REPUBLIC OF THE PHILIPPINESSANDIGANBAYAN

QUEZON CITY

SPECIAL THIRD DIVISION

PEO PLE OF THEPHILIPPINES'

malnd,ffi

-versus -

GILDA E. PICO, ET AL.Accused.

Criminal Case No. SB-18-CRM-0383

For.. Viozafion of See. 3 (g) OfR.A. No. 3019

Presert±:CABOTAJE-TANG, FurFERNANDEZ, B., J. andJACINTO, 8.,1 U.

Prormjlgated:

RESOLUTION:- I- ± I- i- I- I- L± - T±=L

CAB0TAJE-TANG, P.|...

Forresolutionarethefo11oVI>

1 Pe;I Admiiiistratiue Order No. 011 -A-2019 de[rfed ]ar[nAIry 9 , 2;0194)/

EusoLUTIONPeople vs. Pico, ct al.Criminal Case No. SB-18-CRM-0383y.I----------------------------------------------------------------------------)A

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1. Accused Margarito 8.. Teves' jIAott.o7i fo Ot/cls7i /Re..Ame7tczecz J7i/or77'Lcz€z.o7t/ dated December 5, 2018;2

2. Accused Marianito D. Roque's jtfoft.o7t fo Oztczsfr /#ieAme7iczecz J7?/ormcztz.o7i/ dated December 5, 2018;3 and

3. Accused Albert C. Balingit, Cyril C. Del Callar, GeorgeJ. Regalado and Roberto S. Vergara's Om".bzts Jtfofi.o7i /ro Oztcisht_he Amerded Imf ormation, To Disrndss the Case a;nd/ or SuspendP.roceedings Pue to Prejudicial Queshon cnd, to DoferA77clz.g7ime7if/ dated December 10, 2018.4

I.'AL®oused Teves' Motion to Quash (Re.. Amended

771/ormcztio7i/ dated December 5, 2018

Accused Teves prays that the Ame7iczecz J71/omcltt.o7icharging him, together with his co-accused, with the crime ofviolation of Section 3 (g) of Republic Act (R.A.) No. 3019 bequashed on the ground that the facts charged thereinpurportedly do not constitute the aforesaid offense based on thefollowing arguments :

1. He was not the one who entered into the alleged contractwith Global 5000 Investment, Inc. ("Global 5000") subjectmatter of the case. He merely relied in good faith on therecommendations and representations of the managementwhen +they reque,sted authority to negotiate and enter into thesaid purported conttract on behalf of the bank for the sale of thesubject Meralco shares;5

2. Conspiracy does not exist by the mere fact thatindividuals are together in a board as directors and/or by themere fact that, inevitably, certain actions of management mustpass through the board of directors;6

3. The Office of the Ombudsman ("Ombudsman") gravelyabused its discretion when it found that the third element of thecrime of violation of Section 3 (g) of R.A. No. 3019 exists in this

2 p. 319, Vol.11, Record3 p. 326, `'d4 p. 360, `'J5 Pal.. 1, p. 1, Accused Teves' Mo/z.o# /a fz/end; p. 319, Vol.11, Recol.d6 Par. 2, pp.1-2, z.d; pp. 318-320, /.d

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case despite the fact that no competent proof, except for thedisproportionate claims of the Field Investigation Office, thatthe sale of the Meralco shares to Global 5000 was grossly andmanifestly disadvantageous to the government;7

4. The sale of the Meralco shares was never consulnmatedand that the Meralco shares have remained with the Land Bankof the Philippines ("LBP").8 The fact that the transaction wasnever consurm:rnated removes Ombudsman Case No. OMB-C-C-J4-0499 from the ambit of Sec. 3 (g) of R.A. No. 3019 since whatthe law punishes is the fact that the government suffered injuryby reason of the said transactions. In the questionedtransaction, the government did not suffer any injury as thesame was never consummated at all;9

5. There is a prejudicial question in this case after Global5000 instituted on July 3, 2014, a civil suit against the LBP toenforce the subject Share Purchase Agreement ("SPA") , which isnow docketed as Civil Case .No. MC14-9177, entitled "SMCGlobal Power Holding Corp. (Forrnerky a:lobal 5000 Irwesfroend,Inc.) vs. Land Bards Of the Philippines, ct al. ," pendi]oLgbefore theRegional Trial Court (RTC), Branch 212, in Mandaluyong City;10and'

6. The Arias Doctrine clearly applies to accused Teves.11

11.

Accused Roque's JRTot€orL to Qztczs7i /the Ame7idledJ7i/ormcztzo7i/ dated December 5, 2018

iAccused Roque claims that the subject Ame7iczecz

J7i/ormcztz.o7i should be quashed because the facts chargedtherei:n "do not constj:tiJle an Offiense a;nd/or the ouerrnendstherein, even if assumed to be i:rue, provide justifecafion or legalexcuse thai should absolve herein accu,sed Of anE crimha:1tiabtlity fior the offierLse cha;rged."12 ALccording to hi:rn, frorrL the"f a,ce of the previous infiormatien itself ; cnd, based ONI;¥ thereon,there i,s nothing thai would show thai herein Accu,sed ROQUE

7 Pal.. 5, p. 2, z.J; p. 320, ¢.d8 Pal.. 6, p. 3, z.J; p. 321, z.J9 Pan. 7 , id:, id10 Par. 8, id; ,'J11 Par. 10, p. 4, ¢.d; p. 322, z.J12 Par. 4, p. 3, Accused Roque's Mo/z.o# /a Q#czJ4; p. 328, z.J

4),

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corrurnitted, the offiense cha;rged. As i:ru,ky reflected in its findings,there is ordy SPA (sic) subject Of their col,se and that SPA, or elsestated, the provisiorLs thereof were rLof the sane as that votedon by the LBP Board, inchaded in which i,s herein Accu,sedROQUE.»13

Accused Roque further asserts that "the proseoutzo7i 7toteczthai whal the LBP Board approved is dij:ferend from the SPAand.er consideration, i.e., the period, Of pcaymend Of the downpayrrLend was only 15 days cnd, NOT 30 days as indicated in theSPA. Hence, it carmof be scud, thai herein Accu.sed ROQUE wasnot a pcuty to the SPA subject Of the case beccunse the Board towhich he wcLs a part thai voted for the terms did rrot ind;ude such3 0-day ex±erLs±on." 14

Lastly, accused Roque claims that "I.f js cl mczfe7iclz uol.cZ I.71the Amended lnfiormc[tion that the prosecu:tiorL failed to cLver howthe subject SPA acfu,ally disadvanlaged, injured or prejudicedthai Goverrrm,erie.» ±5

Ill.Accused Balingit, Del Callar, Regalado andVergalraL's Orrmlbus Motion (To Quash the

Amerrded Infiori'nation, To Disi'n;iss the Casecnd/or Suspertd Proceedings Due to Prejudieidl

Question cmd to Defer Arralgnrnent) datedDecember 10, 201.8

Accused Balingit, et ciz. move to quash the Ame7iczedJ7i/ormcifz.o7i and to dismiss the present criminal case based onthe following grounds:

1. The Court should dismiss the case due to the inordinatedelay of the Ombudsman in investigating the case against themresulting in gross violation of their right to a speedy dispositionoftheircases;7~

thy13 Par. 7, p. 4, j.d; p. 329, z.d14 Pan. 8> id:, id15 Par. 11, p. 5, ¢.J; p. 330, z.d16 pp. 2-3, Accused Balinalt, G/ ¢/.'s Oar;7z.4z# Mo/z.a;7; pp. 361-362, z.d

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2. The facts charged in the A77ie7tczecz J7i/ormci€t.o7i do notconstitute an offense;17 and

