as follows:

1. If trial of cases before the Sandiganbayan has already begun as of the approval of R.A. No.7975, R.A. No. 775 does not apply.

2. If trial of cases before the Sandiganbayan has not begun as of the approval of R.A. No.7975, then R.A. No. 7975 applies.

(a) If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, theSandiganbayan has jurisdiction over a case before it, then the cases shall be referred to theSandiganbayan.

(b) If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, theSandiganbayan has no jurisdiction over a case before it, the case shall be referred to theregular courts.

The trial of the cases involving Mayor Binay had not yet begun as of the date of the approvalof R.A. No. 7975; consequently, the Anti-Graft Court retains jurisdiction over said cases.

In any case, whatever seeming ambiguity or doubt regarding the application of Section 7 of R.A. No. 7975 should be laid to rest by Section 7 of R.A. No. 8249, which states:

Sec. 7. Transitory Provision. — This Act shall apply to all cases pending in any court over which trial has not begun as of the approval hereof.

The latter provision more accurately expresses the legislature's intent and in any event shouldbe applied in this case, R.A. No. 8249 having superseded R.A. No. 7975.

In Panfilo M . Lacson vs. The Executive Secretary, et al ., 36 the Court explained the purpose of the foregoing provision.

. . . it can be reasonably anticipated that an alteration of [the Sandiganbayan's] jurisdictionwould necessarily affect pending cases, which is why it has to provide for a remedy in the formof a transitory provision. . . . . The transitory provision does not only cover cases which are inthe Sandiganbayan but also in "any court." . . . . Moreover, those cases where trial had

already begun are not affected by the transitory provision under Section 7 of the new law (RA8249). [Emphasis in the original.]

The possible disruptive effect of the amendments to the Sandiganbayan's jurisdiction onpending cases was, therefore, not lost on the legislature. Congress has, furthermore, deemedthe commencement of the trial as the crucial point in determining whether a court retains acase pending before it or lose the same on the ground of lack of jurisdiction per the provisionsof R.A. No. 8249. The law obviously does not want to waste the time and effort alreadydevoted to the presentation of evidence if trial had already begun. On the other hand, notmuch disruption would be caused if the amendment were made to apply to cases the trials of which have yet to start.

The ramifications of Section 7 of R.A. No. 8249 may be stated as follows:

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1. If trial of the cases pending before whatever court has already begun as of the approval of R.A. No. 8249, said law does not apply.

2. If trial of cases pending before whatever court has not begun as of the approval of R.A. No.8249, then said law applies.

(a) If the Sandiganbayan has jurisdiction over a case pending before it, then it retains jurisdiction.

(b) If the Sandiganbayan has no jurisdiction over a case pending before it, the case shall bereferred to the regular courts.

(c) If the Sandiganbayan has jurisdiction over a case pending before a regular court, the latter loses jurisdiction and the same shall b referred to the Sandiganbayan.

(d) If a regular court has jurisdiction over a case pending before it, then said court retains jurisdiction.

Thus, under both R.A. Nos. 7975 and 8429, the Sandiganbayan retains jurisdiction over saidcases.

II

Petitioner Binay avers in his Addendum to Petition that his right to speedy disposition hasbeen violated by the inordinate delay in the resolution of the subject cases by theOmbudsman.

Art. III of the Constitution provides that:

Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

The constitutional right to "a speedy disposition of cases" is not limited to the accused incriminal proceedings but extends to all parties in all cases, including civil and administrativecases, and in all proceedings, including judicial and quasi-judicial hearings. 37 Hence, under the Constitution, any party to a case may demand expeditious action on all officials who aretasked with the administration of justice. 38

However, the right to a speedy disposition of a case, like the right to speedy trial, 39 is deemedviolated only when the proceedings is attended by vexatious, capricious, and oppressivedelays; or when unjustified postponements of the trial are asked for and secured, or whenwithout cause or justifiable motive a long period of time is allowed to elapse without the partyhaving his case tried. 40 Equally applicable is the balancing test used to determine whether adefendant has been denied his right to a speedy trial, or a speedy disposition of a case for thatmatter, in which the conduct of both the prosecution and the defendant is weighed, and suchfactors as the length of the delay, the reasons for such delay, the assertion or failure to assertsuch right by the accused, and the prejudice caused by the delay. 41 The concept of speedydisposition is a relative term and must necessarily be a flexible concept. 42

A mere mathematical reckoning of the time involved, therefore, would not be sufficient. 43 Inthe application of the constitutional guarantee of the right to speedy disposition of cases,particular regard must also be taken of the facts and circumstances peculiar to each case. 44

In Tatad vs. Sandiganbayan, 45 the Court held that the length of delay and the simplicity of theissues did not justify the delay in the disposition of the cases therein. The "unexplainedinaction" 46 of the prosecutors called for the dismissal of the cases against petitioner Tatad.

In Alvizo vs. Sandiganbayan, 47 the Court also ruled that there was no violation of the right to

speedy disposition. The Court took into account the reasons for the delay, i .e., the frequentamendments of procedural laws by presidential decrees, the structural reorganizations inexisting prosecutorial agencies and the creation of new ones by executive fiat, resulting inchanges of personnel, preliminary jurisdiction, and the functions and powers of prosecutingagencies. The Court likewise considered the failure of the accused to assert such right, andthe lack of prejudice caused by the delay to the accused.

In Santiago vs. Garchitorena, 48 the complexity of the issues and the failure of the accused toinvoke her right to speedy disposition at the appropriate time spelled defeat to her claim to theconstitutional guarantee.

In Cadalin vs. POEA's Administrator , 49 the Court, considering also the complexity of the cases("not run-of-the-mill variety") and the conduct of the parties' lawyers, held that the right tospeedy disposition was not violated therein.

In petitioner Binay's case, the Court finds that there was no undue delay in the disposition of the subject cases. The proceedings conducted before the Office of the Tanodbayan, and later with the Office of the Ombudsman, adequately explains the length of the delay:

1. That on July 27, 1988 Bobby Brillante filed with the Office of the Tanodbayan an affidavit-complaint charging, Jejomar Binay, Sergio Santos, Roberto Chang, Delfin Almeda, NelsonIrasga, Nicasio Santiago, Feliciano Basam, Maria Chan, Romeo Barrios, Azucena Diaz,Virgilio Clarete, Godofredo Marcelo, Armando San Miguel, Salvador Pangilinan and JohnDoes of the following offenses: (a) Massive Malversation of Public Funds; (b) MultipleFalsification of Public Documents; (c) Usurpation of Official Functions; (d) Violation of ElectionLaw; and (e) Violation of Sec. 3(e) of R.A. 3019.

1.1. Brillante's complaint was based on the initial findings and observations of the COA on theexamination of the cash and accounts covering transactions from April 1, 1987 to January 4,1988 and Post-Audit of Selected Accounts for the last quarter of 1987 of the Municipality of Makati contained in its Report dated January 11, 1988. The COA furnished the Tanodbayan acopy of this report on August 1, 1988 upon request of the latter.

1.2. In the letter of the COA transmitting a copy of the report, the Tanodbayan was informedthat this COA audit report of January 11, 1988 is not yet released since the Mayor of Makatiwas given thirty days within which to explain/clarify the findings in the report and is subject tochange or modification depending upon the explanation/clarification to be submitted by theMayor of Makati. Because of this the information from the COA the preliminary investigationwas held in abeyance until the submission of the final report.

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1.3. On March 1, 1989, the first part of the Final Report on Audit of Makati was received by theOffice of the Ombudsman and was transmitted for purposes of the ensuring preliminaryinvestigation to the Tanodbayan which received the same on March 22, 1989.

1.4. This first part of the Final Report contained the fifteen (15) adverse findings, aboveelsewhere stated as the basis of Bobby Brillante's complaint.

1.5. Eleven (11) COA auditors participated in the documentation and analysis of its findingsand preparation of the final report.

1.6. The first part of the final report was followed by a Supplemental Report on Findings No. 1and 3. This Supplemental Report is dated July 3, 1989.

2. After securing machine copies of the voluminous documents supporting the COA findings,Pros. Margarito Gervacio, Chairman of the Panel of Prosecutors, issued the correspondingsubpoena directing the respondents to submit their respective counter-affidavits.

2.1. In compliance with the subpoena, Mayor Jejomar Binay submitted his counter-affidavit onMay 18, 1990, Marissa Chan, Feliciano Bascon, Nicanor Santiago, Jr. on June 19, 1990,Renato Manrique on June 4, 1990, Alfredo Ignacio on June 6, 1990, Roberto Chang onAugust 27, 1990. Feliciano Bascon submitted his Supplemental Affidavit on November 22,1990.

2.2. Thereafter, clarificatory examinations were conducted on September 27, 1990, October 26, 1990, November 8, 9, 14, 22, 1990.

3. On January 15, 1991 Mayor Jejomar Binay submitted a copy of this Petition for Certiorari inG.R. No. 92380 which he and the municipality of Makati filed with the Supreme Court againstCOA Chairman, Eufemio Domingo and the Commission on Audit, with a manifestation thatsaid petition is submitted to support Binay's stand as regard COA Finding No. 9 aforestated.

4. On April 2, 1992 respondent Marissa Chan filed an affidavit containing allegationsincriminating Jejomar Binay;

5. Upon being ordered to comment on the said April 2, 1992 affidavit of Marissa Chan,Jejomar Binay submitted his comment thereto on April 30, 1992.

6. On August 4, 1993, the Investigation Panel submitted to the Deputy Special Prosecutor itsResolution disposing the preliminary investigation of the case.

6.1. On August 10, 1993 the said Resolution was approved by the Special Prosecutor, whoforwarded the same and the entire records to the Office of the Ombudsman for review and/or final action.

6.2. On August 16, 1994, the Review Panel of the Ombudsman submitted to the latter itsreview action for approval.

6.3. On August 19, 1994; the Ombudsman approved some of the recommendations of theReview Panel and directed the preparation and filing of the informations. 50

Furthermore, the prosecution is not bound by the findings of the Commission on Audit (COA);it must rely on its own independent judgment in the determination of probable cause.Accordingly, the prosecution had to conduct its own review of the COA findings. Judging fromsaid findings, we find that the cases were sufficiently complex, thus justifying the length of timefor their resolution. As held by the Sandiganbayan in its Resolution dated March 29, 1995denying the Motion to Quash:

2. Ten charges are involved in these cases and the prosecution, unable to rely on the rawfindings of the Commission on Audit in 15 reports caused the investigation and examination of thousands of vouchers, payrolls, and supporting documents considering that no less than theChairman of the Commission on Audit, assisted by a team supervisor and 10 team membershad to take part in the conduct of a final audit consisting of evaluation and analysis of the initialfindings in the 15 raw reports, the cases must have involved complicated legal and factualissues which do warrant or justify a longer period of time for preliminary investigation.

xxx xxx xxx

5. In the TATAD case, the preliminary investigation was resolved close to three (3) years fromthe time all the counter-affidavits were submitted to the Tanodbayan, notwithstanding the factthat very few documentary and testimonial evidence were involved. In the above-entitledcases, the preliminary investigation of all ten (10) cases was terminated in merely two (2)years and four (4) months from the date Mayor Binay filed his last pleading, on April 30, 1992.51

Petitioner claims that the Resolution of the Sandiganbayan ordering his suspension pendentelite is unwarranted since the informations charging him were not valid. This contention,however, must fail in view of our pronouncement that there was no delay in the resolution of the subject cases in violation of his right to speedy disposition. Accordingly, the informations inquestion are valid and petitioner's suspension pendente lite must be upheld.

