republic of the philippines republic of...

REPUBLIC OF THE PHILIPPINESSANDIGANBAYAN

QUEZON CITY

REPUBLIC OF THEPHILIPPINES,

SB-14-CVL-0002For: Forfeiture of Properties

Under R. A. No. 1379

HERNANDO B. PEREZ, et aL,Respondents.

CABOTAJE-TANG, PJFERNANDEZ, B., J. andFERNANDEZ, SJ.,l J.

Promulgated

Vr1A:?Y "7-?-) ?07<ZG

l[--------------------------------------------------------------------------------l[

For resolution are the followingmotions:

1. Motion to Reconsider Order (dated December4, 2017)dated December 21, 2017, filed by respondents Hernando B.Perez, Rosario S. Perez and Ramon C. Arceo, Jr.;2 and

1J. Sarah Jane T. Fernandez is a signatory to the assailed Resolution.2 pp. 511-528, Vol. IV, Record3 pp. 575-578, Vol. IV, Record

2. Manifestation and Motion dated December 26, 2017,filed by respondent Ernest De Leon ESCale:n

A

RESOLUTIONRepublic vs. Perez, et al.SB-14-CVL-0002x------------------------------------------------ x

On December 4, 2017, the Court promulgated theassailed Resolution which, among other things, granted thepetitioner's motion to set case for pre-trial, the dispositiveportion ofwhich reads:4

1. GRANTS respondent Ernest De LeonEscaler's Motion to Admit Supplement to the Ex-Abundante Ad Cautelum Comment/Opposition dated 2September 201 7, and, accordingly ADMITS the saidsupplement;

2. DENIES the petitioner's Motion to Declare inDefault Ernest De Leon Escaler and GRANTS respondentErnest De Leon Escaler's Motion [For Leave of Court toFile Answer; and to Admit Attached Ex-Abundante AdCautelam. Answer to Petition] dated August 28, 2017,and, accordingly, ADMITS the attached Ex-AbundanteAd Cautelam Answer to Petition; and

3. GRANTS the petitioner's Motion to Set Casefor Pre-trial. Thus, the pre-trial of this case is set onJanuary 25, 2018, at 1:30 in the afternoon.

Respondents Hernando B. Perez, Rosario S. Perez andRamon C. Arceo, Jr. seek a reconsideration of the aforesaidResolution based on the followinggrounds:

1. This case is barred by res judicata;2. They are entitled to a reconsideration of the assailed

Resolution on the grounds of judicial courtesy and "judicialimprudence;" and

3. Their invocation of their right to speedy dispositionof cases guaranteed by the Constitution cannot be considereda mere technicality but should merit judicial sustenance in thehigherinterest of JUStin


Respondents Perez, et al. contend that OMB-C-F-13-0013, a forfeiture case against respondents spouses Perez, wasdismissed .by the Office of the Ombudsman. 5 The saiddismissal had become final. Allegedly, the said Ombudsmancase and this case emanate from the same set of facts as foundby the Supreme Court in People vs. Sandiganbayan, et aL;6both cases were filed to comply with the directive of thenOmbudsman Gutierrez to refer the forfeiture case to anotherpanel for study. Thus, respondents Perez, et al. argue that thiscase should be dismissed on account of res judicata. They alsoinvoke the principle of election of remedies which, in its morerestricted sense, is the adoption of one co-existing remedieswith the effect of precluding a resort to the others.7

Respondent-movants insist that "judicial courtesy mustattach against further proceedings" in this case as aconsequence of the Decision promulgated on May 16, 2014, bythe Sandiganbayan, Fifth Division, in SB-08-CRM:0267entitled "People us. Hemando B. Perez.8 The said case involveda charge for falsification of public document where the FifthDivision of this Court granted therein accused Perez's demurrerto evidence.9