3. In the alternative, the Court should suspend theproceedings in this case due to a prejudicial question pendingbefore the RTC in Mandaluyong City.18

The Prosecution's Ctonsoz€datecz Comment/Oppositiondated December 27, 2018

On December 27, 2018, the prosecution submitted itsConsotidated Commend/ Opposition of even date to the aforesaidmotions. It prays for the denial of the subject motions based onthe following submissions :

1. The Ame7iczecz J7i/o777'Lcitt.o7t contains all the allegations toconstitute the offense charged; 19

2. There is no violation of the accused-movants' right tospeedy disposition of their case;20

3. The assertion of the right to speedy disposition of casesis not sufficient to dismiss the case on the ground of inordinatedelay;21

4. The pending civil action before the RTC in MandaluyongCity does not pose a prejudicial question in this case;22 and

5. The ou`tright quashal of the Ame7iczecz J7i/orm,cztt.o7t is notthe proper course of action when the facts stated therein do notconstituteanoffensej~

fl/T] p. 3, id:, p. 362,, idtS id:, idr9p.2.,Prose:c;ndorl'sConsolidatedCommeiit/OPPoJitiom,p.4+5>id20 p. 8, z.d; p. 421, z.J21 p. 14, z.J; p. 427, z.d22 p. 16, z.d; p. 429, j.d23 p. 17, z.d; p. 430, Z.J

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THE RULING OF THE COURT

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After an assiduous evaluation of the arguments raised bythe accused-movants in their respective lriotions to quash andthe consolidated comment/opposition thereto of theprosecution, the Court DEAFTES the said motions but GRAIVTIStheir prayer for the suspension of the proceedings in this casefor the reasons that follow.

I. There was no inordha;be dalagin the conduct Of theprel;ini:inca.i] inuestigatton Ofthis case.

Accused Balingit, et CZZ. move to dismiss the present casedue to the purported inordinate delay in the conduct of itspreliminary investigation by the Office of the Ombudsman.Alccording to the:rn, `` the Irmesfigcndon corLducted bg the Office Ofthe OrrLbud.srrLcm for five (5) gears and rLecirky eighi (8)rrLonths...»24 "is sufficterutg inordima:±e cnd, inexcu,sable to giverise to a swhstanfial risk that it would rro± be posstble for the saidaccu,sed to have a ficir trial."25

The Court finds the said claim baseless.

A person's right to a speedy disposition of his case isguaranteed under Section 16, Article Ill of the 1987Constitution:

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

The Supreme Court teaches that the concept of speedydisposition is relative or flexible. A mere mathematicalreckoning of the time involved is not sufficient. Particularregard must be taken of the facts and circumstances peculiarto each case. For this reason, a balancing test of applyingsocietal interests and the rights of the accused necessarily24 p. 6, Accused Balingit, et al.'s OA27#z.ha Mo/z.o#; p. 365, Vol. 11, Record25 p. 15, z.d; p. 374, z.J

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compels the court to approach speedy trial cases on an act hoebasis.26 The conduct of both the prosecution and defendant areweighed czpropos the four-fold factors, to wit: (1) length of thedelay; (2) reason for the delay; (3) defendant's assertion or non-assertion of his right; and (4) prejudice to defendant resultingfrom the delay. None of these elements, however, is either anecessary or suffi.cient condition. They are related and must beConsidered together with other relevant circumstances. Thesefactors have no talismanic qualities as courts must still engagein a difficult and sensitive balancing process.27

This right is deemed violated only when the proceeding isattended by vexatious, capricious and oppressive delays. Toascertain whether these conditions obtain in a given case, theHigh Court prescribes the following factors to be considered,namely: (1) length of delay; (2) the reason for the delay; (3) thedefendant's assertion of his right; and (4) prejudice to thedefendant.28

In the very recerLt case o£ Cagang vs. Sandiganbayan,F€/±h D€uts€on,29 the Supreme Court laid down the modes ofanalysis in situations where the right to speedy disposition ofcases or the right to speedy trial is invoked. Thus:

This Court now clarifies the mode of analysis insituations where the right to speedy disposition of cases or theright to speedy trial is invoked. '

First, the right to speedy disposition of cases is differentfrom the right to speedy trial. While the rationale for bothrights is the same, the right to speedy trial may only beinvoked in criminal prosecutions against courts of law. Theright to speedy disposition of cases, however, may be invokedbefore any tribunal, whether ].udicial or quasi-judicial. Whatis important is that the accused may already be prejudiced bythe proceeding for the right to speedy disposition of cases tobe invoked.

SecorLcZ, a case is deemed initiated upon the filing of aformal complaint prior to a conduct of a preliminaryinvestigation. This Court acknowledges, however, that theOmbudsman should set reasonable periods for preliminaryinvestigation, with due regard to the complexities and

2!6 Almeda v. Of i ice of the Ombudsman Qif indanao),798 SC:RA T31 (2IIV6)27 Spouses ZT/ v. 4dh.ano, 505 SCRA 625 (2006)2:A Coapuz vs. Sandiganb2[yan> 442. SC:RA2f )4 (2!f Jf J4D29 G.R. Nos. 206438, 206458, & 210141-42, July 31, 2018

rffry/

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nuances of each case. Delays beyond this period will be takenagainst the prosecution. The period taken for fact-findinginvestigations prior to the filing of the formal complaint shallnot be included in the determination of whether there hasbeen inordinate delay.

T7tt.7id, courts must first determine which party carriesthe burden of proof. If the right is invoked within the giventime periods contained in current Supreme Court resolutionsand circulars, and the time periods that will be promulgatedby the Office of the Ombudsman, the defense has the burdenof proving that the right was justifiably invoked. If the delayoccurs beyond the given time period and the right is invoked,the prosecution has the burden of justifying the delay.

If the defense has the burden of proof, it must provejirs€, whether the case is motivated by malice or clearly onlypolitically motivated and is attended by utter lack of evidence,and seco7icz, that the defense did not contribute to the delay.

Once the burden of proof shifts to the prosecution, theprosecution must prove /Ersf, that it followed the prescribedprocedure in the conduct of preliminary investigation and inthe prosecution of the case; seco7tcz, that the complexity of theissues and the volume of evidence made the delay inevitable;and thz.rcz, that no prejudice was suffered by the accused as aresult of the delay.

FozJrfh, determination of the length of delay is nevermechanical. Courts must consider the entire context of thecase, from the amount of evidence to be weighed to thesimplicity or complexity of the issues raised.

An exception to this rule is if there is an allegation thatthe prosecution of the case was solely motivated by malice,such as when the case is politically motivated or when thereis continued prosecution despite utter lack of evidence.Malicious intent may be gauged from the behavior of theprosecution throughout the proceedings. If maliciousprosecution is properly alleged and substantially proven, thecase would automatically be dismissed without need offurther analysis of the delay.

Another exception would be the waiver of the accusedto the right to speedy disposition of cases or the right tospeedy trial. If it can be proven that the accused acquiescedto the delay, the constitutional right can no longer be invoked.

