Republic of the Philippines
SUPREME COURT
Manila

SPECIAL THIRD DIVISION

G.R. No. 170146 June 8, 2011

HON. WALDO Q. FLORES, in his capacity as Senior Deputy Executive Secretary in the Office of the President, HON. ARTHUR P. AUTEA, in his capacity as Deputy Executive Secretary in the Office of the President, and the PRESIDENTIAL ANTI-GRAFT COMMISSION (PAGC), Petitioners,
vs.
ATTY. ANTONIO F. MONTEMAYOR, Respondent.

R E S O L U T I O N

VILLARAMA, JR., J.:

This resolves the motion for reconsideration of our Decision dated August 25, 2010 setting aside the October 19, 2005 Decision of the Court of Appeals and reinstating the Decision dated March 23, 2004 of the Office of the President in O.P. Case No. 03-1-581, which found the respondent administratively liable for failure to declare in his 2001 and 2002 Sworn Statement of Assets and Liabilities (SSAL) two expensive cars registered in his name, in violation of Section 7, Republic Act (R.A.) No. 3019 in relation to Section 8 (A) of R.A. No. 6713. The OP adopted the findings and recommendations of the Presidential Anti-Graft Commission (PAGC), including the imposition of the penalty of dismissal from service on respondent, with all accessory penalties.

The motion is anchored on the following grounds:

1. Respondent was subjected to two (2) administrative/criminal Investigations equivalently resulting in violation of his constitutional right against "double jeopardy".

2. Who to follow between conflicting decisions of two (2) government agencies involving the same facts and issues affecting the rights of the Respondent.

3. Respondent’s constitutional right to due process was violated.

4. Penalties prescribed by the Honorable Court is too harsh and severe on the alleged offense committed/omitted.¹

On the first ground, the Court finds it bereft of merit. Respondent asserts that since the PAGC charge involving non-declaration in his 2001 and 2002 SSAL was already the subject of investigation by the Ombudsman in OMB-C-C-04-0568-LSC, along with the criminal complaint for unexplained wealth, the former can no longer be pursued without violating the rule on double jeopardy.

Double 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.² We have held that none of these requisites applies where the Ombudsman only conducted a preliminary investigation of the same criminal offense against the respondent public officer.³ The dismissal of a case during preliminary investigation does not constitute double jeopardy, preliminary investigation not being part of the trial.⁴

With respect to the second ground, respondent underscores the dismissal by the Ombudsman of the criminal and administrative complaints against him, including the charge subject of the proceedings before the PAGC and OP. It is argued that the Office of the Ombudsman as a constitutional body, pursuant to its mandate under R.A. No. 6770, has primary jurisdiction over cases cognizable by the Sandiganbayan, as against the PAGC which is not a constitutional body but a mere creation of the OP. Under said law, it is the Ombudsman who has disciplinary authority over all elective and appointive officials of the government, such as herein respondent.

The argument is untenable.

The same wrongful act committed by the public officer can subject him to civil, administrative and criminal liabilities. We held in Tecson v. Sandiganbayan⁵:

[I]t is a basic principle of the law on public officers that a public official or employee is under a three-fold responsibility for violation of duty or for a wrongful act or omission. This simply means that a public officer may be held civilly, criminally, and administratively liable for a wrongful doing. Thus, if such violation or wrongful act results in damages to an individual, the public officer may be held civilly liable to reimburse the injured party. If the law violated attaches a penal sanction, the erring officer may be punished criminally. Finally, such violation may also lead to suspension, removal from office, or other administrative sanctions. This administrative liability is separate and distinct from the penal and civil liabilities. (Italics in the original.)

Dismissal of a criminal action does not foreclose institution of an administrative proceeding against the same respondent, nor carry with it the relief from administrative liability.⁶ Res judicata did not set in because there is no identity of causes of action. Moreover, the decision of the Ombudsman dismissing the criminal complaint cannot be considered a valid and final judgment. On the criminal complaint, the Ombudsman only had the power to investigate and file the appropriate case before the Sandiganbayan.⁷

In the analogous case of Montemayor v. Bundalian,⁸ this Court ruled:

Lastly, we cannot sustain petitioner’s stance that the dismissal of similar charges against him before the Ombudsman rendered the administrative case against him before the PCAGC moot and academic. To be sure, the decision of the Ombudsman does not operate as res judicata in the PCAGC case subject of this review. The doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of administrative powers. Petitioner was investigated by the Ombudsman for his possible criminal liability for the acquisition of the Burbank property in violation of the Anti-Graft and Corrupt Practices Act and the Revised Penal Code. For the same alleged misconduct, petitioner, as a presidential appointee, was investigated by the PCAGC by virtue of the administrative power and control of the President over him. As the PCAGC’s investigation of petitioner was administrative in nature, the doctrine of res judicata finds no application in the case at bar. (Emphasis supplied.)

Respondent argues that it is the Ombudsman who has primary jurisdiction over the administrative complaint filed against him. Notwithstanding the consolidation of the administrative offense (non-declaration in the SSAL) with the criminal complaints for unexplained wealth (Section 8 of R.A. No. 3019) and also for perjury (Article 183, Revised Penal Code, as amended) before the Office of the Ombudsman, respondent’s objection on jurisdictional grounds cannot be sustained.

Section 12 of Article XI of the 1987 Constitution mandated the Ombudsman to act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency, instrumentality thereof, including government-owned or controlled corporations. Under Section 13, Article XI, the Ombudsman is empowered to conduct investigations on his own or upon complaint by any person when such act appears to be illegal, unjust, improper, or inefficient. He is also given broad powers to take the appropriate disciplinary actions against erring public officials and employees.

The investigative authority of the Ombudsman is defined in Section 15 of R.A. No. 6770:

SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;

x x x x (Emphasis supplied.)

Such jurisdiction over public officers and employees, however, is not exclusive.

This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not exclusive but is shared with other similarly authorized government agencies, such as the PCGG and judges of municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges against public employees and officials is likewise concurrently shared with the Department of Justice. Despite the passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the President and the local Sanggunians to investigate complaints against local elective officials.⁹ (Emphasis supplied.)

Respondent who is a presidential appointee is under the disciplinary authority of the OP. Executive Order No. 12 dated April 16, 2001 created the PAGC which was granted the authority to investigate presidential and also non-presidential employees "who may have acted in conspiracy or may have been involved with a presidential appointee or ranking officer mentioned x x x."¹⁰ On this score, we do not agree with respondent that the PAGC should have deferred to the Ombudsman instead of proceeding with the administrative complaint in view of the pendency of his petition for certiorari with the CA challenging the PAGC’s jurisdiction. Jurisdiction is a matter of law. Jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated.¹¹

It may be recalled that at the time respondent was directed to submit his counter-affidavit under the Ombudsman’s Order dated March 19, 2004, the PAGC investigation had long commenced and in fact, the PAGC issued an order directing respondent to file his counter-affidavit/verified answer as early as May 19, 2003. The rule is that initial acquisition of jurisdiction by a court of concurrent jurisdiction divests another of its own jurisdiction.¹² Having already taken cognizance of the complaint against the respondent involving non-declaration in his 2001 and 2002 SSAL, the PAGC thus retained jurisdiction over respondent’s administrative case notwithstanding the subsequent filing of a supplemental complaint before the Ombudsman charging him with the same violation.

As to the third ground raised by respondent, we find no merit in his reiteration of the alleged gross violation of his right to due process. Records bear out that he was given several opportunities to answer the charge against him and present evidence on his defense, which he stubbornly ignored despite repeated warnings that his failure to submit the required answer/counter-affidavit and position paper with supporting evidence shall be construed as waiver on his part of the right to do so.

The essence of due process in administrative proceedings is the opportunity to explain one’s side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met.¹³ What is offensive to due process is the denial of the opportunity to be heard.¹⁴ This Court has repeatedly stressed that parties who choose not to avail themselves of the opportunity to answer charges against them cannot complain of a denial of due process.¹⁵ Having persisted in his refusal to file his pleadings and evidence before the PAGC, respondent cannot validly claim that his right to due process was violated.

