BENJAMIN T.ROMUALDEZ v. SIMEON V. MARCELO, GR NOS.

165510-33, 2006-07-28
Facts:
violation of Section 7 of Republic Act (RA) No. 3019 or the Anti-Graft and Corrupt Practices Act;... that the
defense of prescription may be raised even for the first time on appeal and thus there is no necessity for
the presentation of evidence thereon... before the court a quo.
Issues:
the question is whether or not the offenses charged in the subject criminal cases have prescribed
Ruling:
In resolving the issue of prescription of the offense charged, the following should be considered: (1) the
period of prescription for the offense char
\]kged; (2) the time the period of prescription starts to run; and (3) the time the prescriptive period was...
interrupted.
In such a situation, Act No. 3326 must prevail over Article 91 because it specifically and directly applies to
special laws while the Revised Penal Code shall apply... to special laws only suppletorily and only when
the latter do not provide the contrary. Indeed, elementary rules of statutory construction dictate that special
legal provisions must prevail over general ones.
In view of the foregoing, the applicable 10-and-15-year prescriptive periods in the instant case, were not
interrupted by any event from the time they began to run on May 8, 1987. As a consequence, the alleged
offenses committed by the petitioner for the years 1963-1982... prescribed 10 years from May 8, 1987 or
on May 8, 1997.
On the other hand, the alleged offenses committed by the petitioner for the years 1983-1985 prescribed 15
years from May 8, 1987 or on May 8, 2002.
Therefore, when the Office of the Special Prosecutor initiated the preliminary investigation of Criminal Case
Nos. 13406-13429 on March 3, 2004 by requiring the petitioner to submit his counter-affidavit, the alleged
offenses subject therein have already prescribed.
Romualdez v. Marcelo

July 28, 2006

FACTS:

 Petitioner is being charged with violations of Section 7 of RA No. 3019 for failure to file his Statements
of Assets and Liabilities for the period 1967-1985 during his tenure as Ambassador Extraordinary and
Plenipotentiary and for the period 1963-1966 during his tenure as Technical Assistant in the Department
of Foreign Affairs.
 The said offenses were said to be discovered by SolGen Francisco Chavez on May 8, 1987, the date
when he filed a complaint against the petitioner with the PCGG.
 The preliminary investigations conducted by the PCGG over the 24 offenses ascribed to Romualdez (of
failure to file annual statements of assets and liabilities) were held invalid by the court for lack of
jurisdiction of said offenses.
 The nullity of the proceedings initiated by then Solicitor General Chavez in 1987 with the PCGG and by
the PCGG with the Sandiganbayan in 1989 was judicially settled. The only proceeding that could
interrupt the running of prescription of the 1987 case is that which is filed or initiated by the offended
party before the appropriate body or office.
o The complaint was filed with the wrong body, the PCGG. Thus, the same could not have
interrupted the running of the prescriptive periods.
 On March 3, 2004, Office of the Special Prosecutor initiated the preliminary investigation of Crim Case
Nos. 13406-13429 by requiring the petitioner to submit his counter-affidavit.
ISSUE:

Whether the filing of the complaint with the PCGG in 1987 as well as the filing of the information with the
Sandiganbayan to initiate Criminal Case Nos. 13406-13429 in 1989 interrupted the running of the
prescriptive period such that when the Ombudsman directed petitioner to file his counter-affidavit on March
3, 2004, the offenses have already prescribed.

HELD: YES.

Section 11 of RA No. 3019 provides that all offenses punishable therein shall prescribe in 15 years.
However, prior to the amendment of Section 11 of R.A. No. 3019 by B.P. Blg. 195 which was approved on
March 16, 1982, the prescriptive period for offenses punishable under the said statute was only ten (10)
years.

For offenses allegedly committed by the petitioner from 1962 up to March 15, 1982, the same shall prescribe
in 10 years. On the other hand, for offenses allegedly committed by the petitioner during the period from
March 16, 1982 until 1985, the same shall prescribe in 15 years.

BUT Since the petitioners were absent in the Philippines from 1986 to April 27, 2000, the respondents were
saying that the charge could not have prescribed citing Article 91 of the Revised Penal Code which provides
that "[t]he term of prescription should not run when the offender is absent from the Philippine Archipelago."

This was supported by the dissent of Justice Carpio. He stated that Article 10 of the same Code makes
Article 91 "x x x supplementary to [special laws], unless the latter should x x x provide the contrary." Nothing
in RA 3019 prohibits the supplementary application of Article 91 to that law. Hence, applying Article 91, the
prescriptive period in Section 11 of RA 3019, before and after its amendment, should run only after petitioner
returned to this jurisdiction on 27 April 2000. There is no gap in the law. Where the special law is silent,
Article 10 of the RPC applies suppletorily.