In all cases of dismissals due to inordinate delay, thecauses of the delays must be properly laid out and discussedby the relevant cOu2+

Th/

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Fz/fh, the right to speedy disposition of cases or the rightto speedy trial must be timely raised. The respondent or theaccused must file the appropriate motion upon the lapse ofthe statutory or procedural periods. Otherwise, they aredeemed to have waived their right to speedy disposition ofcases.3o

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With the aforesaid precepts as guide, the Court shall nowexamine the records of this case. A review thereof yields thefollowing chronology of events:

1. September 2012 -One Emilio Aguinaldo Suntay fileda complaint before the Ombudsman agalnst some of the hereinaccused former officials of the LBP and Global 5000 inconnection with the execution of the SPA involving the LBP'sMeralco shares;31

2. November 6, 2014 - The Ombudsman's FieldInvestigation Office (Flo), represented by David A. Lucero, fileda criminal complaint for violation of Section 3 (e) and (g) of R.A.No. 3019 against the following individuals:

a. Accused Pico;b. Accused Vergara;c. Accused Halog,d. Accused Teves;e. Accused Roque;f. Accused Ruallo-Bello;9. Accused Nolasco;h. Accused Balingit;

Accused Regalado;Ombre Hansirani;Accused Del Callar;

1. Ifiigo U. Zobel;in. Roberto V. Ongpin;n. Joselito campos, Jr.; .o. Consuelo Eden P. Lagao; andp*O,3*A¢ ,

sO T!D. 5f )-qo > Cagang vs. Sandiganbzlyan, Fitth Division,http: / / sc.judiciary.gov.ph/pdf/web/viewer.html?ffle= /jurispmdence/2018/july2018/20643 8.pdf; accessed onJanuary 16, 2019 '31 p. 5, Accused Balingit, et el.'s Oer77z.ha Mo/z.oj7; p. 363, Vol. 11, Record; p. 10, Pi.osecution's Co#+a/z.J4/gd

Comment/OIfositiom,p.4;2:3,Vch.Tl,R!e;cord32 p.1, Ombudsman's Ran/#/z.o# dated October 21, 2015; p. 8, Vol.I, Recol.d

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3. January 8, 2015 - The Office of the Ombudsman'sPIAB-D issued an 07iczer dated January 8, 2015, requiring therespondents to submit their respective counter-affidavits;33

4. February 16, 2015 -Accused Roque filed his Cot/7tter-Aj7j73czciz/I.f;34 on the same day, accused Pico, Halog and Vergarafiled their |Joz.7it Cou7iter-AJ7j73cZczz/I.t dated February 13, 2015;35

5. February 17, 2015 - Accused Del Callar filed hisCouriter-Af f idouit of even dale.,36

6. February 24, 2015 -Respondents Zobel, Campos, LJ.r.Gandingco and Lagao filed their counter-affidavits;37

7. March 3, 2015 - Accused Teves filed his CoLt7tter-AJ7j7EczclzJz.f dated March 2, 2015.38 Accused Pico filed aSapplernendal Counter-Af f idouit deLLed IVlarch 3 , 20 ±5.,39

8. May 4, 2015 - Accused Nolasco filed his CoLt7ifer-Affidouit of even dale.,4o

9. September 29, 2015 -Accused Rualo-Bello filed herCounter-Affidavit;41

10. October 21, 2015 - The Ombudsman issued itsResozL4tz.o7i dated October 21, 2015, which found the existenceof probable cause to indict the herein accused for the crime ofviolation of Section 3 (g) of R.A. No. 3019;42

11. Marcll 31, 2016 -Then Ombudsman Conchita CarpioMorales approved the said ResozL4t].o7i dated October 21, 2015;43

12. April 18, 2016 -Accused Pico, Halog, Vergara, Teves,Roque, Balingit, Regalado and Del Callar filed their /oz.7if Mott.o7i

93 id:, idr, p. 5, AucousedBihin:giv, et al.' s Omiiibus Motiom, p. 364, id34 p. 190, Vol.I, Recol.das p. 2fJr/ . id36 p. 38;n , id

=!J-i-- -jl

37 p.11, Prosecution's Co#j.a/z.J4/gJ CoexerG#J/O+i"jz./z.o#; p. 424, Vol.11, Record; p. 5, Accused Ba]inalt, cj 4/. 'r

Oer#j.ha A4lo/z.o#; p. 362, Vol. 11, Recold38 p. 406, Vol. I, Recol.d39 p.13, Ombudsman's R"a/z//z.o# dated October 21, 2015; p. 7, Vol.I, Record40 p. 419, Vol.I, Recol.d41 p. 416, Vol.I, Recol.d42 p. 7, Vol. I, Record43 p. 31, R4ro/z//z.o# dated October 21, 2015; p. 37, Vol.I, Recol.d

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/or Pcz7rfu.CZZ Reco7isz.czera€Zo7t;44 the Ombudsman's Flo likewisefiled its motion for reconsideration;45

13. May 4, 2016 - Accused Nolasco filed a motion forPartial reconsideration;46 i

14. May 13, 2016 -Accused Roque filed his supplementalmotion for reconsideration;47

15. June 23, 2016 -Accused Vergara, Balingit, Regaladoand Del Callar filed their supplemental motion for partialreconsideration;48

16. July 4, 2016 - Accused Pico and Halog filed theirsupplemental motion for reconsideration;49

17. July 18, 2016 -Accused Balingit, Regalado, Vergaraand Del Callar filed their j\4lemo7icz7iczt/771;50

18. January 6, 2017 - Accused Pico and Halog filed aMarrifiestatio",51

19. January 10, 2017 - Accused Vergara, Balingit,Regalado and Del Callar filed their supplemental motion forPartial reconsideration; 52

20. February 24, 2017 - The Ombudsman issued anOm7tzbz/s Orczer denying the herein accused-movants' motionsfor reconsideration of the Resohaft.o7t dated October 21, 2015;53

21. December 21, 2017 - Then Ombudsman CarpioMorales approved the said Om7izbus 07iczer;54

22. February 22, 2018 - Accused Vergara, Balingit,Regalado and Del Callar filed an U7ige7if Mo-ti.o7i /or Leciz;e fo Fjzez-44 p. 12, Prosecution's Co7zfo/z.d4/gd Co%%G#z/O+pow./z.o#; p. 425, Vol. 11, Record; p. 5, Accused Bahaalt,

OAz7#;.ha j\4lo/z.o#; p. 364, Vol. 11, Record+5 id; id

46 p. 13, z.¢ p. 426, c.d; p. 5, z.J; p. 364, z.J47 p. 2, Ombudsman's Oz¢#¢.ha OfiJGr dated Febmary 24, 2017; p. 41, Vol.I, Recoi.d48 id; id; p. 6, ¢.d; p. 365, j.dwo id:. id:. id:. id

so id,. id; id; id

5^ id; id; id; id52 p. 2, Ombudsman's 0%/7/.4#r Ofiz7Gr dated Febmar:y 24, 2017; p. 41, Vol.I, Recol.d53 p. 40, Vol. I, Record54 p. 25, Ombudsman's Oz"#j.ha OfiJGr dated Febmary 24, 2017; p. 64, Vol.I, Record

eta`#

Ei

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cnd, AdTrut a SecorLd MotiorL for Partial Reconsi,derati,orL and toDofer the Filing Of the Imf ;ormafion:,55

2?. March 7, 2018 -The Office of the Ombudsman issuedan O+czer denying the said U7ige7if jwoti.o7i /or Leciz/e filed byaccused Vergara, Balingit, Regalado and Del Callar;56

24. March 14, 2018 - Ombudsman Carpio Moralesapproved the said Orczer dated March 7, 2018;57 and

25. May 4, 2018 -The J7i/o77nczti.o7i charging the hereinaccused with violation of Section 3 (g) was filed in Court.58

As can be readily gleaned from the above chronology ofevents, the Flo filed the criminal complaint for violation ofSection 3 (e) and (g) of R.A. No. 3019 against the respondents(some of whom are now accused in this case) on November 6,2014 before the Office of the Ombudsman. Thus, thepreliminary investigation of this case commenced only from thesaid date and lasted until the filing of the Information with theCourt on May 4, 2018, or for a total period of three (3) years,five (5) months and twenty-eight (28) days. The period beforeNovember 6, 2014, that is, from September 2012 to November6j, 2014, which presumably was utilized by the Ombudsman'sFlo to conduct a fact-finding investigation or case build-up,should be excluded in the determination of whether theaccused-movants' right to a speedy disposition of their case wasviolated pursuant to Cclgang, I/Zz:

Considering that fact-finding investigations are not yetadversarial proceedings against the accused, the period ofinvestigation will not be counted in the determination ofwhether the right to speedy disposition of cases wasviolated. Thus, this Court now holds that for the purposeof determining whether inordi`nate delay exists, a case isdeemed to have commenced from the filing of the formalcomplaint and the subsequent conduct of the preliminaryT"westLgatton. In People v. Scndiganbaycm, Fifeh Division, theruling that fact-finding investigations are included in theperiod for determination of inordinate delay is abandoned.59

55 p. 2, O#Jer dated March 7, 2018; p. 69, Vol.I, Record56 p. 68, Vol. I, Recol.d57 p. 4, O#JGr, p. 71, /.d58 p. 1, Vol. I, Record59 Emphasis supplied

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Thus, the threshold issue is whether the period of three (3)years, five (5) months and twenty-eight (28) days spent by theOffice of the Ombudsman in completing its preliminaryinvestigation amounted to inordinate delay.

In Cclgang, the Supreme Court acknowledges that theOffice of the Ombudsman should set reasonable periods forpreliminary investigation, with due regard to the complexitiesand nuances of each case. The setting of this period is materialfor purposes of determining which party carries the burden ofproof that the right to speedy disposition of cases was justifiably

¥ irIVohaed. "If the right is i;rmoked within the given tine periodscondcined in cu;ITend Supreme Court resol:utions cmd circulars,cnd. the tine periods that will be promulga;ked bg the Oif:f teeOf the Onllbudsman, the dofense hjas the burden Of proving thatthe right was ju,stifedely irwoked. If the delay occu;rs begorLd thegiven time period and the righi i,s irwoked, the prosecution hasthe burden Of justifying the delay ."

However, the Office of the Ombudsman has yet topromulgate rules pertaining to the reasonable periods for itsconduct of a preliminary investigation. Accordingly, indetermining the issue on whether the preliminary investigationof this case was attended by inordinate delay, the Court shallbe solely guided by the earlier mentioned prevailing rulings ofthe Supreme Court thereon.

As hereinbefore narrated, upon the institution by the Floof the criminal case on November 6, 2014, the Ombudsman'sPIAB-D issued an 07iczer dated January 5, 2015, requiring therespondents, including the herein accused-movants, to submittheir respective counter-affidavits. Accused Rogue, Pico, Halogand Vergara filed their counter-affidavit on February 16, 2015.The following day, February 17, 2015, accused Del Callar filedhis counter-affidavit. On February 24, 2015, respondentsZobel, Campos, Jr., Gandingco and Lagao filed their counter-affidavits. Meanwhile, accused Teves filed his counter-affidaviton March 3, 2015. On the same date, accused Pico filed aSappzernendal Couriter-Affidavit dated March 3 , 2015. Alcouse.dNolasco filed his counter-affidavit on May 4, 2015. It was onlyon September 29, 2015 that abcused Rualo-Bello filed hercounter-affidavit. ,

\

After less than a month from the filing by the accusedRualo-Bello of her counter-affidavit, or on October 21, 2015,„Ab,

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the Office of the Ombudsman issued its ResoztJt€o7t finding theexistence of probable cause to indict the herein accused for thecrime of violation of Section 3 (g) of R.A. No. 3019. Thisresolution was approved by then Ombudsman Carpio Moraleson March 31, 2016.

Plainly,. the Office of the Ombudsman spent one (1) yearand a little over four (4) months to determine probable causefrom the institution of the complaint by the Flo on November6, 2014. The Court notes, however, that the followingrespondents filed motions for extension of time to submit theirrespective counter-affidavits during the preliminaryinvestigation stage, to wit:

1. February 5, 2015 -accused Roque filed a motion forextension of time to file counter-affi.davit;60

2. February 6, 2015 -accused Vergara filed a motion forextension of time to file counter-affidavit;61

3. February 10, 2015 -accused Del Callar requested foran extension of time to file counter-affidavit;62

4. February 12, 2015 - Respondents Campos andGandingco and accused Teves filed a motion for extension oftime to file their counter-affidavits;63

5. March 4, 2015 -Accused Nolasco filed a motion forextension of time to file his counter-affidavit;64 and

6. April 13, 2015 -Accused Nolasco filed another motionfor extension of time to file his counter-affidavit.65

Aside from the aforesaid motions, the Office of theOmbudsman likewise received from the counsel of the privaterespondents requests for the photocopying of the counter-affidavits submitted by the other respondents and inspection oftherecordsofthecase#

60 p. 10, Plosecution's Consohdated Comment/Opposition;Gl id, id¢2 id; id63 p. 11, z.¢ p. 424, z.d64 id:. id

65 id; id66 id:, id

Vol. 11, Record

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Moreover, after then Ombudsman Carpio Moralesapproved the Resozt/tt.o7i dated October 21, 2015, the hereinaccused-movants filed their respective motions forreconsideration. Thereafter, they filed multiple supplementsthereto, the last of which was filed by accused Vergara, Balingit,Regalado and Del Callar on January 10, 2017.67 These motionsfor reconsideration, including their supplements, were resolvedby the Office of the Ombudsman in its Om7izbz/s Orczer datedFebruary 24, 2017, and which was approved by thenOmbudsman Carpio Morales on December 21, 2017.

Still dissatisfied, accused Vergara, Balingit, Regalado andDot CaI]ar ELled an Urgent MotiorL for Leoue to File cnd, Admit aSecond Motion for Partial Reconsideration and to Defer Hling Ofthe J7i/o777ici€Zo7i on February 22, 2018. The said motion wasresolved by the Office of the Ombudsman in its 07iczer March 7,2018.

Plainly, the time spent by the Office of the Ombudsman incompleting its preliminary investigation included the periodutilized by the respondents in exhausting all remedies availableto them under the law; hence, the delay, if any, cannot be solelyattributed to the Office of the Ombudsman. The accused-movants themselves contributed to such delay. Perforce, theycannot validly claim a violation of their right to a speedydisposition of their case.

Also, the Court record shows that on July 23, 2015, theEIO-Bureau A of the Office of the Ombudsman wrote a letter tothe Company Registration and Monitoring Department (CRMD)of the Securities and Exchange Commission (SEC) requestingfor pertinent data relative to the cash and stock dividendsdeclared by Meralco for the years 2008 to 2012.68 It was only onSeptember 2, 2015, that the SEC-CRMD replied to the letter ofthe EIO-Bureau A of the Office of the Ombudsman.69 Obviously,the prosecution had to go through this motion of conductingfurther verification to determine the propriety of the questionedtransaction involving the Meralco shares. Thus, whatever"delay" this may have caused in resolving the criminalcomplaint was necessitated by the exigency of the actions takenby the Ombudsman in the case70 and could be reasonably

67 p. 2, Ombudsman's Onribus Order dated Febmary 24, 2017; p. 41, Vol.I, Record68 p. 12, z.¢ p. 425, z.dcO id; id

70 ang vs. Sandzianbayan, 440 SCRA 423 (2004) /

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attributed to the ordinary processes of justice.71 It can not beconsidered violative of the accused-movants' constitutionalright to speedy disposition of their case.

While then Ombudsman Carpio Morales took another five(5) months to approve the Resohafi.o7i dated October 21, 2015,the Court notes that there were sixteen (16) respondentsduring the preliminary investiga.tion of this case. To be sure, thedetermination of the issue of whether there is probable cause toindict the said respondents for the crime of violation of Section3 (e) and (g) of R.A. No. 3019 in connection with the purportedsale of the shares of the LBP in Meralco to Global 5000 is notsimple. Evidently, the then Ombudsman needed more time toreview and evaluate the record of the case to be able to arrive ata judicious ruling.