In his dissenting opinion, my esteemed colleague, Justice Lucas P. Bersamin, concurred with the CA’s finding that respondent’s right to due process was violated by the "unilateral investigation" conducted by the PAGC which did not furnish the respondent with a copy of the "prejudicial PAGC resolution." The dissent also agreed with the CA’s observation that there was a "rush" on the part of the PAGC to find the respondent guilty of the charge. This was supposedly manifested in the issuance by the PAGC of its resolution even without taking into consideration any explanation and refutation of the charges that he might make, and even before the CA could finally resolve his suit to challenge the PAGC’s jurisdiction to investigate him. On the other hand, the dissent proposed that the non-submission by respondent of his counter-affidavit or verified answer as directed by the PAGC should not be taken against him. Respondent’s refusal was "not motivated by bad faith, considering his firm belief that PAGC did not have jurisdiction to administratively or disciplinarily investigate him."

We do not share this view adopted by the dissent.

Records reveal that on August 26, 2003, the CA already rendered a decision in CA-G.R. SP No. 77285 dismissing respondent’s petition challenging the jurisdiction of the PAGC. Respondent’s motion for reconsideration was likewise denied by the CA. Upon elevation to this Court via a petition for review on certiorari (G.R. No. 160443), the petition suffered the same fate. Under the First Division’s Resolution dated January 26, 2004, the petition was denied for failure of the petitioner (respondent) to show that the CA committed any reversible error in the assailed decision and resolution. Said resolution became final and executory on April 27, 2004. Thus, at the time respondent submitted his counter-affidavit before the Ombudsman on May 21, 2004, there was already a final resolution of his petition challenging the PAGC’s investigative authority.

On the other hand, the PAGC submitted to the OP its September 1, 2003 resolution finding respondent guilty as charged and recommending that he be dismissed from the service, after the expiration of the 60-day temporary restraining order issued on June 23, 2003 by the CA in CA-G.R. SP No. 77285. The OP rendered its Decision adopting the PAGC’s findings and recommendation on March 23, 2004. As thus shown, a period of ten (10) months had elapsed from the time respondent was directed to file his counter-affidavit or verified answer to the administrative complaint filed against him, up to the rendition of the OP’s decision. It cannot therefore be said that the PAGC and OP proceeded with undue haste in determining respondent’s administrative guilt.

Still on respondent’s repeated claim that he was denied due process, it must be noted that when respondent received a copy of the OP Decision dated March 23, 2004, his petition for review filed in this Court assailing the CA’s dismissal of CA-G.R. SP No. 77285 was already denied under Resolution dated January 26, 2004. However, despite the denial of his petition, respondent still refused to recognize PAGC’s jurisdiction and continued to assail the same before the CA in CA-G.R. SP No. 84254, a petition for review under Rule 43 from the OP’s March 23, 2004 Decision and May 13, 2004 Resolution.¹⁶ In any event, respondent was served with a copy of the OP Decision, was able to seek reconsideration of the said decision, and appeal the same to the CA.

We also find nothing irregular in considering the investigation terminated and submitting the case for resolution based on available evidence upon failure of the respondent to file his counter-affidavit or answer despite giving him ample opportunity to do so. This is allowed by the Rules of Procedure of the PAGC. The PAGC is also not required to furnish the respondent and complainant copy of its resolution.

The dissent of Justice Bersamin assails the OP’s complete reliance on the PAGC’s findings and recommendation which "constituted a gross violation of administrative due process as set forth in Ang Tibay v. Court of Industrial Relations¹⁷." Among others, it is required that "[T]he tribunal or any of its judges must act on its or his own independent consideration of the facts and the law of the controversy, and not simply accept the views of a subordinate in arriving at a decision". Justice Bersamin thus concludes that the OP should have itself reviewed and appreciated the evidence presented and independently considered the facts and the law of the controversy." It was also pointed out that the OP’s statement that the respondent’s arguments in his Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint were a mere reiteration of matters previously considered, was "a patent untruth."

We disagree.

The OP decision, after quoting verbatim the findings and recommendation of the PAGC, adopted the same with a brief statement preceding the dispositive portion:

After a circumspect study of the case, this Office fully agrees with the recommendation of PAGC and the legal premises as well as the factual findings that hold it together. Respondent failed to disclose in his 2001 and 2002 SSAL high-priced vehicles in breach of the prescription of the relevant provisions of RA No. 3019 in relation to RA No. 6713. He was, to be sure, afforded ample opportunity to explain his failure, but he opted to let the opportunity pass by.¹⁸

The relevant consideration is not the brevity of the above disquisition adopting fully the findings and recommendation of the PAGC as the investigating authority. It is rather the fact that the OP is not a court but an administrative body determining the liability of respondent who was administratively charged, in the exercise of its disciplinary authority over presidential appointees.

In Solid Homes, Inc. v. Laserna,¹⁹ this Court ruled that the rights of parties in an administrative proceedings are not violated by the brevity of the decision rendered by the OP incorporating the findings and conclusions of the Housing and Land Use Regulatory Board (HLURB), for as long as the constitutional requirement of due process has been satisfied. Thus:

It must be stated that Section 14, Article VIII of the 1987 Constitution need not apply to decisions rendered in administrative proceedings, as in the case a[t] bar. Said section applies only to decisions rendered in judicial proceedings. In fact, Article VIII is titled "Judiciary," and all of its provisions have particular concern only with respect to the judicial branch of government. Certainly, it would be error to hold or even imply that decisions of executive departments or administrative agencies are oblige[d] to meet the requirements under Section 14, Article VIII.

The rights of parties in administrative proceedings are not violated as long as the constitutional requirement of due process has been satisfied. In the landmark case of Ang Tibay v. CIR, we laid down the cardinal rights of parties in administrative proceedings, as follows:

1) The right to a hearing, which includes the right to present one’s case and submit evidence in support thereof.

2) The tribunal must consider the evidence presented.

3) The decision must have something to support itself.

4) The evidence must be substantial.

5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected.

6) The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy and not simply accept the views of a subordinate in arriving at a decision.

7) The board or body should, in all controversial question, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered.

As can be seen above, among these rights are "the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected;" and that the decision be rendered "in such a manner that the parties to the proceedings can know the various issues involved, and the reasons for the decisions rendered." Note that there is no requirement in Ang Tibay that the decision must express clearly and distinctly the facts and the law on which it is based. For as long as the administrative decision is grounded on evidence, and expressed in a manner that sufficiently informs the parties of the factual and legal bases of the decision, the due process requirement is satisfied.

At bar, the Office of the President apparently considered the Decision of HLURB as correct and sufficient, and said so in its own Decision. The brevity of the assailed Decision was not the product of willing concealment of its factual and legal bases. Such bases, the assailed Decision noted, were already contained in the HLURB decision, and the parties adversely affected need only refer to the HLURB Decision in order to be able to interpose an informed appeal or action for certiorari under Rule 65.1avvphi1

x x x x

Accordingly, based on close scrutiny of the Decision of the Office of the President, this Court rules that the said Decision of the Office of the President fully complied with both administrative due process and Section 14, Article VIII of the 1987 Philippine Constitution.

The Office of the President did not violate petitioner’s right to due process when it rendered its one-page Decision. In the case at bar, it is safe to conclude that all the parties, including petitioner, were well-informed as to how the Decision of the Office of the President was arrived at, as well as the facts, the laws and the issues involved therein because the Office of the President attached to and made an integral part of its Decision the Decision of the HLURB Board of Commissioners, which it adopted by reference. If it were otherwise, the petitioner would not have been able to lodge an appeal before the Court of Appeals and make a presentation of its arguments before said court without knowing the facts and the issues involved in its case.²⁰ (Emphasis supplied.)

Since respondent repeatedly refused to answer the administrative charge against him despite notice and warning by the PAGC, he submitted his evidence only after an adverse decision was rendered by the OP, attaching the same to his motion for reconsideration. That the OP denied the motion by sustaining the PAGC’s findings without any separate discussion of respondent’s arguments and belatedly submitted evidence only meant that the OP found the same lacking in merit and insufficient to overturn its ruling on respondent’s administrative liability.

