SECOND DIVISION
[ G.R. Nos. 107964-66, February 01, 1999 ]
THE PEOPLE OF THE PHILIPPINES REPRESENTED BY THE PANEL OF PROSECUTORS, DEPARTMENT OF JUSTICE, PETITIONER, VS. HON. DAVID G. NITAFAN, PRESIDING JUDGE, BRANCH 52, REGIONAL TRIAL COURT OF MANILA, AND IMELDA R. MARCOS, RESPONDENTS.
D E C I S I O N
MARTINEZ, J.:
On January 9, 1992, three criminal informations for violation of Section 4 of Central Bank Circular No. 960, as amended,[1] in relation to Section 34 of Republic Act No. 265[2] were filed against private respondent Imelda R. Marcos before Branch 158 of the Regional Trial Court (RTC) of Pasig (herein Branch 158-Pasig). Said Informations docketed as Criminal Case Nos. 90384-92, 90385-92 and 90386-92 were amended prior to arraignment.[3]
After arraignment, where private respondent pleaded not guilty, the People thru herein petitioner, Panel of Prosecutors from the Department of Justice (DOJ) and the Solicitor General filed separate motions for consolidation of the three (3) Informations pending before Branch 158-Pasig with the 21 other cases pending before RTC Branch 26-Manila (herein Branch 26-Manila).[4] The Solicitor General alleged in its motion that "the indictable acts under the three informations form part of and is related to the transaction complained" of in criminal cases 91-101732, 91-101734 and 91-101735 pending before Branch 26-Manila[5] and that these two groups of cases (the Pasig and Manila cases) "relate to a series of transactions" devised by then President Ferdinand Marcos and private respondent to hide their ill-gotten wealth.[6] The RTC of Pasig granted the motion for consolidation provided there is no objection from the presiding judge of Branch 26-Manila.[7] Before the Manila RTC, the three (3) informations were re-raffled and re-assigned instead to Branch 52-Manila presided by public respondent Judge Nitafan wherein the three informations (Criminal Cases Nos. 90384-92, 90385-92 and 90386-92) were re-numbered as Criminal Case Nos. 92-107942; 92-107943 and 92-107944.
Then, without private respondent yet taking any action or filing any motion to quash the informations, respondent judge issued an order dated July 20, 1992 requiring petitioners to show cause why criminal case number 92-107942 should not be dismissed on the ground that it violates private respondent's right against ex post facto law.[8] In that order, respondent judge said that a "check with official publications reveals that CB Circular 960 is dated 21 October 1983 (x x x) and that said regulatory issuance was imperfectly published* in the January 30, 1984 issue of the Official Gazette."[9] Respondent judge concluded that "since the date of violation alleged in the information was prior to the date and complete publication of the Circular charged to have been violated, the information in this case appears peremptorily dismissible, for to apply the Circular to acts performed prior to its date and publication would make it an ex post facto law, which is a violation of the Constitution."[10]
On the same day, respondent judge issued another order requiring the prosecution to show cause why the two other criminal informations (92-107943 and 92-107944) should not be dismissed on the ground that private respondent's right to double jeopardy was violated.[11] It is respondent judge's posture that based on the Solicitor-General's allegations in its Motion for Consolidation filed in Branch 58-Pasig that the three cases form part of a series of transactions which are subject of the cases pending before Branch 26-Manila, all these cases constitute one continuous crime. Respondent judge further stated that to separately prosecute private respondent for a series of transaction would endow it with the "functional ability of a worm multiplication or amoeba reproduction".[12] Thus, accused would be unduly vexed with multiple jeopardy. In the two orders, respondent judge likewise said that the dismissal of the three "seemingly unmeritorious" and "duplicitous" cases would help unclogged his docket in favor of more serious suits.[13] The prosecution complied with the twin show cause orders accompanied by a motion to inhibit respondent judge.
On August 6, 1992, respondent judge issued an order denying the motion for consolidation (embodied in the prosecution's compliance with the show cause orders) of the three informations with those pending before Branch 26-Manila on the ground that consolidation of cases under Rule 31 of civil procedure has no counterpart in criminal procedure, and blamed the panel of prosecutors as "apparently not conversant with the procedure in the assignment of cases." As additional justification, respondent judge stated that since he is "more studious and discreet, if not more systematic and methodical," than the prosecution "in the handling of cases," it would be unfair to just pull out the case when he had already studied it.[14]
The next day, August 7, 1992, respondent judge issued an 8-page order dismissing criminal case no. 92-107942 on the ground that the subject CB Circular is an ex post facto law.[15] In a separate 17-page order dated August 10, 1992, respondent judge also dismissed the two remaining criminal cases (92-107943 & 92-107944) ruling that the prosecution of private respondent was "part of a sustained political vendetta" by some people in the government aside from what he considered as a violation of private respondent's right against double jeopardy.[16] From his disquisition regarding continuing, continuous and continued offenses and his discussion of mala prohibita, respondent judge further ratiocinated his dismissal order in that the pendency of the other cases before Branch 26-Manila had placed private respondent in double jeopardy because of the three cases before his sala.
