[ G.R. Nos. 233061-62, July 28, 2020 ]
THE PEOPLE OF THE PHILIPPINES, PETITIONER, VS. THE HONORABLE FOURTH DIVISION, SANDIGANBAYAN AND RAUL Y. DESEMBRANA, RESPONDENT.
CONCURRING AND DISSENTING OPINION
CAGUIOA, J.:
The ponencia finds that the Fourth Division of the Sandiganbayan (Sandiganbayan) acted with grave abuse of discretion when it dismissed the criminal cases filed against respondent Raul Y. Desembrana (Desembrana) on the ground that his right to speedy disposition had been violated due to inordinate delay attributable to the Office of the Special Prosecutor (OSP).
On this basis, the ponencia grants the present Petition for Certiorari (Petition) and orders the Sandiganbayan to: (i) resolve the pending Compliance with Omnibus Motion (for Withdrawal of Information docketed as SB-14-CRM-0427) and for the Lifting of the Resolution dated July 8, 2015 filed by the OSP; and (ii) proceed with the hearing of the criminal cases filed against Desembrana.
I concur in the result.
I agree with the ponencia insofar as it holds that the OSP is not guilty of inordinate delay in the conduct of preliminary investigation. I find that such imputation is both arbitrary and baseless. Hence, I find that the Sandiganbayan acted with grave abuse of discretion when it issued its Resolution1 dated April 12, 2017 (assailed Resolution). On this basis, the Petition should be granted.
However, I write this opinion to reiterate my position in Cagang v. Sandiganbayan, Fifth Division2 (Cagang) and address the ponencia's statements regarding the implied waiver of the right to speedy disposition and the nature of prejudice which results from inordinate delay.
For context, a brief summary of the facts is in order.
The OSP filed with the Sandiganbayan two Informations dated November 15, 2014 charging Desembrana with two (2) counts of violation of Section 7(d) in relation to Section 11 of Republic Act No. 6713. These Informations were docketed as Criminal Case Nos. SB-14-CRM-0427 and SB-14-CRM-0428.3 Under these Informations, Desembrana was accused of taking advantage of his position as Assistant City Prosecutor of the Department of Justice (DOJ) by soliciting money from a certain Dr. Alexis S. Montes in exchange for the dismissal of complaints assigned to him for preliminary investigation.4
On November 21, 2014, Desembrana filed a Motion to Suspend Arraignment with the Sandiganbayan in view of his pending Motion to Conduct Preliminary Investigation with the OSP.5
After an exchange of pleadings and hearing on the motions, the Sandiganbayan issued a Resolution dated July 8, 2015 directing the OSP to "conduct a full and complete preliminary investigation" within sixty (60) days from notice. This gave the OSP until September 11, 2015 to complete said investigation.6
The OSP proceeded as directed. On September 3, 2015, Desembrana filed his last pleading in connection with the OSP's preliminary investigation.7
On September 9, 2015, the OSP filed a Motion for Extension of Time to Terminate a Complete and Full Preliminary Investigation (First Motion for Extension).8 This motion was not acted upon by the Sandiganbayan.
Subsequently, the OSP issued its first recommendation on September 29, 2015 finding probable cause to charge Desembrana with Direct Bribery under Article 210 of the Revised Penal Code. Accordingly, the OSP recommended the withdrawal of the Information filed in Criminal Case No. SB-14-CRM-0427 for substitution with the proper Information.9
In the meantime, the OSP filed its second Motion for Extension of Time which was also not acted upon by the Sandiganbayan.
