city ~ c.roset~ special first division bzthmtive...

REPUBLIC OF THE PHILIPPINES

~anoiBanha~an .VERTlFlE TRUECO}l~lQuezon City ~

. ~, BSTELA SITA C. ROSET~SPECIAL FIRST DIVISION BZtHmtive Clerk 01 COt&f't III

Fir,t DivfMMt +c c....1:<-~fl-/0

PEOPLE OF THE PHILIPPINES,Plaintiff,

CRIM. CASES NOS.SB-16-CRM-0694FOR: Violation of Section 3(e), RA 3019,

as amended

SB-16-CRM-0695FOR: Malversation of Public Funds

- versus- Present:

Accused.

DE LA CRUZ, J., ChairpersonMUSNGI*, J.CRUZ**, JJ'

ABRAHAM KAHLlL BLANCOMITRA, ET AL.

Promulgated on:

fbumbu- r2? I "J.t/f,

X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -tf.--- -~-)(---

RESOLUTION

DE LA CRUZ, J.

This resolves the following:

1. Accused Abraham Kahlil Blanco Mitra's Motion to QuashInformation, dated October 5, 2016;

2. Accused Lucille Odejar's Motion to Dismiss the InstantCases for Violation of Accused's Constitutional Right to SpeedyDisposition of Said Cases (With Prayer to Recall or Defer theIssuance of Warrant of Arrest), dated October 12, 2016;

3. Prosecution's Consolidated Comment/Opposition (to theMotion to Quash Information filed by accused Abraham Kahlil BlancoMitra and the Motion to Dismiss filed by accused Lucille E. Ojedar),dated October 21,2016;

• Sitting as Special Member per Administrative Order No. 204-2016 dated June 29, 2016."Sitting as Special Member of the First Division as per Administrative Order No. 237-2016, dated November 25, 2016.

t/

RESOLUTIONpp vs. Abraham Kahlil B. Mitra, et al.Crim. Cases Nos. SB-16-CRM-0694 & -0695

0'11

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

4. Accused Lucille E. Odejar's Reply to Plaintiff's ConsolidatedComment/Opposition, dated October 28.2016;

5. Undated Urgent Joint Motion to Adopt Motions to QuashInformation of accused Dennis B. Araullo and Raymundo EnriquezBraganza;

6. Prosecution's Consolidated Comment/Opposition (to theUrgent Joint Motion to Adopt Motions to Quash Information filed byaccused Oennis B. Araullo and Raymundo E. Braganza and the OralManifestation to Adopt the Motion to Quash Information of accusedAbraham B. Mitra by accused Margie Tajon Luz) , dated November 4,2016;

7. Accused Mitra's Consolidated Reply, dated November 7,2016; and

8. Accused Tajon-Luz's Reply (to the ConsolidatedComment/Opposition dated November 04, 2016), dated November22,2016.

Accused Mitra seeks to quash the Informations filed againsthim on the ground that there was unreasonable, vexatious,capricious and oppressive delay on the part of the Office of theOmbudsman in completing the preliminary investigation, whichallegedly took five (5) years and four (4) months to finish. Suchdelay, according to accused Mitra, constitutes a violation of hisconstitutional right to speedy disposition of his case pursuant toSection 16, Article III of the 1987 Constitution.

Accused Mitra contends that the delay in the termination of thepreliminary investigation placed him on a disadvantage, consideringthat with the passage of time, he had lost contact with materialwitnesses and that the records, both public and private, relevant tohis cases which could exculpate him from criminal liability are nolonger available. He points out that the acts complained ofhappened sometime in 2004 or about 12 years prior to the filing ofthe Informations in 2016. The complaint, on the other hand, wasfiled in 2011 or seven (7) years from the alleged commission of thecrimes.

Similarly, accused Odejar moves for the dismissal of the casesfiled against her. In her motion, she argues that her constitutional


of 11

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

rights to due process and speedy disposition of cases had beenviolated as it took the Office of the Ombudsman ten (10) years andseven (7) months to conduct the fact-finding and preliminaryinvestigation. She reckons the alleged inordinate delay fromFebruary 2006, when Task Force Abono (TFA) was created, up tothe filing of the Informations before this Court on September 23,2016.