The prosecution filed two separate motions for reconsideration which respondent judge denied in a single order dated September 7, 1992 containing 19 pages wherein he made a preliminary observation that:
Section 1, Rule 117 of the Rules on Criminal Procedure provides:
That the initial act to quash an information lodged with the accused is further supported by Sections 2, 3 and 8 of Rule 117 which states that:
It is therefore clear that the only grounds which the court may consider in resolving a motion to quash an information or complaint are (1) those grounds stated in the motion and (2) the ground of lack of jurisdiction over the offense charged, whether or not mentioned in the motion. Other than that, grounds which have not been sharply pleaded in the motion cannot be taken cognizance of by the court, even if at the time of filing thereof, it may be properly invoked by the defendant. Such proscription on considerations of other grounds than those specially pleaded in the motion to quash is premised on the rationale that the right to these defenses are waivable on the part of the accused, and that by claiming to wave said right, he is deemed to have desired these matters to be litigated upon in a full-blown trial. Pursuant to the Rules, the sole exception is lack of jurisdiction over the offense charged which goes into the competence of the court to hear and pass judgment on the cause.
With these, the rule clearly implies the requirement of filing a motion by the accused even if the ground asserted is premised on lack of jurisdiction over the offense charged. Besides, lack of jurisdiction should be evident from the face of the information or complaint to warrant a dismissal thereof. Happily, no jurisdictional challenge is involved in this case.
Assuming arguendo that a judge has the power to motu proprio dismiss a criminal charge, yet contrary to the findings of respondent judge, the grounds of ex post facto law and double jeopardy herein invoked by him are not applicable.
On ex post facto law, suffice it to say that every law carries with it the presumption of constitutionality until otherwise declared by this court.[19] To rule that the CB Circular is an ex post facto law is to say that it is unconstitutional. However, neither private respondent nor the Solicitor-General challenges it. This Court, much more the lower courts, will not pass upon the constitutionality of a statute or rule nor declare it void unless directly assailed in an appropriate action.
With respect to the ground of double jeopardy invoked by respondent judge, the same is improper and has neither legal nor factual basis in this case. Double jeopardy connotes the concurrence of three requisites, which are: (a) the first jeopardy must have attached prior to the second, (b) the first jeopardy must have been validly terminated, and (c) the second jeopardy must be for the same offense as that in the first[20] or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof.[21] In this case, it is manifestly clear that no first jeopardy has yet attached nor any such jeopardy terminated. Section 7, Rule 117 provides:
"x x x x x x x x x."[22]
Under said Section, the first jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused.[23]
Other than the Solicitor-General's allegation of pending suits in Branch 26-Manila, respondent judge has no other basis on whether private respondent had already been arraigned, much less entered a plea in those cases pending before the said Branch. Even assuming that there was already arraignment and plea with respect to those cases in Branch 26-Manila which respondent judge used as basis to quash the three informations pending in his sala, still the first jeopardy has not yet attached. Precisely, those Branch 26-Manila cases are still pending and there was as yet no judgment on the merits at the time respondent judge quashed the three informations in his sala. Private respondent was not convicted, acquitted nor the cases against her in Branch 26-Manila dismissed or otherwise terminated which definitely shows the absence of the fifth requisite for the first jeopardy to attached. Accordingly, it was wrong to say that the further prosecution of private respondent under the three informations pending Branch 56-Manila would violate the former's right against double jeopardy.
WHEREFORE, Premises considered, the petition is GRANTED and the two orders dated January 20, 1990, as well as the orders dated August 7, 1992, August 10, 1992 and September 7, 1992 all issued by respondent judge are hereby REVERSED AND SET ASIDE. Let this case be REMANDED to the trial court for further proceedings.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
[1] Section 4, CB Circular No. 960 - Foreign exchange retention abroad. No person shall promote, finance enter into or participate in any foreign exchange transactions where the foreign exchange involved is paid, retained delivered or transferred abroad while the corresponding pesos are paid for or are received in the Philippines, except when specifically authorized by the Central Bank or otherwise allowed under central bank regulations.
Residents, firms, associations, or corporations unless otherwise permitted under CB regulations are prohibited from maintaining foreign exchange accounts abroad."
Section 32. CB Circular 1028, amended Section 4, CB Circular 960, provides: Prohibition Against Deposit Abroad of residents. - No resident shall open and maintain foreign exchange deposit accounts abroad involving outward remittance of foreign exchange unless otherwise permitted by law or by central bank regulations. x x x.