Respondent-movants also take issue with the citation bythe Court of Sara Lee Philippines, In:c.vs. Macatlang statingthat the decisions of the Supreme Court should be statedaccurately. They point out that the said case is found in 746SCRA687 (2015) and not in 724 SCRA552 (2015) as stated inthe assailed Resolution. They also argue that, in fact, in SaraLee Philippines, the Supreme Court applied judicialcourtesy.IO

Further, they invoke judicial prudence which theSupreme Court had applied in several cases where norestraining order was issued. II

Anent their third ground, respondent-movants insist thatthe "facts of inordinate delay"which the Supreme Court f/-J

5 Annex 1, Motion; pp. 529-542, Vol. IV, Record6712 SeRA 359 (2013)7 at pp. 3-5; pp. 513-515, Vol. IV, Record8 Annex 2, Motion; pp. 543-562, Vol. IV, Record9 at pp. 6-14; pp. 516-524, Vol. IV, Recojd10 at pp. 6-7; pp. 516-517, Vol. IV, Record11 at pp. 11-14; pp. 521-524, Vol. IV, Record


in People vs. Sandiganbayan, et al.12 cannot be set aside tojustify the scheduling of the pre-trial.13 They assert that theCourt's refusal to apply the findings in the said case runscounter to the disposition made by the Supreme Court inPeople vs. Santos.14

Respondent Escaler filed a manifestation and motion toadopt the subject motion filedby respondents Perez, et al.15

The prosecution opposes the subject motions. It arguesthat OMB-C-F-13-0013 refers to a completely different andunrelated subject matter; it has no connection or relation,directly or even remotely, to the criminal cases filed before theSandiganbayan against respondents, or with this forfeiturecase. It also argues that the principle of election of remediesfmds no application to this case. Election of remedies isgenerally limited "to a choice by a party between inconsistentremedial rights, the assertion of one being necessarilyrepugnant to, or a repudiation of, the other." Allegedly,in thiscase, there is no inconsistency or contradiction among theremedies availed ofby the Officeof the Ombudsman that wouldrepudiate its right to pursue this forfeiture case. Theprosecution also contends that this case is not barred by thedisposition in People us. Sandiganbayan, et. al., because thesame involved a criminal case. Insofar as the documentsdeclared by the Fifth Division of this Court to be hearsay, theprosecution claims that respondent Perez, et. al. is "beingpresumptuous in thinking that it will be impossible to presentthe witnesses and document that will be coming from outsidethe country."

Invoking Section 7, Rule 65 of the Rules of Court, theprosecution maintains that the only instance that theproceedings may be suspended or interrupted is when atemporary restraining order (TRO)or a writ of preliminaryinjunction is issued. However,no TROor injunction has beenissued in this case. While there are instances that judicialcourtesy has been observed, the prosecution contends thatrespondents failed to establish the existence of "strongprobability" to justify the application ofjudicial co~

12 supra note 613 at p.15; p. 525, Vol. IV, Record14104 Phil. 551; at p. 5; p. 515, Vol. IV, Record15 pp. 575-578, Vol. IV, Record

RESOLUTIONRepublic vs. Perez, et al.SB-14-CVL-0002x--------~--------------------------------------- x

I. OMB-C-F-13-0013 does notconstitute res judicata as aground to dismiss this case.

Res judicata literally means "a matter adjudged; a thingjudicially acted upon or decided; a thing or matter settled byjudgment." It also refers to the "rule that a final judgment ordecree on the merits by a court of competent jurisdiction isconclusive of the rights of the parties or their privies in all later .suits on points and matters determined in the former suit.16

The doctrine of res judicata has two [2] aspects, namely:(1) "bar by prior judgment," wherein the judgment in a priorcase bars the prosecution of a second action upon the sameclaim, demand, or cause of action; and (2) "conclusiveness ofjudgment," which precludes relitigation of a particular fact orissue in another action between the same parties on a differentclaim or cause of action. 17

To be sure, the matter involved in this case is entirelydifferent from the matter adjudged in OMB-C-F-13-0013. Infact, this issue was raised by respondents Perez and waspassed upon by the Officeof the Ombudsman in its Resolutiondated October 27,2014 in OMB-C-F-13-0013:18