Accused Odejar also points out that she cannot be faulted forfailing to assert her right to a speedy disposition of her cases earlieras she was unaware that an investigation against her was stillongoing. As it is the duty of the State to ensure that all persons areaccorded their rights to due process and speedy disposition, suchduty must be discharged irrespective of whether or not she invokessuch rights.

Accused Odejar also maintains that she has not contributed toany instance of delay and has promptly complied with all hersubmissions. The State, on the other hand, has no plausibleexplanation for the delay of more than ten (10) years given that theissue is not complex or novel.

In its consolidated commenUopposition, the prosecution deniedthat inordinate delay was incurred in the conduct of the preliminaryinvestigation. The prosecution avers that the investigation of thepresent cases started from the time that the Complaint-Affidavit wasfiled on April 18, 2011, and not from the creation of the TFA inFebruary 2006, as argued by accused Odejar. When the task forcewas created, no specific individuals were identified yet asrespondents. Hence, the creation of the TFA did not have the effectof filing of a complaint. Accordingly, the present case was just oneof the cases in the "Fertilizer Scam" which involved high-rankingofficials in the government as well as non-governmentalorganizations nationwide. According to the prosecution,investigating cases of this nature requires diligence andthoroughness and that it would take a considerable time before theinvestigating officer can finally resolve the matter. The allegation ofdelay therefore is unwarranted.

The prosecution also posits that accused Mitra contributed tothe delay considering that he did not immediately file his counter-affidavit when the Ombudsman issued its first Order, dated July 20,2011. After a second Order was issued, accused Mitra filed a


of 11

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

Motion for Extension, and was able to file his counter-affidavit onlyon May 2, 2012.

As to accused Odejar, the prosecution notes that while shehad filed her counter-affidavit as early as August 2011, the resolutionof her case cannot be made independently from the otherrespondents.

The prosecution maintains that while the Resolution findingprobable cause against the respondents was issued only onDecember 4, 2014, the accused cannot attribute delay on the part ofthe Office of the Ombudsman as the latter was still locating the otherrespondents. Accordingly, the Ombudsman cannot be faulted inrequiring the other respondents to file their counter-affidavits even ifit prolonged the period of the preliminary investigation. Such actionwas only to ensure that all respondents were afforded due process.

Accused Araullo and Braganza jointly moved to adopt accusedMitra's motions to quash while accused Tajon Luz orally manifestedto adopt the said motion. In its comment/opposition thereto, theprosecution reiterates that the resolution of the cases againstaccused Araullo and Braganza, who filed their respective counter-affidavits in August 2011, cannot be made independently from otherrespondents considering that the determination of their liabilities isjust part of the resolution of the whole case.

With respect to accused Tajon Luz, the prosecution assertsthat despite three Orders from the Office of the Ombudsman, datedJuly 20, 2011, January 25, 2012 and February 6, 2014, respectively,directing accused Tajon Luz to submit her counter-affidavit, shefailed to do so. To locate her, the Ombudsman even sought the helpof the NBI and the COMELEC, which proved futile.

The prosecution maintains that the intervening period whichwas devoted to afford respondents to submit their counter-affidavitsare more beneficial than prejudicial because it was intended toprovide them the opportunity to refute the charges against them.Moreover, as accused Araullo, Braganza and Tajon Luz wereidentified as respondents only on April 18, 2011 when the formalcomplaint was filed, they cannot say that they were in jeopardy ofbeing held for trial and punishment as early as 2006.


of 11

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

By way of reply, accused Mitra argues that the delay hepurportedly contributed is insignificant and negligible. He assertsthat the reason why he was not able to file his counter-affidavit afterthe first Order was because he did not receive a copy of the same. Ifhe was liable at all for delay, it was only for the three (3) months thatit took him to file his counter-affidavit. He avers, however, that it tookhim some time to request for records from the Department ofAgriculture. As to the delay of his co-accused in submitting theirrespective counter-affidavits, accused Mitra maintains that he shouldnot be prejudiced by their action or inaction and that his right underthe Constitution is personal to him.