[2] Proceedings upon violation of laws and regulations. - Whenever any person or entity willfully violates this act or any order, instruction, rules or regulation issued by the Monetary Board, the person or persons responsible for such violations shall be punished by a fine of not more than twenty thousand pesos and by imprisonment of not more than five years.
[3] Annexes "E", "F" and "G" of the Petition; Rollo, pp. 121-126. The three informations originally filed on January 9, 1992 were amended on February 24, 1992. The amended informations read:
[5] Rollo, pp. 134-136.
[7] Annex "I" - Order dated July 1, 1992 issued by Hon. Jose Hernandez of RTC Br. 158, Pasig. The dispositive portion of said Orders reads: "WHEREFORE, let this case be consolidated with those pending before Branch 26, Regional Trial Court of Manila presided by Judge Corona Ibay-Somera, provided she dose not have any objection to the consolidation." (Rollo, p. 140).
[8] Order dated July 20, 1992 in criminal case no. 92-107942 issued by Judge Nitafan of RTC Branch 52, Manila; Annex "A" of Petition; the dispositive portion of this order reads:
"WHEREFORE, the prosecution in this case is hereby ordered to show cause, within ten (10) days from receipt of a copy of this order, why the information shall not be dismissed.
"This order is made in line with continuing efforts of this Court to unclogged its docket of seemingly unmeritorious cases so that it can concentrate its attention to more serious and important cases." (Rollo, pp. 66-69).
Respondent judge stated in the order that the Circular was "(I)mperfectly published because although the text of the Circular was included in said issue of the Official Gazette, (pp. 510, et seq.) It was not indicated in the Table of Contents thereof." (Rollo, p. 67).
[9] Ibid., p. 2; Rollo, p. 67.
[10] Ibid., p. 3; Rollo, pp. 68-69.
[11] Order dated July 20, 1992 in criminal case nos. 92-107943 and 92-107944 issued by Judge Nitafan of Branch 52-Manila; Annex "A-1" of Petition; The dispositive portion of this order provides:
"WHEREFORE, the prosecution is hereby ordered to show cause within ten (10) days from receipt of a copy of this order why the informations in these cases shall not be dismissed." (Rollo, pp. 70-74.)
[12] Ibid., p. 4; Rollo, p. 73.
[13] Rollo, pp. 69, 74.
[14] "It would be unfair, indeed, to the Presiding judge of this court to just pull out these cases after he had gone over and studied their substance. Fortunately and/or unfortunately for the prosecution that the presiding judge is more studious and discreet, if not more systematic and methodical, in the handling of this cases. But such is not a valid ground for consolidation.
"The fact that the prosecution intended to have these cases to be assigned to a specific branch of this court is of no moment for as already intimated parties or their counsel must not be allowed to select the judges to try and determine their cases; otherwise, the raffle procedure and its intent and spirit will be brought to naught." (Order of Judge Nitafan dated August 6, 1992, p. 3; Rollo, p. 161).
[15] Order dated August 7, 1992 of RTC Branch 52-Manila in Criminal Case No. 92-107942; Annex "B" of Petition; Rollo, pp. 75-82. The dispositive portion of that order reads:
"WHEREFORE, for all the foregoing considerations, in addition to the authorities cited in the July 20, 1992 order, the instant case is clearly dismissible. Therefore, the dismissal of the information is hereby ordered, with costs de oficio, and the cash bail bond of the accused is ordered refunded to the accused, subject to the usual accounting and auditing procedures." (Rollo, p. 82).
[16] Order dated August 10, 1992 of RTC Branch 52-Manila in criminal cases no. 92-107943 and 92-107944; Annex "C" of Petition, p. 16; Rollo, pp. 83-99. The dispositive portion of that order states:
"WHEREFORE, without prejudice to adding the alleged violations recited in the informations which commenced theses cases as additional overt acts in the other related cases mentioned by the Office of the solicitor-general in its oftrepeated motion (if still legally feasible), the above-enetitled cases are hereby dismissed, with costs de oficio, and the cash bail bonds of the accused is ordered refunded to her, subject to the usual accounting and auditing procedures." (Rollo, p. 99).
[17] RTC Order dated September 7, 1992 issued by Judge Nitafan in Criminal cases 92-107942, 92-107943 and 92-107944, pp. 2-4; Rollo, pp. 102-104.
[18] Ibid., pp. 1-19; Rollo, pp. 101-120.
[19] Padilla v. CA, 269 SCRA 402 cited in Lacson v. Sandiganbayan, G.R. No. 128096, January 20, 1999.
[20] People v. Leviste, 255 SCRA 238; People v. Tampal, 244 SCRA 202.