The Ombudsman approved the OSP's recommendation through its Resolution dated October 21, 2015.10 Desembrana filed a Motion for Reconsideration of said Resolution on November 9, 2015.11
On November 10, 2015, the OSP filed with the Sandiganbayan a "Compliance with Omnibus Motion (for Withdrawal of Information docketed as SB-14-CRM-0427) and for the Lifting of the Resolution dated July 8, 2015" (Compliance with Omnibus Motion).12
On November 24, 2015, the Sandiganbayan required Desembrana to file his comment on the Compliance with Omnibus Motion. Thus, on December 3, 2015, Desembrana filed a "Comment (On the Compliance with Omnibus Motion filed by the Office of the Special Prosecutor dated November 10, 2015)" (Comment on Compliance). There, Desembrana prayed that the Sandiganbayan "hold in abeyance any action on the [OSP's Compliance with Omnibus Motion] pending final resolution of his [Motion for Reconsideration filed with the OSP]."13 The OSP filed its Reply on January 12, 2016, while Desembrana filed his Rejoinder on January 27, 2016. However, it was only on December 5, 2016 when the Sandiganbayan deemed the Compliance with Omnibus Motion submitted for resolution.14
Finally, on January 20, 2017, the Sandiganbayan issued a Resolution deferring the resolution of the Compliance with Omnibus Motion until after the final resolution of Desembrana's Motion for Reconsideration pending with the OSP.15
Seven days later, the OSP issued a Resolution denying Desembrana's Motion for Reconsideration. This Resolution dated January 27, 2017 was approved by the Office of the Ombudsman on February 8, 2017.16
On February 6, 2017, Desembrana filed a Motion to Dismiss invoking his right to speedy disposition citing the following delays: (i) 1 year and 2 months delay in the resolution of his Motion for Reconsideration with the OSP; and (ii) 2 years and 2 months delay in the conduct of preliminary investigation.17
The Sandiganbayan granted Desembrana's Motion to Dismiss through the assailed Resolution, ruling as follows:
The attendant circumstances herein show that the [Sandiganbayan] directed the Office of the Ombudsman on July 8, 2015 to conduct a full and complete preliminary investigation. The Court, in its Resolution, clarified that a "full and complete preliminary investigation" includes the opportunity for the respondent to file a motion for reconsideration, to wit:
A full and complete preliminary investigation includes proceedings which allow the respondent the opportunity to file, within the period prescribed by the rules, a motion for reconsideration against an adverse resolution issued by the Office of the Ombudsman finding probable cause to charge him before the Sandiganbayan.
The preliminary investigation in this case was deemed terminated on October 21, 2015 when the Honorable Ombudsman approved the Resolution dated September 29, 2015. Contrary to the directive of this Court, however, accused Desembrana has not yet been afforded the opportunity to file a motion for reconsideration when the prosecution filed its [Compliance with Omnibus Motion] on November 10, 2015 before [the Sandiganbayan]. Thus, in his [Comment on Compliance], [Desembrana] prayed for [the Sandiganbayan] to hold in abeyance any action on the prosecution's [Compliance with Omnibus Motion] in view of the motion for reconsideration he filed on November 9, 2015 before the Office of the Ombudsman. Since then, and until the Court issued its January 20, 2017 Resolution directing the prosecution to notify the Court once the motion for reconsideration of the accused has been resolved, there has been no action from the Office of the Ombudsman as to the motion of the accused. As correctly pointed out by Desembrana, it has been 1 year and 2 months since he filed said motion.
The prosecution claims that the delay is caused by lack of compliance on the part of Desembrana to the procedural rule of the Office of the Ombudsman, specifically Section 7(a), Rule II thereof which states that the filing of a motion for reconsideration requires leave of court in cases where an information has already been filed in court, as in the instant case. It further averred that the said requirement was deemed met only when the [Sandiganbayan] issued its January 20, 2017 Resolution.