Similarly, although the Om7ii.btts Orczer dated February 24,2017, was approved by then Ombudsman Carpio Morales onDecember 21, 2017, the subject J7i/or77'Lcztz.o7i was notimmediately filed with the Court because of the pendency ofaccused Vergara, Balingit, Regalado and Del Callar's U7ige7itMotion for Lecwe to Fi:1e cnd, Adrrat a Second MotiorL for PartialRecorLsidercuton cnd, to Def er Filing Of the Imf ;ormatiorL.

The teachings of the Supreme Court in Ccryclng enlighten:

For the court to appreciate a violation of the right tospeedy disposition of cases, delay must not be attributable tothe defense. Certain unreasonable actions by the accused willbe taken against them. This includes delaying tactics likefalling to appear despite summons, filing needless motionsagainst interlocutory actions, or requesting unnecessarypostponements that will prevent courts or tribunals toproperly adjudicate the case. When proven, this mayconstitute a waiver of the right to speedy trial or the right tospeedy disposition of cases. '

More importantly, there is nothing in the record that willsuggest, even faintly, that the Office of the Ombudsmandeliberately "delayed" the termination of the preliminaryinvestigation in order to hamper or prejudice the defense of theherein accused-movants or to gain some tactical advantage overthem. On the contrary, the Court finds that the Office of the

71 Coapuz vs. Sandiganbayan, Jwpra z-At

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Ombudsman conducted a genuinely thorough preliminaryinvestigation consistent with the real purpose thereof - todetermine whether probable cause exists to warrant theindictment of the accused-movants for the crime charged. Thus,the delay, if any, should be weighed Zess heciz/I.Zg against theState conformably with the teachings of the Supreme Court inCorpuz vs. Scndiganbougcrm.72

Closely related to the length of delay is the reason orI.ustification of the State for such delay. Different weightsshould be assigned to different reasons or justificationsinvoked by the State. For instance, a deliberate attempt todelay the trial in order to hamper or prejudice the defenseshould be weighted heavily against the State. Also, it isimproper for the prosecutor to intentionally delay to gainsome tactical advantage over the defendant or to harassor prejudice him. On the other hand, the heavy case loadof the prosecution or a missing witness should beweighted less heavily against the State. Corollarily,Section 4, Rule 119 of the Revised Rules of Criminal Procedureenumerates the factors for granting a continuance.73

Notably, it is only now that the accused-movants invoketheir right to a speedy disposition of their case. `They raisednary a whimper during the proceedings before the Office of theOmbudsman in assertion of such right. By their inaction, theaccused-movants should be deemed to have waived such right.

It must be stressed that the right to speedy disposition ofcases is personal; hence, it may be considere.d waived if notseasonably invoked. Thus:

The right to a speedy trial, as well as other rightsconferred by the Constitution or statute, may be waived exceptwhen otherwise expressly provided by law. One's right to thespeedy disposition of his case must therefore be asserted..Due to the failure of petitioner to assert this right, he isI

considered to have waived

AI/12 Su|,ra73 Emphasis supplied]4-i;:;:iin=;sL.Tan,72ASC:RAT33(2fJ14oy,dtHfuonorrfued.SeeerhoCagangvs.Sandiganbayan,REthDivision, Jupra

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Finally, no prejudice was suffered by accused Balingit, efCZZ. as a result of the "delay" which attended the preliminaryinvestigation of their case. In Cczgcmg, the Supreme Court hadthe occasion to reiterate the rule laid down in Corpttz tls.Scindiganbagcin75 in determining prejudice to the accusedresulting from inordinate delay, to wit:

The prosecution must likewise prove that no prejudicewas suffered by the accused as a result of the delay. CorpLtz I/.Sczncz].gcz7ibczgci7i defined pre].udice to the accused as:

Prejudice should be assessed in the light ofthe interest of the defendant that the speedy trialwas designed to protect, namely: to preventoppressive pre-trial incarceration; to minimizeanxiety and concerns of the accused to trial; and tolimit the possibility that his defense will beimpaired. Of these, the most serious is the last,because the inability of a defendant adequatelyto prepare his case skews the fairness of theentire system. There is also prejudice if thedefense witnesses are unable to recall accuratelythe events of the distant past. Even if the accusedis not imprisoned prior to trial, he is stilldisadvantaged by restraints on his liberty and byliving under a cloud of anxiety, suspicion andoften, hostility. His financial resources may bedrained, his association is curtailed, and he issubjected to public obloquy.76

Here, there is simply no oppressive pre-trial incarcerationas the accused-movants remain free and that there is noshowing that the delay which attended their preliminaryinvestigation impaired the said accused-movants' defense/ s. Toreiterate, the actions taken by the Ombudsman in resolving thecomplaint against the herein accused-movants were demandedby the exigency of the case; hence, the time spent for thepurpose cannot be certainly considered oppressive or vexatious.

A15 J„1,ra

76 Emphasis supphed /

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11. The atlegattons in the ArnerrdedImf iorrrraf u>r. s:uJ:f tcierttky atkegethe constitutive elerneuts Of thecrii'ne Of viotatlon Of Section 3(a) Of R.A. No. 3019.-:--: . __ : : __ _ : : __: :-= I-: :I ------. _ -I --i -------- I-:-------------- L- L- L- L- L- L- L- L- L- L- L- L- L-

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The accused-movants uniformly argue that the allegationsin the Ame7iczecz J7i/o7'7'ncitz.o7i charging them with the crime ofviolation of Section 3 (g) of R.A. No. 3019 do not constitute thesaid offense.

It is doctrinally settled that a motion to quash anJ7i/or77iatzo7i on the ground that the facts charged do notconstitute an offense should be resolved on the basis of theallegations in the J7i/ormcztzo7t whose truth and veracity arehypothetically admitted. The question that must be answeredis whether such allegations are sufficient to establish theelements of the crime charge.d without consideringmatters cizz.I/7icze. In proceeding to resolve this issue, courtsmust look into three (3) matters: [1] what must be alleged in avalid J7i/ormcitz.o7i; [2] what the elements of the crime chargedare; and [3] whether these elements are sufficiently stated in theInformatiorL.77

Section 6, Rule 110 of the Revised Rules of Court providesthat a complaint or information is sufficient if it states the nameof the accused, the designation of the offense by the statute, theacts or omissions complained of as constituting the offense; thename of the offended party; the approximate time of thecommission of the offense, and the place wherein the offensewas committed. When an offense is committed by more thanone person, all of them shall be included in the complaint orinformation.

To determine the sufficiency of the allegations in theJ71/o77'nczft.o7is, the acts or omissions complained of must bealleged in such form as is sufficient to enable a person ofcommon understanding to know what offense is intended to becharged and enable the court to know the proper judgment. Therfu/o7mcitz.o7i must allege clearly and accurately the elements ofthe crime charged. What facts and circumstances arenecessary to be included therein must be determined by

7] Peo|}1e vs. Sandiganbayan (Fourth Division),770 S>C:RA 162 (210+5) „

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reference to the definition and elements of the specificcrimes.78

The test is whether the crime is described in intelligibleterms with such particularity as to apprise the accused, withreasonable certainty, of the offense charged. The purpose of therule is to enable the accused to suitably prepare his defense.79Another purpose is to enable accused, if found guilty, to pleadhis conviction in a subsequent prosecution for the same offense.The use of derivatives or synonyms or allegations of basic factsconstituting the offense charged is sufficient.80

Here, the accused-movants are charged with the crime ofviolation of Section 3 (g) of R.A. No. 3019 which reads:

Sec*ion 3. Corrafro practices Of publie officers.- Inaddition to acts or omissions of public officers alreadypenalized by existing law, the following shall constitutecorrupt practices of any public officer and are hereby declaredto be unlawful:

XXXX

(g) Entering on behalf of the Government,into any contract or transaction, manifestly andgrossly disadvantageous to the same, whether ornot the public officer profited or will profitthereby.