HOWEVER, Court ruled that the law on prescription of offenses is found in Articles 90 and 91 of the Revised
Penal Code for offenses punishable thereunder. For those penalized under special laws, Act No. 3326
applies. Section 2 of Act No. 3326 provides that the prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not known at the time, from the discovery thereof
and the institution of judicial proceedings for its investigation and punishment. The running of the
prescriptive period shall be interrupted when proceedings are instituted against the guilty person,
and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.
Clearly, Section 2 of Act No. 3326 did not provide that the absence of the accused from the Philippines
prevents the running of the prescriptive period. Thus, the only inference that can be gathered from the
foregoing is that the legislature, in enacting Act No. 3326, did not consider the absence of the accused from
the Philippines as a hindrance to the running of the prescriptive period. Expressio unius est exclusio alterius.

In view of the foregoing, the applicable 10-and-15-year prescriptive periods in the instant case, were not
interrupted by any event from the time they began to run on May 8, 1987. The offenses committed by the
petitioner for the years 1963-1982 prescribed 10 years from May 8, 1987 or on May 8, 1997. On the other
hand, the alleged offenses committed by the petitioner for the years 1983-1985 prescribed 15 years from
May 8, 1987 or on May 8, 2002.

Also, when the Office of the Special Prosecutor initiated the preliminary investigation of Criminal Case Nos.
13406-13429 on March 3, 2004 by requiring the petitioner to submit his counter-affidavit, the alleged
offenses subject therein have already prescribed.
Romualdez vs Marcelo
G.R. Nos. 166510-33
July 28, 2006

Facts:

Petitioner claims that the Office of the Ombudsman gravely abused its discretion in recommending the filing
of 24 informations against him for violation of Section 7 of Republic Act (RA) No. 3019 or the Anti-Graft and
Corrupt Practices Act; that the Ombudsman cannot revive the aforementioned cases which were previously
dismissed by the Sandiganbayan in its Resolution of February 10, 2004; that the defense of prescription
may be raised even for the first time on appeal and thus there is no necessity for the presentation of
evidence thereon before the court a quo. Thus, this Court may accordingly dismiss Criminal Case Nos.
28031-28049 pending before the Sandiganbayan and Criminal Case Nos. 04-231857–04-231860 pending
before the Regional Trial Court of Manila, all on the ground of prescription.

In its Comment, the Ombudsman argues that the dismissal of the informations in Criminal Case Nos. 13406-
13429 does not mean that petitioner was thereafter exempt from criminal prosecution; that new informations
may be filed by the Ombudsman should it find probable cause in the conduct of its preliminary investigation;
that the filing of the complaint with the Presidential Commission on Good Government (PCGG) in 1987 and
the filing of the information with the Sandiganbayan in 1989 interrupted the prescriptive period; that the
absence of the petitioner from the Philippines from 1986 until 2000 also interrupted the aforesaid period
based on Article 91 of the Revised Penal Code.

For its part, the PCGG avers in its Comment that, in accordance with the 1987 Constitution and RA No.
6770 or the Ombudsman Act of 1989, the Ombudsman need not wait for a new complaint with a new docket
number for it to conduct a preliminary investigation on the alleged offenses of the petitioner; that considering
that both RA No. 3019 and Act No. 3326 or the Act To Establish Periods of Prescription For Violations
Penalized By Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin To
Run, are silent as to whether prescription should begin to run when the offender is absent from the
Philippines, the Revised Penal Code, which answers the same in the negative, should be applied.

Issues:

(a) Whether the preliminary investigation conducted by the Ombudsman in Criminal Case Nos. 13406-
13429 was a nullity?

(b) Whether the offenses for which petitioners are being charged with have already prescribed?

Held:

Petitioner claims that the Office of the Ombudsman gravely abused its discretion in recommending the filing
of 24 informations against him for violation of Section 7 of Republic Act (RA) No. 3019 or the Anti-Graft and
Corrupt Practices Act; that the Ombudsman cannot revive the aforementioned cases which were previously
dismissed by the Sandiganbayan in its Resolution of February 10, 2004; that the defense of prescription
may be raised even for the first time on appeal and thus there is no necessity for the presentation of
evidence thereon before the court a quo. Thus, this Court may accordingly dismiss Criminal Case Nos.
28031-28049 pending before the Sandiganbayan and Criminal Case Nos. 04-231857–04-231860 pending
before the Regional Trial Court of Manila, all on the ground of prescription.
ROMUALDEZ v. MARCELO

FACTS:

Romualdez is being charged with violations of Section 7 of RA No. 3019 for failure to file his Statements of
Assets and Liabilities for the period 1967-1985 during his tenure as Ambassador Extraordinary and
Plenipotentiary and for the period 1963-1966 during his tenure as Technical Assistant in the Department of
Foreign Affairs.