Finally, whether or not there is probable cause to warrant the filing of the subject cases is aquestion best left to the discretion of the Ombudsman. Absent any grave abuse of suchdiscretion, the Court will not interfere in the exercise thereof. 52 Petitioner in this case hasfailed to establish any such abuse on the part of the Ombudsman.

III

Having ruled that the criminal case against petitioners in G.R. No. 128136 is within theexclusive original jurisdiction of the Sandiganbayan, the Court will now dispose of the followingissues raised by them:

(1) The Sandiganbayan was ousted of its jurisdiction by the filing of an information alleging thesame facts with the Regional Trial Court.

(2) Respondents are estopped from filing an information before the Sandiganbayanconsidering that they had already filed another information alleging the same facts before theRegional Trial Court.

(3) The filing of the information before the Sandiganbayan constitutes double jeopardy.

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The Court tackles these arguments successively then deals with the questions of duplicity of information and forum shopping.

Petitioners invoke the rule that "the jurisdiction of a court once it attaches cannot be ousted bysubsequent happenings or events, although of such character which would have prevented

jurisdiction from attaching in the first instance." 53 They claim that the filing of the information inthe Sandiganbayan was a "subsequent happening or event" which cannot oust the RTC of its

jurisdiction.

This rule has no application here for the simple reason that the RTC had no jurisdiction over the case. Jurisdiction never attached to the RTC. When the information was filed before theRTC, R.A. No. 7975 was already in effect and, under said law, jurisdiction over the casepertained to the Sandiganbayan.

Neither can estoppel be successfully invoked. First , jurisdiction is determined by law, not bythe consent or agreement of the parties or by estoppel. 54 As a consequence of this principle,the Court held in Zamora vs. Court of Appeals 55 that:

It follows that as a rule the filing of a complaint with one court which has no jurisdiction over itdoes not prevent the plaintiff from filing the same complaint later with the competent court. Theplaintiff is not estopped from doing so simply because it made a mistake before in the choiceof the proper forum. In such a situation, the only authority the first court can exercise is todismiss the case for lack of jurisdiction. This has to be so as a contrary conclusion would allow

a party to divest the competent court of its jurisdiction, whether erroneously or evendeliberately, in derogation of the law.

It is true that the Court has ruled in certain cases 56 that estoppel prevents a party fromquestioning the jurisdiction of the court that the party himself invoked. Estoppel, however,remains the exception rather than the rule, the rule being that jurisdiction is vested by law. 57

Even in those instances where the Court applied estoppel, the party estopped consistentlyinvoked the jurisdiction of the court and actively participated in the proceedings, impugningsuch jurisdiction only when faced with an adverse decision. This is not the case here. After discovering that a similar information had earlier been filed in the RTC, respondents promptlyasked the trial court to refer the case to the Sandiganbayan, which motion was followed by amotion to resolve the previous motion. There was no consistent invocation of the RTC's

jurisdiction. There were no further proceedings after the filing of the information save for themotion to refer the case precisely on the ground of lack of jurisdiction, and the motion toresolve the earlier motion. Finally, the trial court had not rendered any decision, much less oneadverse to petitioners.

Second , petitioners cannot hold respondents in estoppel for the latter are not themselves partyto the criminal action. In a criminal action, the State is the plaintiff, for the commission of acrime is an offense against the State. Thus, the complaint or information filed in court isrequired to be brought in the name of the "People of the Philippines." 58 Even then, thedoctrine of estoppel does not apply as against the people in criminal prosecutions. 59 Violationsof the Anti-Graft and Corrupt Practices Act, like attempted murder, 60 is a public offense. Socialand public interest demand the punishment of the offender; hence, criminal actions for publicoffenses can not be waived or condoned, much less barred by the rules of estoppel. 61

The filing of the information in the Sandiganbayan did not put petitioners in double jeopardyeven though they had already pleaded "not guilty" to the information earlier filed in the RTC.The first jeopardy never attached in the first place, the RTC not being not being a court of

competent jurisdiction. There can be no double jeopardy where the accused entered a plea ina court that had no jurisdiction. 62 The remedy of petitioners, therefore, was not to move for thequashal of the information pending in the Sandiganbayan on the ground of double jeopardy . 63

Their remedy was to move for the quashal of the information pending in the RTC on theground of lack of jurisdiction. 64

The contention that the filing of the information in the Sandiganbayan violated the rule againstduplicitous informations is patently unmeritorious. That rule presupposes that there is onecomplaint or information charging not one offense, but two or more offenses. Thus, Rule 110of the Rules of Court states:

Sec. 13. Duplicity of offense. — A complaint or information must charge but one offense,except only in those cases in which existing laws prescribe a single punishment for variousoffenses.

Non-compliance with this rule is a ground for quashing the duplicitous complaint or informationunder Rule 117:

Sec. 3. Grounds. — The accused may move to quash the complaint or information on any of the following grounds:

xxx xxx xxx

(e) That more than one offense is charged except in those cases in which existing lawsprescribe a single punishment for various offenses;

xxx xxx xxx

Here, petitioners are faced not with one information charging more than one offense but withmore than one information charging one offense.

The Court does not find the prosecution guilty of forum-shopping. Broadly speaking, forumshopping exists when, as a result of an adverse opinion in one forum, a party seeks afavorable opinion (other than by appeal or certiorari ) in another, or when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or theother court would make a favorable disposition. 65 We discern no intent on the part of theState, in filing two informations in two different courts, to "gamble that one or the other courtwould make a favorable disposition."

Obviously, respondents got their signals crossed. One set of officials, after investigating acomplaint filed by the Vice-Mayor of San Pascual, Batangas charging petitioners of overpricing, filed the information for violation of Section 3(e) of R.A. No. 3019 in the RTC.Another set of officials investigated another complaint from the Concerned Citizens Groupaccusing petitioners of, among others, overpricing the same project subject of the previouscomplaint. Finding probable cause, the second set of officials instituted the criminal action,charging the same offense and alleging essentially the same facts as the first, this time in theSandiganbayan. Later learning of the procedural faux pas, respondents without undue delayasked the RTC to refer the case to the Sandiganbayan.

WHEREFORE, the consolidated petitions are hereby DISMISSED.

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Bellosillo, Melo, Puno, Vitug, Mendoza, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., I join Mr. Justice Panganiban in his separate opinion.

Panganiban, J., please see separate opinion.

Quizumbing, J., concur in the separate opinion of Justice Panganiban.

Separate Opinions

PANGANIBAN, J., separate opinion;

I concur with the majority that, as a rule, the Sandiganbayan retains jurisdiction over criminalcases involving municipal mayors.

Due to their peculiar factual circumstances, however, Petitioner Binay's cases, I believe,should be deemed exceptions and referred to the "proper courts," that is, the regional trialcourts. These factual circumstances are simple: (1) the Informations charging Binay were filedin the Sandiganbayan on July 7, 1994, prior the enactment of RA 7975; and (2) when RA 7975took effect on May 16, 1995, trial in the anti-graft court had not yet commenced. In fact, Binayhad not been arraigned yet. These undisputed facts are plainly governed by the unambiguousprovision of Section 7, RA 7975, which reads:

Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial hasnot begun in the Sandiganbayan shall be referred to the proper courts.

The majority, however, complicates the above syllogistic application of the law by ruling thatbefore Section 7 could be used, a prior determination as to which court has jurisdiction over the cases should first be undertaken. Since the aforesaid general rule states that theSandiganbayan retains jurisdiction over municipal mayors, then Binay's cases should bereferred by the anti-graft court to itself, not to the regional trial courts.

With due respect, I believe this rather circumlocutory interpretation renders Section 7 useless.In fact, I daresay that said interpretation or explanation is much more difficult to understand

than the provision itself. Indeed, why should the words "proper courts" be deemed to includethe Sandiganbayan? The majority's ruling leads to the absurdity of the Sandiganbayan's beingrequired to refer to itself a criminal case already pending before it, one in which trial has notyet begun. I would rather rest on the most fundamental rule in statutory construction:Interpretation is needed only when the law is vague, not when it is clear and unambiguous, 1

as in the case of Section 7, RA 7975.

Consequently, I vote (1) to GRANT the Petition in G.R. Nos. 120681-83, because Binay'scases fall under the exception stated in Section 7, RA 7975; and (2) to DISMISS the Petition inG.R. No. 128136, because Petitioner Magsaysay's cases were filed after RA 7975 had takeneffect; they are thus covered by the general rule that the Sandiganbayan has jurisdiction over municipal mayors.

Separate Opinions

PANGANIBAN, J., separate opinion;

I concur with the majority that, as a rule, the Sandiganbayan retains jurisdiction over criminalcases involving municipal mayors.

Due to their peculiar factual circumstances, however, Petitioner Binay's cases, I believe,should be deemed exceptions and referred to the "proper courts," that is, the regional trialcourts. These factual circumstances are simple: (1) the Informations charging Binay were filedin the Sandiganbayan on July 7, 1994, prior the enactment of RA 7975; and (2) when RA 7975

took effect on May 16, 1995, trial in the anti-graft court had not yet commenced. In fact, Binayhad not been arraigned yet. These undisputed facts are plainly governed by the unambiguousprovision of Section 7, RA 7975, which reads:

Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial hasnot begun in the Sandiganbayan shall be referred to the proper courts.

The majority, however, complicates the above syllogistic application of the law by ruling thatbefore Section 7 could be used, a prior determination as to which court has jurisdiction over the cases should first be undertaken. Since the aforesaid general rule states that theSandiganbayan retains jurisdiction over municipal mayors, then Binay's cases should bereferred by the anti-graft court to itself, not to the regional trial courts.

With due respect, I believe this rather circumlocutory interpretation renders Section 7 useless.In fact, I daresay that said interpretation or explanation is much more difficult to understandthan the provision itself. Indeed, why should the words "proper courts" be deemed to includethe Sandiganbayan? The majority's ruling leads to the absurdity of the Sandiganbayan's beingrequired to refer to itself a criminal case already pending before it, one in which trial has notyet begun. I would rather rest on the most fundamental rule in statutory construction:Interpretation is needed only when the law is vague, not when it is clear and unambiguous, 1

as in the case of Section 7, RA 7975.

Consequently, I vote (1) to GRANT the Petition in G.R. Nos. 120681-83, because Binay'scases fall under the exception stated in Section 7, RA 7975; and (2) to DISMISS the Petition inG.R. No. 128136, because Petitioner Magsaysay's cases were filed after RA 7975 had takeneffect; they are thus covered by the general rule that the Sandiganbayan has jurisdiction over municipal mayors.