Respondents counter that this present complaintis related to the cases previouslyfiledby this Officewiththe Sandiganbayan which were eventually dismissed.They contend that there is inordinate delay in the filingof the present case. In the Resolution issued by thisOffice relative to the filing of the aforementionedSandiganbayan cases, the special panel recommended,among others, the institution of a forfeiture proceedingwhich was disapproved and referred to another panelfor further study. It took twelve years before any a~

16 Heirs of Gepuela ys. Menez-Andres, 780 SCRA348 (2016)17 Heirs of Celeste Ys. Land Bank of the Philippines, 651 SCRA352 (2011)18Annex i-Motion; pp. 529-542, Vol. IV. Record

RESOLUTIONRepublic vs. Perez, et al.SB-14-CVL-0002

was taken by this Officeon said referral. Respondentsinsist that they are in double jeopardy and furthersubmit that with the dismissal of the Sandiganbayancases, the rule on conclusiveness ofjudgment should beapplied in their favor.

Before going any further, it is well to state thatrespondents have mistakenly associated the presentcase with the Sandiganbayan cases. It should be notedthat the Sandiganybayan cases emanated from thesworn statement of former Congressman Mark Jimenezstating that respondent Hernando allegedly extortedfrom him US$2,000,000.00 and that US$1,999,965.00was already transferred to the latter's foreign bankaccount. On the other hand, the present complaint wasprimarily based on the Statements of Assets, Liabilitiesand Net Worth (SALN)of respondents as of years ending1995, 1996, 1997, 1998, 1999 and 2000. TheSandiganbayan cases have no bearing in the issues ofthe present complaint.

Likewise, People us. Sandiganbayan cannot operate tobar the filingof this forfeiture case. In the said case, the FifthDivision granted therein accused spouses Perez's demurrer toevidence on the ground that the prosecution's evidence arehearsay. The same case is criminal in nature. Also,respondents Perez, et al. claim that the said Fifth Division'sdecision has been appealed.

Furthermore, the petitioner is yet to present its evidencein this case. Granting that the same evidence will bepresented, the prosecution correctly posits that "respondentsare being presumptuous in thinking that it will be impossibleto present the witnesses and documents coming from outsidethe country."

Neither can the principle of election of remedies precludethe filingof this forfeiture case.

When a party having knowledge of the facts tnakes anelection between inconsistent remedies, the election is final andbars any action, suit, or proceeding inconsistent with theelected remedy, in the absence of fraud by the other party. The

~

RESOLUTIONRepublic vs. Perez, et al.SB-14-CYL-0002x------------------------------------------------ x

first act of election acts as a bar. Equitable in nature, thedoctrine of election of remedies is designed to mitigate possibleunfairness to both parties. It rests on the moral premise that itis fair to hold people responsible for their choices. The purposeof the doctrine is not to prevent any recourse to any remedy,but to prevent a double redress for a single wrong.19

To repeat, the subject matter in OMB-C-F-13-0013 isdifferent from this case; People us. Sandiganbayan is a criminalcase. On the other hand, this case is one for forfeiture underRepublic Act (R.A.) No. 1379. Section 6 of the said Actexplicitly allows the filing of a separate criminal case:

Section 6. Judgment. - If the respondent isunable to show to the satisfaction of the court that hehas lawfully acquired the property in question, then thecourt shall declare such property, forfeited in favor ofthe State, and by virtue of such judgment the propertyaforesaid shall become property of the State: Provided,That no judgment shall be rendered within six monthsbefore any general election or within three monthsbefore any special election. The Court may, in addition,refer this case to the corresponding ExecutiveDepartment for administrative or criminal action, orboth.

