REPUBLIC OF THE PHILIPPINESsb.judiciary.gov.ph/RESOLUTIONS/2018/C_Crim_SB-17-CRM...the filing of the...

REPUBLIC OF THE PHILIPPINES

~~ttOigtttthtt~ttltQuezon City

FIRST DIVISION

PEOPLE OF THE PHILIPPINES,Plaintiff,

- versus - CRIM. CASE NO. S8-17-CRM-2419to S8-17 -CRM-2422

For Violation of Sec. 3 (e), RA 3019

SAMSON E. GAMUTAN, JR.,ET AL.

Accused. Present:

DE LA CRUZ, J., Chairperson

ECONG, J.CALDONA, J.

Promulgated on:

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RESOLUTION

DE LA CRUZ, J.:

This resolves the Consolidated Motion to Quash (FourSeparate Informations dated 18 September 2017), dated February8, 2018, of accused Samson E. Gamutan, Jr. and Jesus E.Gamutan; and the prosecution's Comment/Opposition (To theConsolidated Motion to Quash), dated February 19, 2018.

In their motion, the accused-movants seek the quashal of thefour (4) Informations and the dismissal of the cases on the groundsthat: (1) the constitutional right of the accused-movants to a speedydisposition of their case was violated; and (2) there exists noprobable cause to support the indictment against the accused-movants for violation of Section 3(e) of RA 3019.

The accused-movants contend that there was inordinatedelay on the part of the Office of the Ombudsman (OMB) in the

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RESOLUTIONpp vs. Samson E. Gamutan, Jr., et al.Crim. Cases Nos. SB-17-CRM-2419 to -2422

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conduct of the fact-finding investigation, preliminary investigation,and the resolution of the case, which took a period of five (5) yearsand eight (8) months, from the time the complaint was received onApril 26, 2012 until the filing in court of the Informations onDecember 11, 2017. This period cannot be considered as aspeedy disposition of their case. Inordinate delay, such as whatappears in the present cases and which was not caused by, norattributable to, the accused-movants, is a valid and justifiableground for quashing the information and dismissing the chargeagainst an accused.

As to the second ground, the accused-movants argue thatthe charges in the Informations pertain to alleged "giving anyprivate party unwarranted advantage or preference in thedischarge of his functions." In effect, it is an admission that therewas no undue injury caused to any party, including thegovernment, by such acts of the grant or giving of cash advancesto accused Jesus Gamutan. Hence, an essential element ismissing considering that Section 3(e) refers to the giving by thepublic official of unwarranted advantage or preference to a "privateparty." In the present cases, accused Jesus Gamutan is not aprivate party contemplated by the law as he holds the appointmentof the position of Senior Administrative Assistant III as PrivateSecretary of the Mayor. As the private secretary of the mayor, heis a government employee and thus, cannot be considered a"private party" under Section 3(e) of RA 3019.

In addition, the accused-movants point out that COA CircularNo. 97-002 is a mere administrative regulation. There appears noparticular statute pertaining to the granting of cash advances thatwas cited as having been violated by the accused. Hence, anyliability, if ever, is administrative and not criminal, and it is theCommission on Audit (COA) which has exclusive and originaljurisdiction to determine and make such findings. The COA, in itsAnnual Audit Report on the Municipality of San Francisco,Southern Leyte for the year ending on December 31, 2012, foundnothing wrong or irregular about the four (4) subject cashadvances.

By way of comment/opposition, the prosecution belies thatthere was inordinate delay in the resolution of the complaint filedagainst the accused. It narrates the following timeline of events:

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RESOLUTIONpp vs. Samson E. Gamutan, Jr., et al.Crim. Cases Nos. S8-17-CRM-2419 to -2422

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1. On April 26, 2012, the OMB, through its Online Filing ofComplaint, received a complaint regarding the alleged operationand management of the Bagsakan Center of San Francisco, andallegations that public funds were entrusted to accused JesusGamutan without the requisite bond.

2. The OMB Visayas conducted a fact-findinginvestigation and found that there were indeed cash advancesmade in favor of accused Jesus Gamutan.