For a charge under Section 3 (g) of R.A. No. 3019 tomaterialize, the following elements must be present: ( 1) that theaccused is a public officer; (2) that he entered into a contract ortransaction on behalf of the government; and (3) that suchcontract or transaction is grossly and manifestlydisadvantageous to the government.81

0n the other hand, the Ame71czecz J7t/o7'7'nczfz.o7t charging theaccused-movants with the crime of violation of Section 3 (g) ofR.A. No. 3019 reads,wh

78 Serapio v. Sandiganbayan (Third Division), 444P". 499 , 52:2. (2!NTJ€)79 Please refer to Jmaaj]da v. ffoLn. Sandzjanbayan, 464 SCRA 165,188-189 (2005).cO Serapio v. Sandiganb2[yan (Third Division), Supra8;A Dans, ]1. v. People,2:R;5 Sjc:RAsO4 (1$98fy Luciano v. Estrella,34 SCRA7 cO (+mcJ)

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The undersigned Graft Investigation and ProsecutionOfficer of the Office of the Ombudsman hereby accuses GILDAELEPAHO PICO, ROBERTO SANDOVAL VERGARA, CARELDOMINGO HALOG, MARGARITO 8. TEVES, MARIANITODINEROS ROQUE, PATRICIA P. RUALO-BELLO, EDUARDOC. NOLASCO, ALBERT C. BALINGIT, GEORGE J. REGALADOand CYRIL C. DEL CALLAR of violating Section 3 (g), R.A. No.3019, as amended, otherwise known as the Anti-Graft andCorrupt Practices Act, committed as follows:

That on or about the 2nd day of December2008, or sometime prior or subsequent thereto,in the City of Manila, and within the jurisdictionof this Honorable Court, the above-namedaccused, GILDA ELEPAHO PICO, a high rankingpublic official, being the President and ChiefExecutive Officer of the Land Bank of thePhilippines (LBP), _t!pon the recommendation o_fROBERTO SANDOVAL VERGARA, First Vice-P±_esident Treasury Group. and CARELDOMINGO HALOG, rice-President. Local_Currency Department. with the prior approvalof MA.RGA.RITO 8. TEVES, MARIANITO DINEROSFOQUE, PATRICIA P. RUALO-BELLO, EDUARDOC. NOLASCO, ALBERT C. BALINGIT, GEORGE J.REGALADO and CYRIL C. DEL CALLAR,members of the LBP Board of Directors, a±! actingas such and committing the offense in relation totheir official duties and taking advantage of theirofficial positions, conspiring, con federating andmutually helping one another, did then and there,willfully, unlawfully and criminally enter into aShare Purchase Agreement (SPA| in behalf Qf±BP with Global 5000 Investment Infr, acorporation organized under the existing laws ofthe Philippines, for the sale of the 46,596,596shares of stock of LBP in Meralco in favor ofGlobal 5000 Investment Inc. at Php90.00 pershare for a total of Php4,193,693,640.00 plus anadditional fKe d term intere st ofPhp553,847,140.06, RETl_ich SPA is manifes±±5Z_and grossly disadvantageous to the_government. based on the following terms a±n±stipulations: 1) any and all dividends ±nxp+atever form. and other benefits declared byMeralco in relation to the entire 46,596,596shares of stocks subject of the SPA shall accruein favor of global 5000 Investment Ill. upontender of only 20°/o down payment; 2) all cashdividends from the 46,596,596 shares of stockssubject of iE;TSPA declared by Meralco prior tothe fu.11 payment by the Buyer of the ThirdLnstaITrmeul,shallbea:ITtorrLfLfuca]lyappheftAS(

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partial payment of the remaining balance of theConsideration; 3) the voting rights of the46,596,596 shares of stocks subject of the SPAshall also accrue in favor of Global 5000Investment Inc. upon tender of g±±][ 20°/o downpayment; 4) the fixed term interest in the amountof Php553,847,140.06 stipulated in the SPAcovers only 13.210/o of the purchase price spreadover a 3 year period or 4.40/o interest per annum,far below the legal interest of 6°/o; and 5) givingand/or allowing the extension of the date ofpayment for the down payment from 15 days asapproved by the LBP Board to 30 days in the SPAand the curing period of 12 months for the firstand second installment dates and the 30-daygrace period for the last installment, withoutprior LBP Board approval, to the damage andprejudice of the Government.

CONTRARY TO LAW.82

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Plainly, the Ame7iczecz J7i/o77ncitz.o7i sufficiently alleges theconstitutive elements of the crime of violation of Section 3 (g) ofR.A. No. 3019.

Ftrs€. The Ame7iczecz J7i/o77nczf2.o7i alleges that the hereinaccused-movants are members of the Board of Directors of theLBP; hence, they are unquestionably public officials.

See.and. Also, the said Ame7iczecz J7t/omcitt.o7i alleges thatthe accused-movants, acting as members of the Board ofDirectors of the LBP, conspired with one another and gave theirprior approval for the LBP to enter into a "Share PurchaseAgreement |SPA| in behalf of LBP with Global 5000Investment Inc., a corporation orgarrized under the existinglaws of the Philippines, for the sale of the 46,596,596 shares ofstock of LBP in Meralco in favor of Global 5000 Investment|±±g. at Php90.00 per share for a total of Php4,193,693,640.00plus an additional fixed term interest of Php553,847,140.06."

Third. The Ame7iczecz J7i/o77ncitl.o7i likewise alleges that thesaid SPA "is manifestly and grossly disadvantageous to theGovernment. based on the following terms and stipulations:1) any and all dividends in whatever form. and otherbenefits declared by Meralco in relation to the entire

82 pp. 921-923, Vol.I, Record

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46,596,596 shares of stocks subject of the SPA shall accrue infavor of Global 5000 Investment Inc. upon tender of only 20°/odown payment; 2) all cash dividends Eg± the 46,596,596shares of stocks subject of the SPA declared by Meralco prior totthe full payment by the Buyer of the Third Installment, shall beautomatically applied as partial payment of the remainingbalance of the Consideration; 3) the voting rights of the46,596,596 shares of stocks subject of the SPA shall also accruein favor of Global 5000 Investment Inc. upon tender of g±]][20% down payment; 4) the fixed term interest in the amount ofPhp553,847,140.06 stipulated in the SPA covers only 13.21°/oof the purchase price spread over a 3 year period or 4.4°/ointerest per annum, far below the legal interest of 6°/o; and 5)giving and/or allowing the extension of the date of paymentfor the down payment from 15 days as approved by the LBPBoard to 30 days in the SPA and the curing period of 12 monthsfor the first and second installment dates and the 30-day graceperiod for the last installment, without prior LBP Boardapproval, to the damage and prejudice of the Government."