In Republic vs. Heirs of Spouses Molinyawe,20 theSupreme Court made the followingdiscourse:

Indeed, there is no law, rule or jurisprudence thatmandates the automatic dismissal of a forfeiture caseafter an acquittal in the criminal case for malversation.Illustrative of this point is Ferdinand R. Marcos, Jr. v.Republic of the Philippines, where it was ruled:

19 C.M. Consunji, Inc. ys. Court of Appeals, 357 SCRA249 (2001)20790 SCRA 107 (2016)

As early as Almeda v. Judge Perez, wehave already delineated the difference betweencriminal and civil forfeiture and classified theproceedings under R.A. 1379 as belonging to thelatter, viz.: //

A

RESOLUTIONRepublic vs. Perez, et at.SB-14-CVL-0002x------------------------------------------------ x

"Forfeiture proceedings may be either civilor criminal in nature, and may be in rem or inpersonam. If they are under a statute such thatif an indictment is presented the forfeiture canbe included in the criminal case, they arecriminal in nature, although they may be civil inform; and where it must be gathered from thestatute that the action is meant to be criminal inits nature it cannot be considered as civil. If,however, the proceeding does not involve theconviction of the wrongdoer for the offensecharged the proceeding is of a civil nature; andunder statutes which specifically so provide,where the act or omission for which theforfeiture is imposed is not also a misdemeanor,such forfeiture may be sued for and recovered ina civil action."

In the first place a proceeding under theAct (Rep.Act No. 1379) does not terminate in theimposition of a penalty but merely in theforfeiture of the properties illegally acquired infavor of the state. (Sec. 6) In the second placethe procedure outlined in the· law leading toforfeiture is that provided for in a civil action.Thus there is a petition (Sec. 3), then an answer(Sec. 4), and lastly, a hearing. The preliminaryinvestigation which is required prior to the filingof the petition, in accordance with Sec. 2 of theAct, is provided expressly to be one similar to apreliminary investigation in a criminal case. Ifthe investigation is only similar to that in acriminal case, but the other steps in theproceedings are those for civil proceedings, itstands to reason that the proceeding is notcriminal. .... (citations omitted)

Forfeiture cases impose neither a personalcriminal liability, nor the civil liability that arisesfrom the commission of a crime (ex delicto). Theliability is based solely on a statute thatsafeguard~ the right of the State to recoverunlawfully acquired properties. Executive OrderNo. 14 (E.O. No. 14), Defining the JurisdictionOver Cases Involving the Ill-gotten Wealth ofFormer President Ferdinand Marcos, authorizesthe filing of forfeiture suits that will proceedindependently of any criminal proceedings.Section 3 of E.O. 14 empowered the PCGGto fileindependent civil actions separate from thecriminalaction/7

~~


Clearly, the rule on election of remedies does not properlyapply to this case.

II. The principle of judicialcourtesy and judicialprudence finds noapplication in this case.

Under Section 7, Rule 65 of the Rules of Court, a merependency of a special civil action for certiorari in relation to acase pending before the court a quo does not ipso facto staythe proceedings therein, unless the higher court issues atemporary restraining order or a writ of preliminary injunctionagainst the conduct of such proceedings. Otherwise stated, apetition for certiorari does not divest the lower courts ofjurisdiction validly acquired over the case pending beforethem. Unlike an appeal, a petition for certiorari is an originalaction. It is not a continuation of the proceedings in the lowercourt. It is designed to correct only errors of jurisdiction,including grave abuse of discretion amounting to lack orexcess of jurisdiction. Thus, under Section 7 of Rule 65, thehigher court should issue against the public respondent atemporary restraining order or a writ of preliminary injunctionin order to interrupt the course of the principal case.21

In this case, the Supreme Court has not issued anytemporary restraining order and/ or a writ of preliminaryinjunction in both petitions for certiorari flied by respondentEscaler (G.R. No. 230186) and respondent H. Perez, R. Perezand Arceo (G.R. No. 229394). In its Resolution dated July 24,2017, the Supreme Court merely resolved to require therespondents therein to file comment thereon.22

Neither can respondent-movants invoke the principle ofjudicial courtesy in this case. The principle of judicialcourtesy remains to be the exception rather than the rule. Itapplies only if there is a strong probability that the issues

/})'t

~

21 Reyes ys. Ombudsman, 787 SeRA 354 (2016)22 pp. 177-178 and 84, Record, Vol. IV

RESOLUTIONRepublic vs. Perez, et al.SB-14-CYL-0002

before the High Court will be rendered moot by thecontinuation of the proceeding before this Court.

