sb.judiciary.gov.phsb.judiciary.gov.ph/resolutions/2017/e_crim_sb-12... · 5 mendez v people, 726...

REPUBLIC OF THE PHILIPPINESSANDIGANBAYAN

Quezon City

FOURTH DIVISION

PEOPLE OF THE PHILIPPINES,Plaintiff,

CRIM. CASES NOS. SB-12-CRM-0004 & 0005For: Violation of Section3(e), R.A. No. 3019 andMalversation of PublicFunds through Falsificationof Public Documents

- versus -

REDEMPTO YAP ABISO, ET AL.,Accused.

Present:

QUIROZ, J., ChairpersonCRUZ, J.ECONG, J:Promulgated on:

M ().'I I9 I 10 11 ItA!

)(- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -)(

RESOLUTION

CRUZ, J.

This resolves:

(1) the prosecution's Motion to Admit Amended Informations 1

dated 22 February 2012;

(2) accused Redempto Yap Abiso's (hereinafter, "Abiso")Opposition to Motion to Admit Amended tntormetiorr dated 15 March2012;

. Sitting as Special Member per Administrative Order No. 024-2017 dated 1 February 2017.1 Records, Vol. 1, pp. 352-356.2 Id., pp. 444-445. The Opposition applies only to Criminal Case No. S8-12-CRM-0005.

RESOLUTIONpp vs. Abiso, et al.Cases Nos. S8-12-CRM-0004 & 0005

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(3) Abiso's Motion to Quash/Oismiss with Prayer to Void and SetAside Orders of Arresf3 dated 26 March 2014; and

(4) the prosecution's Comment/Opposition (Re: Motion toQuash/Oismiss with Prayer to Void and Set Aside Orders of ArrestFiled by Redempto Yap Abisoj4 dated 20 May 2014.

On the Prosecution's Motion to Admit Amended Informations

In its motion, the prosecution asks the Court to admit theamended informations:

(1) in Criminal Case No. SB-12-CRM-0004, which (a) correctedone (1) digit in the subject disbursement voucher number; and (b)added a phrase that stressed the participation of accused AmeliaCarmela Constantino Zoleta in the original information; and

(2) in Criminal Case No. SB-12-CRM-0005, which (a) correctedthe clerical errors in the name of one of the accused and in the nameof the province; (b) added a phrase to stress the participation ofaccused Amelia Carmela Constantino Zoleta; and (c) changed "BAILBOND RECOMMENDED: P40,000.00 each" to "NO BAILRECOMMENDED" in the original information.

Abiso opposes the motion to admit amended information inCriminal Case No. SB-12-CRM-0005, charging him and the otheraccused with malversation of public funds through falsification of publicdocuments, on the ground that the proposed amended informationrecommended no bail. Abiso argues that the evidence against him isnot strong; hence, he should be allowed to post bail for his provisionalliberty.

The motion to admit amended informations has merit.

The first paragraph of Section 14, Rule 110 of the Revised Rulesof Criminal Procedure provides that an information may be amended,in form or in substance, without leave of court and when it can be donewithout causing prejudice to the rights of the accused.

The foregoing amendments in both informations relate to mattersof form. Amendments that do not charge another offense different fromthat charged in the original one; or do not alter the prosecution's theory

3 Records, Vol. 2, pp. 1-24.4 Id., pp. 443-455.


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x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -xof the case so as to cause surprise to the accused and affect the formof defense he has or will assume are considered merely as formalamendments." Considering that Abiso and the other accused in thesecases have not yet been arraigned, the informations may be amended,in form or in substance, without leave of court. Thus, the Court grantsthe prosecution's Motion to Admit Amended Informations.

In the cases at bar, the amended informations are not newinformations. They do not charge offenses different or distinct from thecharges in the original ones. Consequently, the amended informationsrelate back to the dates on which the original informations were filed."

Hence, for all practical intents and purposes, the Court now treatsthe amended informations as the subject of Abiso's Motion toQuash/Dismiss in lieu of the original informations. Further, recordsshow that at the time Abiso filed his motion to quash/dismiss, the Courthas not yet resolved the prosecution's motion to admit amendedinformations.

