G.R. No. 173637 April 21, 2009

DANTE T. TAN, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O N

CHICO-NAZARIO, J.:

Before this Court is a Petition for Review on Certiorari filed under Rule 45 of the Revised Rules of Court seeking the reversal and setting aside of the Decision¹ dated 22 February 2006 and Resolution² dated 17 July 2006 issued by the Court of Appeals in CA-G.R. SP No. 83068 entitled, "People of the Philippines v. Hon. Briccio C. Ygana, in his capacity as Presiding Judge of Branch 153, Regional Trial Court, Pasig City and Dante Tan."

The assailed Decision reinstated Criminal Case No. 119830, earlier dismissed by the trial court due to an alleged violation of petitioner Dante T. Tan’s right to speedy trial.lawphil.net The assailed Resolution denied his Motion for Reconsideration and Motion to Inhibit.

The factual and procedural antecedents of the instant petition are as follows:

On 19 December 2000, a Panel of Prosecutors of the Department of Justice (DOJ), on behalf of the People of the Philippines (People), filed three Informations against Dante T. Tan (petitioner) before the Regional Trial Court (RTC) of Pasig City. The cases were docketed as Criminal Cases No. 119830, No. 119831 and No. 119832, all entitled, "People of the Philippines v. Dante Tan."

Criminal Case No. 119830³ pertains to allegations that petitioner employed manipulative devises in the purchase of Best World Resources Corporation (BW) shares. On the other hand, Criminal Cases No. 119831⁴ and No. 119832⁵ involve the alleged failure of petitioner to file with the Securities and Exchange Commission (SEC) a sworn statement of his beneficial ownership of BW shares.

In two other related cases, two Informations were filed against a certain Jimmy Juan and Eduardo G. Lim for violation of the Revised Securities Act involving BW shares of stock. These were docketed as Criminal Cases No. 119828 and No. 119829.

On the same day, the DOJ, through Assistant Chief State Prosecutor Nilo C. Mariano, filed a Motion for Consolidation praying that Criminal Cases No. 119830, No. 119831 and No. 119832 be consolidated together with Criminal Cases No. 119828 and No. 119829, which the trial court granted.

On 21 December 2000, Criminal Cases No. 119830, No. 119831 and No. 119832 were raffled off to the Pasig RTC, Branch 153, presided by Judge Briccio C. Ygana. Criminal Cases No. 119828 and No. 119829 also went to the same court.

Petitioner was arraigned on 16 January 2001, and pleaded not guilty to the charges.⁶

On 6 February 2001, the pre-trial was concluded, and a pre-trial order set, among other things, the first date of trial on 27 February 2001.⁷

Atty. Celia Sandejas of the Securities and Exchange Commission (SEC), under the direct control and supervision of Public Prosecutor Nestor Lazaro, entered her appearance for the People; Atty. Agnes Maranan for petitioner Dante Tan; Atty. Sigfrid Fortun for Eduardo Lim, Jr.; and Atty. Rudolf Brittanico for Jimmy Juan. State Prosecutors Susan Dacanay and Edna Villanueva later on took over as lawyers for the People.

The People insists that during the pendency of the initial hearing on 27 February 2001, the parties agreed that Criminal Cases No. 119831 and No. 119832 would be tried ahead of Criminal Case No. 119830, and that petitioner would not interpose any objection to its manifestation, nor would the trial court disapprove it.

Thereafter, the People presented evidence for Criminal Cases No. 119831 and No. 119832. On 18 September 2001, the prosecution completed the presentation of its evidence and was ordered by the RTC to file its formal offer of evidence within thirty days.

After being granted extensions to its filing of a formal offer of evidence, the prosecution was able to file said formal offer for Criminal Cases No. 119831 and No. 119832 on 25 November 2003.⁸

On 2 December 2003, petitioner moved to dismiss Criminal Case No. 119830 due to the People’s alleged failure to prosecute. Claiming violation of his right to speedy trial, petitioner faults the People for failing to prosecute the case for an unreasonable length of time and without giving any excuse or justification for the delay. According to petitioner, he was persistent in asserting his right to speedy trial, which he had allegedly done on several instances. Finally, he claimed to have been substantially prejudiced by this delay.

The prosecution opposed the Motion, insisting on its claim that the parties had an earlier agreement to defer the trial of Criminal Case No. 119830 until after that of Criminal Cases No. 119831-119832, as the presentation of evidence and prosecution in each of the five cases involved were to be done separately. The presentation of evidence in Criminal Cases No. 119831-119832, however, were done simultaneously, because they involved similar offenses of non-disclosure of beneficial ownership of stocks proscribed under Rule 36(a)-1⁹ in relation to Sections 32(a)-1¹⁰ and 56¹¹ of Batas Pambansa Bilang 178, otherwise known as the "Revised Securities Act." Criminal Case No. 119830 pertains to alleged violation of Section 27 (b),¹² in relation to Section 56 of said act.

On 22 December 2003, Judge Briccio C. Ygana of the Pasig RTC, Branch 153, ruled that the delays which attended the proceedings of petitioner’s case (Criminal Case No. 119830) were vexatious, capricious and oppressive, resulting in violation of petitioner’s right to speedy trial. The RTC ordered¹³ the dismissal of Criminal Case No. 119830, disposing as follows:

WHEREFORE, foregoing premises duly considered and finding the motion to dismiss to be meritorious, the Court hereby orders Criminal Case No. 119830 DISMISSED.1avvphi1

On motion for reconsideration, the prosecution insisted that the parties agreed to hold separate trials of the BW cases, with petitioner acquiescing to the prosecution of Criminal Cases No. 119831 and No. 119832 ahead of Criminal Case No. 119830. In an Order dated 20 January 2004, the RTC denied the Motion for Reconsideration for lack of merit.

The RTC’s order of dismissal was elevated to the Court of Appeals via a petition for certiorari, with the People contending that:

RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION IN RULING THAT THE PEOPLE VIOLATED DANTE TAN’S RIGHT TO SPEEDY TRIAL, ALBEIT, THE LATTER AND RESPONDENT JUDGE HIMSELF HAVE CONFORMED TO THE DEFERMENT OF CRIMINAL CASE NO. 119830 PENDING HEARING OF THE TWO OTHER RELATED CASES.

Setting aside the trial court’s order of dismissal, the Court of Appeals granted the petition for certiorari in its Decision dated 22 February 2006. In resolving the petition, the appellate court reinstated Criminal Case No. 119830 in this wise:

WHEREFORE, the petition is granted and the assailed Orders dated December 22, 2003 and January 20, 2004 are set aside. Criminal Case No. 119830 is reinstated and the trial court is ordered to conduct further proceedings in said case immediately.¹⁴

Petitioner moved for a reconsideration of the Decision and filed a motion for inhibition of the Justices who decided the case.

On 17 July 2006, the Court of Appeals denied both motions.

Petitioner Dante Tan, henceforth, filed the instant petition for review on certiorari, raising the following issues:

I.

WHETHER OR NOT THE ACTING SECRETARY OF JUSTICE MAY VALIDLY EXECUTE THE CERTIFICATE OF NON-FORUM SHOPPING ATTACHED TO THE PETITION FOR CERTIORARI FILED BY THE PEOPLE WITH THE COURT OF APPEALS EVEN THOUGH THE CRIMINAL ACTION WAS INSTITUTED BY A COMPLAINT SUBSCRIBED BY THE AUTHORIZED OFFICERS OF THE SECURITIES AND EXCHANGE COMMISSION.

II.

WHETHER OR NOT THE PETITION FOR CERTIORARI VIOLATED TAN’S RIGHT AGAINST DOUBLE JEOPARDY.

III.

WHETHER OR NOT CRIMINAL CASE NO. 119830 WAS CORRECTLY DISMISSED BY THE TRIAL COURT ON THE GROUND OF VIOLATION OF TAN’S RIGHT TO SPEEDY TRIAL.

IV.

WHETHER OR NOT THE TRIAL COURT COMMITTED GRAVE ABUSE OF DISCRETION.

We first resolve the preliminary issues.

In an attempt at having the instant petition dismissed, petitioner contends that the certificate of non-forum shopping attached to the People’s appeal before the Court of Appeals should have been signed by the Chairman of the SEC as complainant in the cases instead of Acting DOJ Secretary Merceditas N. Gutierrez.

Petitioner’s argument is futile. The Court of Appeals was correct in sustaining the authority of Acting DOJ Secretary Merceditas Gutierrez to sign the certificate of non-forum shopping of the petition for certiorari before said court. It must be stressed that the certification against forum shopping is required to be executed by the plaintiff.¹⁵ Although the complaint-affidavit was signed by the Prosecution and Enforcement Department of the SEC, the petition before the Court of Appeals originated from Criminal Case No. 119830, where the plaintiff or the party instituting the case was the People of the Philippines. Section 2, Rule 110 of the Rules of Court leaves no room for doubt and establishes that criminal cases are prosecuted in the name of the People of the Philippines, the offended party in criminal cases. Moreover, pursuant to Section 3, paragraph (2) of the Revised Administrative Code, the DOJ is the executive arm of the government mandated to investigate the commission of crimes, prosecute offenders and administer the probation and correction system. It is the DOJ, through its prosecutors, which is authorized to prosecute criminal cases on behalf of the People of the Philippines.¹⁶ Prosecutors control and direct the prosecution of criminal offenses, including the conduct of preliminary investigation, subject to review by the Secretary of Justice. Since it is the DOJ which is the government agency tasked to prosecute criminal cases before the trial court, the DOJ is best suited to attest whether a similar or related case has been filed or is pending in another court of tribunal. Acting DOJ Secretary Merceditas N. Gutierrez, being the head of the DOJ, therefore, had the authority to sign the certificate of non-forum shopping for Criminal Case No. 119830, which was filed on behalf of the People of the Philippines.

The preliminary issues having been resolved, the Court shall proceed to discuss the main issues.

At the crux of the controversy is the issue of whether there was a violation of petitioner Dante Tan’s right to speedy trial.

Petitioner Dante Tan assails the Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 83068. The appellate court determined that he "impliedly agreed" that Case No. 119830 would not be tried until after termination of Criminal Cases No. 119831-119832, which finding was grounded entirely on speculations, surmises and conjectures.

Both parties concede that this issue is factual. It is a basic rule that factual issues are beyond the province of this Court in a petition for review, for it is not our function to review evidence all over again.¹⁷ Rule 45 of the Rules of Court provides that only questions of law may be raised in this Court in a petition for review on certiorari.¹⁸ The reason is that the Court is not a trier of facts.¹⁹ However, the rule is subject to several exceptions.²⁰ Under these exceptions, the Court may delve into and resolve factual issues, such as in cases where the findings of the trial court and the Court of Appeals are absurd, contrary to the evidence on record, impossible, capricious or arbitrary, or based on a misappreciation of facts.