Again, respondent-movants failed to present such "strongpossibility" to justify the application of judicial courtesy orjudicial prudence.

Finally, Sara Lee Philippines was cited to explain theconcept of judicial courtesy and not because the facts thereinare similar to this case.

Admittedly, the citation of Sara Lee Philippines wasinadvertently indicated as 724 SCRA 552 (2015) when itshould have been 745 SCRA 687 (2015). The Sara LeePhilippines found in Volume 724 is the main decision. Onthe other hand, the resolution of the motion forreconsideration of the same case is found in Volume 745where this Court quoted portions of the resolution of themotion for reconsideration. However,what is more importantis that the quoted portion was correctly recited whichevidences no intent to deceive the respondents.

Incidentally, respondent-movants themselves made anincorrect citation of Sara Lee Philippines, namely: 746 SCRA687 (2015). Actually, it should be 745 SCRA 687 (2015).Likewise, they referred to the assailed Resolution as datedDecember 4,2015 instead of December 4,2017.23 These errorscould only be due to their honest inadvertence:

(b)The ruling relied upon by this Honorable Courtin Sara Lee Philippines as quoted in pages 5 to 6 of theorder dated December 4, 2017 is the wrong decision.The correct one is the one which appears in pages 687to 706 of 746 SeRA. This correct decision is reportedin 746 SCRA 687-706 even contrary to what iscontained in pages 5-6 of the order of this HonorableCourt dated December 4, 2015. For, in Sara LeePhilippines vs. Macatlang, et al. the Supreme Courtruled that judicial courtesy was an impediment to thecase before the NLRC,thus: xxx xxx xxx.

/?~

~


III. The issue on the allegeddelay in this case has beenexhaustively passed upon by.the Court in its Resolutionpromulgated April 18, 2016.

In its Resolution promulgated on April 18, 2016, theCourt, among others, denied respondent Ernest De LeonEscaler's motion to dismiss which was adopted by respondentsPerez, et al. One of the issues raised therein was therespondents' alleged violation of their right to speedydisposition of cases based on People vs. Sandiganbayan.24

This issue was exhaustively passed upon by the Court, towit:25

The Court finds the invocation by respondentEscaler of the pronouncement of the Supreme Court inPeople vs. Sandiganbayan highly misplaced.

First. This case involves a petition for forfeiture ofalleged ill-gotten wealth and/or unexplained wealth ofthe herein respondents. Section 15, Article XI of the1987 Constitution explicitly provides that the right ofthe State to recover unlawfully acquired properties isimprescriptible, to wit:

Section 15. The right of the State torecover properties unlawfullyacquired by publicofficials or employees, from them or from theirnominees or transferees, shall not be barred byprescription, laches, or estoppel.

To sustain therefore the respondents' claim of aviolation of their right to a speedy disposition of theircase would negate and render nugatory theconstitutionally-ordained imprescriptibility of the State'sright to institute an action to recover ill-gotten W/7

24 supra note 6 .25 pp. 162-212, Vol. II, Record; citations omitted


Indeed, the State could initiate an action for therecovery of ill-gotten wealth at any time and withoutregard to the rule on prescription, laches or estoppelbecause "XXX to bar the Government from recovering ill-gotten wealth would result in the validation orlegitimization of the unlawful acquisition ... "

Second. In Marcos, Jr. vs. Republic, theSupreme Court categorically declared that a forfeitureproceeding under R.A. No. 1379 is civil in nature. Infact, respondent Escaler himself admits that the presentpetition for forfeiture is civil in nature. Accordingly, theprovisions of the Rules of Court on institution of actionsshould apply to this case.