On Abiso's Motion to Quash/Dismiss

Abiso moves for the dismissal of the informations? on the groundthat the filing thereof contravenes the doctrine laid down in Tatad v.Sandiganbayan 8, whereby a delay of almost three (3) years interminating the preliminary investigation and filing the criminalinformations with the Court was considered by the Supreme Court asviolative of the constitutionally guaranteed right to due process and tothe speedy disposition of cases. Citing the same case and Roque v.Ombudsmeri', he posits that the Office of the Special Prosecutor andthe Ombudsman have lost the authority to file these cases due toinordinate delay of more than seven (7) years, hence a valid andsufficient ground for their dismissal. He assails the delay in the filing ofthe informations against him and his eo-accused, considering that theOmbudsman issued the Resolution'? dated 11 August 2004 while thesubject informations against him and the other accused were filed withthe Court only in November 201111, or a lapse of more than seven (7)years. Abiso points out that several cases arising from the same 11August 2004 Resolution were already filed as early as 2005 while thepresent cases against him and the other accused were filed much later.

5 Mendez v People, 726 SCRA203, 217-218 (2014).6 Guinto v Veluz, 77 Phil 801, 803-804 (1946).7 Records, Vol. 1, pp. 1-4 (for SB-12-CRM-0004) and pp. 5-8 (for SB-12-CRM-0005).8159 SCRA 70 (1988).9307 SCRA 104 (1999).10 Records, Vol. 1, pp. 55-348.11 Should be 3 January 2012.

RESOLUTIONpp vs. Abiso, et al.Cases Nos. SB-12-CRM-0004 & 0005

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On the other hand, the prosecution counters that":

(1) the purported inordinate delay is not one of the grounds for amotion to quash under Section 3, Rule 117 of the Revised Rules ofCriminal Procedure; and

(2) factual antecedents of the cases show that the Office of theOmbudsman followed the established procedure before the caseswere filed with the Court.

In justifying the second counter-argument, the prosecutionemphasizes, among others, that the Office of the Ombudsman madesure that preliminary investigation was conducted on all personsinvolved in each of the eighty-one (81) anomalous transactions withdifferent facts and respondents and different sets of voluminousdocuments. It had taken great pains in resolving the anomaloustransactions involving the public funds of the Sarangani Province thatit even sought the COA to conduct a special audit on the said publicfunds. There are therefore valid reasons for the delay, if it can bequalified as delay, in the filing of the informations before the Court. TheOffice of the Ombudsman ensured completion of the preliminaryinvestigation for an orderly presentation of its cases before the Courtand thereby ensured the speedy resolution of these cases. Further, theinternal set-up within the Office of the Ombudsman, the highcentralization of authority, the continuous influx of cases, and thechallenged actions of high-ranking officials effectively created animpasse, so to speak, in the normal work activity of the office.

The motion to quash/dismiss is impressed with merit.

The Constitution guarantees the right of all persons to a speedydisposition of their cases before all judicial, quasi-judicial oradministrative bodies." This right is deemed violated only when theproceedings are attended by vexatious, capricious, and oppressivedelays; or when unjustified postponements of the trial are asked for andsecured; or even without cause or justifiable motive, a long period of I

time is allowed to elapse without the party having his case tried.

The right to speedy disposition of a case is a relative or flexible (concept such that a mere mathematical reckoning of the time involved

12 The prosecution mentions the insufficiency of evidence presented before the Office of theOmbudsman as one of the grounds of Abiso's motion. However, a careful reading of his motionreveals that no such ground was alleged therein. Hence, this ground of insufficiency of evidencewill no longer be discussed and ruled upon in this Resolution.13 Section 16, Article Ill, 1987 Constitution.


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x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -xwould not be sufficient. The following factors may be considered andbalanced in order to determine if the accused has been denied of suchright: (1) length of delay; (2) reason for the delay; (3) assertion of theright or failure to assert it; and (4) prejudice caused by the delay."

Guided by the foregoing factors, the Court now analyzes ifvexatious, capricious and oppressive delay attended the preliminaryinvestigation before the Office of the Ombudsman which violatesAbiso's right to speedy disposition of his cases.