On the fourth ground cited by the respondent, we maintain that the penalty of dismissal from the service is justified as no acceptable explanation was given for the non-declaration of the two expensive cars in his 2001 and 2002 SSAL.

Pursuant to Section 11, paragraph (b) of R.A. No. 6713, any violation of the law "proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him." Respondent’s deliberate attempt to evade the mandatory disclosure of all assets acquired during the period covered was evident when he first claimed that the vehicles were lumped under the entry "Machineries/Equipment" or still mortgaged, and later averred that these were already sold by the end of the year covered and the proceeds already spent.

Under this scheme, respondent would have acquired as many assets never to be declared at anytime. Such act erodes the function of requiring accuracy of entries in the SSAL which must be a true and detailed statement. It undermines the SSAL as "the means to achieve the policy of accountability of all public officers and employees in the government" through which "the public are able to monitor movement in the fortune of a public official; [as] a valid check and balance mechanism to verify undisclosed properties and wealth."²¹

IN VIEW OF THE FOREGOING, the motion for reconsideration is DENIED WITH FINALITY.

Let entry of judgment be made in due course.

SO ORDERED.

MARTIN S. VILLARAMA, JR.
Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES
Associate Justice
Chairperson

PRESBITERO J. VELASCO, JR.* Associate Justice

MARIANO C. DEL CASTILLO** Associate Justice

MARIA LOURDES P. A. SERENO
Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

CONCHITA CARPIO MORALES
Associate Justice
Chairperson, Third Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the 1987 Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes

^* Designated Additional Member per Raffle dated April 12, 2011.

^** Designated Additional Member per Raffle dated May 6, 2011.

¹ Rollo, p. 477.

² Almario v. Court of Appeals, G.R. No. 127772, March 22, 2001, 355 SCRA 1, 7.

³ Apolinario v. Flores, G.R. No. 152780, January 22, 2007, 512 SCRA 113, 122.

⁴ Trinidad v. Office of the Ombudsman, G.R. No. 166038, December 4, 2007, 539 SCRA 415, 424, citing Vincoy v. Court of Appeals, G.R. No. 156558, June 14, 2004, 432 SCRA 36, 40.

⁵ G.R. No. 123045, November 16, 1999, 318 SCRA 80, 87-88.

⁶ Office of the Court Administrator v. Enriquez, A.M. No. P-89-290, January 29, 1993, 218 SCRA 1, 10; Office of the Court Administrator v. Cañete, A.M. No. P-91-621, November 10, 2004, 441 SCRA 512, 520.

⁷ Apolinario v. Flores, supra note 3.

⁸ G.R. No. 149335, July 1, 2003, 405 SCRA 264, 272-273.

⁹ Office of the Ombudsman v. Galicia, G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339, citing Panlilio v. Sandiganbayan, G.R. No. 92276, June 26, 1992, 210 SCRA 421; Cojuangco, Jr. v. Presidential Commission on Good Government, G.R. Nos. 92319-20, October 2, 1990, 190 SCRA 226; Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice, G.R. No. 159747, April 13, 2004, 427 SCRA 46; and Hagad v. Gozo-Dadole, G.R. No. 108072, December 12, 1995, 251 SCRA 242.

¹⁰ Sec. 4 (b).

¹¹ Office of the Ombudsman v. Estandarte, G.R. No. 168670, April 13, 2007, 521 SCRA 155, 173, citing Deltaventures Resources, Inc. v. Hon. Cabato, 384 Phil. 252, 261 (2000).

¹² See Panlilio v. Salonga, G.R. No. 113087, June 27, 1994, 233 SCRA 476, 482.

¹³ Medina v. Commission on Audit (COA), G.R. No. 176478, February 4, 2008, 543 SCRA 684, 696-697, citing Montemayor v. Bundalian, 453 Phil. 158, 165 (2003).

¹⁴ Octava v. Commission on Elections, G.R. No. 166105, March 22, 2007, 518 SCRA 759, 764, citing Garments and Textile Export Board v. Court of Appeals, G.R. Nos. 114711 & 115889, February 13, 1997, 268 SCRA 258, 299.

¹⁵ Garcia v. Pajaro, G.R. No. 141149, July 5, 2002, 384 SCRA 122, 138.

¹⁶ Rollo, pp. 100-104.

¹⁷ 69 Phil. 635 (1940).

¹⁸ Rollo, p. 90.

¹⁹ G.R. No. 166051, April 8, 2008, 550 SCRA 613.

²⁰ Id. at 626-627 and 629.

²¹ Ombudsman v. Valeroso, G.R. No. 167828, April 2, 2007, 520 SCRA 140, 150.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 176389 January 18, 2011

ANTONIO LEJANO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 176864

PEOPLE OF THE PHILIPPINES, Appellee,
vs.
HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO BIONG, Appellants.

R E S O L U T I O N

ABAD, J.:

On December 14, 2010 the Court reversed the judgment of the Court of Appeals (CA) and acquitted the accused in this case, Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada, and Gerardo Biong of the charges against them on the ground of lack of proof of their guilt beyond reasonable doubt.

On December 28, 2010 complainant Lauro G. Vizconde, an immediate relative of the victims, asked the Court to reconsider its decision, claiming that it "denied the prosecution due process of law; seriously misappreciated the facts; unreasonably regarded Alfaro as lacking credibility; issued a tainted and erroneous decision; decided the case in a manner that resulted in the miscarriage of justice; or committed grave abuse in its treatment of the evidence and prosecution witnesses."¹

But, as a rule, a judgment of acquittal cannot be reconsidered because it places the accused under double jeopardy. The Constitution provides in Section 21, Article III, that:

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. x x x

To reconsider a judgment of acquittal places the accused twice in jeopardy of being punished for the crime of which he has already been absolved. There is reason for this provision of the Constitution. In criminal cases, the full power of the State is ranged against the accused. If there is no limit to attempts to prosecute the accused for the same offense after he has been acquitted, the infinite power and capacity of the State for a sustained and repeated litigation would eventually overwhelm the accused in terms of resources, stamina, and the will to fight.

As the Court said in People of the Philippines v. Sandiganbayan:²

[A]t the heart of this policy is the concern that permitting the sovereign freely to subject the citizen to a second judgment for the same offense would arm the government with a potent instrument of oppression. The provision therefore guarantees that the State shall not be permitted to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Society’s awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the government to a single criminal proceeding to vindicate its very vital interest in the enforcement of criminal laws.³

Of course, on occasions, a motion for reconsideration after an acquittal is possible. But the grounds are exceptional and narrow as when the court that absolved the accused gravely abused its discretion, resulting in loss of jurisdiction, or when a mistrial has occurred. In any of such cases, the State may assail the decision by special civil action of certiorari under Rule 65.⁴

Here, although complainant Vizconde invoked the exceptions, he has been unable to bring his pleas for reconsideration under such exceptions. For instance, he avers that the Court "must ensure that due process is afforded to all parties and there is no grave abuse of discretion in the treatment of witnesses and the evidence."⁵ But he has not specified the violations of due process or acts constituting grave abuse of discretion that the Court supposedly committed. His claim that "the highly questionable and suspicious evidence for the defense taints with serious doubts the validity of the decision"⁶ is, without more, a mere conclusion drawn from personal perception.

Complainant Vizconde cites the decision in Galman v. Sandiganbayan⁷ as authority that the Court can set aside the acquittal of the accused in the present case. But the government proved in Galman that the prosecution was deprived of due process since the judgment of acquittal in that case was "dictated, coerced and scripted."⁸ It was a sham trial. Here, however, Vizconde does not allege that the Court held a sham review of the decision of the CA. He has made out no case that the Court held a phony deliberation in this case such that the seven Justices who voted to acquit the accused, the four who dissented, and the four who inhibited themselves did not really go through the process.