[21] Guerrero v. CA, 257 SCRA 703.
[22] The rest of the Section reads: "However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances:
[23] Cudia v. CA, G.R. No. 110315, January 16, 1998; Guerrero v. CA, 257 SCRA 703; People v. Leviste, 255 SCRA 238; People v. Tampal, 244 SCRA 202.
After arraignment, where private respondent pleaded not guilty, the People thru herein petitioner, Panel of Prosecutors from the Department of Justice (DOJ) and the Solicitor General filed separate motions for consolidation of the three (3) Informations pending before Branch 158-Pasig with the 21 other cases pending before RTC Branch 26-Manila (herein Branch 26-Manila).[4] The Solicitor General alleged in its motion that "the indictable acts under the three informations form part of and is related to the transaction complained" of in criminal cases 91-101732, 91-101734 and 91-101735 pending before Branch 26-Manila[5] and that these two groups of cases (the Pasig and Manila cases) "relate to a series of transactions" devised by then President Ferdinand Marcos and private respondent to hide their ill-gotten wealth.[6] The RTC of Pasig granted the motion for consolidation provided there is no objection from the presiding judge of Branch 26-Manila.[7] Before the Manila RTC, the three (3) informations were re-raffled and re-assigned instead to Branch 52-Manila presided by public respondent Judge Nitafan wherein the three informations (Criminal Cases Nos. 90384-92, 90385-92 and 90386-92) were re-numbered as Criminal Case Nos. 92-107942; 92-107943 and 92-107944.
Then, without private respondent yet taking any action or filing any motion to quash the informations, respondent judge issued an order dated July 20, 1992 requiring petitioners to show cause why criminal case number 92-107942 should not be dismissed on the ground that it violates private respondent's right against ex post facto law.[8] In that order, respondent judge said that a "check with official publications reveals that CB Circular 960 is dated 21 October 1983 (x x x) and that said regulatory issuance was imperfectly published* in the January 30, 1984 issue of the Official Gazette."[9] Respondent judge concluded that "since the date of violation alleged in the information was prior to the date and complete publication of the Circular charged to have been violated, the information in this case appears peremptorily dismissible, for to apply the Circular to acts performed prior to its date and publication would make it an ex post facto law, which is a violation of the Constitution."[10]
On the same day, respondent judge issued another order requiring the prosecution to show cause why the two other criminal informations (92-107943 and 92-107944) should not be dismissed on the ground that private respondent's right to double jeopardy was violated.[11] It is respondent judge's posture that based on the Solicitor-General's allegations in its Motion for Consolidation filed in Branch 58-Pasig that the three cases form part of a series of transactions which are subject of the cases pending before Branch 26-Manila, all these cases constitute one continuous crime. Respondent judge further stated that to separately prosecute private respondent for a series of transaction would endow it with the "functional ability of a worm multiplication or amoeba reproduction".[12] Thus, accused would be unduly vexed with multiple jeopardy. In the two orders, respondent judge likewise said that the dismissal of the three "seemingly unmeritorious" and "duplicitous" cases would help unclogged his docket in favor of more serious suits.[13] The prosecution complied with the twin show cause orders accompanied by a motion to inhibit respondent judge.
On August 6, 1992, respondent judge issued an order denying the motion for consolidation (embodied in the prosecution's compliance with the show cause orders) of the three informations with those pending before Branch 26-Manila on the ground that consolidation of cases under Rule 31 of civil procedure has no counterpart in criminal procedure, and blamed the panel of prosecutors as "apparently not conversant with the procedure in the assignment of cases." As additional justification, respondent judge stated that since he is "more studious and discreet, if not more systematic and methodical," than the prosecution "in the handling of cases," it would be unfair to just pull out the case when he had already studied it.[14]
The next day, August 7, 1992, respondent judge issued an 8-page order dismissing criminal case no. 92-107942 on the ground that the subject CB Circular is an ex post facto law.[15] In a separate 17-page order dated August 10, 1992, respondent judge also dismissed the two remaining criminal cases (92-107943 & 92-107944) ruling that the prosecution of private respondent was "part of a sustained political vendetta" by some people in the government aside from what he considered as a violation of private respondent's right against double jeopardy.[16] From his disquisition regarding continuing, continuous and continued offenses and his discussion of mala prohibita, respondent judge further ratiocinated his dismissal order in that the pendency of the other cases before Branch 26-Manila had placed private respondent in double jeopardy because of the three cases before his sala.