In this case, the Court is convinced that the findings of the Court of Appeals on the substantial matters at hand, while conflicting with those of the RTC, are adequately supported by the evidence on record. We, therefore, find no reason to deviate from the jurisprudential holdings and treat the instant case differently.

An accused’s right to "have a speedy, impartial, and public trial" is guaranteed in criminal cases by Section 14(2) of Article III of the Constitution. This right to a speedy trial may be defined as one free from vexatious, capricious and oppressive delays, its "salutary objective" being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose.²¹ Intimating historical perspective on the evolution of the right to speedy trial, we reiterate the old legal maxim, "justice delayed is justice denied." This oft-repeated adage requires the expeditious resolution of disputes, much more so in criminal cases where an accused is constitutionally guaranteed the right to a speedy trial.²²

Following the policies incorporated under the 1987 Constitution, Republic Act No. 8493, otherwise known as "The Speedy Trial Act of 1998," was enacted, with Section 6 of said act limiting the trial period to 180 days from the first day of trial.²³ Aware of problems resulting in the clogging of court dockets, the Court implemented the law by issuing Supreme Court Circular No. 38-98, which has been incorporated in the 2000 Rules of Criminal Procedure, Section 2 of Rule 119.²⁴

In Corpuz v. Sandiganbayan,²⁵ the Court had occasion to state –

The right of the accused to a speedy trial and to a speedy disposition of the case against him was designed to prevent the oppression of the citizen by holding criminal prosecution suspended over him for an indefinite time, and to prevent delays in the administration of justice by mandating the courts to proceed with reasonable dispatch in the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a case is violated only when the proceeding is attended by vexatious, capricious and oppressive delays. The inquiry as to whether or not an accused has been denied such right is not susceptible by precise qualification. The concept of a speedy disposition is a relative term and must necessarily be a flexible concept.

While justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere speed. It cannot be definitely said how long is too long in a system where justice is supposed to be swift, but deliberate. It is consistent with delays and depends upon circumstances. It secures rights to the accused, but it does not preclude the rights of public justice. Also, it must be borne in mind that the rights given to the accused by the Constitution and the Rules of Court are shields, not weapons; hence, courts are to give meaning to that intent.

The Court emphasized in the same case that:

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

In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendant’s assertion of his right; and (d) prejudice to the defendant. x x x.

Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different reasons or justifications invoked by the State. x x x.²⁶

Exhaustively explained in Corpuz v. Sandiganbayan, an accused’s right to speedy trial is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays. In determining whether petitioner was deprived of this right, the factors to consider and balance are the following: (a) duration of the delay; (b) reason therefor; (c) assertion of the right or failure to assert it; and (d) prejudice caused by such delay.²⁷

From the initial hearing on 27 February 2001 until the time the prosecution filed its formal offer of evidence for Criminal Cases No. 119831-119832 on 25 November 2003, both prosecution and defense admit that no evidence was presented for Criminal Case No. 119830. Hence, for a period of almost two years and eight months, the prosecution did not present a single evidence for Criminal Case No. 119830.

The question we have to answer now is whether there was vexatious, capricious, and oppressive delay. To this, we apply the four-factor test previously mentioned.

We emphasize that in determining the right of an accused to speedy trial, courts are required to do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. A mere mathematical reckoning of the time involved is clearly insufficient,²⁸ and particular regard must be given to the facts and circumstances peculiar to each case.²⁹

In Alvizo v. Sandiganbayan,³⁰ the Court ruled that there was no violation of the right to speedy trial and speedy disposition. The Court took into account the reasons for the delay, i.e., the frequent amendments of procedural laws by presidential decrees, the structural reorganizations in existing prosecutorial agencies and the creation of new ones by executive fiat, resulting in changes of personnel, preliminary jurisdiction, and the functions and powers of prosecuting agencies. The Court also considered the failure of the accused to assert such right, and the lack of prejudice caused by the delay to the accused.

In Defensor-Santiago v. Sandiganbayan,³¹ the complexity of the issues and the failure of the accused to invoke her right to speedy disposition at the appropriate time spelled defeat for her claim to the constitutional guarantee.

In Cadalin v. Philippine Overseas Employment Administration’s Administrator,³² the Court, considering also the complexity of the cases and the conduct of the parties’ lawyers, held that the right to speedy disposition was not violated therein.

Petitioner’s objection to the prosecution’s stand that he gave an implied consent to the separate trial of Criminal Case No. 119830 is belied by the records of the case. No objection was interposed by his defense counsel when this matter was discussed during the initial hearing.³³ Petitioner’s conformity thereto can be deduced from his non-objection at the preliminary hearing when the prosecution manifested that the evidence to be presented would be only for Criminal Cases No. 119831-119832. His failure to object to the prosecution’s manifestation that the cases be tried separately is fatal to his case. The acts, mistakes and negligence of counsel bind his client, except only when such mistakes would result in serious injustice.³⁴ In fact, petitioner’s acquiescence is evident from the transcript of stenographic notes during the initial presentation of the People’s evidence in the five BW cases on 27 February 2001, herein quoted below:

COURT: Atty. Sandejas, call your witness.

ATTY. SANDEJAS [SEC Prosecuting Lawyer]: May we make some manifestation first, your Honor, before we continue presenting our witness. First of all, this witness will only be testifying as to two (2) of the charges: non-disclosure of beneficial ownership of Dante Tan x x x.

x x x x

COURT: (to Atty. Sandejas) Call your witness.

ATTY. SANDEJAS: Our witness is Mr. Wilfredo Baltazar of the Securities and Exchange Commission, your Honor. We are presenting this witness for the purpose of non-disclosure of beneficial ownership case…

COURT: I would advise the counsel from the SEC to make it very clear your purpose in presenting your first witness.

ATTY. SANDEJAS: Yes, your Honor. Can I borrow the file?

COURT: Show it to counsel.

ATTY. SANDEJAS: Crim. Case Nos. 119831 and 119832, for Violation of RA Rule 36(a)1, in relation to Sec. 32 (a)-1 of the Revised Securities Act when he failed to disclose his beneficial ownership amounting to more than 10% which requires disclosure of such fact.³⁵

During the same hearing, the People manifested in open court that the parties had agreed to the separate trials of the BW Cases:

PROSECUTOR LAZARO:

May we be allowed to speak, your Honor?

Your Honor please, as we x x x understand, this is not a joint trial but a separate trial x x x so as manifested by the SEC lawyer, the witness is being presented insofar as 119831 and 119832 as against Dante Tan only x x x.³⁶

The transcript of stenographic notes taken from the 3 April 2001 hearing further clarifies that only the two cases against Dante Tan were being prosecuted:

ATTY. DE LA CRUZ [new counsel for accused Eduardo Lim, Jr.]:

Your Honor, please, may I request clarification from the prosecutors regarding the purpose of the testimony of the witness in the stand. While the Private Prosecutor stated the purpose of the testimony of the witness. . .

x x x x

PROSECUTOR LAZARO:

I was present during the last hearing. I was then going over the transcript of this case, well, I believe the testimony x x x mainly [is] on accused Dante Tan, your Honor. As a matter of fact, there was a clarification made by the parties and counsels after the witness had testified that the hearing in these cases is not a joint trial because it involves separate charges, involving different documents, your Honor. That is why the witness already testified only concerning Dante Tan. Per the query made by Atty. Fortun, because at that time, Atty. Fortun was still representing Mr. Lim, I believe, your Honor, then I understand that the testimony of this witness cannot just be adopted insofar as the other accused, your Honor.

ATTY. MARANAN:

We confirm that, your Honor, since x x x particularly since this is already cross, it is clear that the direct examination dealt exclusively with Mr. Dante Tan.

PROS. LAZARO:

Mr. Dante Tan, involving the 2 (two) cases.³⁷

Moreover, although periods for trial have been stipulated, these periods are not absolute. Where periods have been set, certain exclusions are allowed by law.³⁸ After all, this Court and the law recognize that it is but a fact that judicial proceedings do not exist in a vacuum and must contend with the realities of everyday life. In spite of the prescribed time limits, jurisprudence continues to adopt the view that the fundamentally recognized principle is that the concept of speedy trial is a relative term and must necessarily be a flexible concept.³⁹

As to the assertion that delay in the presentation of evidence for Criminal Case No. 119830 has prejudiced petitioner because the witnesses for the defense may no longer be available at this time, suffice it to say that the burden of proving his guilt rests upon the prosecution.⁴⁰ Should the prosecution fail for any reason to present evidence sufficient to show his guilt beyond reasonable doubt, petitioner will be acquitted. It is safely entrenched in our jurisprudence that unless the prosecution discharges its burden to prove the guilt of an accused beyond reasonable doubt, the latter need not even offer evidence in his behalf.⁴¹

In the cases involving petitioner, the length of delay, complexity of the issues and his failure to invoke said right to speedy trial at the appropriate time tolled the death knell on his claim to the constitutional guarantee.⁴² More importantly, in failing to interpose a timely objection to the prosecution’s manifestation during the preliminary hearings that the cases be tried separately, one after the other, petitioner was deemed to have acquiesced and waived his objection thereto.

For the reasons above-stated, there is clearly insufficient ground to conclude that the prosecution is guilty of violating petitioner’s right to speedy trial. Grave abuse of discretion defies exact definition, but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction." Any capricious or whimsical exercise of judgment in dismissing a criminal case is equivalent to lack of jurisdiction. This is true in the instant case.

There is also no merit to petitioner’s claim that a reversal of the RTC’s Order dismissing Criminal Case No. 119830 is a violation of his constitutional right against double jeopardy which dismissal was founded on an alleged violation of his right to speedy trial.

The constitutional protection against double jeopardy shields one from a second or later prosecution for the same offense. Article III, Section 21 of the 1987 Constitution declares that no person shall be twice put in jeopardy of punishment for the same offense, providing further that if an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Following the above constitutional provision, Section 7, Rule 117 of the Revised Rules of Court found it apt to stipulate:

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.