Accused Balingit, ef clz., however, assert that the above-stated stipulations in the SPA are not grossly disadvantageousto the Government.83 According to them, the "I.7ite7iczecz sclze o/LBP's 4% equdy hoiding in MERALCO was beneficial to the bandcnd, to the gouerrmerd as its primary sharehold,er."84 Saidargument was likewise echoed by accused Teves who assertsthat ``hnd. the transaction been pursued as scheduled, thesupposed cause or corLsideredorL 3c3c>c Of the SPA provides benefitsto the goverrmend in terms Of incorrLe, this, it carmot be said thatthe terms Of (sis) are monrifiestky and, grossly disedvandageous tothe gouerrmend." 85

For his part, accused Teves claims that he was not the onewho entered into the contract with Global 5000 and that hemerely relied on the professional competence of hissubordinates conforlnably with the decision of the SupremeCcfurt in Arias vs. Scndlganbagcm.86

0n the other hand, accused Roque argues that he shouldnot have been indicted in this case because he was "JVOT cipcir£±/to the SPA subject Of the case because the Board to which he was

83 Par. 27, p.16, Accused Bahist, et al.'s Oar;7j.ha Mo/z.o77; p. 375, Vol.11, Record8+ Pan. 2:8, id:, id85 Par. 5, p. 2, Accused Teves' Mo/z.o# /a £#4f4; p. 320, Vol. 11, Recol.d86 180 SCRA 309 (1989) fl/

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a pcut that uofed fior the terms did rLof i;nd;ude such 30-dayextension."87

I

The Court finds the said arguments devoid of merit.

It is settled that an J7i/o77ncltzo71 only needs to state theLtzti.mcite /czcts constituting the offense ; the evidentiary and otherdetails (i.e., the facts supporting the ultimate facts) can beprovided during the trial.88

Ul:the;be fiacts are defined as "those facts which theexpected evidence will sapport. The term does rLof refer to thedctails of probative matter or pcuticulars Of evidence bg whichthese material elemeri:±s are to be estabtished." It rofers to thefacts that the evidence wall prove at the trial.89 U+tinarfefacts have also been defined as the principal, determinative, andconstitutive facts on whose existence the cause of actionrests; they are also the essential and determining facts on whichthe court's conclusion rests and without which the judgmentwould lack support in e ssential particulars. 90

Evidentiary facts, on the other hand, are the factsnecessary to establish the ultimate facts; they are the premisesthat lead to the ultimate facts as conclusion. Theg c[re /clotss:upporting the escistence Of some other alleged cmdunproven f act.91

To reiterate, the Ame7iczecz J7i/o7'mczf2.o7i charging the hereinaccused-movants with the crime of violation of Section 3 (g) ofR.A. No. 3019 sufficiently alleges the ultimate facts constitutingthe elements of the said crime in compliance with the provisionsof Section 6, Rule 110 of the Revised Rules of Court. To be sure,the accused-movants' claim that the provisions of the SPA arenot disadvantageous to the Government, that the terms thereofwere changed without prior approval of the Board of Directorsof the LBP and that they merely acted upon the professionalcompetence of their subordinates, are clearly matters of defensewhich must be threshed out during the trial of this case.92

87 Par. 8, p. 4, Accused Roque's j\4lo/z.o# /a Qz/ZZJA; p. 329, z.d8;S Enrile vs. People,7 66 Sic:RA 1 (2f Jrs)89 ,`J

90 ZJ; citations oritted91 Z¢ citations omitted92 Eni:ile vs. Manalastas,759 S;C:RA ay9 (2"4)

i +I-- -I-

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Finally, accused Teves argues that the acts referred to inthe Amended InformafiorL are " d;istinct acts bg diJ:ferend peopleunder diffiererd circurrLstances , fdetualky or otherwise, that cannotbe loosely Zasso-ed by fdet and by legal theory under the OfficeOf the Ombudsman inagined concept Of `conspiraey.' It is theproseculon's burden ]coc to rrLake the fiactwal and logiealcormection and mcthe it plain, otheru)ise the accu,sed would bedeprived Of his constitwtiorLal right to due process, rrot the least tobe propedy iriforrned Of the nature cnd, ca;use Of accusc[fionag ainst therrL."93

In Estracza tJs. Sclnd€gartbc[gcin,94 the Supreme Courtexplained that it is enough to allege conspiracy as a mode in thecommission of an offense in either of the following manner: (1)by use of the word conspire, or its derivatives or synonyms,such as confederate, connive, collude, etc.; or (2) byallegations of basic facts constituting the conspiracy in amanner that a person of common understanding would ]mowwhat is intended, and with such precision as would enable theaccused to competently enter a plea to a subsequent indictmentbased on the sanie facts.

Here, the Ame7iczecz J7t/o7mcztt.o7i alleges that the accusedpublic officials, "±±± acting as such and committing the offensein relation to their official duties .and taking advantage of theirofficial positions, conspiring, con federating and mutuallyhelping g±±£ another, did then and there, willfully, unlawfullyand criminally enter into a. Share Purchase Agreement (SP±|in behalf of LBP with Global 5000 Investment Inc., xxx." Tobe sure, the aforesaid allegation of conspiracy complies with thestrictures laid down by the Supreme Court in Es€radha.

Ill. There is cLn imperattwe need tosuspend the proceedings in thiscase due to the existence Of aprejudicial question.---------.--------,-- I ----------------I------I-..---I---I--.---I-------

Accused Teves and accused Balingit, ef CZZ. assert thatthere exists a prejudicial question in this case by virtue of the

Global~pendency of Civil Case No. MC14-9177, entitled "SJt4C

93 Par. 3, p. 2, Accused Teve§' Mo/z.o# /a fz#f4; p. 320, Vol. 11, Record94 377 sd:RA 538 t2002> /rf i

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Power Holdiltg Corp. (Forrnerky Ctlobal 5000 Irmestmend, Inc.) us.Lcmd BarLk Of the Philippines, ct al.," before the R:TC, Brarmch212, in Mandaluyong City.

Section 6, Rule 11 of the Revised Rules of Court governsthe suspension of a criminal action based on the existence of aprejudicial question, to wit:

See:thou 6. Suspension by reasorL Of prejudicial questiorL.- A petition for suspension of the criminal action based uponthe pendency of a, prejudicial question in a civil action may befiled in the office of the prosecutor or the court conducting thepreliminary investigation. When the criminal action has beenfiled in court for trial, the petition to suspend shall be filed inthe same criminal action at any time before the prosecutionrests.

The civil case in question currently pending before the RTCin Mandaluyong City is a case for specific performance anddamages instituted by SMC Global Power Holdings Corp.(formerly Global 5000 Investment, Inc.) against the LBP,accused Pico, Cesar Purisima, Proceso J. Alcala, Virgilio R.Delos Reyes, Rosalinda D. Baldos, Crispino T. Aguelo, DomingoI. Diaz, Tomas T. De Leon, Jr. and Victor Gerardo J. Bulatao.

Based on the record, the said complaint for specificperformance and damages was instituted by SMC Global PowerHoldings Corp. on July 3, 2014, "to compez the Zmpzeme7i€czti.o7tOf the Share Purchase Agreernend, dated December 2, 2008(`Agreemend'), entered, info bg defendan± Land Barth Of thePhilippines wifh Global 5000 Irmestmend, Irvc. (rrow SMC GlobalPower Holdings Corporation) fior the purchase bg the lafler Ofshares of stock of the former in the Manila Electric Compoury/`Merczzco'/, cz7icz /or cZczmczge."95 SMC Global Power HoldingsCorp. prays for the following relief from the RTC inMandaluyong City:

WHEREFORE, plaintiff SMC Global Power HoldingsCorp. most respectfully prays that judgement be rendered (a)declaring defendants Land Bank of the Philippines to be indefault, and in delay, in the performance of its obligationsunder the Share' Purchase Agreement, dated December 2,2008 and (b) ordering defendants, jointly and severally,

95 Par.1, p.1, SMC Global Powei. Holdings Coap.'s Co¢/z7z.#J dated June 18, 2014; p. 343, Vol.1, Record

AI/

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1) immediately implement the SharePurchase Agreement, dated December 2, 2008,as adjusted based on the payment schedule inSMC Global Power Holdings Corporation's letterdated June 7, 2012, and96

ira

-f2;k-

In response to the said complaint for specific performanceand damages, the defendants LBP, et ciz., submitted theirArLswer (with Compulsory Counderctalm) deled A;ngust _ 1_4,2014.97 Therein, the LBP, et ciz. maintain that the complaintstates no cause of action because "the SPA st.mpzg Zcipsecz I.7itoinefficacg, or was rendered devoid of legal effect, _Py S.MCGlobal's urfusfified fidilure to perfiorm its cortracrfual obtigafiorLsto Pay the purchase price."98

The LBP, ef CZZ. further assert that the "SPA ccz7i7io€ beimplemended because it is void under Ardcte 1409 (3) cnd,14-09(7) Of the Civil Code."99 rThas..