The prosecution filed two separate motions for reconsideration which respondent judge denied in a single order dated September 7, 1992 containing 19 pages wherein he made a preliminary observation that:
"(T)he very civil manner in which the motions were framed, which is consistent with the high ideals and standards of pleadings envisioned in the rules, and for which the panel should be commended. This only shows that the Members of the panel had not yielded to the derisive, panicky and intimidating reaction manifested by their Department Head when, after learning the promulgation of the orders dismissing some of Imelda Romualdez-Marcos cases, Secretary Drilon went to the media and repeatedly aired diatribes and even veiled threats against the trial judges concerned.The dispositive portion of the order denying the motions for reconsideration provides:
"By the constitutional mandate that `A member of the judiciary must be a person of proven competence, integrity, probity, and independence (Sec 7[3], Art. VIII, judges are precluded from being dragged into running debates with parties-litigants or their counsel and representatives in media, yet by reason of the same provision judges are mandated to decide cases in accordance with their own independent appreciation of the facts and interpretation of the law. Any judge who yields to extraneous influences, such as denigrating criticisms or threats, and allows his independence to be undermined thereby, leading to violation of his oath of office, has no right to continue in his office any minute longer.
The published reaction of the Hon. Secretary is to be deplored, but it is hoped that he had merely lapsed into impudence instead of having intended to set a pattern of mocking and denigrating the courts. He must have forgotten that as Secretary of Justice, his actuations reflect the `rule of law' orientation of the administration of the President whom he represents as the latter's alter ego."[17] (emphasis supplied).
"FOR ALL THE FOREGOING CONSIDERATIONS, the Court finds no valid reason to reconsider the dismissals heretofore decreed, and the motions for reconsideration are consequently denied for manifest lack of merit."[18]Obviously dissatisfied, petitioners elevated the case via petition for certiorari, where the primary issue raised is whether a judge can motu proprio initiate the dismissal and subsequently dismissed a criminal information or complaint without any motion to that effect being filed by the accused based on the alleged violation of the latter's right against ex post facto law and double jeopardy.
Section 1, Rule 117 of the Rules on Criminal Procedure provides:
"Time to move to quash. - At any time before entering his plea, the accused may move to quash the complaint or information." (emphasis supplied).It is clear from the above rule that the accused may file a motion to quash an information at any time before entering a plea or before arraignment. Thereafter, no motion to quash can be entertained by the court except under the circumstances mentioned in Section 8 of Rule 117 which adopts the omnibus motion rule. In the case at at bench, private respondent pleaded to the charges without filing any motion to quash. As such, she is deemed to have waived and abandoned her right to avail of any legal ground which she may have properly and timely invoke to challenge the complaint or information pursuant to Section 8 of Rule 117 which provides:
"Failure to move to quash or to allege any ground therefore. - The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in his motion, shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy, as provided for in paragraphs (a), (b), (f) and (h) of section 3 of this Rule." (emphasis supplied)It is also clear from Section 1 that the right to file a motion to quash belongs only to the accused. There is nothing in the rules which authorizes the court or judge to motu proprio initiate a motion to quash if no such motion was filed by the accused. A motion contemplates an initial action originating from the accused. It is the latter who is in the best position to know on what ground/s he will based his objection to the information. Otherwise, if the judge initiates the motion to quash, then he is not only pre-judging the case of the prosecution but also takes side with the accused. This would violate the right to a hearing before an independent and impartial tribunal. Such independence and impartiality cannot be expected from a magistrate, such as herein respondent judge, who in his show cause orders, orders dismissing the charges and order denying the motions for reconsideration stated and even expounded in a lengthy disquisition with citation of authorities, the grounds and justifications to support his action. Certainly, in compliance with the orders, the prosecution has no choice but to present arguments contradicting that of respondent judge. Obviously, however, it cannot be expected from respondent judge to overturn the reasons he relied upon in his different orders without contradicting himself. To allow a judge to initiate such motion even under the guise of a show cause order would result in a situation where a magistrate who is supposed to be neutral, in effect, acts as counsel for the accused and judge as well. A combination of these two personalities in one person is violative of due process which is a fundamental right not only of the accused but also of the prosecution.
That the initial act to quash an information lodged with the accused is further supported by Sections 2, 3 and 8 of Rule 117 which states that:
"Section 2. The motion to quash shall be in writing signed by the accused or his counsel. It shall specify distinctly the factual and legal grounds therefor and the Court shall consider no grounds other than those stated therein, except lack of jurisdiction over the offense charged."Section 2 requires that the motion must be signed by "accused" or "his counsel"; Section 3 states that "the accused" may file a motion, and; Section 8 refers to the consequence if "the accused" do not file such motion. Neither the court nor the judge was mentioned. Section 2 further, ordains that the court is proscribed from considering any ground other than those stated in the motion which should be "specify(ied) distinctly" therein. Thus, the filing of a motion to quash is a right that belongs to the accused who may waived it by inaction and not an authority for the court to assume.