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G.R. No. 75954 October 22, 1992

PEOPLE OF THE PHILIPPINES, petitioner,vs.HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court, Branch 52, Manila, andK.T. LIM alias MARIANO LIM, respondents.

BELLOSILLO, J.:

Failing in his argument that B.P. 22, otherwise known as the "Bouncing Check Law", isunconstitutional, 1 private respondent now argues that the check he issued, a memorandumcheck, is in the nature of a promissory note, hence, outside the purview of the statute. Here,his argument must also fail.

The facts are simple. Private respondent K.T. Lim was charged before respondent court withviolation of B.P. 22 in an Information alleging ––

That on . . . January 10, 1985, in the City of Manila . . . the said accuseddid then and there wilfully, unlawfully and feloniously make or draw andissue to Fatima Cortez Sasaki . . . Philippine Trust Company Check No.117383 dated February 9, 1985 . . . in the amount of P143,000.00, . . .well knowing that at the time of issue he . . . did not have sufficient fundsin or credit with the drawee bank . . . which check . . . was subsequently

dishonored by the drawee bank for insufficiency of funds, and despitereceipt of notice of such dishonor, said accused failed to pay said FatimaCortez Sasaki the amount of said check or to make arrangement for fullpayment of the same within five (5) banking days after receiving saidnotice. 2

On 18 July 1986, private respondent moved to quash the Information of the ground that thefacts charged did not constitute a felony as B.P. 22 was unconstitutional and that the check heissued was a memorandum check which was in the nature of a promissory note, perforce, civilin nature. On 1 September 1986, respondent judge, ruling that B.P. 22 on which theInformation was based was unconstitutional, issued the questioned Order quashing theInformation. Hence, this petition for review on certiorari filed by the Solicitor General in behalf of the government.

Since the constitutionality of the "Bouncing Check Law" has already been sustained by thisCourt in Lozano v . Martinez 3 and the seven (7) other cases decided jointly with it, 4 theremaining issue, as aptly stated by private respondent in his Memorandum, is whether amemorandum check issued postdated in partial payment of a pre-existing obligation is withinthe coverage of B.P. 22.

Citing U.S. v . Isham, 5 private respondent contends that although a memorandum check maynot differ in form and appearance from an ordinary check, such a check is given by the drawer to the payee more in the nature of memorandum of indebtedness and, should be sued upon ina civil action.

We are not persuaded.

A memorandum check is in the form of an ordinary check, with the word "memorandum","memo" or "mem" written across its face, signifying that the maker or drawer engages to paythe bona fide holder absolutely, without any condition concerning its presentment. 6 Such acheck is an evidence of debt against the drawer, and although may not be intended to bepresented, 7 has the same effect as an ordinary check, 8 and if passed to the third person, willbe valid in his hands like any other check. 9

From the above definition, it is clear that a memorandum check, which is in the form of anordinary check, is still drawn on a bank and should therefore be distinguished from apromissory note, which is but a mere promise to pay. If private respondent seeks to equate

memorandum check with promissory note, as he does to skirt the provisions of B.P. 22, hecould very well have issued a promissory note, and this would be have exempted him form thecoverage of the law. In the business community a promissory note, certainly, has less impactand persuadability than a check.

Verily, a memorandum check comes within the meaning of Sec. 185 of the NegotiableInstruments Law which defines a check as "a bill of exchange drawn on a bank payable ondemand." A check is also defined as " [a] written order or request to a bank or personscarrying on the business of banking, by a party having money in their hands, desiring them topay, on presentment, to a person therein named or bearer, or to such person or order, anamed sum of money," citing 2 Dan. Neg. Inst. 528; Blair v . Wilson, 28 Gratt. (Va.) 170;Deener v . Brown, 1 MacArth. (D.C.) 350; In re Brown, 2 Sto. 502, Fed. Cas. No. 1,985. SeeChapman v . White, 6 N.Y. 412, 57 Am. Dec 464. 10 Another definition of check is that is "[a]draft drawn upon a bank and payable on demand, signed by the maker or drawer, containingan unconditional promise to pay a sum certain in money to the order of the payee," citing

State v . Perrigoue, 81 Wash, 2d 640, 503 p. 2d 1063, 1066. 11

A memorandum check must therefore fall within the ambit of B.P. 22 which does notdistinguish but merely provides that "[a]ny person who makes or draws and issues any check knowing at the time of issue that he does not have sufficient funds in or credit with the draweebank . . . which check is subsequently dishonored . . . shall be punished by imprisonment . . ."(Emphasis supplied ). 12 Ubi lex no distinguit nec nos distinguere debemus .

But even if We retrace the enactment of the "Bouncing Check Law" to determine theparameters of the concept of "check", We can easily glean that the members of the thenBatasang Pambansa intended it to be comprehensive as to include all checks drawn againstbanks. This was particularly the ratiocination of Mar. Estelito P. Mendoza, co-sponsor of Cabinet Bill No. 9 which later became B.P. 22, when in response to the interpellation of Mr.Januario T. Seño, Mr. Mendoza explained that the draft or order must be addressed to a bank

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or depository, 13 and accepted the proposed amendment of Messrs. Antonio P. Roman andArturo M. Tolentino that the words "draft or order", and certain terms which technically meantpromissory notes, wherever they were found in the text of the bill, should be deleted since thebill was mainly directed against the pernicious practice of issuing checks with insufficient or nofunds, and not to drafts which were not drawn against banks. 14

A memorandum check, upon presentment, is generally accepted by the bank. Hence it doesnot matter whether the check issued is in the nature of a memorandum as evidence of indebtedness or whether it was issued is partial fulfillment of a pre-existing obligation, for whatthe law punishes is the issuance itself of a bouncing check 15 and not the purpose for which itwas issuance. The mere act of issuing a worthless check, whether as a deposit, as aguarantee, or even as an evidence of a pre-existing debt, is malum prohibitum. 16

We are not unaware that a memorandum check may carry with it the understanding that it isnot be presented at the bank but will be redeemed by the maker himself when the loan falldue. This understanding may be manifested by writing across the check "Memorandum","Memo" or "Mem." However, with the promulgation of B.P. 22, such understanding or privatearrangement may no longer prevail to exempt it from penal sanction imposed by the law. Torequire that the agreement surrounding the issuance of check be first looked into andthereafter exempt such issuance from the punitive provision of B.P. 22 on the basis of suchagreement or understanding would frustrate the very purpose for which the law was enacted— to stem the proliferation of unfunded checks. After having effectively reduced the incidenceof worthless checks changing hands, the country will once again experience the limitlesscirculation of bouncing checks in the guise of memorandum checks if such checks will be

considered exempt from the operation of B.P. 22. It is common practice in commercialtransactions to require debtors to issue checks on which creditors must rely as guarantee of payment. To determine the reasons for which checks are issued, or the terms and conditionsfor their issuance, will greatly erode the faith the public responses in the stability andcommercial value of checks as currency substitutes, and bring about havoc in trade and inbanking communities. 17

WHEREFORE, the petition is GRANTED and the Order of respondent Judge of 1 September 1986 is SET ASIDE. Consequently, respondent Judge, or whoever presides over the RegionalTrial Court of Manila, Branch 52, is hereby directed forthwith to proceed with the hearing of thecase until terminated.

SO ORDERED.

Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr.,Romero, Nocon, Bellosillo and Melo, JJ., concur.

Narvasa, C.J., is on leave.

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G.R. No. 124171 March 18, 2002

LETICIA R. MERCIALES, petitioner,vs.THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES,JOSELITO NUADA, PAT. EDWIN MORAL, ADONIS NIEVES, ERNESTO LOBETE, DOMILGRAGEDA, and RAMON "POL" FLORES, respondents.

YNARES-SANTIAGO, J .:

Petitioner seeks the reversal of the Decision of the Court of Appeals 1 in CA-G.R. SP No.37341, denying her petition to annul the Order of the Regional Trial Court of Legazpi City,Branch 8,2 in Criminal Case Nos. 6307-6312, which dismissed the charge of rape withhomicide based on a demurrer to evidence filed by private respondents, accused therein.

The antecedent facts as succinctly synthesized by the respondent court are as follows:

On August 12, 1993, Criminal Case Nos. 6307, 6308, 6309, 6310, 6311, and 6312,for rape with homicide, in connection with the death of one Maritess RicafortMerciales, were filed against the private respondents, Joselito Nuada, Pat. EdwinMoral, Adonis Nieves, Ernesto Lobete, Domil Grageda and Ramon "Pol" Flores,before the Regional Trial Court, Fifth Judicial Region, Legaspi City. The said caseswere consolidated in Branch 8, presided over by the respondent judge.

During the trial, after presenting seven witnesses, the public prosecutor filed amotion for the discharge of accused Joselito Nuada, in order that he may be utilizedas a state witness. However, the prosecution contended that it was not required topresent evidence to warrant the discharge of accused Nuada, since the latter hadalready been admitted into the Witness Protection Program of the Department of Justice. Consequently, the respondent judge denied the motion for discharge, for failure of the prosecution to present evidence as provided for by Section 9, Rule 119of the 1985 Rules on Criminal Procedure.

On December 22, 1993, the prosecution filed a petition3 for certiorari [G.R. No.113273-78] before the Supreme Court, questioning the respondent judge's denial of the motion to discharge the accused Nuada. Despite the fact that the petition did notcontain a prayer for a temporary restraining order, the trial judge did not set the case

for further hearing so as to give the prosecution time to secure such temporaryrestraining order from the Supreme Court.

On July 13, 1994, herein private respondents filed a motion to set the case for hearing, invoking their constitutional right to speedy trial. The respondent judgegranted the motion, and set the case for hearing on July 29, 1994.

On the said date, the prosecution filed a motion for reconsideration, instead of presenting further evidence. The respondent Judge postponed the hearing and

reset the same for August 9, 1994.

On August 9, 1994, again the prosecution filed a motion for reconsideration,invoking its pending petition for certiorari with the Supreme Court. The privaterespondents, thru counsel, objected to any further resetting as this would constitutea violation of their right to a speedy trial. The respondent judge called for a recessso as to let the prosecution decide whether or not to present an NBI agent, who wasthen present, to prove the due execution of the accused Nuada's extrajudicialconfession.

However, after the recess, the public prosecutor declined to present the NBI agent,and instead manifested that he was not presenting any further evidence. Thedefense then moved that the cases be deemed submitted for decision, and askedleave of court to file a demurrer to evidence.

On August 29, 1994, the Solicitor General filed [in G.R. No. 113273-78] a motion for issuance of a writ of preliminary injunction or temporary restraining order with theSupreme Court, to enjoin the respondent judge from proceeding with the resolutionof the case. However, on September 19, 1994, the motion was denied by theSupreme Court.