The [Sandiganbayan] will not stand for such ratiocination, which, if not flawed, is misleading. The [Sandiganbayan] has granted leave of court when it issued its Resolution on July 8, 2015 directing the prosecution to conduct a full and complete preliminary investigation and defining the same in clear and unequivocal terms, consistent with the pronouncement of the Supreme Court in Sales vs. Sandiganbayan that under the existing rules of the Office of the Ombudsman, the grant of a motion for reconsideration is an integral part of the preliminary investigation proper. x x x
x x x x
The [Sandiganbayan] reiterates that the accused was no longer required to obtain leave of court because it has already been granted. But even assuming that x x x there was no such leave, the lack of action by the prosecution on the motion for reconsideration of the accused cannot be justified because it could have directed the respondent to obtain leave of court. It could have denied the motion, as well, if that were the case. In this situation, the prosecution chose to do nothing and left herein preliminary investigation vulnerable to being challenged for being constitutionally infirm.18 (Emphasis and underscoring in the original; citation omitted)
In the assailed Resolution, the Sandiganbayan appears to have relied on the Court's ruling in Sales v. Sandiganbayan,19 a case which interpreted the old Section 7, Rule II of the Rules of Procedure of the Office of the Ombudsman (Ombudsman Rules). Under this old provision, leave of court was not a requisite to the filing of a motion for reconsideration or reinvestigation before the Office of the Ombudsman. Section 7, Rule II was amended on February 16, 2000, seventeen (17) years prior to the issuance of the assailed Resolution.
The Sandiganbayan denied the OSP's subsequent Motion for Reconsideration. Hence, the OSP filed this Petition ascribing grave abuse of discretion to the Sandiganbayan.
As stated at the outset, I agree that no inordinate delay can be attributed to the OSP.
To recall, the Sandiganbayan directed the OSP to conduct a full and complete preliminary investigation on July 8, 2015. While the OSP failed to faithfully comply with the 60-day deadline set by the Sandiganbayan, it filed two (2) separate motions requesting for extension, first on September 9, 2015 or two (2) days prior to the Sandiganbayan's deadline, and second on October 12, 2015.
Notably, the OSP already submitted its recommendation to the Ombudsman as early as September 29, 2015.1âшphi1 Nevertheless, it filed its second Motion for Extension of Time as it had to await the approval of the Ombudsman. Twenty (20) days following the approval of its recommendation, the OSP filed its Compliance with Omnibus Motion with the Sandiganbayan.
While it is undisputed that Desembrana's Motion for Reconsideration was pending with the OSP at the time it filed its Compliance with Omnibus Motion, the OSP cannot be faulted for proceeding in accordance with Section 7, Rule II of the Ombudsman Rules, as amended:
Section 7. Motion for reconsideration –
a) Only one motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, the same to be filed within five (5) days from notice thereof with the Office of the Ombudsman, or the proper Deputy Ombudsman as the case may be, with corresponding leave of court in cases where the information has already been filed in court;
b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding information in Court on the basis of the finding of probable cause in the resolution subject of the motion. (Emphasis supplied)
The pendency of Desembrana's Motion for Reconsideration did not operate as a bar to the filing of the Compliance with Omnibus Motion. In any event, it must be stressed that in its Reply dated January 8, 2016, the OSP already raised that Desembrana was required to obtain leave of court before it could act on his Motion for Reconsideration. Clearly, the OSP cannot be faulted for not resolving Desembrana's Motion for Reconsideration prior to the issuance of the assailed Resolution.
Ultimately, the attendant circumstances show that while the OSP failed to comply with the Sandiganbayan's 60-day deadline, the delay it incurred cannot be characterized as inordinate or unreasonable. Hence, I agree with the OSP's contention that the Sandiganbayan acted with grave abuse of discretion amounting to lack of jurisdiction when it whimsically and capriciously ascribed inordinate delay on the part of the OSP. Thus, there is sufficient basis to grant the Petition.
However, the ponencia goes further by imputing inordinate delay on the part of the Sandiganbayan:
x x x The Sandiganbayan is responsible for the delay. It could have easily said what it ruled on January 20, 2017 on November 10, 2015 or at the latest November 24, 2015. There was nothing complex about the issues presented in the "Compliance with Omnibus Motion" to justify a timeline of more than a year to resolve it. By exercising ordinary diligence, the Sandiganbayan could have decided the motion within just a week, as in fact it was able to issue its Resolution just two weeks from the end of our famous long and festive holiday break in December. In any event, as explained above, the Sandiganbayan gravely abused its discretion in blindly relying upon Sales to justify its ruling or stance that "we did not have to tell you so," as regards the leave of court for the OSP to resolve private respondent's motion for reconsideration.