"Section 3. Grounds. - The accused may move to quash the complaint or information on any of the following grounds:
a) b) c) d) e) f) g) h)
"Section 8. The failure of the accused to assert any ground of a motion to quash before he pleads (Emphasis supplied).
It is therefore clear that the only grounds which the court may consider in resolving a motion to quash an information or complaint are (1) those grounds stated in the motion and (2) the ground of lack of jurisdiction over the offense charged, whether or not mentioned in the motion. Other than that, grounds which have not been sharply pleaded in the motion cannot be taken cognizance of by the court, even if at the time of filing thereof, it may be properly invoked by the defendant. Such proscription on considerations of other grounds than those specially pleaded in the motion to quash is premised on the rationale that the right to these defenses are waivable on the part of the accused, and that by claiming to wave said right, he is deemed to have desired these matters to be litigated upon in a full-blown trial. Pursuant to the Rules, the sole exception is lack of jurisdiction over the offense charged which goes into the competence of the court to hear and pass judgment on the cause.
With these, the rule clearly implies the requirement of filing a motion by the accused even if the ground asserted is premised on lack of jurisdiction over the offense charged. Besides, lack of jurisdiction should be evident from the face of the information or complaint to warrant a dismissal thereof. Happily, no jurisdictional challenge is involved in this case.
Assuming arguendo that a judge has the power to motu proprio dismiss a criminal charge, yet contrary to the findings of respondent judge, the grounds of ex post facto law and double jeopardy herein invoked by him are not applicable.
On ex post facto law, suffice it to say that every law carries with it the presumption of constitutionality until otherwise declared by this court.[19] To rule that the CB Circular is an ex post facto law is to say that it is unconstitutional. However, neither private respondent nor the Solicitor-General challenges it. This Court, much more the lower courts, will not pass upon the constitutionality of a statute or rule nor declare it void unless directly assailed in an appropriate action.
With respect to the ground of double jeopardy invoked by respondent judge, the same is improper and has neither legal nor factual basis in this case. Double jeopardy connotes the concurrence of three requisites, which are: (a) the first jeopardy must have attached prior to the second, (b) the first jeopardy must have been validly terminated, and (c) the second jeopardy must be for the same offense as that in the first[20] or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof.[21] In this case, it is manifestly clear that no first jeopardy has yet attached nor any such jeopardy terminated. Section 7, Rule 117 provides:
"When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessary included in the offense charged in the former complaint or information.
Under said Section, the first jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused.[23]
Other than the Solicitor-General's allegation of pending suits in Branch 26-Manila, respondent judge has no other basis on whether private respondent had already been arraigned, much less entered a plea in those cases pending before the said Branch. Even assuming that there was already arraignment and plea with respect to those cases in Branch 26-Manila which respondent judge used as basis to quash the three informations pending in his sala, still the first jeopardy has not yet attached. Precisely, those Branch 26-Manila cases are still pending and there was as yet no judgment on the merits at the time respondent judge quashed the three informations in his sala. Private respondent was not convicted, acquitted nor the cases against her in Branch 26-Manila dismissed or otherwise terminated which definitely shows the absence of the fifth requisite for the first jeopardy to attached. Accordingly, it was wrong to say that the further prosecution of private respondent under the three informations pending Branch 56-Manila would violate the former's right against double jeopardy.
WHEREFORE, Premises considered, the petition is GRANTED and the two orders dated January 20, 1990, as well as the orders dated August 7, 1992, August 10, 1992 and September 7, 1992 all issued by respondent judge are hereby REVERSED AND SET ASIDE. Let this case be REMANDED to the trial court for further proceedings.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
[1] Section 4, CB Circular No. 960 - Foreign exchange retention abroad. No person shall promote, finance enter into or participate in any foreign exchange transactions where the foreign exchange involved is paid, retained delivered or transferred abroad while the corresponding pesos are paid for or are received in the Philippines, except when specifically authorized by the Central Bank or otherwise allowed under central bank regulations.
Residents, firms, associations, or corporations unless otherwise permitted under CB regulations are prohibited from maintaining foreign exchange accounts abroad."
Section 32. CB Circular 1028, amended Section 4, CB Circular 960, provides: Prohibition Against Deposit Abroad of residents. - No resident shall open and maintain foreign exchange deposit accounts abroad involving outward remittance of foreign exchange unless otherwise permitted by law or by central bank regulations. x x x.
[2] Proceedings upon violation of laws and regulations. - Whenever any person or entity willfully violates this act or any order, instruction, rules or regulation issued by the Monetary Board, the person or persons responsible for such violations shall be punished by a fine of not more than twenty thousand pesos and by imprisonment of not more than five years.