In due time, the accused filed their demurrer to evidence x x x.4

On October 21, 1994, the trial court issued the assailed Order, the dispositive portion of whichreads:

For lack of sufficient evidence to prove the guilt of the accused beyond reasonable

doubt, all the accused in all these cases are hereby ACQUITTED and the casesfiled against them are hereby DISMISSED. The accused in all these cases, beingdetention prisoners, are hereby ordered RELEASED from detention, unless they arebeing detained for some other legal cause.

SO ORDERED.5

Petitioner Leticia Merciales, who is the mother of the victim in the said criminal cases, filedbefore the respondent Court of Appeals a petition to annul the foregoing Order of the trialcourt. However, the Court of Appeals dismissed the petition on October 4, 1995.

A motion for reconsideration was denied on March 6, 1996. Hence, the instant petition basedon the ground that:

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THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN ITREFUSED TO NULLIFY THE ORDER DATED OCTOBER 21, 1994 OF THE TRIALCOURT FOR BEING NULL AND VOID ON THE GROUND THAT THE TRIALJUDGE TOLERATED AND/OR COMMITTED INJUSTICE BY FAILING TOREQUIRE THE PROSECUTION TO PRESENT ALL THEIR EVIDENCE INSTEADOF SUPPRESSING THEM APPARENTLY TO FAVOR THE ACCUSED INVIOLATION OF THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO DUEPROCESS, OUSTING THE TRIAL COURT OF ITS JURISDICTION.6

The case was set for oral argument on December 11, 2001. Counsel for petitioner and theSolicitor General appeared. During the oral argument, the Solicitor General manifested that hewas joining the cause of petitioner in order to prevent a miscarriage of justice. The Courtdirected the parties to submit their respective memoranda in amplification of the points raisedduring the oral argument.

Petitioner maintains that the reopening of the criminal case will not violate the accused's rightto double jeopardy. More particularly, she ascribes prosecutorial and judicial misconduct in theundue haste which attended the prosecution's premature resting and the trial court's grant of the demurrer to evidence when the presentation of the evidence for the prosecution has notbeen completed.

Private respondent Ramon Flores filed his Memorandum, arguing that petitioner, being theprivate complainant in the criminal case below, has no legal standing to appeal the acquittal of private respondents; that there was no extrinsic fraud, abuse of discretion or jurisdictional

defect to warrant either a petition for annulment of judgment or certiorari; and that thereopening of the criminal case will violate the accused's right against double jeopardy.

It is true that a private complainant cannot bring an action questioning a judgment of acquittal,except insofar as the civil aspect of the criminal case is concerned.7 In the case at bar, weagree with petitioner that this issue was rendered moot when the Solicitor General, inrepresentation of the People, changed his position and joined the cause of petitioner, thusfulfilling the requirement that all criminal actions shall be prosecuted under the direction andcontrol of the public prosecutor.8

In any event, petitioner has an interest in the maintenance of the criminal prosecution, beingthe mother of the deceased rape victim. The right of offended parties to appeal an order of thetrial court which deprives them of due process has always been recognized, the only limitationbeing that they cannot appeal any adverse ruling if to do so would place the accused in double

jeopardy.9

The criminal case below was for rape with homicide. Although the public prosecutor presentedseven witnesses, none of these actually saw the commission of the crime. It was only JoselitoNuada, one of the accused, who came forward and expressed willingness to turn statewitness. His testimony was vital for the prosecution, as it would provide the only eyewitnessaccount of the accused's complicity in the crime. The trial court required the public prosecutor to present evidence to justify Nuada's discharge as a state witness, but the latter insisted thatthere was no need for such proof since Nuada had already been admitted into the WitnessProtection Program of the Department of Justice. The public prosecutor's obstinate refusal topresent the required evidence prompted the trial court to deny the motion to discharge Nuada.

The prosecution elevated the matter to the Supreme Court on a petition for certiorari.Meanwhile, the accused moved to set the case for hearing, invoking their constitutional right to

speedy trial. The trial court granted the motion. The public prosecutor moved for acontinuance, and the trial court acceded. At the next scheduled hearing, however, the trialcourt denied a similar motion by the prosecution in view of the objection of the accused. Thetrial court directed the public prosecutor to present Atty. Carlos S. Caabay, the NBI Agent whotook Nuada's extrajudicial confession. At the resumption of the hearing, the public prosecutor declared that he was resting the prosecution's case, knowing fully well that the evidence hehas presented was not sufficient to convict the accused. Consequently, the ensuing demurrer to evidence filed by the accused was granted by the trial court.

It is clear from the foregoing that the public prosecutor was guilty of serious nonfeasance. It isthe duty of the public prosecutor to bring the criminal proceedings for the punishment of theguilty.10 Concomitant with this is the duty to pursue the prosecution of a criminal action and torepresent the public interest. A crime is an offense against the State, and hence is prosecutedin the name of the People of the Philippines. For this reason, Section 5 of Rule 110 providesthat "all criminal actions either commenced by complaint or by information shall be prosecutedunder the direction and control of the fiscal x x x." As the representative of the State, the publicprosecutor has the right and the duty to take all steps to protect the rights of the People in thetrial of an accused.11 If the public prosecutor commits a nonfeasance in refusing to perform aspecific duty imposed on him by law, he can be compelled by an action for mandamus.12

In the case at bar, the public prosecutor knew that he had not presented sufficient evidence toconvict the accused. Yet, despite repeated moves by the accused for the trial court to continuehearing the case, he deliberately failed to present an available witness and thereby allowedthe court to declare that the prosecution has rested its case. In this sense, he was remiss in

his duty to protect the interest of the offended parties. More specifically, the public prosecutor in this case was guilty of blatant error and abuse of discretion, thereby causing prejudice to theoffended party. Indeed, the family of the deceased victim, Maritess Merciales, could donothing during the proceedings, having entrusted the conduct of the case in the hands of thesaid prosecutor. All they could do was helplessly watch as the public prosecutor, who wasunder legal obligation to pursue the action on their behalf, renege on that obligation and refuseto perform his sworn duty.

Indeed, Rule 119, Section 9 (now Section 17) of the Rules of Court expressly requires thepresentation of evidence in support of the prosecution's prayer for the discharge of an accusedto be a state witness, viz:

When two or more persons are jointly charged with the commission of any offense,upon motion of the prosecution before resting its case, the court may direct one or

more of the accused to be discharged with their consent so that they may bewitnesses for the state when after requiring the prosecution to present evidence andthe sworn statement of each proposed state witness at a hearing in support of thedischarge, xxx xxx xxx.

By refusing to comply with the trial court's order to present evidence, the public prosecutor grossly violated the above-quoted rule. Moreover, the public prosecutor violated his boundenduty to protect the interest of the offended party, at least insofar as the criminal aspect isconcerned. After the trial court denied his motion to discharge Nuada as a state witness, heshould have proceeded to complete the evidence of the prosecution by other means. Instead,he willfully and deliberately refused to present an available witness, i.e., the NBI Agent whowas present in court on that date and time. The public prosecutor was duty-bound to exhaustall available proofs to establish the guilt of the accused and bring them to justice for their offense against the injured party.

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Likewise guilty for serious nonfeasance was the trial court. Notwithstanding its knowledge thatthe evidence for the prosecution was insufficient to convict, especially after the publicprosecutor tenaciously insisted on utilizing Nuada as state witness, the trial court passivelywatched as the public prosecutor bungled the case. The trial court was well aware of thenature of the testimonies of the seven prosecution witnesses that have so far been presented.Given this circumstance, the trial court, motu proprio, should have called additional witnessesfor the purpose of questioning them himself in order to satisfy his mind with reference toparticular facts or issues involved in the case.13

Based on the foregoing, it is evident that petitioner was deprived of her day in court. Indeed, itis not only the State, but more so the offended party, that is entitled to due process in criminalcases. Inasmuch as the acquittal of the accused by the court a quo was done without regardto due process of law, the same is null and void. It is as if there was no acquittal at all, and thesame cannot constitute a claim for double jeopardy.14

By contending that the challenged Decision is void for having been issued withgrave abuse of discretion amounting to lack or excess of jurisdiction, the petitiondoes not violate the right of the accused against double jeopardy. It is elementarythat double jeopardy attaches only when the following elements concur: (1) theaccused are charged under a complaint or information sufficient in form andsubstance to sustain their conviction; (2) the court has jurisdiction; (3) the accusedhave been arraigned and have pleaded; and (4) they are convicted or acquitted, or the case is dismissed without their consent.

Thus, even assuming that a writ of certiorari is granted, the accused would not beplaced in double jeopardy because, from the very beginning, the lower tribunal hadacted without jurisdiction. Precisely, any ruling issued without jurisdiction is, in legalcontemplation, necessarily null and void and does not exist.15

Otherwise put, the dismissal of the case below was invalid for lack of a fundamentalprerequisite, that is, due process.16 In rendering the judgment of dismissal, the trial judge inthis case acted without or in excess of jurisdiction, for a judgment which is void for lack of dueprocess is equivalent to excess or lack of jurisdiction.17 Indeed, "jurisdiction" is the right to hear and determine, not to determine without hearing.18

Lack of jurisdiction is one of the grounds for the annulment by the Court of Appeals of judgments or final orders and resolutions of Regional Trial Courts. 19 Hence, the remedy takenby petitioner before the Court of Appeals was correct.

WHEREFORE, in view of the foregoing, the petition is GRANTED. The Decision of the Courtof Appeals in CA-G.R. SP No. 37341 is REVERSED AND SET ASIDE. The Order dismissingCriminal Case Nos. 6307-6312 is ANNULLED, and this case is REMANDED to the RegionalTrial Court of Legazpi City, Branch 8, for further proceedings. The public prosecutor isORDERED to complete the presentation of all available witnesses for the prosecution.

SO ORDERED.

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G.R. No. L-45129 March 6, 1987

PEOPLE OF THE PHILIPPINES, petitioner,vs.THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Courtof First Instance of Batangas, Second Branch, and MANUEL OPULENCIA, respondents.

FELICIANO, J.:

In this petition for certiorari and mandamus, the People of the Philippines seek to set aside theorders of the respondent Judge of the Court of First Instance of Batangas in Criminal CaseNo. 266, dated 12 August 1976 and 8 November 1976, respectively, quashing an informationfor theft filed against private respondent Manuel Opulencia on the ground of double jeopardyand denying the petitioner's motion for reconsideration.