3. On April 5, 2014, Associate Graft Investigation OfficerIII Erlwin Estrella issued a Final Evaluation Report andrecommended that a preliminary investigation be conductedagainst the accused. The report was approved by then DeputyOmbudsman Pelagio Apostol on April 25,2014.

4. On August 1, 2014, Estrella filed a Complaint-Affidavitagainst the accused.

5. On August 13, 2015, an Order was issued requiring theaccused to file their respective Counter-Affidavits.

6. On September 22 and 23, 2015, the OMB Visayasreceived the Counter-Affidavits of accused Jesus Gamutan andSamson Gamutan respectively.

7. On November 28, 2016, a Resolution finding probablecause for violation of Section 3(e) of RA 3019 was issued. Thiswas approved by the Ombudsman on December 15, 2016.

8. On February 3, 16 and 23, 2017, the accused filed theirrespective Motions for Reconsideration, which the OMB denied inan Order, dated March 16, 2017.

9. On December 11, 2017, the four (4) Informations werefiled before the Sandiganbayan.

The prosecution maintains that the preliminary investigationstarted only after the filing of the Complaint-Affidavit on August 1,2014, as it was only after this date that the accused had notice ofthe complaint and was required to submit their respective counter-affidavits. In the determination of whether or not the right tospeedy disposition had been violated, the factors that may be


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considered and balanced are as follows: (1) length of delay; (2) thereasons for the delay; (3) the assertion or failure to assert suchright by the accused; and (4) the prejudice caused by the delay. Inthe present cases, the period it took the OMB to complete thepreliminary investigation is not unreasonable, vexatious oroppressive. Moreover, the accused never moved for the earlydisposition of the complaint. Such failure to assert their rightsweakened their position. As to prejudice, the prosecution aversthat the records do not show that the accused suffered any actualdamage or prejudice that would equate to oppression and injustice.There was also no proof presented by the accused that they wereincarcerated or arrested during the pendency of the case beforethe OMB. They were never deprived of their liberty in any manner.Thus, the prejudice alleged by them is at best imaginary.

With respect to the argument that accused Jesus Gamutan isnot a private party, and thus, no probable cause exists to indictaccused-movants, the prosecution counters that a private party isdifferent from a private person. Citing Ambil v. Sandiganbayan,1the prosecution points out that the Supreme Court defined a privateparty to be "more comprehensive in scope to mean either a privateperson or a public officer acting in a private capacity to protect hispersonal interest." Accused Jesus Gamutan, being a coterminousemployee and non-bonded officer, is a party not authorized by lawto be granted cash advances. Hence, his repeated receipt of cashadvances was not official or within the scope of his authority. In theeyes of the law, he received the cash advances in his privatecapacity making him, legally, a private party as contemplated bylaw.

The motion is impressed with merit.

Section 3(a) of Rule 117 of the Revised Rules of CriminalProcedure provides that the accused may move to quash theinformation on the ground that the facts charged do not constitutean offense. In Caballero v. Sandiganbayan/ the Supreme Courtheld:

The fundamental test in considering a motion to quashanchored on Section 3(a), above, is the sufficiency of theaverments in the information, that is, whether the facts alleged, if

1653 5eRA 576 (July 6, 2011)2534 seRA 30,43 (September 25, 2007)

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hypothetically admitted, would establish the essential elementsof the offense charged as defined by law. It is axiomatic that theinformation must state every single fact necessary to constitutethe offense charged, otherwise, a motion to quash on the groundthat the information charges no offense may be properlysustained.

In the present cases, the offense charged against theaccused is violation of Section 3(e) of RA 3019, as amended, theessential elements of which are:

1. The accused must be a public officer dischargingadministrative, judicial or official functions;

2. He must have acted with manifest partiality, evident badfaith or inexcusable negligence; and

3. That his action caused any undue injury to any party,including the government, or giving any private party unwarrantedbenefits, advantage or preference in the discharge of hisfunctions.'

A careful scrutiny of the subject Informations and thepertinent facts leads this Court to conclude that not all the essentialelements of the offense charged were established.