x x x x
x x x [T]he Sandiganbayan gravely abused its discretion not only in imputing blame to the OSP for the delay on the basis of an inapplicable case law, but also in failing to move the case forward upon the lapse of the period to conduct preliminary investigation. x x x20 (Emphasis supplied; italics in the original)
In this connection, the ponencia states that Desembrana's failure to assert his right to speedy disposition during the 14-month impasse at the Sandiganbayan is deemed a waiver of said right.21 It further states that Desembrana did not suffer any prejudice as a result of such delay considering that he is out on bail and had taken advantage of every opportunity to be heard and set forth his defense.22
Respectfully, I disagree.
Waiver
In Cagang, the majority formulated a uniform mode of analysis for cases involving the right to speedy disposition and speedy trial. With respect to the waiver of these rights, the Decision in Cagang states:
Fourth, determination of the length of delay is never mechanical. Courts must consider the entire context of the case, from the amount of evidence to be weighed to the simplicity or complexity of the issues raised.
An exception to this rule is if there is an allegation that the prosecution of the case was solely motivated by malice, such as when the case is politically motivated or when there is continued prosecution despite utter lack of evidence. Malicious intent may be gauged from the behavior of the prosecution throughout the proceedings. If malicious prosecution is properly alleged and substantially proven, the case would automatically be dismissed without need of further analysis of the delay.
Another exception would be the waiver of the accused to the right to speedy disposition of cases or the right to speedy trial. If it can be proven that the accused acquiesced to the delay, the constitutional right can no longer be invoked.
In all cases of dismissals due to inordinate delay, the causes of the delays must be properly laid out and discussed by the relevant court.
Fifth, the right to speedy disposition of cases or the right to speedy trial must be timely raised. The respondent or the accused must file the appropriate motion upon the lapse of the statutory or procedural periods. Otherwise, they are deemed to have waived their right to speedy disposition of cases.23 (Emphasis supplied)
In my Dissenting Opinion in Cagang, I expressed my reservations against the treatment of the accused's failure to assert his or her right to speedy disposition as an implied waiver. Thus, I urged the Court in Cagang to revisit the case of Dela Peña v. Sandiganbayan24 (Dela Peña) where the Court held that silence on the part of the accused operates as an implied waiver of one's right to speedy disposition. To restate:
The right to speedy disposition is two-pronged. Primarily, it serves to extend to the individual citizen a guarantee against State abuse brought about by protracted prosecution. Conversely, it imposes upon the State the concomitant duty to expedite all proceedings lodged against individual citizens, whether they be judicial, quasi-judicial or administrative in nature. This constitutional duty imposed upon the State stands regardless of the vigor with which the individual citizen asserts his right to speedy disposition. Hence, the State's duty to dispose of judicial, quasi-judicial or administrative proceedings with utmost dispatch cannot be negated solely by the inaction of the respondent upon the dangerous premise that such inaction, without more, amounts to an implied waiver thereof.
Verily, the Court has held that the State's duty to resolve criminal complaints with utmost dispatch is one that is mandated by the Constitution. Bearing in mind that the Bill of Rights exists precisely to strike a balance between governmental power and individual personal freedoms, it is, to my mind, unacceptable to place on the individual the burden to assert his or her right to speedy disposition of cases when the State has the burden to respect, protect, and fulfill the said right.
It is thus not the respondent's duty to follow up on the prosecution of his case, for it is the prosecution's responsibility to expedite the same within the bounds of reasonable timeliness. Considering that the State possesses vast powers and has immense resources at its disposal, it is incumbent upon it alone to ensure the speedy disposition of the cases it either initiates or decides. Indeed, as the Court held in Secretary of Justice v. Lantion, "[t]he individual citizen is but a speck of particle or molecule vis-a-vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need." x x x
Proceeding therefrom, I find the adoption of the third factor in Barker's balancing test improper. Instead, I respectfully submit that in view of the fundamental differences between the scope of the Sixth Amendment right to speedy trial on one hand, and the right to speedy disposition on the other, the third factor in Barker's balancing test (that is, the assertion of one's right) should no longer be taken against those who are subject of criminal proceedings.25 (Emphasis supplied)
I maintain my position in Cagang.