On 1 February 1975, members of the Batangas City Police together with personnel of theBatangas Electric Light System, equipped with a search warrant issued by a city judge of

Batangas City, searched and examined the premises of the Opulencia Carpena Ice Plant andCold Storage owned and operated by the private respondent Manuel Opulencia. The policediscovered that electric wiring, devices and contraptions had been installed, without thenecessary authority from the city government, and "architecturally concealed inside the wallsof the building" 1 owned by the private respondent. These electric devices and contraptionswere, in the allegation of the petitioner "designed purposely to lower or decrease the readingsof electric current consumption in the electric meter of the said electric [ice and cold storage]plant." 2 During the subsequent investigation, Manuel Opulencia admitted in a writtenstatement that he had caused the installation of the electrical devices "in order to lower or decrease the readings of his electric meter. 3

On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of Batangas City an information against Manuel Opulencia for violation of Ordinance No. 1,Series of 1974, Batangas City. A violation of this ordinance was, under its terms, punishableby a fine "ranging from Five Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which

shall not exceed thirty (30) days, or both, at the discretion of the court." 4 This informationreads as follows:

The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Latof violation of Sec. 3 (b) i n relation to Sec. 6 (d) and Sec. 10 Article II, TitleIV of ordinance No. 1, S. 1974, with damage to the City Government of Batangas, and penalized by the said ordinance, committed as follows:

That from November, 1974 to February, 1975 at Batangas City,

Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud the City Government of Batangas,without proper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously makeunauthorized installations of electric wirings and devices to lower or decrease the consumption of electric fluid at the Opulencia Ice Plantsituated at Kumintang, Ibaba, this city and as a result of such unathorizedinstallations of electric wirings and devices made by the accused, the CityGovernment of Batangas was damaged and prejudiced in the totalamount of FORTY ONE THOUSAND, SIXTY TWO PESOS ANDSIXTEEN CENTAVOS (P41,062.16) Philippine currency, covering theperiod from November 1974 to February, 1975, to the damage andprejudice of the City Government of Batangas in the aforestated amountof P41,062.16, Philippine currency.

The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February1976, he filed a motion to dismiss the information upon the grounds that the crime therecharged had already prescribed and that the civil indemnity there sought to be recovered wasbeyond the jurisdiction of the Batangas City Court to award. In an order dated 6 April 1976, theBatangas City Court granted the motion to dismiss on the ground of prescription, it appearingthat the offense charged was a light felony which prescribes two months from the time of discovery thereof, and it appearing further that the information was filed by the fiscal morethan nine months after discovery of the offense charged in February 1975.

Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed beforethe Court of First Instance of Batangas, Branch 11, another information against ManuelOpulencia, this time for theft of electric power under Article 308 in relation to Article 309,paragraph (1), of the Revised Penal Code. This information read as follows:

The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime of theft, defined and penalized by Article 308, in relation toArticle 309, paragraph (1) of the Revised Penal Code, committed asfollows:

That on, during, and between the month of November, 1974, and the 21stday of February, 1975, at Kumintang, lbaba, Batangas City, Philippines,and within the jurisdiction of this Honorable Court, the above-namedaccused, with intent of gain and without the knowledge and consent of theBatangas Electric Light System, did then and there, wilfully, unlawfullyand feloniously take, steal and appropriate electric current valued in thetotal amount of FORTY ONE THOUSAND, SIXTY TWO PESOS ANDSIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the damageand prejudice of the said Batangas Electric Light System, owned and

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operated by the City Government of Batangas, in the aforementioned sumof P41,062.16.

The above information was docketed as Criminal Case No. 266 before the Court of FirstInstance of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia fileda Motion to Quash, dated 5 May 1976, alleging that he had been previously acquitted of theoffense charged in the second information and that the filing thereof was violative of hisconstitutional right against double jeopardy. By Order dated 16 August 1976, the respondentJudge granted the accused's Motion to Quash and ordered the case dismissed. The gist of this Order is set forth in the following paragraphs:

The only question here is whether the dismissal of the first case can beproperly pleaded by the accused in the motion to quash.

In the first paragraph of the earlier information, it alleges that theprosecution "accuses Manuel Opulencia y Lat of violation of Sec. 3(b) inrelation to Sec. 6(d) and Sec. 10 Article II, Title IV of Ordinance No. 1, s.1974, with damage to the City Government of Batangas, etc. " (Emphasissupplied). The first case, as it appears, was not simply one of illegalelectrical connections. It also covered an amount of P41,062.16 which theaccused, in effect, allegedly with intent to defraud, deprived the citygovernment of Batangas. If the charge had meant illegal electricinstallations only, it could have alleged illegal connections which weredone at one instance on a particular date between November, 1974, to

February 21, 1975. But as the information states "that from November,1974 to February 1975 at Batangas City, Philippines, and within the

jurisdiction of this Honorable Court, the above-named accused with intent to defraud the City Government of Batangas, without proper authorizationfrom any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installationsof electric wirings and devices, etc." (Emphasis supplied), it was meant toinclude the P 41,062.16 which the accused had, in effect, defrauded thecity government. The information could not have meant that fromNovember 1974 to 21 February 1975, he had daily committed unlawfulinstallations.

When, therefore, he was arraigned and he faced the indictment before theCity Court, he had already been exposed, or he felt he was exposed to

consequences of what allegedly happened between November 1974 toFebruary 21, 1975 which had allegedly resulted in defrauding the City of Batangas in the amount of P 41,062.16. (Emphases and parentheses inthe original)

A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied bythe respondent Judge in an Order dated 18 November 1976.

On 1 December 1976, the present Petition for certiorari and mandamus was filed in this Courtby the Acting City Fiscal of Batangas City on behalf of the People.

The basic premise of the petitioner's position is that the constitutional protection againstdouble jeopardy is protection against a second or later jeopardy of conviction for the sameoffense. The petitioner stresses that the first information filed before the City Court of

Batangas City was one for unlawful or unauthorized installation of electrical wiring anddevices, acts which were in violation of an ordinance of the City Government of Batangas.Only two elements are needed to constitute an offense under this City Ordinance: (1) thatthere was such an installation; and (2) no authority therefor had been obtained from theSuperintendent of the Batangas City Electrical System or the District Engineer. The petitioner urges that the relevant terms of the City Ordinance — which read as follows:

Section 3.-Connection and Installation

(a) x x x

(b) The work and installation in the houses and building and their connection with the Electrical System shall be done either by theemployee of the system duly authorized by its Superintendent or bypersons adept in the matter duly authorized by the District Engineer.Applicants for electrical service permitting the works of installation or connection with the system to be undertaken by the persons not dulyauthorized therefor shall be considered guilty of violation of the ordinance.

would show that:

The principal purpose for (sic) such a provision is to ensure that electricalinstallations on residences or buildings be done by persons duly

authorized or adept in the matter, to avoid fires and accidents due tofaulty electrical wirings. It is primarily a regulatory measure and notintended to punish or curb theft of electric fluid which is already coveredby the Revised Penal Code. 5

The gist of the offense under the City Ordinance, the petitioner's argument continues, is theinstalling of electric wiring and devices without authority from the proper officials of the citygovernment. To constitute an offense under the city ordinance, it is not essential to establishany mens rea on the part of the offender generally speaking, nor, more specifically, an intentto appropriate and steal electric fluid.

In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised PenalCode filed before the Court of First Instance of Batangas in Criminal Case No. 266 has quitedifferent essential elements. These elements are:

1. That personal property be taken;

2. That the personal property (taken) belongs to another;

3. That the taking be done with intent of gain;

4. That the taking be done without the consent of the owner; and

5. That the taking be accomplished without violence against or intimidation of persons or force upon things. 6

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The petitioner also alleges, correctly, in our view, that theft of electricity can be effected evenwithout illegal or unauthorized installations of any kind by, for instance, any of the followingmeans:

1. Turning back the dials of the electric meter;

2. Fixing the electric meter in such a manner that it will not register theactual electrical consumption;

3. Under-reading of electrical consumption; and

4. By tightening the screw of the rotary blade to slow down the rotation of the same. 7

The petitioner concludes that:

The unauthorized installation punished by the ordinance [of BatangasCity] is not the same as theft of electricity [under the Revised PenalCode]; that the second offense is not an attempt to commit the first or afrustration thereof and that the second offense is not necessarily included in the offense charged in the first inforrnation 8

The above arguments made by the petitioner are of course correct. This is clear both from theexpress terms of the constitutional provision involved — which reads as follows:

No person shall be twice put in jeopardy of punishment for the sameoffense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for thesame act. (Emphasis supplied; Article IV (22), 1973 Constitution) 9

and from our case law on this point. 10 The basic difficulty with the petitioner's position is thatit must be examined, not under the terms of the first sentence of Article IV (22) of the 1973Constitution, but rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardyis not available where the second prosecution is for an offense that is different from theoffense charged in the first or prior prosecution, although both the first and second offenses

may be based upon the same act or set of acts. The second sentence of Article IV (22)embodies an exception to the general proposition: the constitutional protection, against double

jeopardy is available although the prior offense charged under an ordinance be different fromthe offense charged subsequently under a national statute such as the Revised Penal Code,

provided that both offenses spring from the same act or set of acts. This was made clear sometime ago in Yap vs. Lutero. 11

In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Courtof Iloilo City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation toOrdinance No. 15, Series of 1954, of the City of Iloilo. The information charged him withhaving "wilfully, unlawfully and feloniously drive[n] and operate[d]" an automobile —"recklessly and without reasonable caution thereby endangering other vehicles andpedestrians passing in said street." Three months later, Yap was again charged in CriminalCase No. 16443 of the same Municipal Court, this time with serious physical injuries through

reckless imprudence. The information charged him with violation of the Revised Motor Vehicle

Law (Act No. 3992 as amended by Republic Act No. 587) committed by driving and operatingan automobile in a reckless and negligent manner and as a result thereof inflicting injuriesupon an unfortunate pedestrian. Yap moved to quash the second information upon the groundthat it placed him twice in jeopardy of punishment for the same act. This motion was denied bythe respondent municipal judge. Meantime, another municipal judge had acquitted Yap inCriminal Case No. 16054. Yap then instituted a petition for certiorari in the Court of FirstInstance of Iloilo to set aside the order of the respondent municipal judge. The Court of FirstInstance of Iloilo having reversed the respondent municipal judge and having directed him todesist from continuing with Criminal Case No. 16443, the respondent Judge brought the caseto the Supreme Court for review on appeal. In affirming the decision appealed from and

holding that the constitutional protection against double jeopardy was available to petitioner Yap, then Associate Justice and later Chief Justice Roberto Concepcion wrote:

To begin with, the crime of damage to property through reckless driving —with which Diaz stood charged in the court of first instance — is a violationof the Revised Penal Code (third paragraph of Article 365), not theAutomobile Law (Act No. 3992, as amended by Republic Act No. 587).Hence, Diaz was not twice accused of a violation of the same law .Secondly, reckless driving and certain crimes committed through recklessdriving are punishable under different provisions of said Automobile Law.Hence — from the view point of Criminal Law, as distinguished frompolitical or Constitutional Law — they constitute, strictly, differentoffenses, although under certain conditions, one offense may include theother, and, accordingly, once placed in jeopardy for one, the plea of double jeopardy may be in order as regards the other, as in the Diaz

case. (Emphases in the original)

Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. Thefirst sentence of clause 20, section 1, Article III of the Constitution, ordainsthat "no person shall be twice put in jeopardy of punishment for the sameoffense." (Emphasis in the original) The second sentence of said clauseprovides that "if an act is punishable by a law and an ordinance,conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double

jeopardy of punishment for the same offense, whereas the second contemplates double jeopardy of punishment for the same act. Under thefirst sentence, one may be twice put in jeopardy of punishment of thesame act provided that he is charged with different offenses, or theoffense charged in one case is not included in or does not include, the

crime charged in the other case. The second sentence applies, even if theoffenses charged are not the same, owing to the fact that one constitutesa violation of an ordinance and the other a violation of a statute. If the twocharges are based on one and the same act conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. 12Incidentally, such conviction or acquittal is not indispensable to sustainthe plea of double jeopardy of punishment for the same offense. So longas jeopardy has attached under one of the informations charging saidoffense, the defense may be availed of in the other case involving thesame offense, even if there has been neither conviction nor acquittal ineither case.