1. Length of Delay.

Records show the following important dates from the filing of thecomplaint with the Office of the Ombudsman to the filing of thecorresponding informations with the Court:

10 February 200315- the Office of the Deputy Ombudsman forMindanao (OMB-Mindanao) received an anonymous letter-complaintalleging that certain personnel of the Office of the Vice-Governor ofSarangani Province had possibly committed graft and corruption bydiverting public funds purportedly given as grants/aid using barangayofficials and cooperatives as dummies. It was docketed as CPL-M-03-0163.

24 February 2003 16 - The OMB-Mindanao referred thecomplaint to the Commission on Audit (COA) for the conduct of an auditinvestigation.

8 August 2003 - The COA issued a Fact-Finding InvestigationReport on Alleged Anomalies Committed by Sarangani Province ofFinancial Assistance Granted to Other Local Government Units (LGUs)and Non-Government Organizations/People's Organizations(NGOs/POs)17.

5 September 200318 - The COA Regional Cluster Director,Regional Legal and Adjudication Office, Region XI, Davao Cityforwarded to OMB-Mindanao the Fact-Finding Investigation Report andthe Joint Affidavit of the Audit Team which conducted the special audit.

14 Coscolluela v. Sandiganbayan (First Division), 701 SCRA 188,195-196 (2013).15 Resolution of the Ombudsman dated 11 August 2004, Records, Vol. 1, p. 59.16 ki., p. 60.1? Records, Vol. 1, pp. 17-34.18 Supra note 11, p. 60.


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x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x16 September 2003 19 - Several complainants, citizens and

taxpayers of Sarangani Province filed another complaint against thenProvincial Governor Miguel Escobar, Abiso and the other respondents.

11 August 2004 -Graft Investigation and Prosecution Officer IMarvin G. Camino and Graft Investigation and Prosecution Officer 11Hilde C. Dela Cruz-Likit of the OMB-Mindanao prepared a Resolution"recommending, among others, the filing of informations formalversation through falsification of public documents and violation ofSection 3(e) of R.A. No. 3019 against Abiso, et al..

18 October 2004 - Ombudsman Simeon V. Marcelo issued aSupplemental Order modifying the Resolution dated 11August 2004.

22 June 200521 - Ombudsman Simeon V. Marcelo (OmbudsmanMarcelo) approved the modified Resolution.

8 August 2011 - The Office of the Ombudsman, through theOffice of the Special Prosecutor, issued a Memorandum 22

recommending that respondent Felipe Katu Constantino no longer beindicted due to his death; that respondents Mary Ann Gamino Gadianand Sheryll Desiree Jane Nocos Tangan no longer be indicted in viewof the grant of immunity upon them; and the approval of theinformations against Abiso and the other accused, attached therewith.

15 November 2011 - Ombudsman Conchita Carpio Moralesapproved the Memorandum dated 8 August 201123.

19 December 2011 - Ombudsman Conchita Carpio Moralesapproved the two (2) informations for filing with the Court.

3 January 2012 - The Office of the Ombudsman filed the two (2)informations with the Court.

24 January 2012 - The Office of the Ombudsman, through theOffice of the Special Prosecutor, issued a Memorandumrecommending the amendments to informations including those in theabove-entitled cases.

22 February 2012 - The prosecution filed its Motion to AdmitAmended Informations with attached Amended Informations.

19 Id., p. 62.20 Supra note 6.21 Memorandum of the Office of the Ombudsman dated 8 August 2011, Records, Vol. 1, p. 13.22 Records, Vol. 1, pp. 9-16.23 Id., at p. 16.


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From the foregoing timeline, the Court observes that thereexisted a yawning gap of six (6) years, six (6) months and twelve (12)days between 22 June 2005, the date of approval by OmbudsmanMarcelo of the 11 August 2004 Resolution, and 3 January 2012, thedate of filing of the original informations with the Court. If one were tocount the period from Ombudsman Marcelo's approval of theResolution on 22 June 2005 to the issuance of the Memorandum bythe Office of the Ombudsman, through the Office of the SpecialProsecutor, on 8 August 2011, the period would be six (6) years one(1) month and seventeen (17) days, still a good six (6) long years ofhiatus in the case before the Ombudsman. This lull clearly showsinaction on the part of the Office of the Ombudsman during this period.The Court wonders why these cases were only filed on 3 January 2012when the Ombudsman could have filed the same simultaneously withthe other previous cases filed in 2005, as what Abiso argues in hismotion." During this interval, no incidents involving Abiso presentedthemselves for resolution. This delay could only be attributed to theinaction on the part of the Office of the Ombudsman for it allowed along period of time to elapse at the preliminary investigation stagebefore the informations were filed, even without cause or justifiablemotive."