The first element is present. That the accused are publicofficers discharging administrative and/or official functions, withaccused Samson E. Gamutan, Jr. holding a position correspondingto Salary Grade 28, is sufficiently alleged in the Informations.

The second element is also established. The Informationsexpressly allege that accused Samson E. Gamutan, Jr.,Resurreccion S. Tangso, and Rosenda C. Bansig acted withevident bad faith, manifest partiality and/or gross inexcusablenegligence in the discharge of their functions.

However, the Court finds, and so holds, that the third elementis lacking.

There are two ways by which a public official violates Section3(e) of R.A. No. 3019 in the performance of his functions, namely:

3 Silverina E. Consigna v. People of the Philippines, 720 SeRA 350, 366 (April 2, 2014)


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(1) by causing undue injury to any party, including the Government;or (2) by giving any private party any unwarranted benefit,advantage or preference. The accused may be charged undereither mode or both." In the subject Informations, the allegedviolation of Section 3(e) was predicated on the giving by accusedMayor Samson E. Gamutan, Jr. of unwarranted benefit, advantageor preference to accused Jesus E. Gamutan, a private secretaryand a co-terminous employee of the said mayor.

The accused-movants submit that Jesus Gamutan is apublic officer-being the private secretary of accused MayorSamson E. Gamutan, Jr. and a co-terminus employee at theMunicipality of San Francisco, Southern Leyte-and, therefore, hecannot be considered as a "private party" within the purview of thelaw. On the other hand, the prosecution opposes such view,arguing that considering that Jesus was a non-bonded officer whenhe received the subject cash advances, in the eyes of the law, hereceived the said cash advances in his private capacity whichmade him a "private party."

In Ambit, the Supreme Court defined "private party" asprovided in Section 3(e) of RA 3019 as:

In drafting the Anti-Graft Law, the lawmakers opted to use"private party" rather than "private person" to describe therecipient of the unwarranted benefits, advantage or preference fora reason. The term "party" is a technical word having a precisemeaning in legal parlance as distinguished from "person" which,in general usage, refers to a human being. Thus, a private personsimply pertains to one who is not a public officer. While a privateparty is more comprehensive in scope to mean either a privateperson or a public officer acting in a private capacity to protect hispersonal interest.

Based on the foregoing pronouncement of the SupremeCourt that a "private party" is "either a private person or a publicofficer acting in a private capacity to protect his personal interest,"both the contentions of the accused-movants and the prosecutionare misplaced and incorrect. Indeed, as contemplated underSection 3(e) of RA 3019, a public officer may be considered a"private party" if he or she is acting in a private capacity to protecthis or her personal interest.

• Coiomo, Jr. v. Sandiganbayan, 736 SeRA 523,540 (September 24, 2014)


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Thus, the question to be resolved is whether or not accusedJesus Gamutan, although unquestionably a public officer, was"acting in a private capacity to protect his personal interest" whenhe was given the subject cash advances.

The prosecution insists that accused Jesus Gamutan, not being abonded public officer, has no authority to be granted cash advancesand, therefore, his receipt thereof made him a private party ascontemplated by law. The Court is not convinced, because suchinterpretation would stretch the law too far. There is no dispute that thecash advances granted to Jesus Gamutan were given for themanagement and operation of the Bagsakan Center or the Municipality'sFood Terminal. The cash advances were thus received in theperformance of Jesus Gamutan's public function, and not in his privatecapacity to protect his personal interest. Hence, any unwarrantedbenefit, if there be one, redounded not to accused Jesus Gamutan'sprivate interest, but in his capacity as a public officer, performing officialfunctions, albeit acting outside his authority. Hence, Jesus Gamutancannot be deemed a "private party."

Considering that not all the essential elements were satisfied,the Court holds, and hereby rules, that the facts charged in theInformations do not constitute a violation of Section 3(e) of RA3019.

With respect to the argument that the accused-movants' rightto a speedy disposition of their cases is violated, the Court herebyfinds, and so holds, that the OMB indeed committed inordinatedelay in the conduct of the preliminary investigation.

