RE :=JI.JBLIGSA

'J-IILIPPINES'YANtyISION

PEOPLE OF THE ))HILIPPINES,Plaintiff,

-versus-SB-16-CRM -0058 to 0071For: Violation of Sec.' 52(d) in relation to Sec. 6,R.A. No. 8291

ADULFO AGCOPF',,\ LLAGAS,Accused.

Present:QUIROZ, J., ChairpersonCRUZ, J. andECONG, J.

PROMULGATED:

Fe,bIVC4I'Y I. '1.01, ~

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RESOLUTION

Econq, J.:

This resolv es the Omnibus Motion for JudicialDetermination of Probable Cause, Dismissal of the Cases andfor Judicial Notice filed by accused Llagas. He stands accusedof fourteen (14) counts of violation of R.A. No. 8291 or theGSIS Law in relat ion to his functions as then City Treasurer ofButuan City.

On November 12, 2008, a letter from the concernedemployees of the Butuan Medical Center was received by theOffice of the Ombudsman-Mindanao (OMB-Mindanao)complaining that they were made to pay penalties for the lateremittance of the ir GSIS premium contributions. Based onthis letter, Conceocion Bartolata, Officer Designate of the CPLUnit, Office of the OMB-Mindanao, executed a complaint-affidavit on February 11, 2009, which was docketed forpreliminary investigation. On February 24, 2009, the OMB- /Mindanao directed herein accused to submit his counter-affidavit but the 1utter filed a request for extension of time to /t..

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file the same. On April 8, 2009, he submitted his counter-affidavit. On September 18, 2013, OMB-Mindanao issued anOrder directing parties to submit their respective positionpapers. The resolution finding probable cause was transmittedto the Ombudsman for approval on September 16, 2014. OnNovember 17, 20 l-l , the resolution was approved and hereinaccused sought uor the reconsideration of the findings forprobable cause. '"I 'he Ombudsman denied this on August 10,2015, hence the filing of the fourteen (14) Informations forviolation of R.A. NCl, 8291, otherwise known as the GSIS law.

Accused contended that the cases against him shouldeither be dismissed for lack of probable cause and/or forviolating his constitutional right to the speedy disposition ofcases.

He prayed th at in the conduct of judicial determination ofprobable cause, this Court finds the absence of probable causeto issue the warrants for his arrest and dismiss all the casesagainst him. He aaserted that he himself does not have theduty to deduct and remit the GSIS premium contributions asit is not one of the functions enumerated in Section 470,Article 11of R.A. ~;]60 or the Local Government Code. It is nothe himself who types or encodes the payroll of ButuanMedical Center, ,:1 separate economic enterprise of ButuanCity, which has it s own separate office. As treasurer, his dutyis to release the funding of support for the said Center and notto deduct and remit the contributions to the GSIS.

He also asserts that there is a ground to dismiss thecases against hirn considering that his right to the speedydisposition of cases has been violated. He states that theletter complaint given to Concepcion Bartolata is datedNovember 12, 2008, while the resolution of the preliminaryinvestigation was approved by Ombudsman Conchita Carpio-Morales only on March 19, 2015. The Informations were filedbefore this Court almost a year later, on February 16, 2016.

Llagas maintains that the delay of eight (8) years isunreasonable ant l vexatious considering that the issue wasnot difficult as it only alleges failure to deduct or remit GSIScontributions for several months.

Lastly, he urged the court to take judicial notice that thecrime charged is a "deliio continuado" or a continuing crime asthere is only on 11:: act of failure to deduct or remit thecontributions repeated in several months. Therefore, the j

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failure to deduct or remit the GSIS contribution, should therebe probable cause . must be treated just as one offense.

The prosecution, on the other hand, asserts thesuperfluity of the accused's motion for determination ofprobable cause, s.nce pursuant to the ruling of the SupremeCourt in Leuiste us. Alameda,' the trial court is in fact duty-bound to personally evaluate the resolution of the prosecutorsand the supporting evidence.