Section 5, Rule I of the Rules of Court providesthat, "[A]civil action is commenced by the filing of theoriginal complaint in court." Plainly, the commencementof a civil action is reckoned from the time of filing of theoriginal complaint in court; hence, it is only at this timemay it be correctly argued that a civil case has beeninstituted before a court.

The present petition for forfeiture was flied withthe Court on November 14, 2014. Thus, this civilaction was deemed instituted only on the said datepursuant to the aforesaid rule.

Certainly, the preliminary inquiry conducted bythe Officeof the Ombudsman before November 14,2014cannot be considered the initiation of the petition forforfeiture against the respondents thereby negating aproper invocation of their right to a speedy dispositionof cases with respect thereto. Perforce, the operativeeffect of the delay in the termination of the preliminaryinvestigation of the related criminal cases cannot bebrought to bear on the preliminary inquiry conductedby the Office of the Ombudsman leading to theinstitution of the present petition. To do so wouldamount to a fusion of the said criminal cases with thiscivil case for forfeiture which are entirely separate anddistinct from each other and governed by different rules,both substantive and procedural. The most notablesubstantive difference is that crimes prescribe while, ashereinbefore indicated, the right of the State to recoverproperties unlawfully acquired by public officials oremployees from them or from their nominees ortransferees is constitutionally-declared impresc~


In the words of the constitution itself, such right of theState "shall not be barred by prescription, laches, orestoppel."

Third. Assuming that respondents may validlyinvoke their right to speedy disposition of cases duringthe preliminary. inquiry before the Office of theOmbudsman, the Court finds that there was noviolation of their right to speedy disposition of theircase.

In Corpuz vs. Sandiganbayan, the SupremeCourt instructs the courts to approach speedy trialcases on an ad hoc basis. Guided by this teaching, theCourt shall now assess the established facts in thiscase.

The record of this case discloses that onNovember 14, 2005, the Field Investigation Office (FIO)of the Office of the Ombudsman "filed" a Complaintdated November 11, 2005, against the hereinrespondents for violation of R.A. No. 1379 with thePreliminary Investigation, Administrative Adjudicationand Monitoring Office (PAMO)of the Office of theOmbudsman. It is worthy to note, however, that thefactual backdrop of this case had its genesis from theComplaint-Affidavit dated December 23, 2002, whichwas filed by then Congressman Mario "Mark (MJ)Jimenez" B. Crespo, against the herein respondentsbefore the Officeof the Ombudsman.

Thereafter, or on December 13, 2005,respondents Perez, et al. filed their Consolidated JointCounter-Affidavit dated December 12, 2005. Instead offiling of his counter-affidavit, respondent Escaler filed aMotion to Disqualify/Inhibit the Office of the Ombudsmanfrom Conducting the Preliminary Investigation and toTurn Over the Conduct of the Proceedings to theDepartment of Justice and Ad Cautelam Suspension ofthe Period to File Counter-Affidavit and/or Deferment ofProceedings.

Mter the necessary proceedings were conducted,the Special Panel constituted by the Ombudsman toinvestigate the complaints against the hereinrespondents issued a Joint Resolution dated November6, 2006, which recommended, among other matters,

RESOLUTIONRepublic vs. Perez, et al.SB-14-CVL-0002

herein respondents after the conduct of the May 2007general elections pursuant to Section 2 of R.A. No.1379.

In her marginal note appearing on the said JointResolution, however, then Ombudsman Gutierrezdirected that the aforesaid recommendation be referredto another panel for further study.

On May 3, 2012, Ombudsman Morales issuedOffice Order No. 177, series of 2012, constituting aSpecial Panel of Reviewers which was tasked to reviewthe matter of initiation of forfeiture proceedingspursuant to the said directive of then OmbudsmanGutierrez.

Conformably with the said directive, on January28, 2013, the Special Panel of Reviewers submittedtheir Memorandum of even date to OmbudsmanMorales. The said special panel recommended the filingof the petition for forfeiture after the May 13, 2013elections. Said recommendation was approved byOmbudsman Morales on January 30, 2013..