In my view, Desembrana's alleged failure to assert his right to speedy disposition should not be construed as an implied waiver of such right. Doing so unduly places upon him the burden to expedite the criminal cases filed against him. Time and again, this Court has ruled that such burden falls on the State, thus:
x x x [T]here is no constitutional or legal provision which states that it is mandatory for the accused to follow up his case before his right to its speedy disposition can be recognized. To rule otherwise would promote judicial legislation where the Court would provide a compulsory requisite not specified by the constitutional provision. It simply cannot be done, thus, the ad hoc characteristic of the balancing test must be upheld.
Likewise, contrary to the argument of the OSP, the U.S. case of Barker v. Wingo, from which the balancing test originated, recognizes that a respondent in a criminal case has no compulsory obligation to follow up on his case. It was held therein that "[a] defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process."26 (Citations omitted)
Further, as stated in my Dissenting Opinion in Cagang:
x x x The ridiculousness of the principle of waiver of the right to speedy disposition of cases, however, could be easily gleaned from the ratiocination in Dela Peña itself — wherein it cited the filing of a motion for early resolution as an instance where the individual would be deemed not to have waived the right. It is absurd to place on the individual the burden to egg on, so to speak, government agencies to prioritize a particular case when it is their duty in the first place to resolve the same at the soonest possible time. To stress, it is the State which has the sole burden to see to it that the cases which it files, or are filed before it, are resolved with dispatch. Thus, to sustain the same principle laid down in Dela Peña in present and future jurisprudence is to perpetuate the erroneous notion that the individual, in any way, has the burden to expedite the proceedings in which he or she is involved.27 (Emphasis supplied)
Here, the ponencia faults Desembrana for failing to assert his right to speedy disposition during the 14-month impasse at the Sandiganbayan even as it concedes that Desembrana actively participated in the Sandiganbayan proceedings. In fact, as set forth in the narration of facts, Desembrana timely filed his responsive pleadings to the Compliance with Omnibus Motion.28 In my view, it is unreasonable to require Desembrana to do more in order to move his criminal cases forward. To repeat, it is the State which has the duty to ensure that the criminal cases it files are resolved with dispatch.
To my mind, it is unjust to state that Desembrana should have done more to signify his non-waiver of his right to speedy disposition and at the same time admonish him for allegedly contributing to the delay of his own case merely because he filed his share of motions and pleadings.
Prejudice
With due respect, I also take exception to the statement that Desembrana could not have suffered any prejudice as a result of Sandiganbayan's delay because he is out on bail.
The prejudice suffered by the accused as a result of a criminal action is not limited to pre-trial incarceration. In Corpuz v. Sandiganbayan29 the Court held:
x x x Prejudice should be assessed in the light of the interest of the defendant that the speedy trial was designed to protect, namely: to prevent oppressive pre-trial incarceration; to minimize anxiety and concerns of the accused to trial; and to limit the possibility that his defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. There is also prejudice if the defense witnesses are unable to recall accurately the events of the distant past. Even if the accused is not imprisoned prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion and often, hostility. His financial resources may be drained, his association is curtailed, and he is subjected to public obloquy.30 (Emphasis supplied; citations omitted)
In Cagang, I stated that the right to speedy disposition attaches the moment the respondent or accused is exposed to prejudice. In this connection, I stressed that prejudice does not arise solely from the restraint on one's liberty but also from the impairment of the interests which the right to speedy disposition had been crafted to protect, thus:
The right to speedy disposition covers the periods "before, during, and after trial." Hence, the protection afforded by the right to speedy disposition, as detailed in the foregoing provision, covers not only preliminary investigation, but extends further, to cover the fact-finding process. As explained by the Court in People v. Sandiganbayan:
The guarantee of speedy disposition under Section 16 of Article III of the Constitution applies to all cases pending before all judicial, quasi-judicial or administrative bodies. The guarantee would be defeated or rendered inutile if the hair-splitting distinction by the State is accepted. Whether or not the fact-finding investigation was separate from the preliminary investigation conducted by the Office of the Ombudsman should not matter for purposes of determining if the respondents' right to the speedy disposition of their cases had been violated. x x x
Moreover, in Torres v. Sandiganbayan (Torres) the Court categorically stated that the speedy disposition of cases covers "not only the period within which the preliminary investigation was conducted, but also all stages to which the accused is subjected, even including fact-finding investigations conducted prior to the preliminary investigation proper."