Prosecution cites Sec. 52 of R.A. No. 8291, whichprovides penalties for treasurers who fail, refuse, or delay, bymore than 30 days from the time the amount is due anddemandable or to deduct the monthly contributions. Further,it was accused's duty to deduct and remit the GSIS premiumsunder Sec. 470(e), Art. II . of the Local Government Code,which provides that the City Treasurer may "exercise suchother powers and perform other duties and functions as maybe prescribed by Jaw or ordinance." During the investigation,it was established that the accused remitted the payment ofpremium of the GSIS members of Butuan Medical Center.However, this was done only after almost one (1) year from thedate the same was supposed to be remitted.

Thus, from the November 12, 2008 letter of theconcerned GSIS member of Butuan Medical Center, Bartolataexecuted the complaint affidavit on February 11, 2009. OnFebruary 24, 2009, the Ombudsman directed accused to filehis counter-affidavit. Instead of filing his counter-affidavit,accused asked for extension of time. He was able to file hiscounter-affidavit only on April 8, 2009. On September 18,2013, an Order by· the Ombudsman-Mindanao directing theparties to submit their respective position papers was issued.On November 17: :2014, a resolution finding probable causewas issued and the motion for reconsideration was denied onAugust 10, 2015.

ISSUES

The Issues for determination by this Court are thefollowing:

a. whether 0 r not there is lack of probable cause becauseaccused has no obligation under the law to deduct the fI.

t

1 G.R. Nos.182677. August 3 2UIO. 626 seRA 575. 0'

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monthly Ci:::ns premiums or contributions and remitthe same to the GSIS;

b. whether or not there was inordinate delay in the filingof this case, thereby violating the right of accused tothe speedy disposition of cases against him.

After weighing, the arguments of the parties, this Courtbelieves that, indeed, there exists probable cause for theissuance of the warrant of arrest against accused.

The determination of probable cause rests on evidencethat would lead a reasonably discreet and prudent man tobelieve that an offense has been committed by the personsought to be arrested." It is the knowledge of facts, actual orapparent, strong enough to justify a reasonable man in thebelief that he [has! lawful grounds for arresting the accused."

The provisions of Sec. 52 (d) in relation to Sec. 6 of R.A.No. 8291 and Sec. 470 of the Local Government Code are clearand unambiguous.

Par. e of Sec, ,t70 clearly provides that the treasurer shallperform "such other powers and perform such other dutiesand functions as may be prescribed by law and ordinances. Ittherefore means that the specific functions of the treasurermaybe defined noi by the Local Government Code but by otherexisting laws, rule 51 and regulations and ordinances.

R.A. No. 8~!()1 or the law amending, expanding andincreasing the coverage and benefits of the GovernmentService Insurancc System (GSIS) provides in Sec. 6, thatemployers such as the Butuan Medical Center, shall have theduty to deduct each month from the monthly salaries of theemployees the contributions of employees in accordance withthe provided sche dule and remit the same within the first ten(10) days of the following month. The amounts deducted fromthe salaries is withheld by the employer, in this case, theBMC, until the same is remitted to the GSIS. And, since thecontrol of the funds of the employer rests with the Treasurer,he physically holds the amount for the employer and he isobligated to remit the same to the GSIS. Because of this, thepenal provision of the GSIS Law, specifically Sec. 52, par. d ofR.A. No. 8291 provides that:

2 Al/ado v. Diokno, G.R. No. 11 3630,5 May 1994.3 Id.

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The treasurer KXX who fails or refuses or delays by morethan thirty (30) days from the time such amount becomesdue and demandable, or to deduct the monthlycontributions xxx shall suffer the penalties of imprisonmentfrom six (6) months and one (1) day to six (6) years, and afine of not less than Three Thousand pesos (P3,OOO.OO)butnot more than Six Thousand (P6,OOO.OO),and in additionshall suffer absolute perpetual disqualification from holdingpublic office a nd from practicing any profession or callinglicensed by government.

All these facts are alleged by' the prosecution in thepreliminary investigation report, as well as in the affidavits ofthe prosecution witness and the documents supporting theirclaims.