2. Reason for the delay.

The prosecution tries to explain this interval by stating that from2005 to 2011, one (1) of the respondents, Mary Ann Gadian (Gadian),was conferred the status of a state witness, such that her testimonywas evaluated during this period. The review of her cases foramendments and the dropping of one of the accused (Felipe KatuConstantino) due to his death are mandatory procedure to engender awell-founded belief that the respondents as charged are probably guiltythereof.

Such explanation fails to persuade the Court. As stated in theMemorandum of the Ombudsman dated 8 August 2011, therecommendation to grant Gadian and Sheryll Desiree Jane Tanganimmunity from prosecution was approved by Ombudsman Marcelo wayback 20 December 2004. For the Ombudsman to take more than six(6) years therefrom to approve the 8 August 2011 Memorandum on 15November 2011 which led to the filing of the two (2) informations (against Abiso, et al. on 3 January 2012, is no longer reasonable. As tothe death of respondent Constantino, the Court finds itself at a loss as

24 Records, Vol. 2, pp. 17-20.25 Lopez, Jr. v. Office of the Ombudsman, 364 SeRA 569, 579 (2001).


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The prosecution also justifies the delay as due to several layersof review within the Office of the Ombudsman and the internal problemsduring that time caused by the threat of impeachment of thenOmbudsman Merceditas Gutierrez and the actuations of then DeputyOmbudsman for Luzon, Mark Jalandoni, who eventually resigned andhas faced charges of falsification and removal, concealment ordestruction of documents.

The Court is not convinced by such reasoning. The excuse thatthe cases filed with the Office of the Ombudsman have to undergoseveral layers of review and the meticulous scrutiny they have to entail"has lost its novelty and is no longer appealinq.'?" Moreover, the Officeof the Ombudsman is mandated by the Constitution" to act promptlyon complaints filed against public officers and employees. Thus,internal problems within its hierarchy cannot be considered as a validexcuse for it to renege on such obligation. As held in Coscolluela vs.Sandiganbayan (First Oivision)28 :

Verily, the Office of the Ombudsman was created under themantle of the Constitution, mandated to be the "protector of thepeople" and as such, required to "act promptly on complaints filedin any form or manner against officers and employees of theGovernment, or of any subdivision, agency or instrumentality thereof,in order to promote efficient service." This great responsibility cannotbe simply brushed aside by ineptitude. Precisely, the Office of theOmbudsman has the inherent duty not only to carefully gothrough the particulars of case but also to resolve the samewithin the proper length of time. Its dutiful performance shouldnot only be gauged by the quality of the assessment but also bythe reasonable promptness of its dispensation. Thus, barring anyextraordinary complication, such as the degree of difficulty of thequestions involved in the case or any event external thereto thateffectively stymied its normal work activity - any of which have notbeen adequately proven by the prosecution in the case at bar - thereappears to be no justifiable basis as to why the Office of theOmbudsman could not have earlier resolved the preliminaryinvestigation proceedings against the petitioners."

3. Assertion or failure to assert the right.

26 Duterte v. Sandiganbayan, 289 SCRA 721,744 (1998).27 Section 12, Article XI, 1987 Constitution.28701 SeRA 188 (2013).291d, at 197-198; emphasis supplied.


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x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -xThe prosecution also argues that Abiso took no effort to protect

his right by invoking his right to early disposition of the case during thetime that it was pending before the Office of the Ombudsman. Theprosecution posits that it was only when Abiso received an order thatan amended information was filed recommending no bail that theissues of disposition and insufficiency of evidence against him wereraised.