Accused Odejar, in her reply, reiterates that she did not causeany delay in the investigation. She also points out that theprosecution omitted a material date in its comment-that in October2008, a Special Panel was created for the purpose of preliminaryinvestigation. She maintains that the fact-finding investigation andpreliminary investigation must be treated as one whole phase ofinvestigation for the purpose of computing the delay. She alsoclaims that she has not yet received a copy of the Ombudsman'sResolution denying her Motion for Reconsideration.

In her reply, accused Tajon-Luz avers that the delay in locatingher should not be attributed to her, considering that she had neitherbeen in hiding nor had she attempted to evade the service ofsubpoena. Besides, according to her, the fact-finding investigationwhich started when the Office of the Ombudsman created the TFA inFebruary 2006 should likewise be considered in the computation ofthe delay.

The motions to dismiss are impressed with merit. The Office ofthe Ombudsman committed inordinate, oppressive andunreasonable delay in the conduct of its preliminary investigation.

Indeed, it took the Office of the Ombudsman almost five andone half (5~) years to complete the preliminary investigation, even ifthe period is reckoned only from the filing of the complaint on April18, 2011 up to the filing of the Informations in court on September23, 2016. The fact-finding investigation which started in February2006 is not even considered in the computation. This long period, tothe mind of the Court, constitutes inordinate, oppressive andunreasonable delay which violated the constitutional rights of theaccused to speedy disposition of their cases.


of 11

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

Article III of the Constitution guarantees a person's right to thespeedy disposition of cases. Section 16 thereof states:

SEC. 16. All persons shall have the right to a speedydisposition of their cases before all judicial, quasi-judicial, oradministrative bodies.

The constitutional right to a speedy disposition of cases is notlimited to the accused in criminal proceedings but extends to allparties in all cases, including civil and administrative cases, and in allproceedings, including judicial and quasi-judicial hearinqs.'

In AI/ado v. Oiokno,2 the Supreme Court held that "certainly inthe hierarchy of rights, the Bill of Rights takes precedence over theright of the State to prosecute, and when weighed against eachother, the scales of justice tilt towards the former."

In People v. Sandiganbayan,3 the Supreme Court held thatinordinate delay in resolving a criminal complaint, being violative ofthe constitutionally guaranteed right to due process and to thespeedy disposition of cases, warrants the dismissal of the criminalcase. Thus, it is incumbent for the State to prove that the delay wasreasonable, or that the delay was not attributable to it.4

It is a matter of record that the complaint was filed on April 18,2011 and the corresponding Informations were filed before this Courton September 23, 2016, or an interval of more than five (5) years. Tojustify the period of more than five (5) years it took to conduct thepreliminary investigation, the prosecution argues that it was stilllocating the other respondents so that they would be afforded theopportunity to submit their respective counter-affidavits. The Court isnot persuaded.

Section 4, Rule 11 of Administrative Order (AO) No. 07, or theRules of Procedure of the Office of the Ombudsman, outlines theprocedure to be followed in the conduct of the preliminaryinvestigation, as follows:

Section 4. Procedure.-The preliminary investigation ofcases falling under the jurisdiction of the Sandiganbayan andRegional Trial Courts shall be conducted in the manner prescribed

, People ofthe Philippines v. Sandiganbayan, December 11, 2013, 712 SCRA 3592232 SeRA 192, 2103 Supra at note 1, citing Angchonco, Jr. v. Ombudsman, February 13, 1997, 268 SeRA 30141bid


0f11

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

in Section 3, Rule 112 of the Rules of Court, subject to thefollowing provisions:

a) If the complaint is not under oath or is based only onofficial reports, the investigating officer shall require thecomplainant or supporting witnesses to execute affidavits tosubstantiate the complaints.