Romualdez claims that the Office of the Ombudsman gravely abused its discretion in recommending the
filing of 24 informations against him for violation of Section 7 of Republic Act (RA) No. 3019 or the Anti-
Graft and Corrupt Practices Act;

Romualdez asserts that the Ombudsman (Marcello) cannot revive the aforementioned cases which were
previously dismissed by the Sandiganbayan in its Resolution of February 10, 2004.

He also claims that the case should be dismissed on the ground of prescription.

The Ombudsman, however, contends that:

the dismissal of the informations in Criminal Case Nos. 13406-13429 does not mean that petitioner
was thereafter exempt from criminal prosecution;

that new informations may be filed by the Ombudsman should it find probable cause in the conduct
of its preliminary investigation;

that the filing of the complaint with the Presidential Commission on Good Government (PCGG) in
1987 and the filing of the information with the Sandiganbayan in 1989 interrupted the prescriptive
period;

that the absence of the petitioner from the Philippines from 1986 until 2000 also interrupted the
aforesaid period based on Article 91 of the Revised Penal Code.

The PCGG avers that the Omdudsman need not wait for a new complaint with a new docket number for it
to conduct a preliminary investigation on the alleged offenses of the petitioner;

And since both RA No. 3019 and Act No. 3326 (the Act To Establish Periods of Prescription For Violations
Penalized By Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin To
Run) are silent as to whether prescription should begin to run when the offender is absent from the
Philippines, the RPC should be applied.

(RPC provides that prescription is interrupted when accused is outside of the Philippines)

ISSUE:

W/N the prior quashal of an information bars subsequent prosecution

W/N the offenses charged have already prescribed

HELD:

FOR THE FIRST ISSUE

The court held that the prior quashal of an information does not bar subsequent prosecution.
Section 6, Rule 117 of the Rules of Court provides that an order sustaining a motion to quash on grounds
other than extinction of criminal liability or double jeopardy does not preclude the filing of another
information for a crime constituting the same facts.

In this case, the original information was dismissed due to the lack of authority of the officer who
filed it, hence, a subsequent prosecution of the same offense is allowed by law.

The court also pointed out that informations were filed by an unauthorized party. The defect cannot be
cured even by conducting another preliminary investigation. An invalid information is no information at all
and cannot be the basis for criminal proceedings.

Also, the court said that the petitioner’s right to be informed of the charges against him was not violated
when the preliminary investigation conducted used the same docket number, which was already previously
dismissed by the Sandiganbayan.

The assignment of a docket number is an internal matter designed for efficient record keeping. It is usually
written in the Docket Record in sequential order corresponding to the date and time of filing a case.

The use of the docket numbers of the dismissed cases was merely for reference. In fact, after the new
informations were filed, new docket numbers were assigned, i.e., Criminal Cases Nos. 28031-28049.

FOR THE SECOND ISSUE

The court held that the offenses charged have already prescribed.

In resolving the issue of prescription of the offense charged, the following should be considered:

(1) the period of prescription for the offense charged;

(2) the time the period of prescription starts to run; and

(3) the time the prescriptive period was interrupted.

Section 11 of RA 3019 (amended by BP 195) provides a prescriptive period of 15 years but before it was
amended by BP 195 on March 16,1982, the prescriptive period was 10 years. The amendment cannot be
given retroactive effect because it is not favourable to the accused.

Hence, offenses allegedly committed by the petitioner from 1962 up to March 15, 1982, the same shall
prescribe in 10 years. On the other hand, for offenses allegedly committed by the petitioner during the
period from March 16, 1982 until 1985, the same shall prescribe in 15 years.

As to when the period begins to run and when it is interrupted, reference is made to Section 2 of Act No.
3326:

Prescription shall begin to run from the day of the commission of the violation of the law, and if the
same be not known at the time, from the discovery thereof and the institution of judicial proceedings
for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and
shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

The court ruled that the prescriptive period began to run from the discovery thereof on May 8, 1987, which
is the date of the complaint filed by the former Solicitor General Francisco I. Chavez against the petitioner
with the PCGG.