For double jeopardy to attach then, the following elements in the first criminal case must be present:

(a) The complaint or information or other formal charge was sufficient in form and substance to sustain a conviction;

(b) The court had jurisdiction;

(c) The accused had been arraigned and had pleaded; and

(d) He was convicted or acquitted or the case was dismissed or otherwise terminated without the express consent of the accused.⁴³

Among the above-cited elements, we are concerned with the fourth element, conviction or acquittal, or the case was dismissed or otherwise terminated without the express consent of the accused. This element is crucial since, as a general rule, the dismissal of a criminal case resulting in acquittal, made with the express consent of the accused or upon his own motion, will not place the accused in double jeopardy.⁴⁴ This rule, however, admits of two exceptions, namely: insufficiency of evidence and denial of the right to speedy trial.⁴⁵ While indeed petitioner was in fact the one who filed the Motion to Dismiss Criminal Case No. 119830, the dismissal thereof was due to an alleged violation of his right to speedy trial, which would otherwise put him in double jeopardy should the same charges be revived. Petitioner’s situation is different. Double jeopardy has not attached, considering that the dismissal of Criminal Case No. 119830 on the ground of violation of his right to speedy trial was without basis and issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Where the right of the accused to speedy trial has not been violated, there is no reason to support the initial order of dismissal.

Following this Court’s ruling in Almario v. Court of Appeals,⁴⁶ as petitioner’s right to speedy trial was not transgressed, this exception to the fourth element of double jeopardy – that the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of the accused – was not met. Where the dismissal of the case was allegedly capricious, certiorari lies from such order of dismissal and does not involve double jeopardy, as the petition challenges not the correctness but the validity of the order of dismissal; such grave abuse of discretion amounts to lack of jurisdiction, which prevents double jeopardy from attaching.⁴⁷

As this Court ruled in People v. Tampal,⁴⁸ reiterated in People v. Leviste,⁴⁹ where we overturned an order of dismissal by the trial court predicated on the right to speedy trial –

It is true that in an unbroken line of cases, we have held that dismissal of cases on the ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution of the accused for the same offense. It must be stressed, however, that these dismissals were predicated on the clear right of the accused to speedy trial. These cases are not applicable to the petition at bench considering that the right of the private respondents to speedy trial has not been violated by the State. x x x.

From the foregoing, it follows that petitioner cannot claim that double jeopardy attached when said RTC order was reversed by the Court of Appeals. Double jeopardy does not apply to this case, considering that there is no violation of petitioner’s right to speedy trial.

The old adage that justice delayed is justice denied has never been more valid than in our jurisdiction, where it is not a rarity for a case to drag in our courts for years and years and even decades. It was this difficulty that inspired the constitutional requirement that the rules of court to be promulgated by the Supreme Court shall provide for a simplified and inexpensive procedure for the speedy trial and disposition of cases.⁵⁰ Indeed, for justice to prevail, the scales must balance, for justice is not to be dispensed for the accused alone.⁵¹

Evidently, the task of the pillars of the criminal justice system is to preserve our democratic society under the rule of law, ensuring that all those who appear before or are brought to the bar of justice are afforded a fair opportunity to present their side. As correctly observed by the Court of Appeals, Criminal Case No. 119830 is just one of the many controversial cases involving the BW shares scam where public interest is undoubtedly at stake. The State, like any other litigant, is entitled to its day in court, and to a reasonable opportunity to present its case. A hasty dismissal, instead of unclogging dockets, has actually increased the workload of the justice system and unwittingly prolonged the litigation.⁵²

Finally, we reiterate that the rights given to the accused by the Constitution and the Rules of Court are shields, not weapons. Courts are tasked to give meaning to that intent. There being no capricious, vexatious, oppressive delay in the proceedings, and no postponements unjustifiably sought, we concur in the conclusions reached by the Court of Appeals.

WHEREFORE, the petition is DISMISSED. The assailed 22 February 2006 Decision and 17 July 2006 Resolution issued by the Court of Appeals in CA-G.R. SP No. 83068 are hereby AFFIRMED.

The instant case is REMANDED to the Regional Trial Court, Branch 153, Pasig City for further proceedings in Criminal Case No. 119830 with reasonable dispatch.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

CONCHITA CARPIO MORALES* Associate Justice

PRESBITERO J. VELASCO, JR.** Associate Justice

TERESITA J. LEONARDO-DE CASTRO^***
Associate Justice

A T T E S T A T I O N

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

CONSUELO YNARES-SANTIAGO
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 Constitution, and the Division Chairperson’s Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

^* Per Special Order No. 602, dated 20 March 2009, signed by Chief Justice Reynato S. Puno, designating Associate Justice Conchita Carpio Morales to replace Associate Justice Ma. Alicia Austria-Martinez, who is on official leave.

^** Associate Justice Presbitero J. Velasco, Jr. was designated to sit as additional member replacing Associate Justice Antonio Eduardo B. Nachura per Raffle dated 14 January 2008.

^*** Associate Justice Teresita J. Leonardo-De Castro was designated to sit as additional member replacing Associate Justice Antonio T. Carpio per Raffle dated 15 April 2009.

¹ Penned by Associate Justice Fernanda Lampas Peralta with Associate Justices Josefina Guevara-Salonga and Sesinando E. Villon, concurring; rollo, pp. 90-100.

² Id. at 102-112.

³ Id. at 228-230.

⁴ Id. at 231-232.

⁵ Id. at 233-235.

⁶ Records, p. 194.

⁷ Id. at 253-259.

⁸ Rollo, pp. 247-253.

⁹ Section 36. Directors, officers and principal stockholders.—

(a) Every person who is directly or indirectly the beneficial owner of more than ten per centum of any class of any equity security which is registered pursuant to this Act, or who is a director or an officer of the issuer of such security, shall file, at the time of the registration of such security on a securities exchange or by the effective date of a registration statement or within ten days after he becomes such a beneficial owner, director, or officer, a statement with the Commission and, if such security is registered on a securities exchange, also with the exchange, of the amount of all equity securities of such issuer of which he is the beneficial owner, and within ten days after the close of each calendar month thereafter, if there has been a change in such ownership during such month, shall file with the Commission, and if such security is registered on a securities exchange, shall also file with the exchange, a statement indicating his ownership at the close of the calendar month and such changes in his ownership as have occurred during such calendar month.

¹⁰ Section 32. Reports. – (a) (1) Any person who, after acquiring directly or indirectly the beneficial ownership of any equity security of a class which is registered pursuant to this Act, is directly or indirectly the beneficial owner of more than ten (10%) per centum of such class shall, within ten days after such acquisition or such reasonable time as fixed by the Commission, submit to the issuer of the security, to the stock exchanges where the security is traded, and to the Commission a sworn statement x x x.

¹¹ Penalties. Any person who violates any of the provisions of this Act, or the rules and regulations promulgated by the Commission under authority thereof, or any person who, in a registration statement filed under this Act, makes any untrue statement of a material fact of omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, shall, upon conviction, suffer a fine of not less than five thousand (P5,000.00) pesos nor more than five hundred thousand (P500,000.00) pesos or imprisonment of not less than seven (7) years nor more than twenty one (21) years, or both in the discretion of the court. If the offender is a corporation, partnership or association or other juridical entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association or entity responsible for the violation, and if such officer is an alien, he shall, in addition to the penalties prescribed, be deported without further proceedings after service of sentence.

¹² Section 27. Manipulative and deceptive devices. It shall be unlawful for any person, directly or indirectly, by the use of any facility of any exchange –

x x x x

(b) To use or employ, in connection with the purchase or sale of any security, any manipulative or deceptive device or contrivance.

¹³ Rollo, pp. 835-855.

¹⁴ Id. at 99-100.

¹⁵ Regalado, Remedial Law, p. 729.

¹⁶ Revised Administrative Code, Section 3(2).

¹⁷ Centeno v. Viray, 440 Phil. 881, 887 (2002).

¹⁸ Busmente, Jr. v. National Labor Relations Commission, G.R. No. 73647, 8 April 1991, 195 SCRA 710, 713.

¹⁹ Tad-y v. People, G.R. No. 148862, 11 August 2005, 466 SCRA 474, 492; Romago Electric Co., Inc. v. Court of Appeals, 388 Phil. 964, 975 (2000).

²⁰ Palon v. Nino, 405 Phil. 670, 681 (2001).

²¹ Acebedo v. Sarmiento, 146 Phil. 820, 823 (1970).

²² Philippine Constitution, Art. III, Sec. 14(2).

²³ SECTION 6. Time Limit for Trial. – In criminal cases involving persons charged of a crime, except those subject to the Rules on Summary Procedure, or where the penalty prescribed by law does not exceed six (6) months imprisonment, or a fine of One thousand pesos (P1,000.00) or both, irrespective of other imposable penalties, the justice or judge shall, after consultation with the public prosecutor and the counsel for the accused, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Chief Justice of the Supreme Court pursuant to Section 3, Rule 22 of the Rules of Court.

²⁴ SEC. 2. Continuous trial until terminated; postponements.—Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause.

The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court.

The time limitations provided under this section and the preceding section shall not apply where special laws or circulars of the Supreme Court provide for a shorter period of trial.

²⁵ G.R. No. 162214, 11 November 2004, 442 SCRA 294, 312-313.

²⁶ Id. at 313-314.

²⁷ Abardo v. Sandiganbayan, 407 Phil. 985, 999-1000 (2001); Dela Pena v. Sandiganbayan, 412 Phil. 921, 929 (2001).

²⁸ Socrates v. Sandiganbayan, 324 Phil. 151, 170 (1996); Tai Lim v. Court of Appeals, 375 Phil. 971, 977 (1999).

²⁹ Santiago v. Garchitorena, G.R. No. 109266, 2 December 1993, 228 SCRA 214, 221.

³⁰ G.R. No. 101689, 17 March 1993, 220 SCRA 55.

³¹ 408 Phil. 767 (2001).

³² G.R. No. 104776, 5 December 1994, 238 SCRA 721.

³³ TSN, 27 February 2001.

³⁴ Producers Bank of the Philippines v. Court of Appeals, 430 Phil. 812, 823 (2002); People v. Hernandez, 328 Phil. 1123, 1143 (1996).

³⁵ TSN, 27 February 2001, pp. 3-7; CA rollo, pp. 87-91.

³⁶ Id. at 71-74; id. at 155-156.

³⁷ TSN, 3 April 2001, pp. 5-10; id. at 225-230.

³⁸ Solar Team Entertainment, Inc. v. Judge How, 393 Phil. 172, 184 (2000).

³⁹ Id.

⁴⁰ Republic v. Sandiganbayan and Marcos, 461 Phil. 598, 615 (2003).