The right to a speedy disposition of a person's case isguaranteed by no less than the 1987 Constitution. Section 16,Article III of the Constitution provides:

Section 16. All persons shall have the right to a speedydisposition of their cases before all judicial, quasi-judicial, oradministrative bodies.

The constitutional right to a speedy disposition of cases is notlimited to the accused in criminal proceedings but extends to allparties in all cases, including civil and administrative cases, and inall proceedings, including judicial and quasi-judicial hearinqs."

5 People v. Sondigonbayan, 712 SeRA 359, 411 (December 11, 2013)or!

RESOLUTIONpp vs. Samson E. Gamutan, Jr., et al.

Crim. Cases Nos. SB-17-CRM-2419 to -2422

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In Coscolluela v. Sandiganbayan,6 the Supreme Courtelucidated that the right to speedy disposition of cases should beunderstood to be a relative or flexible concept such that a meremathematical reckoning of the time involved would not besufficient. Hence, it is settled in jurisprudence that the right isdeemed violated only when the proceedings are attended byvexatious, capricious, and oppressive delays; or when unjustifiedpostponements of the trial are asked for and secured; or evenwithout cause or justifiable motive, a long period of time is allowedto elapse without the party having his case tried.'

In Uy v. Office of the Ombudsman,8 the Supreme Court heldthat "in the hierarchy of rights, the Bill of Rights takes precedenceover the right of the State to prosecute, and when weighed againsteach other, the scales of justice tilt towards the former."

The prosecution avers that delay should be computed fromthe filing of the Complaint-Affidavit by FIO Estrella on August 1,2014, as it was only after this date that the accused had notice ofthe complaint and was required to submit their respective counter-affidavits. The Court is not persuaded.

It is settled that the guarantee of speedy disposition would bedefeated or rendered inutile if the hair-splitting distinction betweena fact-finding investigation and preliminary investigation isaccepted." In Torres v. Sandiganbayan,10 the Supreme Courtexplained:

We find it necessary to emphasize that the speedydisposition of cases covers not only the period within which thepreliminary investigation was conducted, but also all stages towhich the accused is subjected, even including fact-findinginvestigations conducted prior to the preliminary investigationproper.

xxx

As for the prejudice caused by the delay, respondentsclaim that no prejudice was caused to petitioner from the delay inthe second set of investigations because he never participated

6701 seRA 188 (July 15, 2013)7 Ibid.8556 seRA 73,101 (June 27,2.008), citing AI/ado v. Diokno, 232 SeRA 192, 2109 People of the Philippines v. ~ondigonboyon, 712 SeRA 359 (December 11, 2013)10805 SeRA 455, 468-473 (October 5,2016)

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therein and was actually never even informed of the proceedingsanyway. We cannot agree with this position. xxx

Adopting respondents' position would defeat the verypurpose of the right against speedy disposition of cases.Upholding the same would allow a scenario where theprosecution may deliberately exclude certain individuals from theinvestigation only to file the necessary cases at another, moreconvenient time, to the prejudice of the accused. Clearly,respondents' assertion is subject to abuse and cannot becountenanced.

Thus, the argument that the computation should start fromthe filing of the complaint-affidavit by FIO Estrella defeats thepurpose of guaranteeing the speedy disposition of the complaintagainst the accused. For if such practice is countenanced, thenthe Office of the Ombudsman can always prolong the fact-findinginvestigation to their advantage and convenience, and later on fileanother complaint to the prejudice of the accused.

Moreover, it is admitted that upon receipt of the complaint onApril 26,2012, the OMB Regional Office No. VIII issued subpoenaduces tecum to various government officials, including accusedTangso, who provided the pertinent documents, such as the copiesof disbursement vouchers and checks, by June 2012. That theaccused had no notice of the complaint is thus speculative. Inaddition, no reason whatsoever was offered by the prosecution asto why FIO Estrella filed the other complaint-affidavit only onAugust 1, 2014, and why the Order requiring the accused to filetheir respective counter-affidavits was issued only on August 13,2015.