Thus, on November 14, 2014, the presentpetition for forfeiture was filed with the Court, or afternine (9) years from the "filing" of the complaint forforfeiture by the FIO on November 14, 2005, before theOfficeof the Ombudsman. Between December 13, 2005and November 14, 2014, the respondents did not fileany motion with the Officeof the Ombudsman to resolveand/ or terminate the preliminary inquiry before it.

Thus, the decisive question is whether this lengthof time it took the Office of the Ombudsman toterminate the preliminary inquiry violated the hereinrespondents' right to a speedy disposition of their case.

Based on the above recorded events, the Courtrules in the negative.

It needs to be underscored that speedy dispositionis a relative and flexible concept. A mere mathematicalreckoning of the time involved is not sufficient.Particular regard must be taken of the facts andcircumstances peculiar to each case. In determiningwhether or not the right to the speedy disposition ofcases has been violated, the Supreme Court has laiddown the following guidelines: (1) the length of thedelay; (2) the reasons for such delay; (3) the assertion or

~4f


failure to assert such right by the accused; and (4) theprejudice caused by the delay.

Here, although the preliminary inquiry pendedbefore the Office of the Ombudsman for nine (9) years,there is no showing that such delay was deliberatelyemployed by the said office in order to hamper orprejudice the defense of the herein respondents and/orto gain some tactical advantage over them. Thus, thedelay should be weighed less heavily against the Stateas held in Corpuz vs. Sandiganbagan:

Closely related to the length of delay is thereason or justification of the State for suchdelay. Different weights should be assigned todifferent reasons or justifications invoked by theState. For instance, a deliberate attempt todelay the trial in order to hamper orprejudice the defense should be weightedheavily against the State. Also, it isimproper for the prosecutor to intentionallydelay to gain some tactical advantage overthe defendant or to harass or prejudice him.On the other hand, the heavycase load of theprosecution or a missing witness should beweighted less heavily against the State.Corollarily, Section 4, Rule 119 of the RevisedRules of Criminal Procedure enumerates thefactors for granting a continuance.

Moreover, respondents Escaler and Perez, et al.never took any positive action to assert their right to aspeedy disposition of the preliminary inquiry thenbeing conducted by the Officeof the Ombudsman. Theirinaction may thus be considered a waiver of their rightto a speedy disposition of the said preliminary inquiryconformably with the teachings of the Supreme Court inGarcia vs. Executive Secretary, to wit:

In this case, there was no allegation,whatsoever of any delay during the trial. What isbeing questioned by petitioner is the delay in theconfirmation of sentence by the President.Basically, the case has already been decided bythe General Court Martial and has also beenreviewed by the proper reviewing authorities

without any delay. The only thing missing/7,;itt A

RESOLUTIONRepublic vs. Perez, et at.SB-14-CVL-0002x------------------------------------------------ x

was the confirmation of sentence by thePresident. The records do not show that, inthose six (6) years from the time the decisionof the GeneralCourtMartialwas promulgateduntil the sentence was finally confirmed bythe President, petitioner took any positiveaction to assert his right to a speedydisposition of his case. This is akin to whathappened in Guerrero v. Court of Appeals, where,in spite of the lapse of more than ten years ofdelay, the Court still held that the petitionercould not rightfully complain of delayviolative of his right to speedy trial ordisposition of his case, since he was part ofthe reason for the failure of his case to moveon towards its ultimate resolution. The Courtheld, inter alia:

In the case before us, the petitioner merelysat and waited after the case was submitted forresolution in 1979. It was only in 1989 when thecase below was reraffled from the RTC ofCaloocan City to the RTC of Navotas-Malabonand only after respondent trial judge of the lattercourt ordered on March 14, 1990 the parties tofollow-up and complete the transcript ofstenographic notes that matters started to getmoving towards a resolution of the case. Moreimportantly, it was only after the new trial judgereset the retaking of the testimonies toNovember 9, 1990 because of petitioner'sabsence during the original setting on October24, 1990 that the accused suddenly becamezealous of safeguarding his right to speedy trialand disposition.