⁴¹ People v. Ganguso, G.R. No 115430, 23 November 1995, 250 SCRA 268, 274-275; People v. Abellanosa, 332 Phil. 760, 788 (1996), citing People v. Baclayon, G.R. No. 110837, 29 March 1994, 231 SCRA 578, 584, citing People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 358-359.

⁴² Santiago v. Garchitorena, supra note 29.

⁴³ Condrada v. People, 446 Phil. 635, 641 (2003).

⁴⁴ Id.

⁴⁵ Id.; Philippine Savings Bank v. Bermoy, G.R. No. 151912, 26 September 2005, 471 SCRA 94, 106, citing People v. Bans, G.R. No. 104147, 8 December 1994, 239 SCRA 48, 55.

⁴⁶ 407 Phil. 279 (2002).

⁴⁷ Regalado, Remedial Law Compendium (Vol. II, 2001), p. 503.

⁴⁸ 314 Phil. 35, 45 (1995).

⁴⁹ 325 Phil. 525, 537 (1996).

⁵⁰ Justice Isagani Cruz, Philippine Political Law, p. 292.

⁵¹ Dimatulac v. Villon, 358 Phil. 328, 366 (1998); People v. Subida, G.R. No. 145945, 27 June 2006, 493 SCRA 125, 137.

⁵² People v. Leviste, supra note 49.

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. Nos. 164669-70 October 30, 2009

LIEZL CO, Petitioner,
vs.
HAROLD LIM y GO and AVELINO UY GO, Respondents.

D E C I S I O N

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Order,¹ dated 11 February 2004, later upheld in a subsequent Order² dated 29 June 2004, both rendered by Branch 45 of the Regional Trial Court (RTC) of Manila, dismissing Criminal Cases No. 01-197839 and No. 03-213403 against respondents Harold Lim y Go (Lim) and Avelino Uy Go (Go), respectively, for violation of Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law.³

On 6 December 2001, agents from the National Bureau of Investigation (NBI) raided a commercial establishment named A-K Video Store, located at 1214 Masangkay Street, Manila. They had acted upon the information relayed by complainant Liezl Co (Co) that cell cards that were stolen from her on 26 November 2001 were being sold at A-K Video Store. The store was owned by Go. Lim, who was found administering the store at the time of the raid, was arrested. In all, a total of thirty (30) boxes containing cell cards worth P332,605.00 were seized from the store.⁴

After Inquest proceedings were conducted, the City Prosecutor’s Office of Manila issued a Resolution dated 7 December 2001 recommending the prosecution of Lim for violation of Presidential Decree No. 1612.⁵ On 7 March 2003, an Information⁶ was filed before the RTC of Manila charging Lim with violation of Presidential Decree No. 1612, to wit:

That on or about December 6, 2001, in the City of Manila, Philippines, the said accused, with intent to gain for himself or for another, did then and there willfully and feloniously possess, keep, conceal, receive, acquire, sell, or dispose or buy and sell thirty (30) boxes of P250.00 Globe cell card valued at P332,605.00 and five (5) pcs. Globe cell card valued at P1,105.00, all in the total amount of P333,710.00 belonging to LIEZL CO y CO, which said cell cards, said accused knew or should have known to have been the subject/proceeds of the crime of Theft or Robbery.

Lim moved for a reinvestigation of his case before the Office of the City Prosecutor of Manila, which was granted by the RTC on 25 April 2002.⁷ The arraignment that was initially scheduled on 21 November 2002 was rescheduled on 22 January 2003,⁸ and further rescheduled thereafter pending the reinvestigation proceedings. Pending the reinvestigation of Lim’s case, petitioner filed a complaint against Go before the Office of the City Prosecutor of Manila for the violation of Presidential Decree No. 1612.⁹ The reinvestigation of the case against Lim was conducted together with the preliminary investigation of Go.¹⁰ In a Review Resolution,¹¹ dated 9 April 2003, the Office of the City Prosecutor of Manila reaffirmed its findings of probable cause against Lim and recommended the prosecution of Go. The dispositive part of the Review Resolution reads:

WHEREFORE, it is recommended that Criminal Case No. 01-197839 be remanded back to court for further proceedings. It is likewise recommended that the attached information for Violation of P.D. 1612 against respondent Avelino Uy Go be approved.¹²

Accordingly, the Information¹³ against Go was filed on 25 April 2003. It reads:

That on or about December 6, 2001, in the City of Manila, Philippines, the said accused, with intent to gain for himself or for another, conspiring and confederating with Harold Lim who was already charged in Court of the same offense docketed under Criminal Case No. 01-197839 and mutually helping each other, did then and there willfully and feloniously possess, keep, conceal, receive and acquire, sell, or dispose or buy and sell thirty (30) boxes of P250.00 Globe cell card valued at P332,605.00 and five (5) pcs. P250.00 Globe cell card valued at P1,105.00, all in the total amount of P333,710.00 belonging to LIEZL CO CO, which said cell cards, said accused knew or should have known to have been the subject/proceeds of the crime of Theft or Robbery.

Respondents filed a Petition for Review with the Department of Justice assailing the Review Resolution, dated 9 April 2003.

On 15 July 2003, respondents moved for the consolidation of Criminal Cases No. 01-197839 and No. 03-213403 on the ground that these cases arose from the same series of incidents.¹⁴ During the hearing held on 16 July 2003, the RTC granted the motion and consolidated the criminal cases against respondents.¹⁵

On 16 January 2004, the Acting Secretary of the Department of Justice, Ma. Merceditas N. Gutierrez, issued a Resolution¹⁶ reversing the Review Resolution dated 9 April 2003 of the Office of the City Prosecutor of Manila. The dispositive part of the Resolution reads:

ACCORDINGLY, the resolution appealed from is hereby REVERSED and SET ASIDE. The City Prosecutor of Manila is directed to withdraw forthwith the informations for violation of PD No. 1612 filed in the court against respondents Harold G. Lim and Avelino Uy Go and to report the action taken hereon within ten days from receipt hereof.¹⁷

On 27 January 2004, Assistant Prosecutor Yvonne G. Corpuz filed a Motion to Withdraw Informations¹⁸ seeking the dismissal of the cases filed against respondents pursuant to the Resolution of the Acting Secretary of the Department of Justice dated 16 January 2004 directing the prosecutor to move for the withdrawal of the Informations filed against respondents.

On 11 February 2004, the date set by the RTC for the arraignment of the respondents and for pre-trial, the respondents were arraigned, and the prosecution and the defense marked their evidence and submitted their stipulations of facts. Thereafter, the defense counsel orally moved for the dismissal of the case on the ground that the Office of the City Prosecutor of Manila, through Assistant Prosecutor Corpuz, had already filed a Motion to Withdraw Informations on 27 January 2004. Private prosecutor Lodelberto Parungao opposed the motion to dismiss on the ground that the Resolution of the Acting Secretary of Justice dated 16 January 2004 was not binding upon the Court. Nevertheless, in an Order¹⁹ dated 11 February 2004, the RTC ordered the dismissal of Criminal Cases No. 01-197839 and No. 03-213403 on the ground that the Office of the City Prosecutor of Manila and the Department of Justice would not prosecute these cases, to wit:

After considering the respective stands of the prosecution and the defense as well as the records of this case, this Court is of the considered view that the Motion To Dismiss by the accused is meritorious and should be granted. If this Court will proceed with these criminal cases, the prosecution thereof will naturally be under the direct control and supervision of Public Prosecutor Antionio B. Valencia, Jr. However, the said Public Prosecutor will be placed in an awkward, if not precarious situation, since he will be going against the very Orders of his own Office and the Department of Justice which want the Informations withdrawn. If the City Prosecutor’s Office of Manila and the Department of Justice will not prosecute these cases for the plaintiff Republic of the Philippines, then the same should be dismissed. As correctly pointed out by counsel for the accused, what remains is only the civil aspect of these cases.²⁰ (Emphasis ours.)

The dispositive part of the said Order reads:

WHEREFORE, premises considered, and finding the Motion To Dismiss by the accused through counsel to be meritorious, the same is hereby GRANTED and let the herein Criminal Cases Nos. 01-197839 and 03-213403 be DISMISSED.

As moved by the private prosecutor, he is given the period allowed by the Rules of Court to file the necessary pleading with respect to this Order of the Court from receipt hereof.

As further moved by the private prosecutor, Atty Lodelberto S. Parungao, that the complainant be allowed to present evidence on the civil aspect of these cases on the ground that the civil actions in these cases were deemed instituted with the criminal actions and that there was no reservation made to file a separate civil action and therefore the civil cases remain pending with this court since extinction of the penal action does not carry with it extinction of the civil action, and over the vigorous objection by counsel for the accused Atty. Teresita C. Marbibi who insisted that the dismissal of the herein criminal cases carried with it the dismissal also of the civil aspect thereof, the said motion by the private prosecutor is hereby GRANTED and he may present evidence on the civil aspect of these cases on March 18 and March 25, 2004 both at 8:30 a.m. Considering the manifestation by Atty. Marbibi that she will not participate in said hearings, let the presentation of evidence for the complainant be made ex-parte without objection from the defense counsel.²¹

Petitioner filed a Motion for Reconsideration²² dated 12 March 2004, which the RTC denied in an Order²³ dated 29 June 2004. The dispositive part of the Order reads:

WHEREFORE, premises considered, the private complainants’ subject Motion for Reconsideration is hereby DENIED for lack of merit.²⁴

On 2 July 2004, petitioner filed a Petition for Certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 84703, which sought the reversal of the Resolution dated 16 January 2006 of the Acting Secretary of the Department of Justice directing the Office of the City Prosecutor of Manila to withdraw the informations filed against the respondents.²⁵ This petition was still pending with the Court of Appeals when the petitioner filed the present petition with the Supreme Court assailing the Orders dated 11 February 2004 and 29 June 2004 of the RTC dismissing the criminal complaints against respondents. The present Petition, filed under Rule 45 of the Rules of Court, raises the following questions of law²⁶:

I

BY THE PRESENT APPEAL BY CERTIORARI, ARE THE RIGHTS OF THE TWO (2) ACCUSED AGAINST DOUBLE JEOPARDY VIOLATED, CONSIDERING THAT THEY EXPRESSLY MOVED FOR THE DISMISSAL OF THE CRIMINAL CASES AGAINST THEM?

II

WAS THE ORDER OF THE PRESIDING JUDGE OF RTC45-MANILA DISMISSING CRIMINAL CASES NO. 01-197839 AND 03-213403 FOR THE SOLE REASON THAT THE DEPARTMENT OF JUSTICE ORDERED THE WITHDRAWAL OF THE CORRESPONDING INFORMATIONS, AND WITHOUT MAKING AN INDEPENDENT ASSESSMENT AND FINDING OF EVIDENCE, VALID?