Hence, from the filing of the complaint on April 26, 2012 up tothe filing of the Informations on December 11, 2017, it took theOMB five (5) years, seven (7) months and fifteen (15) days tocomplete its fact-finding and preliminary investigation. Such delay,without any justifiable reason provided by the prosecution, isinordinate, capricious and oppressive to the accused-movants,thereby violating their right to a speedy disposition of their cases.

The prosecution also argues that the accused-movants didnot suffer prejudice considering that they were not deprived ofliberty during the investigation. Such argument is untenable. The

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RESOLUTIONpp vs. Samson E. Gamutan, Ir., et al.Crim. Cases Nos. S8-17-CRM-2419 to -2422

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right to speedy disposition of cases, as elucidated by the SupremeCourt in Coscollue/a, has the following purpose:

Lest it be misunderstood, the right to speedy disposition ofcases is not merely hinged towards the objective of spurringdispatch in the administration of justice but also to prevent theoppression of the citizen by holding a criminal prosecutionsuspended over him for an indefinite time. Akin to the right tospeedy trial, its "salutary objective" is to assure that an innocentperson may be free from the anxiety and expense of litigation or,if otherwise, of having his guilt determined within the shortestpossible time compatible with the presentation and considerationof whatsoever legitimate defense he may interpose. This loomingunrest as well as the tactical disadvantages carried by thepassage of time should be weighed against the State and in favorof the individual. In the context of the right to a speedy trial, theCourt in Corpuz v. Sandiganbayan (Corpuz) illumined:

A balancing test of applying societal interests and therights of the accused necessarily compels the court to approachspeedy trial cases on an ad hoc basis.

x x x Prejudice should be assessed in the light of theinterest of the defendant that the speedy trial was designed toprotect, namely: to prevent oppressive pre-trial incarceration; tominimize anxiety and concerns of the accused to trial; and to limitthe possibility that his defense will be impaired. Of these, themost serious is the last, because the inability of a defendantadequately to prepare his case skews the fairness of the entiresystem. There is also prejudice if the defense witnesses areunable to recall accurately the events of the distant past. Even ifthe accused is not imprisoned prior to trial, he is stilldisadvantaged by restraints on his liberty and by living under acloud of anxiety, suspicion and often, hostility. His financialresources may be drained, his association is curtailed, and he issubjected to public obloquy.

The Constitutional guarantee against unreasonable delay inthe disposition of cases was intended to stem the tide ofdisenchantment among the people in the administration of justiceby our judicial and quasi-judicial tnbunals." Hence, excessivedelay in the disposition of cases renders the rights of the peopleguaranteed by the Constitution and by various legislations lnutile."Akin to the right to speedy trial, its "salutary objective" is to assurethat an innocent person may be free from the anxiety and expense

11 People v. Sandiganbayan, Fifth Division, et al., 798 SeRA 36, 64 (July 25, 2016)12 Ibid.

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of litigation or, if otherwise, of having his guilt determined within theshortest possible time compatible with the presentation andconsideration of whatsoever legitimate defense he may interpose."

As to the argument that the accused-movants did notseasonably assert their right to a speedy disposition of the case,the Supreme Court has reiterated its ruling in Coscolluela that adefendant has no duty to bring himself to trial, as it is the State'sduty to do so. In Inocentes v. Peooie," the High Court held:

The prosecution likewise blames Inocentes for notseasonably invoking his right to a speedy disposition of his case. Itclaims that he has no right to complain about the delay when thedelay is because he allegedly slept on his rights.

We find this argument unworthy of merit, in the same waywe did in Coscollue/a v. Sandiganbayan:

Records show that they could not have urged the speedyresolution of their case because they were unaware that theinvestigation against them was still ongoing. They were onlyinformed of the March 27, 2003 resolution and information againstthem only after the lapse of six (6) long years, or when theyreceived a copy of the latter after its filing with the SS on June 19,2009. In this regard, they could have reasonably assumed that theproceedings against them have already been terminated. Thisserves as a plausible reason as to why petitioners never followedup on the case altogether. Instructive on this point is the Court'sobservation in Duterle v. Sandiganbayan, to wit:

Petitioners in this case, however, could not haveurged the speedy resolution of their case because theywere completely unaware that the investigation againstthem was still ongoing. Peculiar to this case, wereiterate, is the fact that petitioners were merely askedto comment, and not file counter-affidavits which is theproper procedure to follow in a preliminaryinvestigation. After giving their explanation and afterfour long years of being in the dark, petitioners,naturally, had reason to assume that the chargesagainst them had already been dismissed.