The court however disagrees to the respondents’ contention that the prescriptive period was interrupted
when petitioner was outside the Philippines because Article 91 of the RPC should be applied suppletorily.
(Art 91 – prescription is interrupted when accused in outside the Philippines)

Section 2 of Act. No. 3326 is conspicuously silent as to whether the absence of the offender from the
Philippines bars the running of the prescriptive period. The silence of the law can only be interpreted to
mean that Section 2 of Act No. 3326 did not intend such an interruption of the prescription unlike the explicit
mandate of Article 91.

Hence, petitioner’s absence from the Philippines did not interrupt the prescriptive period.

The only matter left is whether the filing of the complaint with the PCGG in 1987 as well as the filing of the
informations with the Sandiganbayan to initiate Criminal Case Nos. 13406-13429 in 1989 interrupted the
running of the prescriptive period.

The court held that an invalid information is no information at all and cannot be the basis for criminal
proceedings. Hence, no proceedings exist that could have merited the suspension of the prescriptive
periods.

In addition, the complaint was filed with the wrong body, the PCGG. Thus, the same could not have
interrupted the running of the prescriptive periods.

JUSTICE CARPIO DISSENT:

Justice Carpio argues Article 91 should apply to RA 3019.

He claims that there is nothing in RA 3019 that prohibits the supplementary application of Article 91 of the
RPC. He claims that the prescriptive period should have been interrupted when petitioner was outside the
Philippines. He said “An accused cannot acquire legal immunity by being a fugitive from the State’s
jurisdiction.”

The court’s answer is that suppletory application of the Revised Penal Code to special laws, by virtue of
Article 10 thereof, finds relevance only when the provisions of the special law are silent on a particular
matter.

The court said that RA 3019 is a special law and its prescription is governed by Act 3326.

The Revised Penal Code explicitly states that the absence of the accused from the Philippines shall be a
ground for the tolling of the prescriptive period while Act No. 3326 does not. In such a situation, Act No.
3326 must prevail over Article 91 because it specifically and directly applies to special laws while the
Revised Penal Code shall apply to special laws only suppletorily and only when the latter do not provide
the contrary. Indeed, elementary rules of statutory construction dictate that special legal provisions must
prevail over general ones.

Section 2 of Act No. 3326 did not provide that the absence of the accused from the Philippines prevents
the running of the prescriptive period. Thus, the only inference that can be gathered from the foregoing is
that the legislature, in enacting Act No. 3326, did not consider the absence of the accused from the
Philippines as a hindrance to the running of the prescriptive period.

Expressio unius est exclusio alterius - express mention of one person, thing, act, or consequence
excludes all others
 Republic of the Philippines
SUPREME COURT

FIRST DIVISION

G.R. Nos. 165510-33 September 23, 2005

BENJAMIN ("KOKOY") T. ROMUALDEZ, Petitioners,

vs.
HON. SIMEON V. MARCELO, in his official capacity as the Ombudsman, and PRESIDENTIAL
COMMISSION ON GOOD GOVERNMENT, Respondent.

DECISION

YNARES-SANTIAGO, J.:

This is a petition for certiorari1 under Rule 65 of the Revised Rules of Civil Procedure assailing the
resolutions dated July 12, 2004,2 and September 6, 20043 of the Office of the Special Prosecutor
(OSP)/Ombudsman, recommending that informations be filed in the Sandiganbayan charging
petitioner Benjamin "Kokoy" T. Romualdez with violation of Section 7 of R.A. No. 3019 (Anti-Graft
and Corrupt Practices Act) for non-filing of Statement of Assets and Liabilities (SAL).4

The antecedent facts show that on February 22, 1989, 24 informations docketed as Criminal Cases
Nos. 13406-13429 were filed against petitioner before the Sandiganbayan for his alleged failure to
file the SAL from 1962 to 1985.5

A warrant of arrest was issued on February 28, 1989,6 but this was not served because of
petitioner’s exile from the country. On October 21, 1991, he filed through counsel a Motion to Recall
Warrants of Arrest,7 alleging that the preliminary investigation conducted by the Presidential
Commission on Good Government (PCGG) was invalid for lack of jurisdiction. He also filed
an Urgent Ex-Parte Motion to Hold in Abeyance Implementation of Warrants of Arrest and/or to
Recall the Same.8 On November 4, 1991, the Sandiganbayan issued an order to defer the
enforcement of the arrest warrant on the condition:

(1) that the cash deposit equivalent to the aggregate amount of the bond shall serve as a provisional
cash bond for the accused’s temporary liberty upon his personal appearance to the court;

(2) that the cash deposit shall be made within five (5) days from receipt hereof by movant’s counsel,
said act of deposit representing the conformity of the accused to the conditions hereof;