b) After such affidavits have been secured, the investigatingofficer shall issue an order, attaching thereto a copy of theaffidavits and other supporting documents, directing therespondents to submit, within ten (10) days from receipt thereof,his counter-affidavits and controverting evidence with proof ofservice thereof on the complainant. The complainant may file replyaffidavits within ten (10) days after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, theinvestigating officer may consider the comment filed by him, if any,as his answer to the complaint. In any event, the respondent shallhave access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack ofjurisdiction. Neither may a motion for a bill of particulars beentertained. If respondent desires any matter in the complainant'saffidavit to be clarified, the particularization thereof may be done atthe time of clarificatory questioning in the manner provided inparagraph (f) of this section.

e) If the respondents cannot be served with the ordermentioned in paragraph 6 hereof, or having been served, does notcomply therewith, the complaint shall be deemed submitted forresolution on the basis of the evidence on the record.

f) If, after the filing of the requisite affidavits and theirsupporting evidences, there are facts material to the case whichthe investigating officer may need to be clarified on, he mayconduct a clarificatory hearing during which the parties shall beafforded the opportunity to be present but without the right toexamine or cross-examine the witness being questioned. Wherethe appearance of the parties or witnesses is impracticable, theclarificatory questioning may be conducted in writing, whereby thequestions desired to be asked by the investigating officer or a partyshall be reduced into writing and served on the witness concernedwho shall be required to answer the same in writing and underoath.

g) Upon the termination of the preliminary investigation, theinvestigating officer shall forward the records of the case togetherwith his resolution to the designated authorities for theirappropriate action thereon.


of 11

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

h) No information may be filed and no complaint may bedismissed without the written authority or approval of theOmbudsman in cases falling within the jurisdiction of theSandiganbayan, or of the proper Deputy Ombudsman in all othercases

Notably, Section 4 (e), Rule II of the aforequoted Rules,expressly provides that "[i]f the respondents cannot be served withthe order mentioned in paragraph 6 hereof, or having been served,does not comply therewith, the complaint shall be deemed submittedfor resolution on the basis of the evidence on the record." Hence,the reasoning of the prosecution that the Office of the Ombudsmanhad to wait for the other respondents to file their counter-affidavits,thereby admittedly prolonging the preliminary investigation, iscontrary to the aforesaid Rules.

The prosecution further argued that the cases of the accusedwho filed their respective counter-affidavits cannot be resolvedindependently from the other respondents because thedetermination of their liabilities is just part of the resolution of thewhole case. The Court is not convinced.

As thoroughly explained by the Supreme Court in Coscolluelav. Sandiganbayan,5 the right to speedy disposition of cases has thefollowing purpose:

Lest it be misunderstood, the right to speedy disposition ofcases is not merely hinged towards the objective of spurringdispatch in the administration of justice but also to prevent theoppression of the citizen by holding a criminal prosecutionsuspended over him for an indefinite time. Akin to the right tospeedy trial, its "salutary objective" is to assure that an innocentperson may be free from the anxiety and expense of litigation or, ifotherwise, of having his guilt determined within the shortestpossible time compatible with the presentation and consideration ofwhatsoever legitimate defense he may interpose. This loomingunrest as well as the tactical disadvantages carried by the passageof time should be weighed against the State and in favor of theindividual. In the context of the right to a speedy trial, the Court inCorpuz v. Sandiganbayan (Corpuz) illumined:

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

5701 scs« 189


of 11

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

xxx. Prejudice should be assessed in the light of the interestof the defendant that the speedy trial was designed to protect,namely: to prevent oppressive pre-trial incarceration; to minimizeanxiety and concerns of the accused to trial; and to limit thepossibility that his defense will be impaired. Of these, the mostserious is the last, because the inability of a defendant adequatelyto prepare his case skews the fairness of the entire system. Thereis also prejudice if the defense witnesses are unable to recallaccurately the events of the distant past. Even if the accused is notimprisoned prior to trial, he is still disadvantaged by restraints onhis liberty and by living under a cloud of anxiety, suspicion andoften, hostility. His financial resources may be drained, hisassociation is curtailed, and he is subjected to public obloquy.

In failing to resolve the complaint with reasonable dispatch andprudence as dictated by law and jurisprudence, the Office of theOmbudsman placed the accused in a tactical disadvantage andopened the possibility that their defense will be impaired. Aside fromthe anxiety and unrest that came with a prolonged investigation, theavailability of witnesses and documentary evidence to the accusedwas also affected considering that the subject transaction occurredin 2004, or about twelve (12) years up to the filing of theInformations. The Court agrees with the accused's position that theaction or inaction of their eo-accused should not prejudice them ordelay the resolution of their cases.