Unreasonable delay incurred during fact-finding and preliminary investigation, like that incurred during the course of trial, is equally prejudicial to the respondent, as it results in the impairment of the very same interests which the right to speedy trial protects — against oppressive pre-trial incarceration, unnecessary anxiety and concern, and the impairment of one's defense. To hold that such right attaches only upon the launch of a formal preliminary investigation would be to sanction the impairment of such interests at the first instance, and render respondent's right to speedy disposition and trial nugatory. Further to this, it is oppressive to require that for purposes of determining inordinate delay, the period is counted only from the filing of a formal complaint or when the person being investigated is required to comment (in instances of fact-finding investigations).
Prejudice is not limited to when the person being investigated is notified of the proceedings against him. Prejudice is more real in the form of denial of access to documents or witnesses that have been buried or forgotten by time, and in one's failure to recall the events due to the inordinately long period that had elapsed since the acts that give rise to the criminal prosecution. Inordinate delay is clearly prejudicial when it impairs one's ability to mount a complete and effective defense. Hence, contrary to the majority, I maintain that People v. Sandiganbayan and Torres remain good law in this jurisdiction. The scope of right to speedy disposition corresponds not to any specific phase in the criminal process, but rather, attaches the very moment the respondent (or accused) is exposed to prejudice, which, in turn, may occur as early as the fact-finding stage.31 (Emphasis supplied; citations omitted)
Based on the foregoing, I vote to GRANT the present Petition for Certiorari and DIRECT the Sandiganbayan to proceed with the hearing of the criminal cases pending against respondent Raul Y. Desembrana.
However, I maintain that the waiver of the right to speedy disposition should not be implied solely from one's silence or inaction. I also maintain that the prejudice which results from criminal prosecution is not limited to incarceration, but necessarily covers all the interests which the right to speedy disposition had been crafted to protect — unnecessary anxiety, concern, and most importantly, the impairment of one's defense.
Footnotes
1 Rollo, pp. 39-46.
2 G.R. Nos. 206438, 206458 & 210141-42, July 31, 2018, 875 SCRA 374.
3 Ponencia, p. 2.
4 Id.
5 Id. at 3.
6 Id.
7 Id.
8 Id. at 4.
9 Id.
10 Id.
11 Id.
12 See id. at 4-5.
13 Id. at 5.
14 Id.
15 Id.
16 Id.
17 Id.
18 Rollo, pp. 44-45.
19 421 Phil. 176 (2001).
20 Id. at 17-18.
21 See id. at 18.
22 Id.
23 Cagang v. Sandiganbayan, Fifth Division, supra note 2, at 451.
24 412 Phil. 921 (2001) [En Banc, Per C.J. Davide, Jr.].
25 J. Caguioa, Dissenting Opinion in Cagang v. Sandiganbayan, Fifth Division, supra note 2, at 473-475.
26 Remulla v. Sandiganbayan (Second Division), 808 Phil. 739, 755-756 (2017). [Second Division, Per J. Mendoza].
27 J. Caguioa, Dissenting Opinion in Cagang v. Sandiganbayan, Fifth Division, supra note 2, at 475-476.
28 See ponencia, pp. 5, 18.
29 484 Phil. 899 (2004) [Second Division, Per J. Callejo, Sr.].
30 Id. at 918.
31 J. Caguioa, Dissenting Opinion in Cagang v. Sandiganbayan, Fifth Division, supra note 2, at 473.
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