Ultimately, what the complainant actually questions is the Court’s appreciation of the evidence and assessment of the prosecution witnesses’ credibility. He ascribes grave error on the Court’s finding that Alfaro was not a credible witness and assails the value assigned by the Court to the evidence of the defense. In other words, private complainant wants the Court to review the evidence anew and render another judgment based on such a re-evaluation. This is not constitutionally allowed as it is merely a repeated attempt to secure Webb, et al’s conviction. The judgment acquitting Webb, et al is final and can no longer be disturbed.

WHEREFORE, the Court DENIES for lack of merit complainant Lauro G. Vizconde’s motion for reconsideration dated December 28, 2010.

For essentially the same reason, the Court DENIES the motions for leave to intervene of Fr. Robert P. Reyes, Sister Mary John R. Mananzan, Bishop Evangelio L. Mercado, and Dante L.A. Jimenez, representing the Volunteers Against Crime and Corruption and of former Vice President Teofisto Guingona, Jr.

No further pleadings shall be entertained in this case.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

I vote to grant the M.R.
RENATO C. CORONA
Chief Justice

No part, prior inhibition ANTONIO T. CARPIO Associate Justice	CONCHITA CARPIO MORALES Associate Justice
No part due to relastionship to a party PRESBITERO J. VELASCO, JR. Associate Justice	No part; filed pleading as Sol Gen ANTONIO EDUARDO B. NACHURA Associate Justice
I vote to grant the motion for reconsideration TERESITA J. LEONARDO-DE CASTRO Associate Justice	Same vote as J. Villarama ARTURO D. BRION Associate Justice
DIOSDADO M. PERALTA Associate Justice	LUCAS P. BERSAMIN Associate Justice
No part MARIANO C. DEL CASTILLO Associate Justice	I vote to grant the motion for reconsideration MARTIN S. VILLARAMA, JR. Associate Justice
JOSE PORTUGAL PEREZ Associate Justice	JOSE CATRAL MENDOZA Associate Justice

See concurring Opinion
MARIA LOURDES P. A. SERENO
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

Footnotes

¹ Private Complainant’s Motion for Reconsideration, p. 8.

² G.R. Nos. 168188-89, June 16, 2006, 491 SCRA 185.

³ Id. at 207.

⁴ Castro v. People, G.R. No. 180832, July 23, 2008, 559 SCRA 676, 683-684.

⁵ Supra note 1, at 7.

⁶ Id. at 12.

⁷ 228 Phil. 42 (1986).

⁸ Id. at 89.

The Lawphil Project - Arellano Law Foundation

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CONCURRING OPINION

SERENO, J.:

The Motion for Reconsideration assails the majority for failing to uphold the trial court’s conclusions. The simple fact is that the evidence tends to demonstrate that Hubert Webb is innocent. The simple fact also is that the evidence demonstrates that not only had Jessica Alfaro failed to substantiate her testimony, she had contradicted herself and had been contradicted by other more believable evidence. The other main prosecution witnesses fare no better. This is the gist of the Decision sought to be reconsidered. While this Court does not make a dispositive ruling other than a pronouncement of "guilt" or "non-guilt" on the part of the accused, the legal presumption of innocence must be applied in operative fact. It is unfortunate that statements were made that sought to dilute the legal import of the majority Decision. A pronouncement of this Court that the accused has not been proven to be guilty beyond reasonable doubt cannot be twisted to mean that this Court does not believe in the innocence of the accused when the reasoning of the Court demonstrates such belief. A careful reading of the majority Decision, as well as the concurring opinions, is required to determine whether the accused were acquitted solely because there was lingering doubt as to their guilt of the crime charged or whether the accused were acquitted not only because of doubt as to their guilt but also because the evidence tends to establish their innocence. In the case of Hubert Webb, the evidence tends to establish his innocence. On the other hand, the testimony of Jessica Alfaro was wholly rejected by the majority as not believable.

In his Motion for Reconsideration, private complainant asserts that this Court should have respected the trial court’s resolve to give full credence to the testimony of Jessica Alfaro. While as a general rule, a trial judge’s findings as to the credibility of a witness are entitled to utmost respect as he has had the opportunity to observe their demeanor on the witness stand, this holds true only in the absence of bias, partiality, and grave abuse of discretion on the part of the judge.¹ The succeeding discussion demonstrates why this Court has no choice but to reject the trial court’s findings.

The mistaken impression that Alfaro was a credible witness was, in significant measure, perpetrated by the trial court’s inappropriate and mismatched attribution of rights to and duties of the accused vis-a-vis the principal witness in a criminal proceeding. As discussed in the promulgated Decision of the Court in this case, the trial court failed to recognize the accused’s right to be presumed innocent. Instead, the trial court’s Decision indicated a preconceived belief in the accused’s guilt, and as a corollary, that witness Alfaro was telling the truth when she testified to the accused’s guilt. In excessively protecting Alfaro, the trial court improperly ascribed to her the right reserved for an accused. It also unreasonably imposed severe limitations on the extent of the right of the defense to cross-examine her.

During Alfaro’s cross examination, the defense counsel tried to impeach her credibility by asking her about her 28 April 1995 Affidavit, which markedly differs from her 22 May 1995 Affidavit. The prosecution objected and moved that the questions be expunged from the records on the basis of the inadmissibility of the evidence obtained allegedly without the assistance of counsel, pursuant to Article III Section 12(1) and (3) of the 1987 Constitution.² This constitutional right, however, is a right reserved solely for the accused or a "person under investigation for the commission of an offense." The prosecution’s objection had no legal basis because Alfaro was clearly not the accused in the case. Alfaro was a witness who had a legal duty to "answer questions, although his (her) answer may tend to establish a claim against him (her)."³ Notwithstanding this, the lower court sustained the prosecution’s objection.

The law does not confer any favorable presumption on behalf of a witness. It is precisely due to the absence of any legal presumption that the witness is telling the truth that he/she is subjected to cross-examination to "test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue."⁴ The Rules provide that "the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom."^5] A witness may be impeached "by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony."⁶

The right to cross-examine a witness is a matter of procedural due process such that the testimony or deposition of a witness given in a former case "involving the same parties and subject matter, may be given in evidence against the adverse party" provided the adverse party "had the opportunity to cross-examine him."⁷

Notwithstanding the right of the accused to fully and freely conduct a thorough cross examination, the trial court set undue restrictions on the defense counsel’s cross examination of Alfaro, effectively denying the accused such right. The length of the cross-examination is not as material in the determination of the credibility of the witness as much as whether such witness was fully tested by the defense when demanded to be tested on cross-examination – for honesty by contradictory evidence of a reputation for dishonesty, for inconsistency, or for possible bias or improper motive.

To establish Alfaro’s bias and motive for testifying in the case, the defense counsel sought to ask Alfaro about her brother, Patrick. Alfaro admitted that Patrick was a drug addict and had been arrested once by the NBI for illegal possession of drugs, but that he was presently in the United States. The theory of the defense was that Patrick’s liberty was part of a deal that Alfaro had struck with the NBI in exchange for her services. When defense counsel inquired about the circumstances of Patrick’s departure for the United States, the prosecution objected to the questions on the ground of irrelevance. Respondent judge sustained the objection, thus foreclosing a significant avenue for testing Alfaro’s "freedom from interest or bias."

The defense counsel tried to cross-examine Alfaro regarding her educational attainment as stated in her sworn statements. The defense presented her college transcript of records to prove that she only enrolled for a year and earned nine (9) academic units, contrary to her claim that she finished second year college. Notably, Alfaro misrepresented her educational attainment in both of her affidavits – her 28 April 1995 Affidavit which she claimed was executed without assistance of counsel, and her subsequent 22 May 1995 Affidavit which was admittedly executed with the assistance of counsel. Apparently, Alfaro’s lie under oath about her educational attainment persisted even after being given counsel’s assistance in the execution of the second affidavit, as well as more time to contemplate the matter. Unfortunately, the lower court sustained the prosecution’s objection to the question on the ground of irrelevance when the line of testing could have tested Alfaro's penchant for "accuracy and truthfulness."