25.1 Article 1409 (3) of the Civil Code provides thatcontracts whose cause or object did not exist at the time ofthe transaction are void and inexistent from the beginning. Itmust be noted that LBP's MERALCO shares were levied onexecution, and MERALCO cancelled the shares in LBP's nameand issued new stock certificates on 28 November 2008 in thename of Lubrica, the highest bidder in the execution sale. Atthe time of the execution of the SPA on 2 December 2008,therefore, no object of the contract (42 Million MERALCOshares) existed, rendering the SPA void from the verybeginning.

25.2 Further, Article 1409 (7) of the Civil Code providesthat contracts which are expressly prohibited or declared voidby law are likewise void and inexistent from the beginning.The implementation of the Agreement under the original termsand conditions, i.e., P90.00 per share, will violate the Anti-Graft and Corrupt Practices Act which prohibits, Z7iter cizjci, theact of entering into contracts that are grossly and manifestlydisadvantageous to the Government, considering that themarket price of the MERALCO shares is P?68.00 per share asof August 12, 2014, way above the P90.00 per sharestipulatedinthespA/

96 pp.14-15, z.¢ pp. 356-357, z.J,. emphasis supphed97 p. 361, z.d

98 Par. 24.12, p.10, LBP, cJ 4/. 'j.j4#J:AVGr, p. 370, c.d99 Par. 25, p.11, 7.d; p. 371, z.d

REOLUTI0NPeople vs. Itco, ct al.Criminal Case No. SB-18-CRM-0383y`r----------------------------------------------------------------------------y\

25.3 Being void, the SPA could not have been ratified orcured by the subsequent 14 December 2011 Supreme CourtDecision in LBP vs. Suntay, restoring the ownership of theMERALCO shares to LBP and directing to record suchrestoration in MERALCO's stock and transfer .book. It iselementary in this jurisdiction that void contracts cannot beratified; neither can the right to set up the defense of illegalitybe waived. A void or inexistent contract is one which has noforce and effect from the very beginning. Hence, it is though ithas never been entered into and cannot be validated either bythe passage of time or by ratification.100

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Section 7, Rule 111 of the Revised Rules of Court providesfor the elements of a prejudicial question, thus:

Section 7. Elements of prejudicial questiorL. - rTheelements of a prejudicial question are: (a) the previouslyinstituted civil action involves an issue similar or intimatelyrelated to the issue raised in the subsequent criminal action,and (b) the resolution of such issue determines whether or notthe criminal action may proceed.

The above-stated elements of a prejndicial question are allpresent in this case.

First. The civil case for specific performance instituted bythe SMC Global Power Holdings Corp. before the RTC inMandaluyong City is "a previously instituted civil action"involving "an issue similar or intimately related to the issueraised in the subsequent criminal action." Said civil case wasfiled by SMC Global Power Holdings Cor.p. on July 3, 2014,while the complaint for violation of Section 3 (e) and (g) of R.A.No. 3019 was filed by the FIO of the Ombudsman on November6, 2014.

The primordial issue that would have to be resolved by theRTC in Mandaluyong City in Civil Case No. MC14-9177, I..e.,the validity of the SPA dated December 2, 2008, is intimatelyrelated to the issue on whether the herein accused are guilty ofviolating Section 3 (g) of R.A. No. 3019 when they entered intothe said SPA with Global 5000, the forerunner of SMC GlobalPower Holdings Corp

100 p. 12, z.d; p. 372, z.d

',

A/

REOLUTIONPeople vs. moo, ct al.Criminal Case No. SB-18-CRM-0383yr----------------------------------------------------------------------------X

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Second. The resolution of the issue on the validity of theSPA will definitely determine whether or not this criminal actionfor violation of Section 3 (g) of R.A. No. 3019 may proceed.

In Dttter€e I;s. Scindigclnbc[gcln,101 the Supreme Courtcategorically declared that where the contract subject of acomplaint for alleged violation of Section 3 (g) of R.A. No. 3019was rescinded before the complaint was filed, the said contractbecame in contemplation of law non-existent, as if no contractwas ever executed and the second element of the crime - thatthe accused public officers entered into a contract in behalf ofthe government -is absent. Thus:

Finally, under the facts of the case, there is no basis inthe law or in fact to charge petitioners for violation of Sec. 3(g)of R.A. No. 3019. To establish probable cause against theoffender for violation of Sec. 3(g), the following elements mustbe present: (1) the offender is a public officer; (2) he enteredinto a contract or transaction in behalf of the government; (3)the contract or transaction is grossly and manifestlydisadvantageous to the government. The second element ofthe crime that the accused public officers entered into acontract in behalf of the government is absent. Thecomputerization contract was rescinded on 6 May 1991before SAR No. 91-05 came out on 31 May 1991 and beforethe Anti-Graft League filed its complaint with theOmbudsman on 1 August 1991. Hence, at that time the Anti-Graft League instituted their complaint and the Ombudsmanissued its Order on 12 November 1991, there was no longerany contract to speak of. The contract, after 6 May 1991became in contemplation of the law, non-existent, as if noContract was ever executed.102

Here, the LBP raises the defense that the SPA subjectmatter of this case is devoid of legal effect because of SMCGlobal Power Holdings Corp. 's unjustified failure to perform itscontractual obligations to pay the purchase price. The LBPlikewise asserts that the SPA is void under Article 1409 (3) and(7) of the Civil Code. Thus, should the RTC in Mandaluyong Cityrule in favor of the LBP in the said case and declare the subjectSPA as void cib I.7iztr.o, there will be in this case a non-existentcontract negating the presence of the second element of theoffense charged against the accused-movants.._

AI101289 SCRA 721 (1998)102 Emphasis suppHed /

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WHEREFORE, the Court hereby DEMES the following:

1. Accused Margarito 8. Teves' Jlfotz.o7i fo OzJczsh /Re..Ame7iczecz rfu/o777icztz.o7t/ dated December 5, 2018;

2. Accused Marianito D. Roque's Jtfotl.o7t fo OtJczsh /theAme7iczecz J7i/o77ncztz.o7i/ dated December 5, 2018; and

3. Accused Albert C. Balingit, Cyril C. Del Callar, GeorgeJ. Regalado and Roberto S. Vergara's Omm.bzts JWo€i.o7i /To Ouczshthe Amerided lnformedon, To Disrwiss the Case >c>ac) deLedDecember 10, 2018.

However, due to the pendency of a prejudicial question inCivil Case No. MC 14-9177, entitled "SMC GZobciz Pozuer HoZcZz.7igCorp. (Forrnedy Global 5000 Irmestrneut, Inc.) vs. Lcmd Bank Ofthe Pfro.Zz.japz7ies, .ef CZZ.," before the Regional Trial Court, Branch212, in Mandaluyong City, the proceedings in this .case ishereby StJSPEIVDED until the said civil case shall have beenresolved with finality.

S0 ORDERED.

Presiding JusticeChairperson