[3] Annexes "E", "F" and "G" of the Petition; Rollo, pp. 121-126. The three informations originally filed on January 9, 1992 were amended on February 24, 1992. The amended informations read:
(Crim. Case No. 90384-92)[4] Annex "H" of Petition; Rollo, pp. 132-139.
"That on or about 03 October 1980, and sometime prior or subsequent thereto, the above-named accused, a public official, a citizen and a resident of the Republic of the Philippines, in violation of Section 4 of Central Bank Circular 960, as amended, a crime triable by and within the jurisdiction of this Honorable Court, did then and there unlawfully maintain a foreign account deposit in Banque de Paris Et. Des Pays-Bas, S.A., Suisse with account number 073043P without prior authority from the Central Bank of the Philippines."
"Contrary to Law."
(Crim. Case No. 90385-92)
"That on or about June 6, 1991, and sometime prior or subsequent thereto, the above-named accused, a public officer, a citizen and a resident of the Republic of the Philippines, in violation of Section 4 of Central Bank Circular 960, as amended, a crime triable by and within the jurisdiction of this Honorable Court, did then and there unlawfully maintain a foreign account deposit in Swiss Bank Corporation with Account No. 98929-NY in the name of Maler II Foundation, without prior authority from the Central Bank of the Philippines."
"Contrary to Law."
(Crim. Case No. 90386-92)
"That on or about June 6, 1991, and sometime prior or subsequent thereto, the above-named accused, a public official, a citizen and a resident of the Republic of the Philippines, in violation of Section 4 of Central Bank Circular 960, as amended, a crime triable by and within the jurisdiction of this Honorable Court, did then and there unlawfully maintain a foreign account deposit in Swiss Bank Corporation with Account No. 254508BT in the name of Maler I Foundation, without prior authority from the Central Bank of the Philippines.
"Contrary to Law."
[5] Rollo, pp. 134-136.
(Crim. Case No. 91-101732)[6] Motion for Consolidation, p. 6; Rollo, p. 137.
"That from 1973 up to December 26, 1985, both dates inclusive, and for sometime thereafter, the above-named accused, in conspiracy with her late husband, then President Ferdinand E. Marcos, while both residing in Malacañang Palace in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, did then and the5re wilfully, unlawfully and feloniously open and maintain foreign exchange accounts abroad, particularly in Banque de Paris et des Pays-Bas (also known as Banque Paribas) in Geneva, Switzerland, later transferred to another bank known as LOMBARD, ODIER ET CIE also in Geneva, in the names of several establishments organized by their dummy or attorney-in-fact identified as Stephane A. Cattaui, among which were accounts 036-517 J, Establishment BULLSEYE; 037-973 R, Establishment MABARI; 038-150 L, Establishment GLADIATOR; 038-4892, Establishment VOLUBILIS; 32.529 X, INTERNATIONAL INTELLIGENCE FUND; PRETORIEN created under the name INTELLIGENCE: Establishment GARDENIA; Establishment GLADIATOR; Establishment CESAR; Establishment ESG; Account Nos. 23-0734 H, 22-98 SC, 23-285; 3652 IN; and 073-043 P in the name of accused who executed a power of attorney in favor of her husband on September 29, 1980 giving the latter the authority to do anything with respect to her accounts; which accounts were reduced to five, namely: 036 517 J; 037 973 R; 038 150 L, 038 489 Z, and 036 521 N which were later on transferred to LOMBARD, ODIER ET CIE for credit to the account COGES 00777 per instruction on May 17, 1984 of the accused's husband and attorney-in-fact to their dummy and duly appointed Administrator Stephane Cattaui who also transferred to said LOMBARD Odier et Cie in order to continue managing for them their hidden accounts, including the investment of $15 Million in Philippine-issued dollar-dominated treasury notes which was fully paid together with the interests on December 26, 1985 and which payment was remitted to LOMBARD ODIER ET CIE for the credit of Account COGES 00777 of the accused and her late husband which act of maintaining said foreign exchange accounts abroad was not permitted under the Central Bank regulations.
"CONTRARY TO LAW."
(Crim. Case No. 91-101734)
"That from 1968 to June 6, 1991 both date inclusive, the above-named accused, in conspiracy with her late husband, then President Ferdinand E. Marcos, while both residing in Malacañang Palace in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court did, then and there wilfully, unlawfully and feloniously open and maintain foreign exchange account abroad, particularly in Swiss Bank Corporation (SBC) in Geneva, Switzerland, in the name of Maler Establishment, later transformed into Maler Foundation, which was organized by their dummies, nominees, fronts, agents or duly appointed administrators among them Jean Louis Sunier who received instructions from the accused and her husband who signed with their alias `JOHN LEWIS' in order to maintain two accounts, one of which is Account No. 98929 NY under Maler II with the balance of SF 16,195,258.00, without prior permission from the Central Bank of the Philippines, and such act of maintaining foreign account abroad was not permitted under Central Bank regulations.