The petition is meritorious.

Once a case is filed with the court, any disposition of it rests on the sound discretion of the court. The trial court is not bound to adopt the resolution of the Secretary of Justice, since it is mandated to independently evaluate or assess the merits of the case. Reliance on the resolution of the Secretary of Justice alone would be an abdication of its duty and jurisdiction to determine a prima facie case. The trial court may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor, which the court may order the latter to produce before the court; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor.²⁷

The failure of the trial court judge to independently evaluate and assess the merits of the case against the accused violates the complainant’s right to due process and constitutes grave abuse of discretion amounting to excess of jurisdiction. 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 Withdraw Informations anew.²⁸

In dismissing the criminal cases against the respondents, the RTC in this case relied on the unwillingness of the Department of Justice to prosecute these cases and the awkward situation in which the public prosecutor would find himself. The assailed Order dated 11 February 2004 reads:

After considering the respective stands of the prosecution and the defense as well as the records of this case, this Court is of the considered view that the Motion To Dismiss by the accused is meritorious and should be granted. If this Court will proceed with these criminal cases, the prosecution thereof will naturally be under the direct control and supervision of Public Prosecutor Antonio B. Valencia, Jr. However, the said Public Prosecutor will be placed in an awkward, if not precarious situation, since he will be going against the very Orders of his own Office and the Department of Justice which want the Informations withdrawn. If the City Prosecutor’s Office of Manila and the Department of Justice will not prosecute these cases for the plaintiff Republic of the Philippines, then the same should be dismissed. As correctly pointed out by counsel for the accused, what remains is only the civil aspect of these cases.²⁹ (Emphasis ours.)

Moreover, the trial judge did not positively state that the evidence presented against the respondents was insufficient for a prima facie case, nor did the aforequoted Order include a discussion of the merits of the case based on an evaluation or assessment of the evidence on record. In other words, the dismissal of the case was based upon considerations other than the judge’s own personal individual conviction that there was no case against the respondents. Thus, the trial judge improperly relinquished the discretion that he was bound to exercise, and the Orders dated 11 February 2004 and 29 June 2004 are invalid for having been issued in grave abuse of discretion.³⁰

Section 21, Article III of the Constitution prescribes the rule against double jeopardy:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

The following requisites must be complied with for double jeopardy to set in: (1) there is a valid complaint of information; (2) the complaint should be filed before a court of competent jurisdiction; (3) the accused has pleaded to the charge; and (4) the accused has been convicted or acquitted, or the case has been dismissed or terminated without the express consent of the accused.³¹

The Order dated 11 February 2004 of the RTC categorically stated that the defense counsel moved for the dismissal of the cases against the respondents. Verily, respondents, through counsel, had given their express consent to the termination of the case on 11 February 2004. Therefore, the fourth requisite, which necessitates the conviction or acquittal of the accused or the dismissal of the case without his or her approval, was not met. Undoubtedly, the rule on double jeopardy is inapplicable to this case.

It is the conviction or the acquittal of the accused, or dismissal or termination of the case without the approval of the accused that bars further prosecution for the same offense or any attempt to commit the same or the frustration thereof.³² At the heart of the 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 constitutional 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. Nevertheless, the prosecution is entitled to one opportunity to require the accused to stand trial. Should the prosecution waive this right to a full-blown trial, the defendant has the right to have his or her trial completed by a particular tribunal.³³ If the trial is terminated before it is completed, and it is dismissed with the consent of the defendant, then double jeopardy will not attach.

Respondents alleged that petitioner is guilty of forum shopping since she filed the present petition assailing the Orders dated 11 February 2004 and 29 June 2004 of the RTC after she filed a Petition for Certiorari before the Court of Appeals docketed as CA-G.R. SP No. 84703 questioning the Resolution of the Acting Secretary of Justice dated 16 January 2004. This argument is specious.1avvphi1

Section 5, Rule 7 of the 1997 Rules of Court, which disallows the deplorable practice of forum shopping, provides that:

SEC. 5. Certification against forum shopping.—The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filled therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

Forum shopping exists when a party repetitively avails himself of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances and all raising substantially the same issues either pending in or already resolved adversely by some other court.³⁴ The test for determining forum shopping is whether in the two (or more) cases pending, there is an identity of parties, rights or causes of action, and relief sought.³⁵

Petitioner in this case is not guilty of forum shopping since there is no identity of relief and cause of action in the present petition and in CA-G.R. SP No. 84703. The Petition for Certiorari filed by petitioners before the Court of Appeals questions the propriety of the Resolution of the Acting Secretary of Justice. The present petition docketed as G.R. Nos. 164669-70 seeks the reversal of the Orders dated 11 February 2004 and 29 June 2004 of the RTC. The determination made by the Acting Secretary of Justice that no prima facie case exists for the prosecution of the case is distinct from the judicial determination of the RTC that there is no probable cause for the continued hearing of the criminal case. These are two very different actions which should be separately assailed. The former is pursuant to the powers and functions of the Department of Justice as provided under Section 2, Chapter 1, Title III of the Revised Administrative Code:

Section 3. Powers and Functions. To accomplish its mandate, the Department shall have the following powers and functions:

x x x x

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system.

On the other hand, the determination made by the RTC, which is being questioned in the present case, is pursuant to the judicial powers conferred by Section 1, Article VIII of the Constitution:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

Consequently, a determination by the Court of Appeals that the prosecution of the criminal case must proceed will not affect whether or not this Court may or may not adjudge that the RTC should continue to hear the same criminal case.

Finally, this Court finds the proceedings conducted on 11 February 2004 highly unusual in that the RTC judge had arraigned the respondents before granting the respondent’s oral motion to dismiss solely based on the Resolution of the Acting Secretary of Justice dated 16 January 2004, a copy of which was attached to the Motion to Withdraw Informations filed by the public prosecutor on 27 January 2004. The irregularity is even more pronounced when we consider the fact that the public prosecutor, whose office had filed a Motion to Withdraw Informations on 27 January 2004, agreed to have respondents arraigned on 11 February 2004. Added to the fact that the defense was allowed to move for the dismissal of the case even without a written motion, such irregularity arouses suspicions that the arraignment of the respondents after the public prosecutor was already ordered to withdraw the Informations was intended to aid respondents in raising the defense of double jeopardy should another case based on the same incidents be filed against them. While this Court does not make any conclusive findings of bad faith on the part of the RTC judge and the public prosecutor, it deems it proper to issue a reminder to officers of the court to avoid all appearances of suspicious or questionable behavior so as not to unduly strain public trust.

IN VIEW OF THE FOREGOING, the instant Petition is GRANTED. The Orders dated 11 February 2004 and 29 June 2004 of Branch 45 of the Regional Trial Court of the City of Manila dismissing Criminal Cases No. 01-197839 and No. 03-213403, are REVERSED and SET ASIDE. The records of this case shall be remanded to the trial court in order that it may resolve the Motion to Withdraw Informations filed by the public prosecutor based on an independent assessment of the evidence in this case.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING^*
Associate Justice

ANTONIO T. CARPIO Associate Justice

DIOSDADO M. PERALTA Associate Justice

ROBERTO A. ABAD^**
Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision were 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, Third 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, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

^* Per Special Order No. 755, dated 12 October 2009, signed by Chief Justice Reynato S. Puno designating Associate Justice Leonardo A. Quisumbing to replace Associate Justice Antonio Eduardo B. Nachura, who is on official leave.

^** Per Special Order No. 753, dated 12 October 2009, signed by Chief Justice Reynato S. Puno designating Associate Justice Roberto A. Abad to replace Associate Justice Presbitero J. Velasco, Jr., who is on official leave.

¹ Penned by Judge Marcelino Sayo. Rollo, pp. 12-16.

² Id. at 18-19.

³ The Anti Fencing Law reads:

WHEREAS, reports from law enforcement agencies reveal that there is rampant robbery and thievery of government and private properties;

WHEREAS, such robbery and thievery have become profitable on the part of the lawless elements because of the existence of ready buyers, commonly known as fence, of stolen properties;

WHEREAS, under existing law, a fence can be prosecuted only as an accessory after the fact and punished lightly;

WHEREAS, it is imperative to impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order and decree as part of the law of the land, the following:

SECTION 1. Title. – This Decree shall be known as the Anti-Fencing Law.

SEC. 2. Definition of Terms. – The following terms shall mean as follows:

a. "Fencing" is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.

x x x x

SEC. 5. Presumption of Fencing. – Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.

⁴ Records, p. 110.

⁵ Rollo, p. 356.

⁶ Records, p. 1.

⁷ Id. at 22-23 and 38.

⁸ Id. at 41.

⁹ Rollo, p. 356.

¹⁰ Id.

¹¹ Id. at 44-45.

¹² Id. at 45.

¹³ Id. at 46.

¹⁴ Records, 87-89.

¹⁵ Id. at 92.

¹⁶ Id. at 110-112.

¹⁷ Id. at 112,

¹⁸ Id. at 121.

¹⁹ Id. at 146-150.

²⁰ Id. at 149.

²¹ Id. at 150.

²² Id. at 181-189.

²³ Id. at 239-240.

²⁴ Id. at 240.

²⁵ Id. at 247.

²⁶ Rollo, pp. 30-31.

²⁷ Santos v. Orda, Jr., 481 Phil. 93, 105-106 (2004).

²⁸ Summerville General Merchandising & Co. Inc. v. Eugenio, Jr., G.R. No. 163741, 7 August 2007, 529 SCRA 274, 281-282.

²⁹ Records, p. 149.

³⁰ Martinez v. Court of Appeals, G.R. No. 112387, 13 October 1994, 237 SCRA 575, 585-586.

³¹ Summerville General Merchandising & Co. Inc. v. Eugenio, Jr., supra note 28 at 283.

³² Pacoy v. Cajigal, G.R. No. 157472, 28 September 2007, 534 SCRA 338, 352.

³³ People v. Sandiganbayan, G.R. Nos. 168188-89, 16 June 2006, 491 SCRA 185, 207.

³⁴ Feliciano v. Villasin, G.R. No. 174929, 27 June 2008, 556 SCRA 348, 370; Cruz v, Caraos, G.R. No. 138208, 23 April 2007, 521 SCRA 510, 521; SK Realty Inc. v. Uy, G.R. No. 144282, 8 June 2004, 431 SCRA 239, 246.

³⁵ Citibank, N.A. v. Sabeniano, G.R. No. 156132, 16 October 2006, 504 SCRA 378, 406.