The issue in the case at bar hinges, therefore, on whether or not, under the information in case No. 16443, petitioner could — if he failed to pleaddouble jeopardy — be convicted of the same act charged in case No.

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16054, in which he has already been acquitted. The information in caseNo. 16054 alleges, substantially, that on the date and in the place thereinstated, petitioner herein had wilfully, unlawfully and feloniously driven andoperated "recklessly and without reasonable caution" an automobiledescribed in said information. Upon the other hand, the information incase No. 16443, similarly states that, on the same date and in the sameplace, petitioner drove and operated the aforementioned automobile in a"reckless and negligent manner at an excessive rate of speed and inviolation of the Revised Motor Vehicle Law (Act No. 3992), as amendedby Republic Act No. 587, and existing city ordinances." Thus, if the

theories mentioned in the second information were not established by theevidence, petitioner could be convicted in case No. 16443 of the verysame violation of municipal ordinance charged in case No. 16054, unlesshe pleaded double jeopardy.

It is clear, therefore, that the lower court has not erred eventuallysustaining the theory of petitioner herein.

Put a little differently, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charge: the constitutional protection against double jeopardy is available only wherean Identity is shown to exist between the earlier and the subsequent offenses charged. Incontrast, where one offense is charged under a municipal ordinance while the other ispenalized by a statute, the critical inquiry is to the identity of the acts which the accused is said

to have committed and which are alleged to have given rise to the two offenses: theconstitutional protection against double jeopardy is available so long as the acts whichconstitute or have given rise to the first offense under a municipal ordinance are the same actswhich constitute or have given rise to the offense charged under a statute.

The question may be raised why one rule should exist where two offenses under two differentsections of the same statute or under different statutes are charged, and another rule for thesituation where one offense is charged under a municipal ordinance and another offenseunder a national statute. If the second sentence of the double jeopardy provision had not beenwritten into the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. An offensepenalized by municipal ordinance is, by definition, different from an offense under a statute.The two offenses would never constitute the same offense having been promulgated bydifferent rule-making authorities — though one be subordinate to the other — and the plea of double jeopardy would never lie. The discussions during the 1934-1935 Constitutional

Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would nototherwise be covered by the first sentence. 13

The question of Identity or lack of Identity of offenses is addressed by examining the essentialelements of each of the two offenses charged, as such elements are set out in the respectivelegislative definitions of the offenses involved. The question of Identity of the acts which areclaimed to have generated liability both under a municipal ordinance and a national statutemust be addressed, in the first instance, by examining the location of such acts in time andspace. When the acts of the accused as set out in the two informations are so related to eachother in time and space as to be reasonably regarded as having taken place on the sameoccasion and where those acts have been moved by one and the same, or a continuing, intentor voluntary design or negligence, such acts may be appropriately characterized as an integralwhole capable of giving rise to penal liability simultaneously under different legal enactments(a municipal ordinance and a national statute).

In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance andserious physical injuries through reckless imprudence under the Revised Motor Vehicle Lawas derived from the same act or sets of acts — that is, the operation of an automobile in areckless manner. The additional technical element of serious physical injuries related to thephysical consequences of the operation of the automobile by the accused, i.e., the impact of the automobile upon the body of the offended party. Clearly, such consequence occurred inthe same occasion that the accused operated the automobile (recklessly). The moral elementof negligence permeated the acts of the accused throughout that occasion.

In the instant case, the relevant acts took place within the same time frame: from November

1974 to February 1975. During this period, the accused Manuel Opulencia installed or permitted the installation of electrical wiring and devices in his ice plant without obtaining thenecessary permit or authorization from the municipal authorities. The accused conceded thathe effected or permitted such unauthorized installation for the very purpose of reducingelectric power bill. This corrupt intent was thus present from the very moment that suchunauthorized installation began. The immediate physical effect of the unauthorized installationwas the inward flow of electric current into Opulencia's ice plant without the correspondingrecording thereof in his electric meter. In other words, the "taking" of electric current wasintegral with the unauthorized installation of electric wiring and devices.

It is perhaps important to note that the rule limiting the constitutional protection against double jeopardy to a subsequent prosecution for the same offense is not to be understood withabsolute literalness. The Identity of offenses that must be shown need not be absoluteIdentity: the first and second offenses may be regarded as the "same offense" where the

second offense necessarily includes the first offense or is necessarily included in such firstoffense or where the second offense is an attempt to commit the first or a frustration thereof.14 Thus, for the constitutional plea of double jeopardy to be available, not all the technicalelements constituting the first offense need be present in the technical definition of the secondoffense. The law here seeks to prevent harrassment of an accused person by multipleprosecutions for offenses which though different from one another are nonetheless eachconstituted by a common set or overlapping sets of technical elements. As Associate Justiceand later Chief Justice Ricardo Paras cautioned in People vs. del Carmen et al., 88 Phil. 51(1951):

While the rule against double jeopardy prohibits prosecution for the sameoffense, it seems elementary that an accused should be shielded againstbeing prosecuted for several offenses made out from a single act.Otherwise, an unlawful act or omission may give use to several

prosecutions depending upon the ability of the prosecuting officer to

imagine or concoct as many offenses as can be justified by said act or omission, by simply adding or subtracting essential elements. Under thetheory of appellant, the crime of rape may be converted into a crime of coercion, by merely alleging that by force and intimidation the accused

prevented the offended girl from remaining a virgin. (88 Phil. at 53;emphases supplied)

By the same token, acts of a person which physically occur on the same occasion and areinfused by a common intent or design or negligence and therefore form a moral unity, shouldnot be segmented and sliced, as it were, to produce as many different acts as there areoffenses under municipal ordinances or statutes that an enterprising prosecutor can find

It remains to point out that the dismissal by the Batangas City Court of the information for violation of the Batangas City Ordinance upon the ground that such offense had already

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prescribed, amounts to an acquittal of the accused of that offense. Under Article 89 of theRevised Penal Code, "prescription of the crime" is one of the grounds for "total extinction of criminal liability." Under the Rules of Court, an order sustaining a motion to quash based onprescription is a bar to another prosecution for the same offense. 15

It is not without reluctance that we deny the people's petition for certiorari and mandamus inthis case. It is difficult to summon any empathy for a businessman who would make or enlargehis profit by stealing from the community. Manuel Opulencia is able to escape criminalpunishment because an Assistant City Fiscal by inadvertence or otherwise chose to file aninformation for an offense which he should have known had already prescribed. We are,

however, compelled by the fundamental law to hold the protection of the right against double jeopardy available even to the private respondent in this case.

The civil liability aspects of this case are another matter. Because no reservation of the right tofile a separate civil action was made by the Batangas City electric light system, the civil actionfor recovery of civil liability arising from the offense charged was impliedly instituted with thecriminal action both before the City Court of Batangas City and the Court of First Instance of Batangas. The extinction of criminal liability whether by prescription or by the bar of double

jeopardy does not carry with it the extinction of civil liability arising from the offense charged. Inthe present case, as we noted earlier, 16 accused Manuel Opulencia freely admitted duringthe police investigation having stolen electric current through the installation and use of unauthorized elibctrical connections or devices. While the accused pleaded not guilty beforethe City Court of Batangas City, he did not deny having appropriated electric power. However,there is no evidence in the record as to the amount or value of the electric power appropriated

by Manuel Opulencia, the criminal informations having been dismissed both by the City Courtand by the Court of First Instance (from which dismissals the Batangas City electric lightsystem could not have appealed 17) before trial could begin. Accordingly, the related civilaction which has not been waived expressly or impliedly, should be remanded to the Court of First Instance of Batangas City for reception of evidence on the amount or value of the electricpower appropriated and converted by Manuel Opulencia and rendition of judgmentconformably with such evidence.

WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for related civil liability be remanded to the Court of First Instance of Batangas City for further proceedings as indicated above. No pronouncement as to costs.

SO ORDERED.

Yap (Chairman), Narvasa, Melencio-Herrera, Gancayco and Sarmiento, JJ., concur.

Cruz, J., took no part.

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G.R. No. 149453 May 28, 2002

PEOPLE OF THE PHILIPPINES, ET AL., vs.PANFILO M. LACSON

RESOLUTION

Before us is a petition for review on certiorari seeking to reverse and set aside the Decision 1 of the Court of Appeals dated August 24, 2001 in CA-G.R. SP No. 65034.2 The said Decision of the appellate court granted respondent Lacson's Second Amended Petition for Prohibition with

application for the issuance of a Temporary Restraining Order, (1) assailing the Order issuedby Judge Herminia Pasamba of the Regional Trial Court (RTC) of Manila, Branch 40, thatallowed the continuation of the re-investigation of Criminal Cases Nos. Q-99-81679 to Q-99-81689 or the Kuratong Baleleng cases; and (2) praying for the dismissal of Criminal CasesNos. Q-01-101102 to Q-01-101112 entitled "People of the Philippines v. Panfilo Lacson, et al."pending before Branch 81 of the RTC of Quezon City.

The following appear in the records of this case:

(1) On May 18, 1995, then PNP Director-General Recaredo Sarmiento II announced, in apress conference, the killing of eleven (11) members of the Kuratong Baleleng Gang (KBG) ina shootout with police elements near the fly-over along Commonwealth Avenue, Quezon Cityat about 4:00 A.M. that day.3

(2) On May 22, 1995, morning papers carried the news that SPO2 Eduardo delos Reyes hadclaimed that the killing of the eleven (11) gang members was a "rub-out" or summaryexecution and not a shootout.4

(3) In an affidavit he executed the following day, delos Reyes stated, among others, that hewas part of a composite police team called the Anti-Bank Robbery and Intelligence Task ForceGroup (ABRITFG) composed of elements of the National Capital Region Command (NCRC)and headed by Chief Superintendent Jewel Canson; Traffic Management Command, headedby Senior Superintendent Francisco Subia, Jr.; Presidential Anti-Crime Commission (PACC),headed by Chief Superintendent Panfilo M. Lacson; Central Police District Command, headedby Chief Superintendent Ricardo de Leon; and Criminal Investigation Command (CIC),headed by Chief Superintendent Romeo Acop. Delos Reyes claimed that the police teamarrested the eleven (11) gang members in early morning of May 18, 1995 at the gang's safehouse in Superville Subdivision, Parañaque; that after their arrest, the gang members were

made to board two vans, their hands tied behind their backs, and brought initially to Camp

Crame where a decision to summarily execute them was made, and later to CommonwealthAvenue where they were shot to death by elements of ABRITFG. 5

(4) On May 26, 1995, SPO2 Corazon dela Cruz, another CIC investigator, executed anaffidavit corroborating the material allegations of delos Reyes. Dela Cruz claimed that she waswith delos Reyes from the time the eleven (11) KBG members were arrested up to the timethey were killed in Commonwealth Avenue.6

(5) On May 31, 1995, Armando Capili, a reporter of Remate, executed an affidavit stating thathe was present when the KBG members were arrested in Superville Subdivision.7

(6) On June 1, 1995, Chief Superintendent Job A. Mayo, PNP Director for Investigation, filedmurder charges with the Office of the Ombudsman against ninety-seven (97) officers andpersonnel of ABRITFG. The next-of-kin of the slain KBG members also filed murder chargesagainst the same officers and personnel.8

(7) Ombudsman Aniano Desierto then created a panel of investigators to conduct apreliminary investigation of the murder charges. The panel was headed by DeputyOmbudsman for Military Affairs Bienvenido Blancaflor. On October 20, 1995, the panel issueda resolution recommending the dismissal of the charges for lack of probable cause.