The denial by the accused is simply part of his defensewhich he can very well present before this Court.

The second issue is the motion to dismiss due to theinordinate delay in the prosecution of this case resulting in aviolation of the right of the accused to the speedy dispositionof cases against h im.

A person's right to the speedy disposition of a caseagainst him or her is protected under Article III of the, 1987Constitution, which is known as the Bill of Rights. The Bill ofRights enumerates a person's (not just citizen's) rights that areself-enabling, inalienable, indubitable, and serves as alimitation to the acts of the state. Generally, anygovernmental action, the Office of the Ombudsman including,in violation of th e Bill of Rights, is void. The Bill of Rightsprovisions are also generally self-executing."

Thus, the Supreme Court held:

The Bill of RighIs is a set of prescriptions setting forth thefundamental civil and political rights of the individual, andimposing limitations on the powers of government as ameans of securing the enjoyment of those rights. The Billof Rights is designed to preserve the ideals of liberty,equality and security against the assault of opportunism,the expediency of the passing hour, the erosion of smallencroachments, and the scorn and derision of those whohave no patience with general principles. 5

On the other hand, Article XI, Section 12 of the 1987Constitution mandates "[t]he Ombudsman and his Deputies,as protectors of the people" to bear the duty to "act promptly

4 Nachura, Outline Reviewer il' Political law (2009).5 PBM Employees Orqanizatic '/ s-. Philippine Blooming Mills, G.R. No. L-31195, June 5, 1973.

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on complaints filed in any form or manner against publicofficials or employees of the Government, or any subdivision,agency or instrumentality thereof, including government-owned or controlled corporations" as well as to "notify thecomplainants of the action taken and the result thereof."Certainly, the duly of the Ombudsman to act promptly andexpeditiously in the performance of its function is not justlimited to preliminary investigations in criminal cases but alsoincludes fact -finding investigations, administrativeinvestigations as well as preliminary inquiries under R.A. No.1379, which is akin to preliminary investigation in criminalcases.

In Coscolluela v. Sandiqanbauan,» the Supreme Courtexplained that:

[a]s the institutional vanguard against corruption andbureaucracy, the: Office of the Ombudsman should createa system of accountability in order to ensure that casesbefore it are resolved with reasonable dispatch and toequally expose those who are responsible for its delaysXXX."

Moreover, the Supreme Court, throughAngelina Sandoval-Gutierrez in Enriquez v.Ombudsman.' held that the Ombudsman was:

Mme. JusticeOffice of the

x x x constitutionally created to be the "protector of thepeople," with [be expressed mandate that it "shall actpromptly on complaints filed in any form or manneragainst officers or employees of the Government, or of anysubdivision, age ncy or instrumentality thereof, includinggovernment-owned or controlled corporations, and enforcetheir administrative, civil and criminal liability in everycase where the evidence warrants in order to promoteefficient service IJYthe Government to the people.

XXX XX"

These powers, functions and duties are aimed to enablerespondent to be "a more active and effective agent of thepeople in en suring accountability in public office."Unfortunately, respondent has transgressed itsconstitutional .md statutory duties. When the Constitutionenjoins respondent to "act promptly" on any complaintagainst any public officer or employee, it has theconcomitant duty to speedily resolve the same. Butrespondent did not act promptly or resolve speedilypetitioners' cases. The Rules of Procedure of the Office ofthe Ombudsman requires that the hearing officer is given

6 G.R. Nos. 191411 and 1918'; 1July 15, 2013.7 G.R. Nos. 174902-06, February 15,2008,569 Phil309-323.

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a definite period of "not later than thirty (30) days" toresolve the case after the formal investigation shall havebeen concluded. Definitely, respondent did not observethis 30-day rule.

In People us. Sandiganbayan (Fifth Division), 8 theSupreme Court laid down the factors to be considered in thedetermination of whether there is inordinate delay. It said:

The concept of speedy disposition is relative or flexible. Amere mathernatical reckoning of the time involved is notsufficient. Particular regard must be taken of the facts andcircumstances peculiar to each case. Hence, the doctrinalrule is that in the determination of whether that right hasbeen violated, the factors that may be considered andbalanced are as follows: (1) the length of delay; (2) thereasons for the delay; (3) the assertion or failure to assertsuch right by the accused; and (4) the prejudice caused bythe delay.