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 136264 May 28, 2004

ATTY. REYNALDO P. DIMAYACYAC, petitioner,
vs.
HON. COURT OF APPEALS, HON. VICENTE Q. ROXAS, IRENE AGBADA-CRUZ, SIXTO AGBADA CRUZ, MERCEDES ARISTORENAS and ROMEO GOMEZ and PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari assailing the Decision¹ of the Court of Appeals (CA for brevity) dated November 13, 1998 in CA-G.R. SP No. 43884, denying Atty. Reynaldo P. Dimayacyac’s petition for certiorari and ruling that the Regional Trial Court (Branch 227) of Quezon City (RTC for brevity) was correct in denying petitioner’s motion to quash the information charging petitioner with falsification of public documents, docketed as Criminal Case No. Q-93-49988.

The antecedent facts as borne out by the records of the case are accurately narrated in the CA Decision dated November 13, 1998, thus:

An information for falsification of public documents docketed as Criminal Case No. Q-91-18037 at the RTC of Quezon City was filed against petitioner along with some others. That information reads:

The undersigned Assistant City Prosecutor accuses LOURDES ANGELES, ESTRELLA MAPA, ATTY. PONCIANO R. GUPIT, and ATTY. REYNALDO P. DIMAYACYAC of the crime of FALSIFICATION OF PUBLIC DOCUMENT (under Article 172, first and last paragraph in relation to Article 171 paragraph 2 of the Revised Penal Code), committed as follows:

That on or about the 5th day of 1986, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, all private individuals, conspiring together, confederating with and mutually helping one another, did then and there willfully, unlawfully and feloniously commit the act of falsification of public documents, by then and there falsifying or causing the falsification of the following documents, to wit:

(a) Certification dated March 10, 1986 purportedly signed by a certain Fernando Dizon, Record Management Analyst of the Bureau of Land, Central Office, Manila;

(b) Report dated May 5, 1986 purportedly signed by a certain Jose Mariano, Chief Record Management Division of Bureau of Land, Central Office, Manila; and

(c) Sales Certificate and Deed of Assignment allegedly issued by the Bureau of Land in favor of Lourdes Angeles; that despite the fact that said accused knew all the time that said documents are fake and spurious used the same in the Petition for Reconstitution of Records of the technical description of Lots Nos. 755, 777, 778 and 783 of the Piedad Estate covered by TCT No. 14, Decree No. 667, GLRO Record No. 5975 and the issuance of Title thereto filed by Estrella Mapa over and involving the aforesaid lots in Land Registration Case docketed as LRC Case No. 3369 (86) before Branch 99, Regional Trial Court, Quezon City and that by virtue of said falsification and the use of the same as evidence in Court Honorable Presiding Judge Godofredo Asuncion issued an order dated June 30, 1986 granting said petition, and pursuant thereto the Register of Deeds of Quezon City issued Transfer Certificates of Titles Nos. 348156, 348291 and 348292 in the name of Estrella Mapa thereby embracing and/or encroaching the portions of the properties belonging to Romeo D. Gomez, Sixto Agbada, Irene Agbada-Cruz and Mercedes Aristorenas whose properties were embraced and included in the said Transfer Certificates of Titles and in such amount as may be awarded under the provisions of the Civil Code.

CONTRARY TO LAW.

Before his arraignment, petitioner moved to quash the information on two (2) grounds. First, that the officer who filed the information had no legal authority to do so, and second, that more than one offense was charged in the information.

Pending resolution of the motion to quash, petitioner was arraigned.

By Order of August 23, 1991, Judge Benigno T. Dayaw of Branch 80 of the Regional Trial Court of Quezon City to whose sala Criminal Case No. Q-91-18037 was raffled, holding that the "grant or denial of Motion to Dismiss whether the accused is arraigned or not is discretionary on the part of the Court," it citing People vs. IAC, L-66939-41, January 10, 1987, granted the petitioner’s motion to quash upon the second ground. Accordingly, the information was quashed.

More than two (2) years after the quashal of the information in Criminal Case No. Q-91-18037 or on October 19, 1993, the Quezon City Prosecutor filed against the same accused including petitioner two (2) informations for falsification of public documents docketed at the Quezon City RTC as Criminal Case Nos. Q-93-49988 and 49989. The Informations arose from the questioned acts of falsification subject of the earlier quashed information in Criminal Case No. Q-91-18037.

Petitioner later filed with Branch 103 of the RTC of Quezon City to which the informations were raffled a motion for the quashal thereof on the ground of double jeopardy, citing Section 3(h) of Rule 117 of the Revised Rules of Court.

Petitioner argued at the court a quo that he would be placed in double jeopardy as he was indicted before for the same offenses and the case was dismissed or otherwise terminated without his express consent.

By the assailed Order of December 18, 1996, public respondent, Judge Vicente Q. Roxas of Branch 227 of the RTC of Quezon City to which the two (2) informations against petitioner, et al, were eventually lodged, held that the information in Criminal Case No. Q-93-49988 involved a different document as that involved in Criminal Case No. Q-91-18037 which had already been quashed. Resolution of the motion to quash the information in Criminal Case No. Q-93-49989 was stayed pending the submission by petitioner of the documents required by the court a quo. Public respondent thus denied the motion to quash the information in Criminal Case No. Q-93-49988 and ordered petitioner’s arraignment, he holding that said case did not place petitioner in double jeopardy.²

Herein petitioner then filed a petition for certiorari before the CA which denied his petition stating in its Decision that since the Information in Criminal Case No. Q-91-18037, on petitioner’s motion, was quashed on the ground that more than one offense was charged pursuant to Sec. 3 (e) of Rule 117 of the Revised Rules of Court,³ he is not placed in double jeopardy by the filing of another Information for an offense included in the charge subject of the Information in Criminal Case No. Q-91-18037.⁴

Hence, herein petition for review on certiorari assigning the following errors of the CA, to wit:

I. That the Honorable Court of Appeals ERRED in disregarding the legal doctrine that THERE IS DOUBLE JEOPARDY, in the case now pending before Respondent Judge Vicente Q. Roxas;

II. That the Honorable Court of Appeals ERRED in not adhering to the decisions of this Honorable Supreme Court, as well as to applicable jurisprudence on the matter;

III. That the Honorable Court of Appeals ERRED in not taking into account that based on the "Manifestation and Motion (To Grant Petition) In Lieu of Comment" filed by the Office of the Solicitor General, the ORDER of dismissal of Honorable Judge Benigno T. Dayaw in Criminal Case No. Q-91-18037 on August 23, 1991 has become final and executory; and

IV. That the Honorable Respondent Court of Appeals ERRED in concluding that an ORDER sustaining the motion to quash is not a bar to another prosecution for the same offense, as it has no legal basis.⁵

On the other hand, the Office of the Solicitor General (OSG) contends that petitioner, by filing the motion to quash and refusing to withdraw it after he was arraigned, is deemed to have waived his right against double jeopardy, as his motion to quash constituted his express consent for the dismissal of the information. However, the OSG advances the view that the criminal case against herein petitioner may be dismissed for the inordinate delay in the conduct of preliminary investigation for the purpose of filing the proper information, which is a violation of the accused’s constitutional right to due process of law and to speedy disposition of cases.

Private respondent complainant Irene Agbada-Cruz, in turn, submits that the Court of Appeals committed no error since the dismissal or quashal of an information is not a bar to another prosecution except when the motion to quash is based on the ground that (1) the criminal action or liability has been extinguished or that (2) the accused has previously been convicted or in jeopardy of being convicted or acquitted of the offense charged, pursuant to Section 6 in relation to Section 3, Rule 117 of the Rules of Court, to wit:

Section 6. Order sustaining the motion to quash not a bar to another prosecution; exception. - An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in Section 3, sub-sections (f) and (h) of this Rule.

Section 3. Grounds. – The accused may move to quash the complaint or information on any of the following grounds:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged or the person of the accused;

(c) That the officer who filed the information had no authority to do so;

(d) That it does not conform substantially to the prescribed form;

(e) That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses;

(f) That the criminal action or liability has been extinguished;

(g) That it contains averments which, if true, would constitute a legal excuse or justification; and

(h) That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged. (Emphasis supplied)

Thus, private respondent Cruz argues that since the previous information was quashed on the ground of duplicity of offenses charged, the subsequent filing of a proper information is, therefore, not barred.

In their Memorandum, private respondents-complainants Romeo Gomez and Mercedes Aristorenas contend that (1) jeopardy does not attach where the dismissal of the information was effected at the instance of the accused; and (2) there was no violation of petitioner’s right to a speedy disposition of his case since he never raised this issue in the trial court nor in the appellate court, hence, his silence should be interpreted as a waiver of said right to a speedy trial.

The issues boil down to (1) whether or not the prosecution of petitioner under the Information docketed as Criminal Case No. Q-93-49988 would constitute double jeopardy, considering that when the Information in Criminal Case No. Q-91-18037 was previously quashed, he had already been arraigned, and (2) whether or not petitioner’s constitutional right to a speedy disposition of his case has been violated.

With regard to the first issue, we are in accord with the ruling of the CA that not all the elements for double jeopardy exist in the case at bench. In People vs. Tac-An,⁶ we enumerated the elements that must exist for double jeopardy to be invoked, to wit:

Thus, apparently, to raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense as that in the first.

Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851).

Was the duplicitous information a valid indictment? We answer in the affirmative. In People vs. Bugayong,⁷ we ruled that when an appellant fails to file a motion to quash within the time prescribed under Section 1, Rule 117 of the Rules of Court, he is thus deemed to have waived the defect in the Information. In People vs. Manalili,⁸ we held that an accused, who fails to object prior to arraignment to a duplicitous information, may be found guilty of any or all of the crimes alleged therein and duly proven during the trial, for the allegation of the elements of such component crimes in the said information has satisfied the constitutional guarantee that an accused be informed of the nature of the offense with which he or she is being charged. Verily, a duplicitous information is valid since such defect may be waived and the accused, because of such waiver, could be convicted of as many offenses as those charged in the information and proved during trial.

The validity of the information having been established, we go on to examine whether the other requisites for double jeopardy to attach are present. In the present case, although there was a valid indictment before a competent court and petitioner, as the accused, had already been arraigned therein, entering a valid plea of not guilty, the last requisite that the case was dismissed or otherwise terminated without his express consent, is not present.