(8) Ombudsman Desierto referred the resolution for review by a panel composed of Over-allDeputy Ombudsman Francisco Villa as head, and Special Prosecutor Leonardo Tamayo andAssistant Ombudsman Abelardo Aportadera as members. On November 20, 1995, the reviewpanel reversed the Blancaflor resolution and found probable cause for the prosecution of

multiple murder charges against twenty-six (26) officers and personnel of ABRITFG.

9

(9) On November 2, 1995, the Ombudsman filed before the Sandiganbayan eleven (11)Informations for MURDER, docketed as Criminal Cases Nos. 23047 to 23057, againstrespondent Panfilo M. Lacson and twenty-five (25) other accused. All twenty-six (26) of themwere charged as principals.10 The following appear to be the victims: Meleubren Sorronda inCrim. Case No. 23047; Welbor Elcamel in Crim. Case No. 23048; Carlito Alap-ap in Crim.Case No. 23049; Jevy Redillas in Crim. Case No. 23050; Ray Abalora in Crim. Case No.23051; Joel Amora in Crim. Case No. 23052; Alex Neri in Crim. Case No. 23053; RolandoSiplon in Crim. Case No. 23054; Manuel Montero in Crim. Case No. 23055; Sherwin Abalorain Crim. Case No. 23056; and Pacifico Montero in Crim. Case No. 23057.

(10) Upon motion of the respondent, the criminal cases were remanded to the Ombudsman for reinvestigation. On March 1, 1996, Amended Informations were filed against the same twenty-

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six (26) suspects but the participation of respondent Lacson was downgraded from principal toaccessory. Arraignment then followed and respondent entered a plea of not guilty. 11

(11) With the downgrading of charges against him, respondent Lacson questioned the jurisdiction of the Sandiganbayan to hear the criminal cases as none of the "principal" accusedin the Amended Informations was a government official with a Salary Grade (SG) 27 or higher,citing Section 2 of R. A. No. 7975 then prevailing. Accordingly, the Sandiganbayan ordered thecases transferred to the Regional Trial Court.12

(12) The Office of the Special Prosecutor filed a motion for reconsideration of the transfer.Pending resolution of the motion, R. A. No. 8249 took effect on February 23, 1997, amendingR. A. No. 7975. In particular, the amendatory law deleted the word "principal" in Section 2 of R. A. No. 7975, thereby expanding the jurisdiction of the Sandiganbayan to include all caseswhere at least one of the accused, whether principal, accomplice or accessory, is agovernment official of Salary Grade (SG) 27 or higher. The amendment is made applicable toall cases pending in any court in which trial has not yet begun as of the date of its approval.13

(13) In Lacson v. Executive Secretary,14 respondent Lacson challenged the constitutionality of the amendment and contended that the Sandiganbayan had no jurisdiction over the criminalcases. This Court, while dismissing the constitutional challenge, nonetheless ordered thetransfer of the criminal cases to the Regional Trial Court on the ground that the AmendedInformations for murder failed to indicate that the offenses charged therein were committed inrelation to, or in discharge of, the official functions of the respondent, as required by R. A. No.8249.

(14) Criminal Cases Nos. 23047 to 23057 were raffled off to Branch 81 of the Regional TrialCourt of Quezon City, then presided by Judge, now Associate Justice of the Court of Appeals,Wenceslao Agnir, Jr., and re-docketed as Criminal Cases Nos. Q-99-81679 to Q-99-81689.

(15) Before the accused could be arraigned, prosecution witnesses Eduardo de los Reyes,Corazon de la Cruz, Armando Capili and Jane Gomez recanted their affidavits whichimplicated respondent Lacson in the murder of the KBG members.

On the other hand, private complainants Myrna Abalora,15 Leonora Amora,16 Nenita Alap-ap,17

Imelda Montero,18 Margarita Redillas,19 Carmelita Elcamel20 and Rolando Siplon21 alsoexecuted their respective affidavits of desistance declaring that they were no longer interestedto prosecute these cases.22

(16) Due to these developments, the twenty-six (26) accused, including respondent Lacson,filed five separate but identical motions to (1) make a judicial determination of the existence of probable cause for the issuance of warrants of arrest; (2) hold in abeyance the issuance of thewarrants, and (3) dismiss the cases should the trial court find lack of probable cause.

(17) The records of the case before us are not clear whether the private offended parties werenotified of the hearing on March 22, 199923 held by Judge Agnir to resolve the motions filed byrespondent Lacson and the other accused.

(18) During the said hearing, the private offended parties who desisted do not appear to havebeen presented on the witness stand. In their stead, Atty. Godwin Valdez testified that heassisted them in preparing their affidavits of desistance and that he signed said affidavits aswitness. On the other hand, Atty. Aurora Bautista of the Philippine Lawyer's League presented

the affidavits of recantation of prosecution witnesses Eduardo de los Reyes, Armando Capiliand Jane Gomez. Only prosecution witness Corazon de la Cruz testified to affirm her affidavit.24

(19) On March 29, 1999, Judge Agnir issued a Resolution25 dismissing Criminal Cases Nos.Q-99-81679 to Q-99-81689, as follows:

"As already seen, the documents attached to the Informations in support thereof have been rendered meaningless, if not absurd, with the recantation of the principal

prosecution witnesses and the desistance of the private complainants. There is nomore evidence to show that a crime has been committed and that the accused areprobably guilty thereof. Following the doctrine above-cited, there is no more reasonto hold the accused for trial and further expose them to an open and publicaccusation. It is time to write finis to these cases and lay to rest the ghost of theincident of May 18, 1995 so that all those involved--- the accused, the prosecutionwitnesses and the private complainants alike--- may get on with their lives.

The Court is not unmindful of the admonition in the recent case of People vs. Courtof Appeals (G.R. No. 126005, January 21, 1999) where the Supreme Court said thatthe general rule is that 'if the Information is valid on its face and there is no showingof manifest error, grave abuse of discretion or prejudice on the part of the publicprosecutor, courts should not dismiss it for want of evidence, because evidentiarymatters should be presented and heard during the trial', and that the ruling in Alladovs. Diokno 'is an exception to the general rule and may be invoked only if similar

circumstances are clearly shown to exist.'

This Court holds that the circumstances in the case at bench clearly make anexception to the general rule.

WHEREFORE, in view of the foregoing, the Court finds no probable cause for theissuance of the warrants of arrest against the accused or to hold them for trial.Accordingly, the Informations in the above-numbered cases are hereby ordereddismissed."

SO ORDERED."26

(20) On March 27, 2001, PNP Director Leandro R. Mendoza indorsed to the Department of

Justice the new affidavits of P/Insp. Ysmael S. Yu and P/S Insp. Abelardo Ramos regardingthe Kuratong Baleleng incident for preliminary investigation. On the strength of thisindorsement, Secretary of Justice Hernando B. Perez formed a panel to investigate the matter.On April 17, 2001, the respondent was subpoenaed to attend the investigation of CriminalCases Nos. Q-99-81679 to Q-99-81689.27

(21) On May 28, 2001, respondent Lacson, et al., invoking, among others, their constitutionalright against double jeopardy, filed a petition for prohibition with application for temporaryrestraining order and/or writ of preliminary injunction with the Regional Trial Court of Manila,primarily to enjoin the State prosecutors from conducting the preliminary investigation. Thepetition was docketed as Civil Case No. 01-100933 and raffled to Branch 40, presided byJudge Herminia V. Pasamba.28

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(22) The plea for temporary restraining order was denied by Judge Pasamba in an Order 29

dated June 5, 2001, viz :

"After a study, this Court submits that the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 is not one on the merits and without any recorded arraignmentand entered plea on the part of the herein petitioners. The dismissal was a directconsequence of the finding of the Quezon City RTC that no probable cause existsfor the issuance of warrants of arrest against petitioners herein and to hold them for trial. The arraignment had with the Sandiganbayan does not put the case in adifferent perspective since the Sandiganbayan was adjudged to be without any

jurisdiction to try the cases. It is the People of the Philippines who is the complainantin the Kuratong Baleleng case and remains to be the complainant in the presentinvestigation initiated thru a letter of PNP Chief Mendoza dated March 27, 2001(Exhibit "B") together with the sworn statements of witnesses Ramos and Yu(Exhibits "2" and "3" - supportive of the refiling of the case (Exhibit "9").

xxx xxx xxx

Above considered, this Court finds petitioners have not preliminarily established thatthey have a right to be preserved pending hearing on the injunctive relief.

WHEREFORE, the prayer for temporary restraining order is hereby DENIED.

SO ORDERED."30

(23) On June 6, 2001, eleven (11) Informations for murder involving the killing of the samemembers of the Kuratong Baleleng gang were filed before the Regional Trial Court of QuezonCity and were docketed as Criminal Cases Nos. 01-101102 to 01-101112. The newInformations charged as principals thirty-four (34) people, including respondent Lacson andhis twenty-five (25) other co-accused in Criminal Cases Nos. Q-99-81679 to Q-99-81689. Thecriminal cases were assigned to Judge Ma. Theresa L. Yadao.