In the present case, there is no questionthat petitioner raised the violation against hisown right to speedy disposition only when therespondent trial judge reset the case forrehearing. It is fair to assume that he wouldhave just continued to sleep on his right - asituation amounting to laches - had therespondent judge not taken the initiative ofdetermining the non-completion of the recordsand of ordering the remedy precisely so he coulddispose of the case. The matter could have takena different dimension if during all those tenyears between 1979 when accused filed hismemorandum and 1989 when the case wasreraffled,the accused showedsigns of ass/?

~~


his right which was granted him in 1987 whenthe new constitution took effect, or at least madesome overt act (like a motion for earlydisposition or a motion to compel thestenographer to transcribe stenographic notes)that he was not waiving it. As it is, his silencewould have to be interpreted as a waiver of suchright.

While this Court recognizes the right tospeedy disposition quite distinctly from the rightto a speedy trial, and although this Court hasalways zealously espoused protection fromoppressive and vexatious delays not attributableto the party involved, at the same time, we holdthat a party's individual rights should notwork against and preclude the people'sequally important right to public justice. Inthe instant case, three people died as a result ofthe crash of the airplane that the accused wasflying. It appears to us that the delay in thedisposition of the case prejudiced not just theaccused but the people as well. Since theaccused has completely failed to assert his rightseasonably and inasmuch as the respondentjudge was not in a position to dispose of the caseon the merits due to the absence of factualbasis, we hold it proper and equitable to give theparties fair opportunity to obtain (and the courtto dispense) substantial justice in the premises.

Time runs against the slothful and thosewho neglect their rights. In fact, the delay inthe confirmation of his sentence was to hisown advantage, because without theconfirmation from the President, hissentence cannot be served.

Just like in Garcia, the herein respondents raisednary a whimper during the pendency of thepreliminary inquiry before the Office of theOmbudsman although they were very much aware ofsuch fact. They did not assert their right to a speedydisposition of the preliminary inquiry after thenOmbudsman Gutierrez directed a further study of therecommendation of the Special Panel to file a petitionfor forfeiture against their properties. Based on theallegations in the petition and its annexes, it appearsthat respondent Perez, as then Secretary of theDepartment of Justice, extorted money from7;J

;tO~


Congressman Jimenez in the amount of $2 Million.Also, based on the document appended to the petition,the said money was transferred to the bank account ofrespondent Escaler in Hong Kong. From the said bankaccount, the money was deposited to the bank accountsof respondents Rosario S. Perez, Ramon Antonio CastilloArceo, Jr. and Escaler. In other words, the petition andits annexes allege that public officewas used to commita crime and to amass and conceal ill-gotten wealth.

More importantly, respondents have not assertedany actual or threatened prejudice occasioned them byreason of the delay in the termination of thepreliminary inquiry. In fact, such delay actuallyworked to their advantage because they hold to this veryday the alleged ill-gotten wealth as no action was filedby the government to recover it during the saidinterregnum.

Thus, balancing the private constitutional right ofthe respondents to a speedy disposition of their caseand the imprescriptible right of the State to institute anaction to recover ill-gotten wealth, the balance shouldbe tilted in favor of the State's right to public justice.Indeed, the State must be given a fair chance to proveits case.

WHEREFORE, the Court DENIES the Motion toReconsider Order (dated December 4, 2017) dated December21, 2017, filed by respondents Hemando B. Perez, Rosario S.Perez and Ramon C. Arceo, Jr., for lack of merit.

The Manifestation and Motion dated December 26, 2017,filed by respondent Emest De Leon Escaler is NOTED.

SO ORDERED.Quezon City, Metro Manila

~AR~AJF;Presiding JusticeChairperson


TO R. FERNNADEZs ociate Justice

republic of the philippines republic of...

Documents