On the other hand, the OMB failed to present anyplausible, special or even novel reason which couldjustify the four-year delay in terminating itsinvestigation. Its excuse for the delay - the many layers

13 Coscol/uefa v. Sandiganbayan, 701 SCRA 188, 199 (July 15, 2013)14796 SCRA 34, 53-55 (July 7, 2016)

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of review that the case had to undergo and themeticulous scrutiny it had to entail - has lost its noveltyand is no longer appealing, as was the invocation in theTatad case. The incident before us does not involvecomplicated factual and legal issues, specially (sic) inview of the fact that the subject computerizationcontract had been mutually cancelled by the partiesthereto even before the Anti-Graft League filed itscomplaint.

Being the respondents In the preliminaryinvestigation proceedings, it was not the petitioners' duty to followup on the prosecution of their case. Conversely, it was the Officeof the Ombudsman's responsibility to expedite the same within thebounds of reasonable timeliness in view of its mandate topromptly act on all complaints lodged before it. As pronounced inthe case of Barker v. Wingo:

A defendant has no duty to bring himself to trial; theState has that duty as well as the duty of insuring thatthe trial is consistent with due process.

Similarly, In Remulla v. Sandiganbayan,15 the Courtexpounded:

Remulla argues that the assertion or non-assertion of theright to a speedy disposition of cases determines whether thecourt must dismiss the case for inordinate delay or continue theproceedings. Such argument, however, fails to persuade. It mustbe emphasized that the balancing test is a relative and flexibleconcept. The factors therein must be weighed according to thedifferent facts and circumstances of each case. The courts aregiven wide judicial discretion in analyzing the context of the case,bearing in mind the prejudice caused by the delay both to theaccused and the State.

In addition, there is no constitutional or legal provisionwhich states that it is mandatory for the accused to follow up hiscase before his right to its speedy disposition can be recognized.To rule otherwise would promote judicial legislation where theCourt would provide a compulsory requisite not specified by theconstitutional provision. It simply cannot be done, thus, the adhoc characteristic of the balancing test must be upheld.

Considering the foregoing, this Court is constrained to decreethe quashal of the Informations, and the dismissal of the cases, onthe grounds that the facts charged in the Informations do not

15 April 17, 2017, G.R. No. 218040


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constitute an offense, and that the right of the accused-movants toa speedy disposition of their cases is violated on account ofinordinate delay.

WHEREFORE, in light of all the foregoing, the ConsolidatedMotion to Quash (Four Separate Informations dated 18 September2017), dated February 8, 2018, of accused Samson E. Gamutan,Jr. and Jesus E. Gamutan is hereby GRANTED, and theInformations in Criminal Cases Nos. SB-17 -CRM-2419 to -2422are ordered QUASHED as against them. Accordingly, the saidcases against the accused-movants are hereby DISMISSED, asthe facts charged in the Informations do not constitute an offense,and for violation of the constitutional right of the accused-movantsto a speedy disposition of their cases.

The hold-departure orders issued by this Court against theaccused-movants by reason of these cases are hereby LIFTEDand SET ASIDE, and the bonds they posted for their provisionalliberty are ordered RELEASED, subject to the usual accountingand auditing procedures.

SO ORDERED.

.\'1',(

EFREN N. D.ELA CRUZChairpersorsnssociate Justice

WE CONCUR:

~)AjJAJ..~ V~ t~GERALDINE FAITH A. ~CONG

Associate Justice

'. (J \Ut LltL~ .'-=-=,·-:G'-- RDO M. CALr:ib~-

Associate Justice

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