On the contrary, Abiso should not be faulted for not asserting hisright to speedy disposition of his case at the preliminary investigationlevel. Further, the prosecution failed to show that the delay was due tocauses attributable to him. Jurisprudence sets forth the rule that theaccused has no duty to follow up the prosecution of his case. InCervantes v. Sendiqenbeyeri", the Supreme Court held:

It is the duty of the prosecutor to speedily resolve thecomplaint, as mandated by the Constitution, regardless of whetherthe petitioner did not object to the delay or that the delay waswith his acquiescence provided that it was not due to causesdirectly attributable to him.

Further, Coscolluela pronounced:

Being the respondents in the preliminary investigationproceedings, it was not the petitioners' duty to follow up on theprosecution of their case. Conversely, it was the Office of theOmbudsman'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 pronouncedin the 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 that thetrial is consistent with due process."

4. Prejudice caused by the delay.

Lastly, the unjustified delay on the part of the Ombudsman inresolving the case has caused prejudice to Abiso. Coscolluela declared:

x x x the Court finally recognizes the prejudice caused tothe petitioners by the lengthy delay in the proceedings againstthem.

30307 SCRA 149,155 (1999), cited in People v Sandiganbayan, et et., G.R. No. 199151-56,25July 2016; boldface supplied.31 Supra, note 10, at 199.


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x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -xLest it be misunderstood, the right to speedy disposition of

cases is not merely hinged towards the objective of spurring dispatchin the administration of justice but also to prevent the oppressionof the citizen by holding a criminal prosecution suspended overhim for an indefinite time. Akin to the right to speedy trial, its"salutary objective" is to assure that an innocent person may befree from the anxiety and expense of litigation or, if otherwise, ofhaving his guilt determined within the shortest possible timecompatible with the presentation and consideration of whatsoeverlegitimate defense he may interpose. This looming unrest as wellas the tactical disadvantages carried by the passage of timeshould be weighed against the State and in favor of theindividual.F

To conclude, the Court holds that the present cases wereattended by vexatious, capricious and oppressive delay during thepreliminary investigation which violated Abiso's constitutional right tospeedy disposition of his case, hence warranting their dismissal. 33

However, the Court cannot grant the relief prayed for by Abiso to rendervoid and set aside the order of arrest simply because there is nowarrant of arrest yet issued by the Court.

The dismissal of the present cases notwithstanding, theProvincial Government of Sarangani is not without remedy to recoverits funds in the amount of P100,000.00 allegedly disbursed illegallythrough a purportedly anomalous transaction subject of these cases.As explained in Coscolluela:

While the foregoing pronouncement should, as matter ofcourse, result in the acquittal of the petitioners, it does not necessarilyfollow that petitioners are entirely exculpated from any civil liability,assuming that the same is proven in a subsequent case which theProvince may opt to pursue.

Section 2, Rule 111 of the Rules of Court provides that anacquittal in a criminal case does not bar the private offended partyfrom pursuing a subsequent civil case based on the delict, unless thejudgment of acquittal explicitly declares that the act or omission fromwhich the civil liability may arise did not exist. x x x /

xxx

Based on the violation of petitioners' right to speedy dispositionof cases as herein discussed, the present case stands to bedismissed even before either the prosecution or the defense hasbeen given the chance to present any evidence. Thus, the Court isunable to make a definite pronouncement as to whether petitionersindeed committed the acts or omissions from which any civil liability

32 Id., at 199-200; emphasis supplied.33 Angchangco, Jr v. Ombudsman, 268 SeRA 301,304 (1997).


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WHEREFORE, premises considered, the Court GRANTSaccused Redempto Y. Abiso's motion and accordingly orders theQUASHAL of the Amended Informations and the DISMISSAL ofCriminal Cases Nos. SB-12-CRM-0004 and SB-12-CRM-0005 asagainst him, for violation of his right to speedy disposition of his cases,without prejudice to any civil action which the Provincial Governmentof Sarangani may file against accused Redempto Y. Abiso. The Courtorders the LIFTING of the hold-departure order against him.

SO ORDERED.

RE~RUZ/Associate Justice

We Concur: )

~~~ZChairperson!

Associate Justice

~~GERALDINE FAITH~ECONG'

Associate Justice

. Sitting as Special Member per Administrative Order No. 024-2017 dated 1 February 2017.