Ironically, notwithstanding the trial court’s disallowance of the defense’s attempts to impeach Alfaro's character, and the rule that "(e)vidence of the good character of a witness is not admissible until such character has been impeached,"⁸ the trial court allowed the prosecution to present Atty. Pedro Rivera⁹ to testify positively on Alfaro’s character. Worse yet, the trial court disallowed the defense from presenting Atty. Rivera’s earlier statement to impeach the latter’s credibility; again, this was disallowed on the ground of immateriality. When a proffer of evidence¹⁰ was made by the defense following such disallowance, the trial court struck the proffer from the record on the ground that it was allegedly improper on cross-examination.

The notion that witness Alfaro was able to withstand her cross examination appears sustainable in large part because her cross examination was so emasculated by the trial court’s inordinate protection of her, which went so far as to improperly accord her the right reserved for an accused. Taken together with repeated instances of unwarranted exertion of effort to wipe the record clean of some entries that cast doubt on Alfaro’s credibility, the trial court’s actions show that it had a bias towards upholding the truthfulness of Alfaro’s testimony.

The trial court’s treatment of documentary evidence also suffered from mismatched ascription – discarding legal presumptions without evidence to the contrary while giving evidentiary weight to unsubstantiated speculation. For instance, in rejecting Webb’s alibi defense, the trial court used mere speculation that the accused’s family influenced the production of false entries in official documents to defeat the legal presumption of said documents’ accuracy and regularity of issuance. Notably, the United States Immigration and Naturalization Service (US INS) Certification, which confirmed that Webb was in the United States from March 1991 until October 1992, was authenticated by no less than the Office of the U.S. Attorney General and the U.S. State Department. Furthermore, this official certification of a sovereign state. having passed through formal diplomatic channels, was authenticated by the Department of Foreign Affairs. As discussed in the main decision, such official documents as the authenticated U.S. INS Certification enjoy the presumption of accuracy of the entries therein.¹¹ Official documents are not infallible, but the presumption that they are accurate can only be overcome with evidence. Unfortunately, in the mind of the trial court, pure conjecture and not hard evidence was allowed to defeat a legal presumption.

Clearly, the trial court’s decision in this case was, in significant measure, the product of switched attributions as to who should enjoy certain rights and what should be presumed under the law. This behavior on the part of the trial court and the effect it had on the factual conclusions on the credibility of Jessica Alfaro and on the presence of Hubert Webb in the Philippines at the time of the commission of the crime cannot be upheld.

MARIA LOURDES P. A. SERENO
Associate Justice

Footnotes

¹ People v. Dizon, G.R. Nos. 126044-45, 2 July 1999, 309 SCRA 669.

² "SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

x x x x x x x x x

"(3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible in evidence against him."

³ Rules of Court, Rule 132. Section 3.

⁴ Rules of Court, Rule 132, Section 6.

⁵ Rules of Court, Rule 132, Section 6.

⁶ Rules of Court, Rule 132, Section 11.

⁷ Rules of Court, Rule 130, Section 47.

⁸ Rules of Court, Rule 132, Section 14.

⁹ Notably, in the Motion for Reconsideration in Intervention filed by the Volunteers Against Crime and Corruption (VACC), Fr. Roberto Reyes, Sister Mary John Mananzan and Bishop Evangelio Mercado, they attach a copy of Atty. Pedro Rivera's Affidavit to once again resuscitate Alfaro's credibility.

¹⁰ Rules of Court, Rule 132, Section 40 provides that "(i)f documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the same and other personal circumstances of the witness and the substance of the proposed testimony."

¹¹ Citing Antillon v. Barcelona, 37 Phil. 148 (1917).

RULE 117, SECTION 7 DOUBLE JEOPARDY

Section 7. Former conviction or acquittal; double jeopardy. — 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 necessarily included in the offense charged in the former complaint or information.

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:

(a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;

(b) the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or

(c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in section 1 (f) of Rule 116.

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. (7a)

Section 8. Provisional dismissal. — A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.

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

Section 9. Failure to move to quash or to allege any ground therefor. — 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 said motion, shall be deemed a waiver of any objections based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. (8)

DOUBLE JEOPARDY

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 185230 June 1, 2011

JOSEPH C. CEREZO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, JULIET YANEZA, PABLO ABUNDA, JR., and VICENTE AFULUGENCIA, Respondents.

D E C I S I O N

NACHURA, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul the July 11, 2008 Decision¹ and the November 4, 2008 Resolution² of the Court of Appeals (CA) in CA-G.R. SP No. 99088, which reversed and set aside the October 24, 2006³ and the February 26, 2007⁴ Orders of the Regional Trial Court (RTC) of Quezon City, Branch 92.

The RTC Orders revived Criminal Case No. Q-03-115490, entitled "People of the Philippines v. Juliet Yaneza, Pablo Abunda, Jr., Oscar Mapalo and Vicente Afulugencia," after the same was dismissed in an earlier Order.

The Facts

On September 12, 2002, petitioner Joseph Cerezo filed a complaint for libel against respondents Juliet Yaneza, Pablo Abunda, Jr., and Vicente Afulugencia (respondents), as well as Oscar Mapalo (Mapalo).⁵

Finding probable cause to indict respondents,⁶ the Quezon City Prosecutor’s Office (OP-QC) filed the corresponding Information against them on February 18, 2003 before the RTC.⁷

Respondents thereafter filed a Motion for Reconsideration and/or Motion to Re-evaluate Prosecution’s Evidence before the OP-QC.⁸

In its resolution dated November 20, 2003, the OP-QC reversed its earlier finding and recommended the withdrawal of the Information.⁹ Consequently, a Motion to Dismiss and Withdraw Information was filed before the RTC on December 3, 2003. During the intervening period, specifically on November 24, 2003, respondents were arraigned. All of them entered a "not guilty" plea.¹⁰

In deference to the prosecutor’s last resolution, the RTC ordered the criminal case dismissed in its Order dated March 17, 2004, viz.:

Settled is the rule that the determination of the persons to be prosecuted rests primarily with the Public Prosecutor who is vested with quasi-judicial discretion in the discharge of this function. Being vested with such power, he can reconsider his own resolution if he finds that there is reasonable ground to do so. x x x.

More so, the Court cannot interfere with the Public Prosecutor’s discretion to determine probable cause or the propriety of pursuing or not a criminal case when the case is not yet filed in Court, as a general rule. However, if the same criminal case has been filed in Court already, the Public Prosecutor can still interfere with it subject to the approval of the Court. In the case of Republic vs. Sunga, et al., the Supreme Court held that while it has been settled in the case of Crespo vs. Mogul that the trial court is the sole judge on whether a criminal case should be dismissed after the complaint or information has been filed in court, nonetheless any motion of the offended party for the dismissal of the criminal case, even if without objection of the accused, should first be referred to the prosecuting fiscal and only after hearing should the court exercise its exclusive authority to dismiss or continue with the prosecution of the case. The Court, therefore, after hearing and conferring with the fiscal, can dismiss the case if convinced that there is [no] reason to continue with the prosecution [of] the same. As in this case, the Court finds merit [in] the motion of the Public Prosecutor.¹¹

Aggrieved, petitioner moved for reconsideration of the said Order, arguing that the November 20, 2003 OP-QC resolution has not yet attained finality, considering that the same was the subject of a Petition for Review filed before the Department of Justice (DOJ).¹² The RTC deferred action on the said motion to await the resolution of the DOJ.¹³

On June 26, 2006, the Secretary of Justice promulgated his resolution reversing and setting aside the OP-QC’s November 20, 2003 resolution, and directing the latter to refile the earlier Information for libel.¹⁴

On October 24, 2006, the RTC issued its first assailed Order granting petitioner’s motion for reconsideration, conformably with the resolution of the DOJ Secretary, thus:

Considering the findings of the Department of Justice reversing the resolution of the City Prosecutor, the Court gives favorable action to the Motion for Reconsideration. In the same manner as discussed in arriving at its assailed order dated 17 March 2004, the Court gives more leeway to the Public Prosecutor in determining whether it has to continue or stop prosecuting a case. While the City Prosecutor has previously decided not to pursue further the case, the Secretary of Justice, however, through its resolution on the Petition for Review did not agree with him.