It should be noted that the termination of Criminal Case No. Q-91-18037 was upon motion of petitioner who, on April 1, 1991, filed with the court an Urgent Motion to Quash which was granted by Resolution dated August 23, 1991. In Sta. Rita vs. Court of Appeals,⁹ we held that the reinstatement of criminal cases against the accused did not violate his right against double jeopardy since the dismissal of the information by the trial court had been effected at his own instance when the accused filed a motion to dismiss on the grounds that the facts charged do not constitute an offense and that the RTC had no jurisdiction over the case. In this case, considering that since the dismissal of the previous criminal case against petitioner was by reason of his motion for the quashal of the information, petitioner is thus deemed to have expressly given his consent to such dismissal. There could then be no double jeopardy in this case since one of the requisites therefore, i.e., that the dismissal be without accused’s express consent, is not present.

As to whether the subsequent filing of the two informations docketed as Q-93-49988 and Q-93-49989 constitutes a violation of petitioner’s constitutional right to a speedy disposition of cases,¹⁰ we rule in the

negative. We are not convinced by the OSG’s assertion that the cases of Tatad vs. Sandiganbayan¹¹ or Angchangco, Jr. vs. Ombudsman,¹² are applicable to the case before us. We see differently. There is no factual similarity between this case before us and the cases of Tatad and Angchangco.

In the Tatad case, there was a hiatus in the proceedings between the termination of the proceedings before the investigating fiscal on October 25, 1982 and its resolution on April 17, 1985. The Court found that "political motivations played a vital role in activating and propelling the prosecutorial process"¹³ against then Secretary Francisco S. Tatad. In the Angchangco case, the criminal complaints remained pending in the Office of the Ombudsman for more than six years despite the respondent’s numerous motions for early resolution and the respondent, who had been retired, was being unreasonably deprived of the fruits of his retirement because of the still unresolved criminal complaints against him. In both cases, we ruled that the period of time that elapsed for the resolution of the cases against the petitioners therein was deemed a violation of the accused’s right to a speedy disposition of cases against them.

In the present case, no proof was presented to show any persecution of the accused, political or otherwise, unlike in the Tatad case. There is no showing that petitioner was made to endure any vexatious process during the two-year period before the filing of the proper informations, unlike in the Angchangco case where petitioner therein was deprived of his retirement benefits for an unreasonably long time. Thus, the circumstances present in the Tatad and Angchangco cases justifying the "radical relief" granted by us in said cases are not existent in the present case.

We emphasize our ruling in Ty-Dazo vs. Sandiganbayan¹⁴ where we held that:

The right to a speedy disposition of cases, like the right to a speedy trial, is deemed violated only when the proceedings is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or unjustifiable motive, a long period of time is allowed to elapse without the party having his case tried. In the determination of whether or not that right has been violated, the factors that may be considered and balanced are: the length of the delay the reasons for such delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the delay.

A mere mathematical reckoning of the time involved, therefore, would not be sufficient. In the application of the constitutional guarantee of the right to speedy disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case. (Emphasis supplied)

Thus, we shall examine how such aforementioned factors affected herein petitioner’s right.

As to the length of delay, it is established that the prosecution did not take any action on petitioner’s case for two years. From the time that Criminal Case No. Q-91-18037 was dismissed on August 23, 1991, the prosecution failed to effect the very simple remedy of filing two separate informations against petitioner until October of 1993. Indeed, there was a delay in the refiling of the proper informations. However, the prosecution was never given the opportunity to explain the circumstances that may have caused such delay precisely because petitioner never raised the issue of the length of time it took the prosecution to revive the case. There is nothing on record to show what happened during the two-year lull before the filing of the proper informations. Hence, it could not be ascertained that peculiar situations existed to prove that the delay was vexatious, capricious and oppressive, and therefore, a violation of petitioner’s constitutional right to speedy disposition of cases.

What the records clearly show is that petitioner never asserted his right to a speedy disposition of his case. The only ground he raised in assailing the subsequent filing of the two informations is that he will be subjected to double jeopardy. It was only the OSG that brought to light the issue on petitioner’s right to a speedy disposition of his case, and only when the case was brought to the appellate court on certiorari. Even in this petition before us, petitioner did not raise the issue of his right to a speedy disposition of his case. Again, it was only the OSG that presented such issue to us in the Brief for the State which was only then adopted by petitioner through a Manifestation dated August 3, 1999. We are not convinced that the filing of the informations against petitioner after two years was an unreasonable delay. Petitioner himself did not really believe that there was any violation of his right to a speedy disposition of the case against him.

The case which is more in point with the present one before us is Dela Peña vs. Sandiganbayan¹⁵ where we ruled that petitioner therein, for failing to assert their right to a speedy disposition of their cases, was deemed to have waived such right and thus, not entitled to the "radical relief" granted by the Court in the cases of Tatad and Angchangco. The factual circumstances surrounding herein petitioner’s case do not demonstrate that there was any violation of petitioner’s right to a speedy disposition of his case.

WHEREFORE, the petition is hereby DENIED for lack of merit. The temporary restraining order issued pursuant to our Resolution dated January 17, 2000 is hereby LIFTED and the Regional Trial Court of Quezon City (Branch 227) is hereby ORDERED to proceed with dispatch with petitioner’s arraignment in Criminal Case No. Q-93-49988.

SO ORDERED.

Puno^*, Quisumbing^**, Callejo, Sr., and Tinga, JJ., concur.

Footnotes

^* On Official Leave.

^** Acting Chairman.

¹ Penned by then Associate Justice Conchita Carpio Morales (now Associate Justice of the Supreme Court) and concurred in by Associate Justices Jainal Rasul and Bernardo Abesamis.

² Rollo, pp. 130-133.

³ Sec. 3. (e) That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses.

⁴ Rollo, p. 136.

⁵ Rollo, pp. 25-26.

⁶ 398 SCRA 373, 380 (2003), citing Saldana vs. Court of Appeals, et al., 190 SCRA 396 (1990).

⁷ 299 SCRA 528 (1998), citing People vs. Manalili, G.R. No. 121671, Aug. 14, 1998; People vs. Conte, 247 SCRA 583 (1995); People vs. Dulay, 217 SCRA 132 (1993); etc.

⁸ 294 SCRA 220, 226 (1998).

⁹ 247 SCRA 484 (1995).

¹⁰ Section 16, Article III of the 1987 Constitution of the Philippines states that "[a]ll persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies."

¹¹ 159 SCRA 70 (1988).

¹² 268 SCRA 301 (1997).

¹³ Tatad vs. Sandiganbayan 159 SCRA 70, 81 (1988).

¹⁴ 424 Phil. 945, 950-951 (2002), citing Binay vs. Sandiganbayan, 316 SCRA 65 (1999); Gonzales vs. Sandiganbayan, 199 SCRA 298 (1991); and Blanco vs. Sandiganbayan, 346 SCRA 108 (2000).

¹⁵ 360 SCRA 478 (2001) citing Alvizo vs. Sandiganbayan, 220 SCRA 55, 63 (1993); Dansal vs. Fernandez, 327 SCRA 145, 153 (2000); Blanco vs. Sandiganbayan, 346 SCRA 108 (2000).

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-112387 October 13, 1994

MANUEL P. MARTINEZ, petitioner,
vs.
COURT OF APPEALS, THE SOLICITOR GENERAL, and SALVADOR H. LAUREL, respondent.

Eriberto Ignacio for petitioner.

Laurel Law Offices for private respondent.

NARVASA, C.J.:

This petition for review prays for the reversal of the resolutions of
the Court of Appeals dated July 16, 1993 and October 25, 1993 in CA-G.R. No. 13429, entitled "The People of the Philippines, Plaintiff-Appellee, versus Manuel P. Martinez, Accused-Appellee, and Salvador H. Laurel, Private Complainant and Appellant." What petitioner Manuel P. Martinez actually seeks is the dismissal of the information for libel filed against him in the Trial Court. On the basis of the facts hereunder set forth, the Court denies his plea.

On complaint of then Vice-President Salvador H. Laurel, ¹ an Information dated March 23, 1990 ² was filed before the Regional Trial Court [RTC] of Manila by Assistant Prosecutor Antonio J. Ballena, charging Manuel F. Martinez with libel arising from the allegedly derogatory and scurrilous imputations and insinuations against Laurel contained in Martinez' article entitled "The Sorrows of Laurel" published on January 8, 1990 in his Manila Times column Narrow Gate. The Information was docketed as Criminal Case No. 90-82891 and assigned to Branch XI.

Martinez filed a "Motion for Reinvestigation" ³ which, was denied by Judge Manuel E. Yuzon in an Order dated June 21, 1990. ⁴ The case was set for arraignment and pre-trial conference on July 31, 1990, but this setting was cancelled in view of Judge Yuzon's retirement.

On October 8, 1990, complainant Laurel filed a motion to set the case for arraignment and pre-trial. Action on the motion was held in abeyance by the pairing judge, Hon. Gerardo Pepito, pending assumption of duty of Judge Yuzon's successor.

In the meantime, Martinez filed a petition with the Department of Justice (DOJ) seeking review of the resolution of the City Prosecutor finding a prima facie case of libel against him. Accordingly, 3rd Asst. City Prosecutor Lourdes C. Tabanag filed before the trial court on October 26, 1990, a motion to suspend proceedings pending resolution by the DOJ of Martinez' petition for review, which was granted by Judge Pepito on November 6, 1990.

On February 6, 1991, complainant Laurel attempted once more to have the case set for arraignment and trial. No action was taken on his said motion, and a subsequent motion dated July 16, 1991 praying for the resolution of the February 6, 1991 motion met the same fate.

By letter dated August 16, 1991 addressed to the City Prosecutor of Manila, ⁵ then Acting Justice Secretary Silvestre H. Bello III declared inter alia that while the language used in the article may be unsavory and unpleasant to complainant, the same was not actionable as libel, as if embodied merely an opinion protected as a privileged communication under Article 354 of the Revised Penal Code. The appealed resolution was therefore set aside and the City Prosecutor was directed to cause the dismissal of the information filed against Manuel F. Martinez. Consequently, a motion to dismiss Criminal
Case No. 90-82891 was filed on August 26, 1991 and set for hearing on December 17, 1991. At the hearing, upon manifestation of complainant's counsel, as private prosecutor, that he had received no copy of the motion to dismiss, the trial court directed the case prosecutor to furnish said counsel the desired copy, giving the latter ten (10) days to respond thereto.