We now proceed to apply the test in this case todetermine if there was inordinate delay before the Office of theOmbdusman, as alleged by the accused.

Length of Delau. Below is the summary of the importantcase events while the subject matter of this case was stillpending before the office of the Ombudsman, from initiationuntil the filing of the criminal cases before this Court:

Date

--

Case Event

Receipt of the letter of concernedemployees of Butuan Medical Centerto the Office of the Ombudsman

Complaint-Affidavit of Bartolata wasfiled

Order of Ombudsman for Llagas tosubmit his counter-affidavit

November 12,2008

February 11, 200~)

February 24, 2009

8 G.R. Nos. 199151-56, July zs 2016.

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September 16,20

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Submission by Llagas of Counter-,

Affidavit submitted, after a requestfor extension of time to file the samewas made

13 Directive of OMB-Mindanao forparties to submit their respectiveposition papers

14 Resolution finding probable causewas issued

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,:1- Approval by .the Ombudsman of theResolution finding probable cause

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Denial of Llagas' Motion forReconsideration of the resolutionfinding probable cause

) Filing of the Information against theaccused before the Sandiganbayan

April 8, 2009

September 18, 20

November 17,201

August 10,2015

February 16, 20V

There is a span of roughly eight (8) years from 2008, thetime when the letter complaint was filed before the Office ofthe Ombudsmanvuntil February 16, 2016, when these caseswere filed before this Court.

The period of nearly eight years for the Office of theOmbudsman-Mindanao (OMB-Mindanao) to conduct apreliminary inves tigation is definitely lengthy. It should beemphasized that the OMB-Mindanao did not act upon the caseafter the herein accused filed his counter-affidavit for a periodof more than four (4) years. Instead of resolving thepreliminary investigation, it directed the parties to file theirrespective position papers and resolved the case only afteranother year lapsed.

Reason for the delay. Unfortunately, prosecution has notoffered any rhyme or reason for the length in the conduct oftheir proceedings. Neither did it try to explain the several lullsin the processing 1)1' this case.

It could not IJe over-emphasized that the Office of thOmbudsman, as t.he "protector of the people", was cone iv d

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by the framers of elf: Constitution to ensure the accountabilityof all public officials. The only tool that any public official hasagainst the said powerful office is his or her right to invoke hisconstitutional rights, including the right to the speedydisposition of case-s against him. Thus, once a complaint islodged with the Office of the Ombudsman, the clock startsticking and the 0 rnbudsman is burdened to dispose of thecase with dispatch.

Lastly, the ac cused is correct when he said that the caselodged against him is a simple case with no complex issues tobe resolved in finding probable cause.

Assertion of s.ich. right by the accused. Accused could notbe considered to have waived his right to the speedydisposition of his cases. As a matter of fact, he made thisassertion at the fi.rst opportunity to do so-i. e., he filed themotion to dismiss on the ground of inordinate delayimmediately after the Informations against him were filed.

Finally, this Court shall no longer probe into thepropriety of charging the accused of multiple offenses ofviolation of Sec. 5:? (d) in relation to Sec. 6 of R.A. No. 8291,instead of just one offense and to consider each and everysingle act of the alleged failure to remit the GSIS contributionper month as a continuing offense, because it already saw abasis for dismissal of all the cases filed against him.

WHEREFOR]I:~: in view of the aforegoing, this Court findsprobable cause for the issuance of the warrants of arrestagainst accused Llagas in Criminal Case Nos. SB-16-CRM-0058 to SB-16-CR l\II-0071, but hereby DISMISSES all the saidcases for being violative of his right to the speedy dispositionof cases lodged against him.

SO ORDEREJD.

Quezon City, Metro Manila, Philippines.

puutciM.t ~ !t~GI~,RALDINE FAITH A~ ECONG

Associate Justice

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WE CONCUR:,

,