(3) that the accused himself shall arrive in the Philippines within thirty (30) days from counsel’s
receipt hereof;

(4) that accused shall personally present himself to this Court on the next succeeding working day
after his arrival for completion of the bailbond process.9

Due to his non-compliance with these terms, the Sandiganbayan denied on January 24,
199210 petitioner’s motion to recall the warrant of arrest. Petitioner moved for reconsideration which
the Sandiganbayan denied on April 24, 1992. It also declared that until petitioner submits himself to
the jurisdiction of the court, the issue regarding his compliance with the conditions imposed in the
resolution of November 4, 1991, will not be entertained.11
Hence, on May 27, 1992, he filed a petition12 with this Court, docketed as G.R. No. 105248, assailing
the resolutions of the Sandiganbayan dated January 24, 1992, April 24, 1992 and November 4,
1991.

In a Decision dated May 16, 1995, this Court declared invalid the preliminary investigation conducted
by the PCGG for lack of jurisdiction. However, it held that the invalidity or absence of a preliminary
investigation did not affect the jurisdiction of the Sandiganbayan or impair the validity of the
informations. Thus, the Sandiganbayan was ordered to suspend the proceedings pending the
holding of a proper preliminary investigation by the Office of the Ombudsman.13

The dispositive portion of the Decision reads:

WHEREFORE, the petition is DENIED and the challenged Resolutions of January 24, 1992 and
April 24, 1992 are AFFIRMED; but the respondent Sandiganbayan is DIRECTED to order the Office
of the Ombudsman to forthwith conduct a proper preliminary investigation of the charges embodied
in the informations filed against petitioner; to suspend the proceedings pending termination thereof;
and thereafter to take action on petitioner’s cases as may be warranted by the results of said
preliminary investigation.

IT IS SO ORDERED.14

Pursuant to the above Decision, the Sandiganbayan ordered15 the petitioner to submit his counter-
affidavit, the PCGG its reply-affidavit, and the OSP its report on the reinvestigation.

Petitioner failed to file his counter-affidavit as directed. On April 27, 2000, he returned to the
Philippines and voluntarily surrendered.16 He filed a Motion to Quash on June 2, 2000.17 The
clarificatory hearing scheduled on the same date was reset to June 9, 2000.

On June 8, 2000, one day before the scheduled clarificatory hearing, the Sandiganbayan denied in
open court petitioner’s motion to quash18 and the reconsideration thereof and also terminated the
preliminary investigation.19His arraignment scheduled on June 26, 200020 was reset to July 28,
2000.21

On July 27, 2000, petitioner filed a petition for certiorari and prohibition22 with this Court, docketed as
G.R. Nos. 143618-41. He assailed the orders of the Sandiganbayan (1) denying his motion to quash
and his oral motion for reconsideration; (2) ordering the termination of the preliminary investigation;
and (3) setting his arraignment on July 28, 2000. He claimed that the criminal cases against him
were based on void informations, hence, the Sandiganbayan must be enjoined from arraigning him
on July 28, 2000.

On July 30, 2002, we granted the petition holding that it is the prosecutor which is the Ombudsman,
and not the PCGG, which must subscribe and file the informations because the crimes ascribed to
petitioner do not relate to alleged ill-gotten wealth, and were therefore, beyond the ambit of the
PCGG’s jurisdiction. The informations were filed by PCGG, an unauthorized party and could not
even be cured by conducting another preliminary investigation. Since the informations were invalid,
they cannot serve as basis for criminal proceedings. We also found that the Sandiganbayan gravely
abused its discretion when it abruptly terminated the reinvestigation.23

The dispositive portion of the Decision reads:

WHEREFORE, in view of the foregoing, the petition is GRANTED. The assailed orders of the
Sandiganbayan dated June 8, 2000 are ANNULLED and SET ASIDE.

SO ORDERED.24

Pursuant to the foregoing Decision, the Sandiganbayan in a resolution dated February 10, 2004,
dismissed Criminal Cases Nos. 13406-13429.25

On March 3, 2004, the OSP directed petitioner to submit his counter-affidavit. He failed to comply so
another order dated April 14, 2004 was issued but this was returned because petitioner was not
found in the given address.

On April 26, 2004, petitioner filed a Motion to Dismiss instead of a counter-affidavit.26 He alleged that
the order involved previously dismissed cases, hence, there was no legal justification for the OSP
and the Ombudsman to further conduct preliminary investigation.