"CONTRARY TO LAW."
[7] Annex "I" - Order dated July 1, 1992 issued by Hon. Jose Hernandez of RTC Br. 158, Pasig. The dispositive portion of said Orders reads: "WHEREFORE, let this case be consolidated with those pending before Branch 26, Regional Trial Court of Manila presided by Judge Corona Ibay-Somera, provided she dose not have any objection to the consolidation." (Rollo, p. 140).
[8] Order dated July 20, 1992 in criminal case no. 92-107942 issued by Judge Nitafan of RTC Branch 52, Manila; Annex "A" of Petition; the dispositive portion of this order reads:
"WHEREFORE, the prosecution in this case is hereby ordered to show cause, within ten (10) days from receipt of a copy of this order, why the information shall not be dismissed.
"This order is made in line with continuing efforts of this Court to unclogged its docket of seemingly unmeritorious cases so that it can concentrate its attention to more serious and important cases." (Rollo, pp. 66-69).
Respondent judge stated in the order that the Circular was "(I)mperfectly published because although the text of the Circular was included in said issue of the Official Gazette, (pp. 510, et seq.) It was not indicated in the Table of Contents thereof." (Rollo, p. 67).
[9] Ibid., p. 2; Rollo, p. 67.
[10] Ibid., p. 3; Rollo, pp. 68-69.
[11] Order dated July 20, 1992 in criminal case nos. 92-107943 and 92-107944 issued by Judge Nitafan of Branch 52-Manila; Annex "A-1" of Petition; The dispositive portion of this order provides:
"WHEREFORE, the prosecution is hereby ordered to show cause within ten (10) days from receipt of a copy of this order why the informations in these cases shall not be dismissed." (Rollo, pp. 70-74.)
[12] Ibid., p. 4; Rollo, p. 73.
[13] Rollo, pp. 69, 74.
[14] "It would be unfair, indeed, to the Presiding judge of this court to just pull out these cases after he had gone over and studied their substance. Fortunately and/or unfortunately for the prosecution that the presiding judge is more studious and discreet, if not more systematic and methodical, in the handling of this cases. But such is not a valid ground for consolidation.
"The fact that the prosecution intended to have these cases to be assigned to a specific branch of this court is of no moment for as already intimated parties or their counsel must not be allowed to select the judges to try and determine their cases; otherwise, the raffle procedure and its intent and spirit will be brought to naught." (Order of Judge Nitafan dated August 6, 1992, p. 3; Rollo, p. 161).
[15] Order dated August 7, 1992 of RTC Branch 52-Manila in Criminal Case No. 92-107942; Annex "B" of Petition; Rollo, pp. 75-82. The dispositive portion of that order reads:
"WHEREFORE, for all the foregoing considerations, in addition to the authorities cited in the July 20, 1992 order, the instant case is clearly dismissible. Therefore, the dismissal of the information is hereby ordered, with costs de oficio, and the cash bail bond of the accused is ordered refunded to the accused, subject to the usual accounting and auditing procedures." (Rollo, p. 82).
[16] Order dated August 10, 1992 of RTC Branch 52-Manila in criminal cases no. 92-107943 and 92-107944; Annex "C" of Petition, p. 16; Rollo, pp. 83-99. The dispositive portion of that order states:
"WHEREFORE, without prejudice to adding the alleged violations recited in the informations which commenced theses cases as additional overt acts in the other related cases mentioned by the Office of the solicitor-general in its oftrepeated motion (if still legally feasible), the above-enetitled cases are hereby dismissed, with costs de oficio, and the cash bail bonds of the accused is ordered refunded to her, subject to the usual accounting and auditing procedures." (Rollo, p. 99).
[17] RTC Order dated September 7, 1992 issued by Judge Nitafan in Criminal cases 92-107942, 92-107943 and 92-107944, pp. 2-4; Rollo, pp. 102-104.
[18] Ibid., pp. 1-19; Rollo, pp. 101-120.
[19] Padilla v. CA, 269 SCRA 402 cited in Lacson v. Sandiganbayan, G.R. No. 128096, January 20, 1999.
[20] People v. Leviste, 255 SCRA 238; People v. Tampal, 244 SCRA 202.
[21] Guerrero v. CA, 257 SCRA 703.
[22] The rest of the Section reads: "However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances:
"In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense." (Revised Rules on Criminal Procedure).
(a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;
(b) (c)
[23] Cudia v. CA, G.R. No. 110315, January 16, 1998; Guerrero v. CA, 257 SCRA 703; People v. Leviste, 255 SCRA 238; People v. Tampal, 244 SCRA 202.
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