(24) On the same day, respondent Lacson filed before the Court of Appeals a petition for certiorari31 against Judge Pasamba, the Secretary of Justice, the PNP Chief, StateProsecutors Ong and Zacarias, 2nd Assistant City Prosecutor Jamolin, and the People of thePhilippines. The said petition was amended to implead as additional party-respondents StateProsecutor Claro Arellano and the RTC, Quezon City, Branch 81 in which the Informations in

Criminal Cases Nos. 01-101102 to 01-101112 were filed.32

(25) The Second Amended Petition33 dated June 14, 2001 and admitted by the Court of Appeals on June 26, 2001, alleged:

"The reliefs of certiorari, prohibition and injunction against the questioned Order (Annex A) and the new Informations in Criminal Cases Nos. 01-101102 to 01-101112 pending before respondent Yadao (Annex B) are founded upon the graveabuse of discretion by respondent Judge Pasamba of her discretion in its issuance,the illegality of the proceedings of the respondent State Prosecutors as they cannotrevive complaints which had been dismissed over two (2) years from the date thedismissal order was issued, and the invalidity of the new Informations for Murder filed against petitioners and others, all in defiance of law and jurisprudence asshown by the following:

(a) Respondent judge had ruled on the merits of the main prohibition action a quorendering the same moot and academic by concluding that the dismissal of CriminalCases Nos. Q-99-81679-Q-99-81689 by the QC RTC was not final and executory,hence [i] the complaints therein can be reinvestigated, and [ii] petitioner'sarraignment while the case had not yet been remanded to the QC RTC and whilethe Sandiganbayan had valid jurisdiction thereover [Criminal Cases No. 23047-2048] was void, notwithstanding that the only issue in the TRO application was theexistence or lack of a valid complaint as defined in S1 and S3, Rule 110.

(b) Respondent Judge ruled that respondent State Prosecutors could proceed to re-

investigate and thereafter file new Informations on June 6, 2001 covering thoseoffenses subject of Criminal Cases Nos. Q-99-81679-Q-99-81689 on the basis of affidavits filed after said cases were dismissed on March 29, 1999, despite the factthat under Section 8, Rule 117, cases similar to those filed against the petitioner andothers (where the penalty imposable is imprisonment of six (6) years or more)cannot be revived after two (2) years from the date the dismissal order was issued.

(c) Respondent Judge held that the petitioner had not shown a right to be preserveddespite evidence showing the short cuts taken by respondent State prosecutors inre-investigating a dismissed case, in not complying with Rules in respect of its re-opening, and in insisting that a valid complaint was filed in clear violation of theRules and case law thereon, and despite the fact that the petitioner had shown thatan inextendible deadline of June 5, 2001 was given him to file his counter-affidavitwithout which his indictment for a non-bailable offense is assured because of DOJ

Secretary Hernando Perez's political schemes."

34

(26) In the meantime, on June 8, 2001, respondent Lacson also filed with the RTC-QC Branch81 (presided by Judge Ma. Theresa Yadao), a Motion for Judicial Determination of ProbableCause and in the absence thereof, to dismiss the cases outright. Respondent Lacson,however, filed a Manifestation and Motion dated June 13, 2001 seeking the suspension of theproceedings before the trial court.35

(27) The Court of Appeals issued a temporary restraining order enjoining Judge Yadao fromissuing a warrant of arrest or conducting any proceeding or hearing in Criminal Cases Nos.01-101102 to 01-101112.36

(28) On August 24, 2001, the Court of Appeals (Special Third Division), rendered the nowassailed Decision. It characterized the termination of Criminal Cases Nos. Q-99-81679 to Q-

99-81689 as "provisional dismissal," and considered Criminal Cases Nos. 01-101102 to 01-101112 as mere revivals of the same. Applying Section 8, Rule 117 of the 2000 Revised Rulesof Criminal Procedure, it dismissed the criminal cases against the respondent, viz :

"In sum, this Court is of the considered view that the subject dismissal of [the]criminal cases was provisional in nature and that the cases presently sought to beprosecuted by the respondents are mere revival or re-opening of the dismissedcases. The present controversy, being one involving "provisional dismissal" andrevival of criminal cases, falls within the purview of the prescriptive period providedunder Section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure. Thesecond paragraph of the said provision is couched in clear, simple and categoricalwords. It mandates that for offenses punishable by imprisonment of more than six(6) years, as the subject criminal cases, their provisional dismissal shall becomepermanent two (2) years after the issuance of the order without the case havingbeen revived. It should be noted that the revival of the subject criminal cases, even

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if reckoned from the DOJ's issuance of subpoenas to petitioner, was commencedonly on April 19, 2001, that is, more than two (2) years after the issuance, on March29, 1999, of RTC-Quezon City's Resolution, provisionally dismissing the criminalcases now sought to be revived. Applying the clear and categorical mandate of Section 8, Rule 117, supra, such efforts to revive the criminal cases are nowdefinitely barred by the two-year prescriptive period provided therein.

xxx xxx xxx

WHEREFORE, the petition is GRANTED. As prayed for, the Temporary RestrainingOrder earlier issued against the conduct of further proceedings in Criminal CasesNos. 01-101102 to 01-101112, including the issuance of warrants of arrest againstthe petitioner, PANFILO M. LACSON, is hereby made PERMANENT. Accordingly,with respect to said accused, the proceedings conducted by respondent StateProsecutors in respect of the said criminal cases are declared NULL AND VOID andthe corresponding Informations, docketed as Criminal Cases Nos. 01-101102 to 01-101112, entitled 'People of the Philippines vs. Panfilo M. Lacson, et al." and filedbefore respondent Judge Maria Theresa L. Yadao of Branch 81 of the Regional TrialCourt of Quezon City, are hereby ordered DISMISSED.

SO ORDERED."37

The issue is whether Section 8, Rule 117 bars the filing of the eleven (11) informations against

the respondent Lacson involving the killing of some members of the Kuratong Baleleng gang.This rule which took effect on December 1, 2000 provides:

"SEC. 8. Provisional dismissal.- A case shall not be provisionally dismissed exceptwith the express consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six(6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect tooffenses punishable by imprisonment of more than six (6) years, their provisionaldismissal shall become permanent two (2) years after issuance of the order withoutthe case having been revived."

Like any other favorable procedural rule, this new rule can be given retroactive effect.

However, this Court cannot rule on this jugular issue due to the lack of sufficient factual bases.Thus, there is need of proof of the following facts, viz: (1) whether the provisional dismissal of the cases had the express consent of the accused; (2) whether it was ordered by the courtafter notice to the offended party, (3) whether the 2-year period to revive has already lapsed,and (4) whether there is any justification for the filing of the cases beyond the 2-year period.

There is no uncertainty with respect to the fact that the provisional dismissal of the casesagainst respondent Lacson bears his express consent. It was respondent Lacson himself whomoved to dismiss the subject cases for lack of probable cause before then Judge Agnir,hence, it is beyond argument that their dismissal bears his express consent.

The records of the case, however, do not reveal with equal clarity and conclusiveness whether notices to the offended parties were given before the cases against the respondent Lacsonwere dismissed by then Judge Agnir. It appears from the resolution of then Judge Agnir that

the relatives of the victims who desisted did not appear during the hearing to affirm their affidavits. Their affidavits of desistance were only presented by Atty. Godwin Valdez whotestified that he assisted the private complainants in preparing their affidavits and he signedthem as a witness. It also appears that only seven (7) persons submitted their affidavits of desistance, namely:

a. Myrna Abalora, mother of the victims Sherwin Abalora and Rey Abalora

b. Carmelita Elcamel, wife of Wilbur Elcamel;

c. Leonora Amora, mother of victim Joel Amora;

d. Nenita Alap-ap, wife of victim Carlito Alap-ap;

e. Imelda Montero, wife of victim Manuel Montero;

f. Margarita Redillas, mother of victim Hilario Jevy Redillas; and

g. Rolando Siplon.

From the records of the case before us, it cannot be determined whether there were affidavits

of desistance executed by the relatives of the three (3)38

other victims, namely: MeleubrenSoronda, Pacifico Montero, Jr., and Alex Neri. The same records do not show whether theywere notified of the hearing or had knowledge thereof. To be sure, it is not fair to expect theelement of notice to be litigated before then Judge Agnir for Section 8, Rule 117 was yetinexistent at that time.

The fact of notice to the offended parties was not raised either in the petition for prohibitionwith application for temporary restraining order or writ of preliminary injunction filed byrespondent Lacson in the RTC of Manila, presided by Judge Pasamba, to enjoin theprosecutors from reinvestigating the said cases against him. The only question raised in saidpetition is whether the reinvestigation will violate the right of respondent Lacson againstdouble jeopardy. Thus, the issue of whether or not the reinvestigation is barred by Section 8,Rule 117 was not tackled by the litigants.

Nor was the fact of notice to the offended parties the subject of proof after the eleven (11)informations for murder against respondent Lacson and company were revived in the RTC of Quezon City presided by Judge Yadao. There was hardly any proceeding conducted in thecase for respondent Lacson immediately filed a petition for certiorari in the appellate courtchallenging, among others, the authority of Judge Yadao to entertain the revived informationsfor multiple murder against him.

This is not to be wondered at. The applicability of Section 8, Rule 117 was never considered inthe trial court. It was in the Court of Appeals where respondent Lacson raised for the first timethe argument that Section 8, Rule 117 bars the revival of the multiple murder cases againsthim. But even then, the appellate court did not require the parties to elucidate the crucial issueof whether notices were given to the offended parties before Judge Agnir ordered thedismissal of the cases against respondent Lacson and company. To be sure, there is astatement in the Decision of the appellate court to the effect that "records show that theprosecution and the private offended parties were notified of the hearing x x x." 39 It is doubtful

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whether this finding is supported by the records of the case. It appears to be contrary to JudgeAgnir's finding that only seven (7) of the complainants submitted affidavits of desistance.

Indeed, the records of this case are inconclusive on the factual issue of whether the multiplemurder cases against respondent Lacson are being revived within or beyond the 2-year bar.The reckoning date of the 2-year bar has to be first determined - - - whether it is from the dateof the Order of then Judge Agnir dismissing the cases or from the dates the Order werereceived by the various offended parties or from the date of the effectivity of the new rule.

If the cases were revived only after the 2-year bar, the State must be given the opportunity to justify its failure to comply with said timeline. The new rule fixes a timeline to penalize theState for its inexcusable delay in prosecuting cases already filed in courts. It can thereforepresent compelling reasons to justify the revival of cases beyond the 2-year bar.

In light of the lack of or the conflicting evidence on the various requirements to determine theapplicability of Section 8, Rule 117, this Court is not in a position to rule whether or not the re-filing of the cases for multiple murder against respondent Lacson should be enjoined.Fundamental fairness requires that both the prosecution and the respondent Lacson should beafforded the opportunity to be heard and to adduce evidence on the presence or absence of the predicate facts upon which the application of the new rule depends. They involve disputedfacts and arguable questions of law. The reception of evidence on these various issues cannotbe done in this Court but before the trial court.

IN VIEW OF THE FOREGOING, the case at bar is remanded to the RTC - Quezon City,Branch 81 so that the State prosecutors and the respondent Lacson can adduce evidence andbe heard on whether the requirements of Section 8, Rule 117 have been complied with on thebasis of the evidence of which the trial court should make a ruling on whether the Informationsin Criminal Cases Nos. 01-101102 to 01-101112 should be dismissed or not. Pending theruling, the trial court is restrained from issuing any warrant of arrest against the respondentLacson. Melo and Carpio, JJ., take no part.

SO ORDERED.

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Crimpro - Sept.22, 2011

Documents

Transcript of Crimpro - Sept.22, 2011