On May 12, 2004, petitioner filed a counter-affidavit27 adopting all the allegations in the motion to
dismiss. The PCGG filed its Opposition28 insisting that the quashal of the informations for lack of
authority by the PCGG to file the same did not mean that petitioner is already exempt from criminal
prosecution. The Ombudsman can still file new informations should it find that probable cause exists.

In a Memorandum dated July 12, 2004,29 the OSP ordered the Motion to Dismiss filed by petitioner
expunged for being a prohibited pleading pursuant to Section 3(c), Rule 112 of the Revised Rules of
Criminal Procedure and Section 4(d), Rule II of the Rules of Procedure of the Office of the
Ombudsman. Considering that the motion to dismiss was grounded on the quashal of the
informations and not on lack of jurisdiction, the OSP declared the motion to dismiss as a mere scrap
of paper. Also, the petitioner was deemed to have waived his right to file a counter-affidavit. As such,
his counter-affidavit was not given due course.

Consequently, based solely on complainant’s evidence, the OSP determined there was probable
cause that petitioner violated Section 7 of RA No. 3019 and accordingly recommended the filing of
24 informations before the Sandiganbayan.

On September 6, 2004, the OSP denied petitioner’s motion for reconsideration.30

Thereafter, 19 informations docketed as Criminal Cases Nos. 28031-28049 were filed with the
Sandiganbayan for failure of petitioner to file his SAL for the period 1967-1985 during his tenure as
Ambassador Extraordinary and Plenipotentiary,31 while 4 informations docketed as Criminal Cases
Nos. 04-231857-04-23186032 were filed with the Regional Trial Court of Manila for petitioner’s failure
to file his SAL from 1963 to 1966 during his tenure as Technical Assistant in the Department of
Foreign Affairs.

Hence, this petition on the following grounds:

I. RESPONDENT ACTED WITHOUT JURISDICTION AND/OR WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DENYING PETITIONER’S MOTION
TO DISMISS THE PRELIMINARY INVESTIGATION OF CRIM. CASES NOS. 13406-13429
NOTWITHSTANDING THE FACT THAT THE SAID CASES HAD ALREADY BEEN DISMISSED BY
THE SUPREME COURT AND BY THE SANDIGANBAYAN;
II. RESPONDENT ACTED WITHOUT JURISDICTION AND/OR WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION IN CONDUCTING A PRELIMINARY
INVESTIGATION OF ALLEGED OFFENSES THAT HAD ALREADY PRESCRIBED.

The issues for resolution are the following: (1) whether or not the Ombudsman acted with grave
abuse of discretion in denying petitioner’s motion to dismiss the preliminary investigation; and (2)
whether or not the offenses charged against petitioner have prescribed.

Petitioner argues that respondent’s act of proceeding with the preliminary investigation constitutes
patently reversible error. He claims that since Criminal Cases Nos. 13406-13429 have already been
dismissed, the PCGG should have filed a new complaint with a new docket number. He insists that
the Ombudsman could not conduct another preliminary investigation using the old docket numbers.

Petitioner also maintains that the offenses for which he was charged had already prescribed in
February 2001, hence the preliminary investigation conducted anew by the Ombudsman should be
terminated.

In their Comments,33 respondents aver that the dismissal of Criminal Cases Nos. 13406-13429 did
not mean that the preliminary investigation was terminated, as this Court specifically directed the
Ombudsman to conduct the same. Besides, the Ombudsman is duly authorized to investigate on its
own or upon complaint the acts or omissions of public officials or employees. Thus, it need not wait
for the filing of another complaint before conducting a preliminary investigation. Respondents also
deny that the offenses have prescribed since the period was tolled when the petitioner was out of the
country.

The petition lacks merit.

Petitioner came to this Court through a special civil action for certiorari under Rule 65 of the Revised
Rules of Civil Procedure imputing grave abuse of discretion on the Ombudsman in denying his
motion to dismiss the preliminary investigation.

A petition for certiorari is the proper remedy when any tribunal, board, or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction and there is no appeal, nor any plain, speedy,
and adequate remedy at law.34

In Punzalan v. Dela Peña,35 lack of jurisdiction and excess of jurisdiction were distinguished.
Respondent acts without jurisdiction if he does not have the legal power to determine the case.
Where the respondent, being clothed with the power to determine the case, oversteps his authority
as determined by law, then he is performing a function in excess of his jurisdiction.