It does not appear that the case prosecutor complied with the trial court's order; this notwithstanding, said court, through Presiding Judge Roberto A. Barrios, issued on February 18, 1992 and Order ⁶ reading:

Before arraignment was had, the Department of Justice conducted & since concluded review and reinvestigation of the charges, the Resolution of which is Annex "A" of the prosecution's motion to dismiss. The prosecution's fresh stand is that "there is no sufficient evidence against the said accused to sustain the allegation in the information." Coming as it does from the officials having control of the prosecution and at this stage of the proceedings, and there being no objection, the motion to dismiss is granted.

WHEREFORE, the case is dismissed. The office/officer having custody of it is directed to forthwith release to the accused his cash bond submitted under O.R. NO. 46865.

SO ORDERED.

Complainant Laurel having sought and been denied a reconsideration of said Order, he went to the Court of Appeals, ascribing error to the lower court in (a) recognizing the regularity and validity of the petition for review filed by Martinez with the DOJ and the DOJ's giving due course thereto, and (b) granting the motion to dismiss despite absence of notice thereof to complainant Laurel, and basing said dismissal not on evidence on record but on the opinion of the Secretary of Justice, to whom the judge completely subordinated his judgment and whose opinion, on its face, was clearly puerile and flimsy and violated or disregarded numerous Supreme Court decisions.

Martinez, on his part, moved to dismiss the appeal on the ground that no appeal lies from the dismissal of a criminal case, and certainly not by the private complainant, particularly where dismissal was at the instance of the City Prosecutor upon orders of the Department of Justice. He contended that if any remedy was available to private complainant, it was a petition for certiorari, not an appeal. Said motion notwithstanding, the Court of Appeals ordered complainant to file his brief. For its part, the Office of the Solicitor General filed a Manifestation in Lieu of Appellee's Brief recommending that the Order dated February 18, 1992 of the lower court granting the prosecution's motion to dismiss, be set aside and the case remanded to the court a quo for further proceedings.

On July 16, 1993, the Court of Appeals, Sixth Division, issued a Resolution ⁷ granting the appeal and remanding the case for arraignment of the accused and trial on the merits. The Appellate Court ruled that private complainant had "sufficient personality and a valid grievance against the order of dismissal before arraignment" and that the remedy of appeal was properly available because the order of dismissal was a final order which terminated all proceedings in the case. Quoting extensively from the People's Manifestation, the Court found the review by then Acting Justice Secretary Bello to run counter to prevailing jurisprudence and DOJ Circulars. It further ruled that the trial court completely abdicated its jurisdiction in favor of the Justice Department when it dismissed the case on the mere say-so of the prosecutor, without requiring the latter to present evidence to enable the court to arrive at its own judgment.

Martinez sought, but failed to obtain, a reconsideration of the above Resolution. ⁸ Hence, the present recourse. His arguments in support thereof do no warrant reversal of the challenged judgment of the Court of Appeals.

Appeal against the order of dismissal of February 18, 1992 was not foreclosed by the rule of double jeopardy, said order having issued before arraignment. Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered, and (e) the case was dismissed or otherwise terminated without the express consent of the accused. ⁹

Under Section 2, Rule 122 of the 1988 Rules of Criminal Procedure, the right to appeal from a final judgment or order in a criminal case is granted to "any party", except when the accused is placed thereby in double jeopardy. ¹⁰

In People vs. Guido, ¹¹ this Court ruled that the word "party" must be understood to mean not only the government and the accused, but also other persons who may be affected by the judgment rendered in the criminal proceeding. Thus, the party injured by the crime has been held to have the right to appeal from a resolution of the court which is derogatory to his right to demand civil liability arising from the offense. ¹² The right of the offended party to file a special civil action of prohibition and certiorari from an order rendered in a criminal case was likewise recognized in the cases of Paredes vs. Gopengco ¹³ and People vs. Calo, Jr., ¹⁴ which held that "offended parties in criminal cases have sufficient interest and personality as 'person(s) aggrieved' to file the special civil action of prohibition and certiorari under Sections 1 and 2 of Rule 65 in line with the underlying spirit of the liberal construction of the Rules of Court in order to promote their object . . . ." ¹⁵

In People vs. Nano ¹⁶, the Court, while declaring the petition filed before it by the private counsel for the offended parties to be defective in form, nevertheless took cognizance thereof in view of the gravity of error allegedly committed by the respondent judge against the prosecution — denial of due process — as well as the manifestation and motion filed by the Office of the Solicitor General praying that the petition be treated as if filed by the said office. The same exceptional circumstances obtaining in the Nano, case justified the Court of Appeals' taking cognizance of the appeal filed by private complainant Laurel, i.e.: denial of due process consisting in the failure of the prosecution to furnish counsel for private complainant a copy of the motion to dismiss despite being ordered to do so, as well as of the Manifestation in Lieu of Appellee's Brief ¹⁷ filed by the Solicitor General in the appellate
court, recommending the setting aside of the Order of the lower court dated February 18, 1992 and the remand of the case to the court a quo for further proceedings.

It is not unusual for the Solicitor General to take a position adverse to the People or the prosecution. The reason, as explained by the Court in Orbos vs. Civil Service Commission, ¹⁸ is that as the lawyer of the government, its agencies and instrumentalities, the Solicitor General has the duty to "see to it that the best interest of the government is upheld within the limits set by
law. . . . It is incumbent upon him to present to the court what he considers would legally uphold the best interest of the government although it may run counter to a client's position." When that happens, as the Court observed in Orbos:

. . . the Solicitor General nevertheless manifests his opinion and recommendation to the Court which is an invaluable aid in the disposition of the case. On some occasions he begs leave to be excused from intervening in the case, more so, when the client had already filed its own comment different from the stand of the Solicitor General or in a situation when he finds the contention of a private party tenable as against that of the government or any of its agencies. The Solicitor General has recommended the acquittal of the accused in appealed criminal cases.

The procedural recourse of appeal taken by private complainant Laurel is correct because the order of dismissal was a final order. It finally disposed of the pending action so that nothing more could be done with it in the lower court. ¹⁹ In Bell Carpets International Trading Corp. vs. Court Appeals, ²⁰ this Court held that "(t)he remedy against such a judgment is an appeal, regardless of the questions sought to be raised on appeal, whether of fact, or of law, whether involving jurisdiction or grave abuse of discretion of the Trial Court. . . . (T)he party aggrieved . . . did not have the option to substitute the special civil action of certiorari under Rule 65 for the remedy of appeal provided for in Rule 41. Indeed, the existence and availability of the right of appeal are antithetical to the availment of the special civil action of certiorari."

The rule with respect to the disposition of motions to dismiss filed by the fiscal was laid down by the Court in Crespo vs. Mogul, ²¹ where it was held that:

The rule therefore in this jurisdiction is that once a complainant or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal even cases while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.

Petitioner maintains that it is precisely in recognition of the above-cited rule that the prosecutor left the disposition of the case to the discretion of the lower court by filing the appropriate motion to dismiss; and that it was neither the Justice Secretary nor the fiscal who dismissed the information, but the trial judge himself, who exercised his discretion by approving the stand taken by the prosecution.

The fault or error tainting the order of dismissal of the lower court consists in its failure to observe procedural due process and to exercise its discretion properly and judiciously. Other procedural lapses that must be pointed out are attributable to petitioner Martinez, who filed a petition for review with the Department of Justice despite the denial by Judge Yuzon of his motion for reinvestigation, and to the Justice Secretary, who took cognizance of the petition for review despite the fact that an information had been filed in court. But that is water under the bridge.

What now concerns the Court here with is how the trial judge acted in relation to the motion to dismiss. First, he granted the same without the prosecution having furnished private complainant a copy of the motion despite having been ordered to do so, thereby effectively depriving private complainant of his day in court.

Secondly, the dismissal was based merely on the findings of the Acting Secretary of Justice that no libel was committed. The trial judge did not make an independent evaluation or assessment of the merits of the case. Reliance was placed solely on the conclusion of the prosecution that "there is no sufficient evidence against the said accused to sustain the allegation in the information" and on the supposed lack of objection to the motion to dismiss, this last premise being, however, questionable, the prosecution having failed, as observed, to give private complainant a copy of the motion to dismiss.

In other words, the grant of the motion to dismiss was based upon considerations other than the judge's own personal individual conviction that there was no case against the accused. Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required ws the trial judge's own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecution's word for its supposed insufficiency.

As aptly observed by the Office of the Solicitor General, in failing to make an independent finding of the merits of the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling in Crespo v. Mogul. ²²

The dismissal order having been issued in violation of private complainant's right to due process as well as upon an erroneous exercise of judicial discretion, the Court of Appeals did not err in setting aside said dismissal order and remanding the case to the trial court for arraignment of petitioner as accused therein and for further proceedings.

WHEREFORE, the petition is DENIED. The assailed resolutions of the Court of Appeals are affirmed. Costs against petitioner.

SO ORDERED.

Regalado, Puno and Mendoza, JJ., concur.

Padilla, J., took no part.

#Footnotes

1 Annex "A", Petition, Rollo, pp. 19-23.

2 Annex "B", Petition, Rollo, pp. 24-25.

3 Annex "2", Motion to Dismiss of Private Respondent, Rollo, pp. 125-128.

4 Annex "2-A", IbId., Id., p. 130.

5 Annex "C", Petition, Rollo, pp. 26-31.

6 Annex "D", Petition, Rollo, pp. 33.

7 Annex "H", Petition, pp. 77-86, Rollo. Penned by Associate Justice Nathanael P. de Pano, Jr. and concurred in by Associate Justices Asaali S. Isnani and Lourdez K. Tayao-Jaguros.

8 His motion for reconsideration was denied for lack of merit in a resolution dated October 25, 1993.

9 Lamera vs. Court of Appeals, 198 SCRA 186.

10 Section 2, Rule 122 of the 1988 Rules of Criminal Procedure reads: "Who may appeal. — Any party may appeal from a final judgment or order, except if the accused would be placed thereby in double jeopardy.

11 57 Phil. 52, 53.

12 Gonzales vs. Judge of Court of First Instance of Bulacan, et al., G.R. No. 4533,
V L.J. 170, cited in Francisco, The Revised Rules of Court in the Philippines, Second Edition, 1969, p. 883.

13 29 SCRA 688 (1969).

14 186 SCRA 620.

15 IbId., at p. 624. See also Calderon vs. Solicitor General, 215 SCRA 876.

16 205 SCRA 155.

17 Annex "G", Petition, pp. 58-75, Rollo.

18 189 SCRA 459.

19 De Ocampo vs. Republic of the Philippines, G.R. No. L-19533, October 31, 1963, 9 SCRA 440.

20 185 SCRA 35, emphasis in the original.

21 151 SCRA 462.

22 Comment, pp. 166-167, Rollo.