The prosecution also asserted that the present cases were justsome of the cases involved in the "Fertilizer Scam," which involvedhigh-ranking officials in the government and certain NGOs, and thus,would take a considerable time before the investigating officer couldfinally resolve the matter. Again, the Court is not convinced. It mustbe noted that the investigation of the whole issue commenced wayback in February, 2006, when the Office of the Ombudsmanspecifically created the TFA to handle the investigation. It has beensettled that the guarantee of speedy disposition would be defeatedor rendered inutile if the hair-splitting distinction between a fact-finding investigation and preliminary investigation is accepted."Moreover, even disregarding the fact-finding investigation from 2006up to the time when the complaint was filed in 2011, there was stillinordinate delay as the Informations were filed only in September2016.

6 Supra at note 1


CERTlFIED~UECOP~:

t'STELA TE~A C. ROSETFExecutive Clerk of Cou'rt III

FirfCt Di?Ji.Binft +ci .,i'J..-.-.e-1bx--------------------------------------------------------x

of 11

The Court is also not persuaded that the delay is justified bythe review and evaluation of the different offices in the Office of theOmbudsman. As discussed by the Supreme Court in Coscolluela:

To this end, the Court equally denies the S8's ratiocinationthat the delay in proceedings could be excused by the fact that thecase had to undergo careful review and revision through thedifferent levels in the Office of the Ombudsman before it is finallyapproved, in addition to the steady stream of cases which it had toresolve,

Verily, the Office of the Ombudsman was created under themantle of the Constitution, mandated to be the "protector of thepeople" and as such, required to "act promptly on complaints filedin any form or manner against officers and employees of theGovernment, or of any subdivision, agency or instrumentalitythereof, in order to promote efficient service." This greatresponsibility cannot be simply brushed aside by ineptitude.Precisely, the Office of the Ombudsman has the inherent duty notonly to carefully go through the particulars of case but also toresolve the same within the proper length of time. Its dutifulperformance should not only be gauged by the quality of theassessment but also by the reasonable promptness of itsdispensation, Thus, barring any extraordinary complication, such asthe degree of difficulty of the questions involved in the case or anyevent external thereto that effectively stymied its normal workactivity - any of which have not been adequately proven by theprosecution in the case at bar - there appears to be no justifiablebasis as to why the Office of the Ombudsman could not haveearlier resolved the preliminary investigation proceedings againstthe petitioners.

Thus, the Court is constrained to decree the dismissal of thesecases for violation of the accused's constitutional right to speedydisposition of their cases.

WHEREFORE, in light of all the foregoing, accused Mitra'sMotion to Quash Information, dated October 5, 2016, which wasadopted by accused Margie Tajon-Luz, accused Odejar's Motion toDismiss the Instant Cases for Violation of Accused's ConstitutionalRight to Speedy Disposition of Said Cases (With Prayer to Recall orDefer the Issuance of Warrant of Arrest), dated October 12, 2016,the Urgent Joint Motion to Adopt Motions to Quash Information ofaccused Araullo and Braganza, are hereby GRANTED, and theInformations in Criminal Cases Nos. SB-16-CRM-0694 to -0695, filedagainst accused Mitra, Odejar, Araullo, Braganza and Tajon Luz areordered QUASHED. Accordingly, the said cases are hereby


of 11

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

DISMISSED with respect to accused Mitra, Odejar, Araullo,Braganza and Tajon Luz, for violation of their constitutional rights tospeedy disposition of their cases.

The hold-departure orders issued by this Court against the saidaccused are hereby LIFTED and SET ASIDE, and the bonds theyposted for their provisional liberty are ordered RELEASED, subjectto the usual accounting and auditing procedures.

SO ORDERED.

WE CONCUR:

NALDO P. CRUZAssociate Justice

MICHAEL F

city ~ c.roset~ special first division bzthmtive...

Documents