Grave abuse of discretion implies a capricious and whimsical exercise of judgment that is equivalent
to lack of jurisdiction. In other words, the power of discretion is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility. It must be so patent and gross as to amount to an
evasion of positive duty and a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.36

In denying the motion to dismiss the preliminary investigation, the Ombudsman resolved:

After a careful evaluation of the arguments/contentions of both parties, complainant (PCGG) and
respondent Romualdez, the undersigned finds the contentions of the PCGG more credible.
The Motion to Dismiss filed by respondent Benjamin Romualdez should be expunged, the same
being a prohibited pleading. Sec. 3 (c) of Rule 112 of the Revised Rules of Criminal Procedure,
which provides that "the respondents shall not be allowed to file a motion to dismiss in lieu of a
counter-affidavit." Thus, it is incumbent upon the accused to file a counter-affidavit, and not a motion
to dismiss. Moreover, Section 4 (d) of the Rules of Procedure of the Office of the Ombudsman
provides: "No motion to dismiss shall be allowed except for lack of jurisdiction." Respondent argued
in his motion to dismiss that Criminal Cases Nos. 13406-13429 were already dismissed by the
Sandiganbayan by virtue of its Minute Resolution dated February 10, 2004, and not lack of
jurisdiction. Hence, such motion is a mere scrap of paper, without any legal force and effect.

...

The authority of the Office of The Special Prosecutor/Ombudsman to conduct preliminary

investigation in these cases is pursuant to the Supreme Court’s Decision dated July 20, 2002 in
G.R.F Nos. 143618-143641 entitled Benjamin "Kokoy" T. Romualdez vs. Sandiganbayan.

The Honorable Supreme Court specifically stated in said Decision that the Sandiganbayan
committed grave abuse of discretion when it prematurely terminated the preliminary investigation
being conducted by this Office on June 8, 2000, which the Supreme Court itself ordered.…

Hence, the quashal of the informations in Criminal Cases Nos. 13406-13429 before the
Sandiganbayan, First Division for lack of authority of the PCGG to file the same is without prejudice
to the filing of new informations by this Office should it find probable cause after the conduct of
preliminary investigation.

...

Respondent Romualdez failed to file his counter-affidavit and/or present his controverting evidence
despite the sending of notices and copies of the complaint with supporting evidence to his known
address and through his counsel on record. However, he opted to file a Motion to Dismiss, through
his counsel, which this Office cannot take cognizance for reasons cited hereof.

In view thereof, these cases must be resolved on the basis solely of the complainant’s evidence.

Thus, after a careful evaluation of the evidence on records, the undersigned finds that respondent
violated Section 7 of R.A. [3019] since the time he was appointed Technical Assistant, with the rank
of FAO, Class III in the Philippine Consulate, Ambassador and Provincial Governor of Leyte from
1961 until February, 1986 he never filed his Statement of Assets and Liabilities.37

The ruling of the OSP/Ombudsman is consistent with the Decision of this Court in Velasco v. Hon.
Casaclang,38where we held that, the Deputy Ombudsman properly denied the motion to quash and
motion for reconsideration of petitioner therein, pursuant to the applicable provisions of the Revised
Rules of Court and Administrative Order (AO) No. 07 of the Ombudsman. Section 4 (d) of AO No. 07
disallows a motion to quash (or dismiss) except on the ground of lack of jurisdiction. In that case, as
in this one, no absence of jurisdiction is perceived.

The Constitution vested the Office of the Ombudsman with powers and duties to investigate on its
own, or on complaint by any person, any illegal, unjust, improper or inefficient act or omission of any
public official or employee.39 Section 15(1) of R.A. No. 6770 or The Ombudsman Act of 1989
delineated the investigatory and prosecutory functions of the Ombudsman, to wit:
SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following
powers, functions and duties:

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

We held that the OSP/Ombudsman is the proper authority to conduct the preliminary investigation of
the alleged offenses committed by petitioner. Pursuant thereto, there is no need for a new complaint
to be filed by PCGG because the Ombudsman, on its own, may conduct a preliminary investigation
of offenses committed by public officers. Moreover, the denial of his motion to dismiss was
concomitant with Section 4 of the Revised Rules of Procedure of the Office of the Ombudsman
disallowing a motion to dismiss except on the ground of lack of jurisdiction.

Besides, we held in Romualdez v. Sandiganbayan,40 that:

The Sandiganbayan also committed grave abuse of discretion when it abruptly terminated the
reinvestigation being conducted by Prosecutor Lucero. It should be recalled that our directive in G.R.
No. 105248 for the holding of a preliminary investigation was based on our ruling that the right to a
preliminary investigation is a substantive, rather than a procedural right. Petitioner’s right was
violated when the preliminary investigation of the charges against him were conducted by an officer
without jurisdiction over the said cases. It bears stressing that our directive should be strictly
complied with in order to achieve its objective of affording petitioner his right to due process.