The Court disagrees with the argument raised by the accused that double jeopardy sets in to the picture. The order of dismissal as well as the withdrawal of the Information was not yet final because of the timely filing of the Motion for Reconsideration. The Court[,] therefore, can still set aside its order. Moreover, there is no refiling of the case nor the filing of a new one. The case filed remains the same and the order of dismissal was merely vacated because the Court finds the Motion for Reconsideration meritorious.

WHEREFORE, finding the Motion for Reconsideration meritorious, the Order dated 17 March 2004 is hereby RECONSIDERED and SET ASIDE.

Let the arraignment of accused Oscar Mapalo and pre-trial [of] the other accused be set on 06 December 2006 at 8:30 in the morning.

SO ORDERED.¹⁵

Respondents moved for reconsideration, but the motion was denied in the RTC’s second assailed Order dated February 26, 2007.¹⁶

Relentless, respondents elevated their predicament to the CA through a Petition for Certiorari under Rule 65 of the Rules of Court, arguing in the main that the RTC Orders violated their constitutional right against double jeopardy.

Ruling of the CA

The appellate court found the RTC to have gravely abused its discretion in ordering the reinstatement of the case. The CA annulled the impugned RTC Orders, ruling that all the elements of double jeopardy exist. There was a valid Information sufficient in form and substance filed before a court of competent jurisdiction to which respondents had pleaded, and that the termination of the case was not expressly consented to by respondents; hence, the same could not be revived or refiled without transgressing respondents’ right against double jeopardy.

The CA further found that the DOJ Secretary improperly took cognizance of the Petition for Review because DOJ Department Order No. 223 mandates that no appeal shall be entertained if the accused has already been arraigned or, if the arraignment took place during the pendency of the appeal, the same shall be dismissed.¹⁷

Petitioner interposed the instant appeal when his motion for reconsideration of the CA Decision was denied.¹⁸

The Issues

Petitioner ascribes the following errors to the CA:

a. The Honorable Court of Appeals erred in finding that there was Double Jeopardy, specifically on the alleged existence of the requisites to constitute Double Jeopardy;

b. The Honorable Court of Appeals failed to consider the fact that there was NO refiling of the case nor the filing of a new one in arriving [at] its conclusion that Double Jeopardy sets in to the picture;

c. The Honorable Court of Appeals erred in finding that there was 1.) a valid termination of the case on the basis of the Order of the Trial Court dated 17 March 2004, and allegedly 2.) without the express consent of the respondents.¹⁹

The assigned errors will be subsumed into this issue:

Whether there was a valid termination of the case so as to usher in the impregnable wall of double jeopardy.

Our Ruling

The petition is impressed with merit.

Well-entrenched is the rule that once a case is filed with the court, any disposition of it rests on the sound discretion of the court. In thus resolving a motion to dismiss a case or to withdraw an Information, the trial court should not rely solely and merely on the findings of the public prosecutor or the Secretary of Justice.²⁰ It is the court’s bounden duty to assess independently the merits of the motion, and this assessment must be embodied in a written order disposing of the motion.²¹ While the recommendation of the prosecutor or the ruling of the Secretary of Justice is persuasive, it is not binding on courts.

In this case, it is obvious from the March 17, 2004 Order of the RTC, dismissing the criminal case, that the RTC judge failed to make his own determination of whether or not there was a prima facie case to hold respondents for trial. He failed to make an independent evaluation or assessment of the merits of the case. The RTC judge blindly relied on the manifestation and recommendation of the prosecutor when he should have been more circumspect and judicious in resolving the Motion to Dismiss and Withdraw Information especially so when the prosecution appeared to be uncertain, undecided, and irresolute on whether to indict respondents.

The same holds true with respect to the October 24, 2006 Order, which reinstated the case. The RTC judge failed to make a separate evaluation and merely awaited the resolution of the DOJ Secretary. This is evident from the general tenor of the Order and highlighted in the following portion thereof:

As discussed during the hearing of the Motion for Reconsideration, the Court will resolve it depending on the outcome of the Petition for Review. Considering the findings of the Department of Justice reversing the resolution of the City Prosecutor, the Court gives favorable action to the Motion for Reconsideration.²²

By relying solely on the manifestation of the public prosecutor and the resolution of the DOJ Secretary, the trial court abdicated its judicial power and refused to perform a positive duty enjoined by law. The said Orders were thus stained with grave abuse of discretion and violated the complainant’s right to due process. They were void, had no legal standing, and produced no effect whatsoever.²³

This Court must therefore remand the case to the RTC, so that the latter can rule on the merits of the case to determine if a prima facie case exists and consequently resolve the Motion to Dismiss and Withdraw Information anew.1awphil

It is beyond cavil that double jeopardy did not set in. Double jeopardy exists when the following requisites are present: (1) a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as in the first. A first jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused has been acquitted or convicted, or the case dismissed or otherwise terminated without his express consent.²⁴

Since we have held that the March 17, 2004 Order granting the motion to dismiss was committed with grave abuse of discretion, then respondents were not acquitted nor was there a valid and legal dismissal or termination of the case. Ergo, the fifth requisite which requires the conviction and acquittal of the accused, or the dismissal of the case without the approval of the accused, was not met. Thus, double jeopardy has not set in.

WHEREFORE, the petition is hereby GIVEN DUE COURSE, and the assailed July 11, 2008 Decision and the November 4, 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 99088, and the October 24, 2006 and the February 26, 2007 Orders of the Regional Trial Court of Quezon City, Branch 92, are hereby ANNULLED and SET ASIDE. The case is REMANDED to the Quezon City RTC, Branch 92, for evaluation on whether probable cause exists to hold respondents for trial.

No costs.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

DIOSDADO M. PERALTA Associate Justice

ROBERTO A. ABAD Associate Justice

JOSE CATRAL MENDOZA
Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes

¹ Penned by Associate Justice Arturo G. Tayag, with Associate Justices Martin S. Villarama, Jr. (now a member of this Court) and Noel G. Tijam, concurring; rollo, pp. 18-38.

² Id. at 41-47.

³ Id. at 49-51.

⁴ Id. at 52.

⁵ Supra note 1, at 20.

⁶ Resolution dated February 18, 2003 in I.S. No. 02-12597; rollo, pp. 53-57.

⁷ Supra note 1, at 21.

⁸ Id.

⁹ Rollo, pp. 58-59.

¹⁰ Supra note 1, at 21-22.

¹¹ Id. at 23-24.

¹² Rollo, pp. 60-76.

¹³ Supra note 1, at 25.

¹⁴ As summarized in the October 24, 2006 Order of the RTC; supra note 3, at 50.

¹⁵ Id. at 50-51.

¹⁶ Supra note 4.

¹⁷ Supra note 1.

¹⁸ Supra note 2.

¹⁹ Rollo, pp. 6-7.

²⁰ First Women’s Credit Corporation v. Baybay, G.R. No. 166888, January 31, 2007, 513 SCRA 637, 646, citing Santos v. Orda, Jr., 481 Phil. 93, 106 (2004).

²¹ Lee v. KBC Bank N.V., G.R. No. 164673, January 15, 2010, 610 SCRA 117, 132, citing Ledesma v. Court of Appeals, 344 Phil. 207, 235 (1997).

²² Supra note 3, at 50.

²³ See Co v. Lim, G.R. Nos. 164669-70, October 30, 2009, 604 SCRA 702, 712, citing Summerville General Merchandising & Co., Inc. v. Eugenio, Jr., G.R. No. 163741, August 7, 2007, 529 SCRA 274, 281-282.

²⁴ Section 7, Rule 117 of the Revised Rules of Criminal Procedure, as amended provides:

Sec. 7. Former conviction or acquittal; double jeopardy. - 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 necessarily included in the offense charged in the former complaint or information.

The dismissal order arising from the grant of a demurrer to evidence amounts to an acquittal and cannot be appealed because it would place the accused in double jeopardy. The order is reviewable only by certiorari if it was issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 174504 March 21, 2011

PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
HON. SANDIGANBAYAN (Third division) and MANUEL G. BARCENAS, Respondents.

D E C I S I O N

DEL CASTILLO, J.:

The dismissal order arising from the grant of a demurrer to evidence amounts to an acquittal and cannot be appealed because it would place the accused in double jeopardy. The order is reviewable only by certiorari if it was issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

This is a Petition for Certiorari which seeks to nullify the Sandiganbayan’s July 26, 2006 Resolution¹ which granted private respondent’s demurrer to evidence.

Factual Antecedents

On May 21, 2004, private respondent was charged with violation of Section 89 of Presidential Decree (P.D.) No. 1445² before the Sandiganbayan. The Information reads —

That on or about December 19, 1995, and for sometime prior or subsequent thereto at Toledo City, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused MANUEL G. BARCENAS, a high-ranking public officer, being a Vice-Mayor of Toledo City, and committing the offense in relation to office, having obtained cash advances from the City Government of Toledo in the total amount of SIXTY-ONE THOUSAND SEVEN HUNDRED SIXTY FIVE PESOS (P61,765.00), Philippine Currency, which he received by reason of his office, for which he is duty bound to liquidate the same within the period required by law, with deliberate intent and intent to gain, did then and there, willfully, unlawfully and criminally fail to liquidate said cash advances of P61,765.00, Philippine Currency, despite demands to the damage and prejudice of the government in the aforesaid amount.³

The case was docketed as Criminal Case No. 27990 and raffled to the Third Division. On October 20, 2004, private respondent was arraigned for which he pleaded not guilty. The prosecution presented its lone witness, Manolo Tulibao Villad, Commission on Audit (COA) State Auditor. Thereafter, the prosecution filed its formal offer of evidence and rested its case.

On April 20, 2006, private respondent filed a motion⁴ for leave to file demurrer to evidence. On June 16, 2006, the Sandiganbayan issued a Resolution⁵ granting the motion. On June 30, 2006, private respondent filed his demurrer⁶ to evidence.

Sandiganbayan’s Ruling

On July 26 2006, the Sandiganbayan promulgated the assailed Resolution, viz:

WE find the demurrer to evidence well taken.

The testimony of the prosecution’s lone witness City Auditor Manolo Tulibao confirming his Report (Exhibit "D") that the accused had indeed liquidated his cash advances did not help the prosecution but rather weakened its cause of action against the accused. At the time this case was filed in Court, the accused had already liquidated his cash advances subject matter hereof in the total amount of P61,765.00. Hence, We find the element of damages wanting in this case.

PREMISES CONSIDERED, the Demurrer to Evidence is hereby granted and this case is hereby ordered DISMISSED.⁷

Issue

Whether the Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction in giving due course to and eventually granting the demurrer to evidence.⁸

Petitioner’s Arguments

Petitioner contends that the prosecution was able to establish all the elements of the offense defined and penalized under Section 89 of P.D. No. 1445: (1) the private respondent, an accountable officer, received cash advances in the total amount of P120,000.00 to defray the expenses of the Public Assistance Committee and Committee on Police Matters covering the period January-March 1993, (2) the purpose of the cash advance has been served, (3) the private respondent settled his cash advances only in March 1996, (4) the city auditor sent a demand letter to the private respondent to settle the cash advance within 72 hours from receipt thereof, and (5) the private respondent received said letter on December 22, 1995 but failed to liquidate the same within the aforestated period.

Although it concedes that the private respondent eventually settled the subject cash advances sometime in March 1996, petitioner theorizes that damage is not one of the elements of the offense charged. Hence, the settlement of the cash advance would not exonerate the private respondent but only mitigate his criminal liability. Otherwise, the purpose of the law would be rendered futile since accountable officers can easily make cash advances and liquidate the same beyond the period prescribed by law without being penalized for doing so.

Finally, petitioner argues that double jeopardy does not lie in this case because the order of dismissal was issued with grave abuse of discretion amounting to lack of jurisdiction.

Private Respondent’s Arguments

Private respondent counters that the grant of a demurrer to evidence is equivalent to an acquittal from which the prosecution cannot appeal as it would place the accused in double jeopardy. Further, assuming that the Sandiganbayan erroneously granted the demurrer, this would, at most, constitute an error of judgment and not an error of jurisdiction. Thus, certiorari does not lie to correct the grant of the demurrer to evidence by the Sandiganbayan.

Our Ruling

The petition lacks merit.

An order of dismissal arising from the grant of a demurrer to evidence has the effect of an acquittal unless the order was issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

In criminal cases, the grant of a demurrer⁹ is tantamount to an acquittal and the dismissal order may not be appealed because this would place the accused in double jeopardy.¹⁰ Although the dismissal order is not subject to appeal, it is still reviewable but only through certiorari under Rule 65 of the Rules of Court.¹¹ For the writ to issue, the trial court must be shown to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction such as where the prosecution was denied the opportunity to present its case or where the trial was a sham thus rendering the assailed judgment void.¹² The burden is on the petitioner to clearly demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice.¹³

In the case at bar, the Sandiganbayan granted the demurrer to evidence on the ground that the prosecution failed to prove that the government suffered any damage from private respondent’s non-liquidation of the subject cash advance because it was later shown, as admitted by the prosecution’s witness, that private respondent liquidated the same albeit belatedly.

Sections 89 and 128 of P.D. No. 1445 provide—

SECTION 89. Limitations on Cash Advance. — No cash advance shall be given unless for a legally authorized specific purpose. A cash advance shall be reported on and liquidated as soon as the purpose for which it was given has been served. No additional cash advance shall be allowed to any official or employee unless the previous cash advance given to him is first settled or a proper accounting thereof is made.

SECTION 128. Penal Provision. — Any violation of the provisions of Sections 67, 68, 89, 106, and 108 of this Code or any regulation issued by the Commission [on Audit] implementing these sections, shall be punished by a fine not exceeding one thousand pesos or by imprisonment not exceeding six (6) months, or both such fine and imprisonment in the discretion of the court. (Emphasis supplied.)

On the other hand, COA Circular No. 90-331¹⁴ or the "Rules and Regulations on the Granting, Utilization and Liquidation of Cash Advances" which implemented Section 89 of P.D. No. 1445 pertinently provided–

5. LIQUIDATION OF CASH ADVANCES

5.1 The AO (Accountable Officer) shall liquidate his cash advance as follows:

5.1.1 Salaries, Wages, etc. - within 5 days after each 15 day/ end of the month pay period.

5.1.2 Petty Operating Expenses and Field Operating Expenses - within 20 days after the end of the year; subject to replenishment during the year.

5.1.3 Foreign Travel - within 60 days after return to the Philippines.

Failure of the AO to liquidate his cash advance within the prescribed period shall constitute a valid cause for the withholding of his salary.

x x x x

5.7 When a cash advance is no longer needed or has not been used for a period of two (2) months, it must be returned to or deposited immediately with the collecting officer.

5.8 All cash advances shall be fully liquidated at the end of each year. Except for petty cash fund, the AO shall refund any unexpended balance to the Cashier/Collecting Officer who will issue the necessary official receipt.

x x x x

9. DUTIES AND RESPONSIBILITIES OF THE COA AUDITOR

x x x x

9.6 Upon failure of the AO to liquidate his cash advance within one month for AOs within the station and three months for AOs outside the station from date of grant of the cash advance, the Auditor shall issue a letter demanding liquidation or explanation for non-liquidation.

9.7 If 30 days have elapsed after the demand letter is served and no liquidation or explanation is received, or the explanation received is not satisfactory, the Auditor shall advise the head of the agency to cause or order the withholding of the payment of any money due the AO. The amount withheld shall be applied to his (AO's) accountability. The AO shall likewise be held criminally liable for failure to settle his accounts.¹⁵ (Emphasis supplied.)

As can be seen, contrary to the findings of the Sandiganbayan, actual damage to the government arising from the non-liquidation of the cash advance is not an essential element of the offense punished under the second sentence of Section 89 of P.D. No. 1445 as implemented by COA Circular No. 90-331. Instead, the mere failure to timely liquidate the cash advance is the gravamen of the offense. Verily, the law seeks to compel the accountable officer, by penal provision, to promptly render an account of the funds which he has received by reason of his office.¹⁶

Nonetheless, even if the Sandiganbayan proceeded from an erroneous interpretation of the law and its implementing rules, the error committed was an error of judgment and not of jurisdiction. Petitioner failed to establish that the dismissal order was tainted with grave abuse of discretion such as the denial of the prosecution’s right to due process or the conduct of a sham trial. In fine, the error committed by the Sandiganbayan is of such a nature that can no longer be rectified on appeal by the prosecution because it would place the accused in double jeopardy.¹⁷

In United States v. Kilayko,¹⁸ the accused was charged with a violation under Section 12 of the Chattel Mortgage Law¹⁹ which prohibited the mortgagor from selling the mortgaged property without the consent of the mortgagee while the debt secured remained outstanding. The accused was arraigned for which he pleaded not guilty. Thereafter, he moved to dismiss the Information. After the prosecution and defense entered into a stipulation of facts, the trial court dismissed the case. On appeal by the prosecution to this Court, we acknowledged that the trial court erred in interpreting Section 12 when it ruled that the subsequent payment of the secured debt extinguished the accused’s criminal liability arising from the unlawful sale of the mortgaged property. Nonetheless, we ruled that the judgment dismissing the Information, although based upon an erroneous interpretation of the law, was in effect a judgment on the merits from which no appeal lay on the part of the prosecution as it would place the accused in double jeopardy.²⁰1avvphi1

In another case, People v. City Court of Silay,²¹ after the prosecution had presented its evidence and rested its case, the accused filed a motion to dismiss for insufficiency of evidence. The trial court granted the motion and dismissed the case. On appeal by the prosecution to this Court, we were of the view that the dismissal order was erroneous and resulted to a miscarriage of justice. However, we ruled that such error cannot be corrected because double jeopardy had already set in:

In the case of the herein respondents, however, the dismissal of the charge against them was one on the merits of the case which is to be distinguished from other dismissals at the instance of the accused. All the elements of double jeopardy are here present, to wit: (1) a valid information sufficient in form and substance to sustain a conviction of the crime charged, (2) a court of competent jurisdiction, and (3) an unconditional dismissal of the complaint after the prosecution had rested its case, amounting to the acquittal of the accused. The dismissal being one on the merits, the doctrine of waiver of the accused to a plea of double jeopardy cannot be invoked.

It is clear to Us that the dismissal of the criminal case against the private respondents was erroneous.

As correctly stated in the Comment of the Acting Solicitor General, the accused were not charged with substitution of genuine "tarjetas" with false ones. The basis for the accusation was that the accused entered false statements as to the weight of the sugar cane loaded in certain cane cars in "tarjetas" which were submitted to the laboratory section of the company. The act of making a false entry in the "tarjetas" is undoubtedly an act of falsification of a private document, the accused having made untruthful statements in a narration of facts which they were under obligation to accomplish as part of their duties - Ernesto de la Paz, as overseer of Hda. Malisbog, and the other accused as scalers of the offended party, the Hawaiian-Philippine Company, thereby causing damage to the latter.

However erroneous the order of respondent Court is, and although a miscarriage of justice resulted from said order, to paraphrase Justice Alex Reyes in People vs. Nieto, 103 Phil. 1133, such error cannot now be righted because of the timely plea of double jeopardy.²²

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

MARIANO C. DEL CASTILLO
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

PRESBITERO J. VELASCO, JR. Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

JOSE PORTUGAL PEREZ
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes

¹ Rollo, pp. 22-28; penned by Associate Justice Godofredo L. Legaspi and concurred in by Associate Justices Efren N. Dela Cruz and Norberto Y. Geraldez.

² Government Auditing Code of the Philippines (June 11, 1978).

³ Records, pp. 1-2.

⁴ Id. at 277-279.

⁵ Id. at 300.

⁶ Id. at 303-310.

⁷ Rollo, p. 27.

⁸ Id. at 9.

⁹ Section 23, Rule 119 of the Rules of Court provides:

Section 23. Demurrer to evidence. — After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court. x x x

¹⁰ Dayap v. Sendiong, G.R. No. 177960, January 29, 2009, 577 SCRA 134, 147.

¹¹ Id.

¹² Sanvicente v. People, 441 Phil. 139, 147-148 (2002).

¹³ Id.

¹⁴ Effective May 3, 1990.

¹⁵ This provision is reiterated in COA Circular No. 92-382 (effective July 3, 1992) which specifically governs the cash advances of local government officials. Section 48 (k) states:

Sec. 48. Rules on grant, use, and liquidation of cash advances. - In the granting, utilization, and liquidation of cash advances the following shall be observed: x x x

x x x x

(k) The cash advances shall be liquidated as follows:

• Salaries, wages, etc. - within 5 days after each 15 days/end of the month pay period.

• Petty operating expenses - within 20 days after the end of the year; subject to replenishment during the year.

• Foreign Travel - within 60 days after return to the Philippines.

¹⁶ The rationale is similar to that of Article 218 (Failure of Accountable Officer to Render Accounts) of the Revised Penal Code where misappropriation is not an essential element of said felony (Luis B. Reyes, The Revised Penal Code, Book II [2001] at 409). In United States v. Saberon (19 Phil. 391 [1911] cited in Reyes at 409), Section 1 of Act No. 1740 punished, among others, the failure to render an account by an accountable public officer. In construing this penal provision, we ruled—

Section 1 of Act No. 1740, a violation of which is charged against the defendant, literally provides as follows:

"Any bonded officer or employee of the Insular Government, or of any provincial or municipal government, or of the city of Manila, and any other person who, having charge, by reason of his office or employment, of Insular, provincial, or municipal funds or property, or of funds or property of the city of Manila, or of trust or other funds by law required to be kept or deposited by or with such officer, employee, or other person, or by or with any public office, treasury, or other depositary, fails or refuses to account for the same, or makes personal use of such funds or property, or of any part thereof, or abstracts or misappropriates the same or any part thereof, or is guilty of any malversation with reference to such funds or property, or through his abandonment, fault, or negligence permits any other person to abstract, misappropriate, or make personal use of the same, shall, upon conviction, be punished by imprisonment for not less than two months nor more than ten years and, in the discretion of the court, by a fine of not more than the amount of such funds and the value of such property."

x x x [T]rue it is that the unjustified refusal to render an account may produce a suspicion that there are at least irregularities in the officer's bookkeeping, but neither is this in itself conclusive proof of misappropriation, nor does the law in imposing punishment in any wise take into account the more or less correct condition of the funds which may be in his charge. The law makes the mere fact of that refusal a crime and punishes it as such, in absolute distinction from the other fact, entirely immaterial to the case, as to whether or not the funds in the safe entrusted to the officer are intact. So true is this that, although such funds are found to be intact and the official having them in charge is found not to have committed the smallest or most insignificant defalcation, still he would not be exempt from the criminal liability established by law if he refused or failed to render an account of said funds on being requested to do so by competent authority. The reason for this is that Act No. 1740, in so far as its provisions bearing on this point are concerned, does not so much contemplate the possibility of

malversation as the need of enforcing by a penal provision the performance of the duty incumbent upon every public employee who handles government funds, as well as every depositary or administrator of another's property, to render an account of all he receives or has in his charge by reason of his employment. x x x" (Id. at 394-396).

¹⁷ Central Bank of the Philippines v. Court of Appeals, 253 Phil. 39, 49 (1989).

¹⁸ 32 Phil. 619 (1915).

¹⁹ Act No. 1508.

²⁰ Supra note 18 at 622-623.

²¹ 165 Phil. 847 (1976).