Petitioner’s claim that the preliminary investigation be dismissed because it referred to the same
docket numbers of the dismissed informations, is erroneous. The assignment of a docket number is
an internal matter designed for efficient record keeping. It is usually written in the Docket Record in
sequential order corresponding to the date and time of filing a case.41

This Court agrees that the use of the docket numbers of the dismissed cases was merely for
reference. In fact, after the new informations were filed, new docket numbers were assigned, i.e.,
Criminal Cases Nos. 28031-28049. Plainly, these are entirely different cases from those that have
been dismissed given that Criminal Cases Nos. 13406-13429 were not mentioned.

Petitioner also alleges that respondents acted with grave abuse of discretion in not dismissing the
preliminary investigation on the ground of prescription of the offense. This allegation is a matter of
defense which must be settled in a full-blown trial. Evidence must be received to resolve the case on
its merits.

In Domingo v. Sandiganbayan,42 we considered the following in resolving the issue of prescription:

(1) the period of prescription for the offense charged; (2) the time the period of prescription starts to
run; and (3) the time the prescriptive period was interrupted.

Petitioner is being charged under Section 7 of R.A. No. 3019, a special law. Section 11 of the same
statute provides for the period of prescription for the offense charged, i.e., 15 years. However, the
applicable rule on the time the period of prescription starts to run is Section 2 of Act No. 3326, which
provides:
SEC. 2. Prescription shall begin to run from the day of the commission of the violation of the law,
and if the same not be known at the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and
shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

This Court quotes the concurring and dissenting opinion of Justice Reynato S. Puno in Presidential
Ad Hoc Committee v. Hon. Desierto:43

The law on prescription of special crimes like violation of R.A. No. 3019 (Anti-Graft Law) is provided
for in Section 2 of Act No. 3326, viz:

"SEC. 2. Prescription shall begin to run from the day of the commission of the violation of the law,
and if the same be not known at the time, from the discovery thereof ..."

The application of this provision is not simple and each case must be decided according to
its facts. It involves a careful study and analysis of contentious facts: (a) when the
commission of the violation of the law happened; (b) whether or not the violation was known
at the time of its commission, and (c) if not known then, the time of its discovery. In addition,
there is the equally difficult problem of choice of legal and equitable doctrines to apply to the above
elusive facts. For the general rule is that the mere fact that a person entitled to an action has no
knowledge of his right to sue or of the facts out of which his right arises, does not prevent the
running of the statute. This stringent rule, however, admits of an exception. Under the "blameless
ignorance" doctrine, the statute of limitations runs only upon discovery of the fact of the invasion of a
right which will support a cause of action. In other words, courts decline to apply the statute of
limitations where the plaintiff neither knew nor had reasonable means of knowing the existence of a
cause of action. Given all these factual and legal difficulties, the public respondent should
have ordered private respondents to answer the sworn complaint, required a reply from the
petitioners and conducted such hearings as may be necessary so he could have all the vital
facts at his front and, upon their basis, resolve whether the offense charged has already
prescribed. (Emphasis supplied)

It is noteworthy that petitioner did not raise the defense of prescription in his motion to dismiss the
preliminary investigation. It is only in this petition that he raised this issue. As this case has never
progressed beyond the filing of the informations against petitioner, it is only prudent that evidence be
gathered through trial on the merits to determine whether the offense charged has already
prescribed.

A preliminary investigation is merely inquisitorial, and it is often the only means of discovering the
persons who may be reasonably charged with a crime, to enable the fiscal to prepare the complaint
or information. It is not a trial of the case on the merits and has no purpose except that of
determining whether a crime has been committed and whether there is probable cause to believe
that the accused is guilty thereof, and it does not place the person against whom it is taken in
jeopardy.44

Consequently, the Ombudsman did not commit grave abuse of discretion in denying petitioner’s
motion to dismiss the preliminary investigation. Not only did the Ombudsman have the jurisdiction to
conduct a preliminary investigation under the Constitution and R.A. No. 6770, but he also acted
within the legal bounds of the authority conferred upon him when he denied the motion to dismiss
under Administrative Order No. 07.
As a rule, the Court shall not unduly interfere in the Ombudsman’s exercise of his investigatory and
prosecutory powers, as provided in the Constitution, without good and compelling reasons to
indicate otherwise.45

WHERFORE, the petition is DISMISSED. The resolutions dated July 12, 2004 and September 6,
2004 of the Office of the Special Prosecutor, are AFFIRMED.

SO ORDERED.

CONSUELO YNARES-SANTIAGO

Associate Justice

WE CONCUR: