REPUBLIC OF THE PHILIPPINES

~anaiBanhatlanQuezon City

FIRST DIVISION

PEOPLE OF THE PHILIPPINES,Plaintiff,

- versus - CASES NOS. SB-18-CRM-0450to SB-18-CRM-0453

For: Violation of Sec. 3 (e), RA 3019

RICARDO D. OBLENA, ET AL.,Accused.

Present:

DE LA CRUZ, J., ChairpersonECONG, J.CALDONA, JJ.

Promulgated on:

AUG 3 1 2018 fRESOLUTION

DE LA CRUZ, J.

This resolves the following:

1. Undated Motion to Quash Information with Prayer to DeferArraignment of accused Mary Jean N. Te, Lottie S. Santiago, ElmaD. Paulino and Juliet E. Delos Santos (Te, et al.);

2. Accused Ricardo D. Oblena's Motion to Dismiss, datedAugust 2, 2018;

3. Accused Candelaria M. Martinez's Motion to Dismiss, datedAugust 13, 2018; and

4. Prosecution's Consolidated Comment/Opposition, datedAugust 20, 2018.

RESOLUTIONpp vs. Ricardo D. Oblena, et al.Crim. Cases Nos. S8-18-CRM-0450 to -0453

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These cases trace its roots from the Fertilizer Fund releasedby the Department of Budget and Finance to the Department ofAgriculture (DA) on February 3, 2004, under SARO No. E-04-00164for the implementation of the Ginintuang Masaganang Ani (GMA)Program of the DA. Among the recipients of the program was theMunicipality of Libertad, Antique, of which the accused-movantswere public officers.

Anomalies hounded the program which triggered a Senateinquiry in 2005, and the creation of the Task Force Abono -FieldInvestigation Office (TFA-FIO) by the Office of the Ombudsman(OMB) in February 2006 for investigation and case build-up.

Eventually, in March 2013, the TFA-FIO filed a criminalcomplaint, docketed as OMB-C-C-13-0072, against several publicofficials, including the accused-movants, for violation of Sections3(e) and 3(g) of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, and Malversation of Public Fundsor Property, defined and penalized under Article 217 of the RevisedPenal Code.

The subject matter of the present cases is the procurement of300 gallons of Florida Green Foliar Fertilizer from Castle Rock bythe Municipality of Libertad, Antique, without the benefit of acompetitive public bidding, and the payment of the purchase priceby the Municipality despite the alleged irregularities in theMemorandum of Agreement (MOA) and other purchase anddisbursement documents.

Accused Te, et al.'s Motionto Quash Informations

Accused Te, et. al move for the quashal of the Informations inthese cases on two grounds: (1) Inordinate delay in the conduct ofthe preliminary investigation in violation of their right to speedydisposition of their cases; and (2) Violation of their substantiverights.

On the first ground, accused Te, et al. asserts that it took theOMB four (4) year and three (3) months to come up with a resolutionof probable cause in these cases, excluding the years utilized in thefact-finding investigation.

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According to accused Te, et al., the unjustified delay should beweighed against the State as the suspension of criminal prosecutionover an indefinite period of time is an oppression against them.Citing Cosculluela v. Sendiqenbeyon.' the accused-movants submitthat even if the accused are not imprisoned prior to trial, they are stilldisadvantaged by restraints on their liberty and by living under acloud of anxiety, suspicion and hostility. This is true whether or notthe accused follow-up their cases for there is no constitutionalprovision or jurisprudence mandating them to act in such manner.

In support of the second ground, accused Te, et al. argue asfollows:

1. The Complaint, Resolution and Order of the OMB are allwrong in declaring that the procurement was premature. Recordswill support that the date of the signing of the MOA was on May 7,2004, and not on May 7, 2007, as found by the OMB.

2. There was a Project Proposal, contrary to the findings of theOMB.

3. Undue injury and unwarranted benefit are absent. Theyhave no hand in the selection of the suppliers, items to bepurchased, and in the release of payment for the goods procured.

4. They acted in good faith and under an honest belief that theMunicipality was merely a recipient of the project.

5. RA 9184 took effect only on January 25, 2003, and its roll-out and trainings reached the Municipal employees of Libertad onlyon November 23, 2004.

6. The noted red flags in the Audit Report are not attributableto accused Te, et al. The DA Regional Office was the oneresponsible for changing the ratio on the releases by tranches.

7. The evidence of the FIO do not show that accused Te, et al.are aware that Castle Rock and the DA-RFU are guilty offalsification.

1701 seRA 188

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In addition, accused Te alleges that she was denied dueprocess when she was not given the opportunity to submitcontroverting evidence.

Accused Oblena's Motion toDismiss

Accused Oblena contends that his right to speedy dispositionof his cases has been violated because of the inordinate, vexatious,unreasonable and oppressive delay in the preliminary investigationand filing of these cases.

He points out that more than twelve (12) years had elapsedsince the creation of the TFA-FIO in February 2006 up to the filingof the present Informations on June 29, 2018, while five (5) yearsand three (3) months had passed from the filing of the Complaint bythe TFA-FIO on March 13, 2013 to the filing of the Informations. TheTFA-FIO Complaint was largely based on the evidence, findingsand observations mentioned in the COA Special Audit Reportissued on March 3, 2006. No other documents were secured after2006 that were utilized as basis for the filing of the March 2013Complaint. In fact, the Resolution, dated July 26, 2017 is almost a"cut and paste" from previous decisions on fertilizer fund cases.

Accused Oblena also posits that the periods provided in theDOJ National Prosecution Manual which states that preliminaryinvestigation of cases should be terminated and resolved withinsixty (60) days is the reasonable gauge to determine delay. It maybe extended for valid reasons, but not for more than five (5) yearsas what happened in these cases.

Accused Oblena further claims that he suffers prejudice andinjury brought about by the delay. When the Complaint was filed onMarch 13, 2013 and the Informations on June 29, 2018, he wasalready 63 years old and 68 years old, respectively. The passageof time diminished his ability to adequately prepare for his defense,and exhausted his financial resources.

Finally, accused Oblena laments that other DA RegionalExecutive Directors/ who were separately charged for performing

2 FIG v. Conedo, et 01.,( OMB-C-C-130291 and OMB-C-A-13-0312); FIG-TFA v. Petitio, et al. (GMB-C-C-13-0168); FIOv.Caneda, et al. (OMB-C-C-13-0071); TFA-FIG v. Parawan, et al. (OMB-C-C-ll-0816-L); FIG v. Arbison, et 01. (OMB-C-C-15-0497)

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similar acts as his, in cases with exactly the same factual backdropas these cases, were exonerated by the OMB.

Martinez's Motion to Dismiss

Accused Martinez contends that her constitutional right tospeedy disposition of her cases was violated when the OMB filedthe instant Informantions only after more than five (5) years from thetime she filed her Counter-Affidavit on June 19, 2013. In support ofher position, she cited jurisprudence'' where the Supreme Courtdismissed cases on the ground of inordinate delay in the conduct ofpreliminary investigation by the OMB.

Prosecution's ConsolidatedComment/Opposition

The prosecution counters that the preliminary investigation ofthese cases was not attended with inordinate delay tantamount to aviolation of the right of the accused-movants to speedy dispositionof their cases. It argues that there was no vexatious, capricious,and oppressive delay on the part of the OMB when the instantInformations were filed on June 29, 2018 or five (5) years, three (3)months, and twenty-four (24) days from the filing of the Complainton March 8, 2013.

The prosecution notes that the right to speedy disposition ofcases is a relative or flexible concept such that a meremathematical reckoning of the time involved would not be sufficient.It explained the delay in the preliminary investigation in this wise:

17. For one, the Complaint was indeed filed on March 8,2013. The Order directing the herein accused (then respondents) tofile their counter-affidavits was issued on April 19, 2013. Therewere eleven of them who were charged with Violation of Section3(e) and (g) of RA. No. 3019; Section 18, Rule VI and Section 50of the Implementing Rules of RA. 9184; Section 65.3 of RA. 9184;Falsification by Private Individual and Use of Falsified Documentsunder Article 172 of the Revised Penal Code; and Malversationunder Article 217 of the same penal code. Two of the elevenaccused are private individuals. The charges arose from thealleged irregularities/anomalies committed in the implementation ofthe Ginintuang Masaganang Ani (GMA) Program of the Department

3 Remulla v. Sandiganbayan, G.R. No. 218040, April 17, 2017;People v. Sandiganbayan, G.R. No. 199151-56, July 25,2016; Inocentes v. People, G.R. No. 205963-64, July7, 2016

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of Agriculture under the Agriculture and Fisheries ModernizationAct of 1997.

18. On 27 June 2013, six of the herein accused (Laguardia,Martinez, Delos Santos, Paulino, Uy, and Santiago) filed theircounter-affidavits after filing their respective Motions for Extensionto File Counter-Affidavits on 11 June 2013 (Paulino, Uy, Santiago,and Delos Santos), and 14.June 2013 (Martinez and Laguardia).Considering the complexity of the issues in the charges and thenumber of accused involved, the Office of the Ombudsman issueda Resolution dated 26 July 2017 finding probable cause for filing ofInformations for Violation of Section 3 (e) of R.A. 3019, and threecounts of Malversation of Public Funds under Article 217 of theRevised Penal Code. The herein accused separately filed timelytheir Motions for Reconsideration sometime in October andNovember of 2017, which were all denied in an Order dated 19January 2018. And consequently, four Informations dated 2 April2018 were filed on 29 June 2018.

19. It should be noted that during the above-mentionedperiods, more particularly the years 2017-2018, the Office of theOmbudsman was plagued by problems that seem to challenge thecore constitutional principle of its independence. This is in additionto the transition that the Office of the Ombudsman had (to) face dueto the retirement of the then Honorable Ombudsman, ConchitaCarpio-Morales.

The prosecution also stresses that the accused-movantsnever invoked their right to speedy disposition of their cases untilthe filing of the present motions. Besides, no apparent prejudiceresulted to the accused-movants by reason of the delay.

As to the allegation of accused Te, et al. that their substantialrights have been violated, the prosecution submits that the essentialelements of Section 3 (e) of RA 3019 and Malversation are presentin these cases.

With regard to accused Te's claim that she was denied of herright to due process, the prosecution counters that Te was given theopportunity to file counter-affidavit, and she was able to move forthe reconsideration of the July 26, 2017 Resolution of the OMB.

DISCUSSION

In the main, all the accused-movants assert that thepreliminary investigation of these cases took an unreasonably longperiod, in violation of their right to speedy disposition of their cases.

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The Court agrees with the accused-movants.

The right to speedy disposition of cases should be understoodto be a relative or flexible concept such that a mere mathematicalreckoning of the time involved would not be sufficient." In thedetermination of whether the constitutional right to speedydisposition of one's case has been violated, the following factorsmay be considered and balanced: (1) the length of delay; (2) thereasons for the delay; (3) the assertion or failure to assert such rightby the accused; and (4) the prejudice caused by the delay."

On the length of delay. In the determination of the first factor,recent jurisprudence has instructed that all stages of theproceedings to which the accused was subjected, including fact-finding investigations, must be considered. Thus:

We find it necessary to emphasize that the speedydisposition of cases covers not only the period within which thepreliminary investigation was conducted, but also all stages towhich the accused is subjected, even including fact-findinginvestigations conducted prior to the preliminary investigationproper."

xxx. There is no complete resolution of a case underpreliminary investigation until the Ombudsman approves theinvestigating officer's recommendation to either file an Informationwith the SB or to dismiss the complaint?

The procedural antecedents are undisputed. In 2006, theOMB constituted Task Force Abono-FIO to investigate theanomalies surrounding the Fertilizer Fund, and for possibleprosecution of individuals responsible for the irregularities. Aboutseven (7) years after or on March 8, 2013, the TFA-FIO filed aComplaint against the accused-movants. The Complaint led to thefiling of the instant Informations on June 29, 2018 or more than five(5) years after the filing of the Complaint.

Upon the filing of the Complaint, before the OMB, theaccused-movants were ordered to submit their counter-affidavits,which they (except for accused Te) did in June 2013. After morethan four (4) years from the filing of their counter-affidavits, in a

4 People v. Coscal/uela, 701 SeRA 188, 1955 Id., p. 195-1966 Tarres v. Sandiganbayan (First Division), G.R. Nos. 221562-69, October 5, 20167 Coscal/uela v. Sandiganbayan, supra, p. 196

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Resolution, dated July 26, 2017, the OMB found probable cause toindict the accused-movants for violation of Section 3(e) of RA 3019and Malversation of Public Funds. The accused-movants timelyfiled between October and November 2017 separate motions forreconsideration of the July 26, 2017 Resolution, which were alldenied in an Order, dated January 18, 2018, of the OMB.

Following the pronouncement in Torres, the OMB completedthe preliminary investigation only after twelve years, reckoned fromthe fact-finding investigation in 2006 up to the filing of theInformations on June 29, 2018.

On the reasons for the delay. The Court finds unacceptablethe prosecution's ratiocinations in justifying the delay. A closescrutiny of the records will reveal that the documents are not thatvoluminous and the issues are not that complex to require twelveyears just to determine if the evidence is sufficient to engender awell-founded belief that the accused-movants committed theoffenses charged.

Indeed, four years (from the submission of the counter-affidavits to the Resolution finding probable cause) of the twelveyears was devoted in the resolution of the case alone. To the mindof the Court, the four-year period is unnecessarily and unreasonablylong, considering that the complaint had already undergone a fact-finding investigation and a COA Report on the subject matter wasalready in place. This is not to say that the OMB could just haveadopted the result of the fact-finding investigation and the COAReport without having to conduct an independent and thoroughinvestigation. But, these precursors, certainly, must have made thepreliminary investigation proper less taxing and less complicated. Infact, as pointed out by accused Oblena, which was not refuted bythe prosecution, the OMB Resolution, dated July 26, 2017, wastailored from previous decisions on fertilizer fund cases.

Neither was the alleged internal problem in 2017-2018 in theOMB, nor the transition brought about by the retirement ofOmbudsman Conchita Carpio-Morales, justifiably explain theinordinate delay. As mentioned, as of 2017, four years had alreadyelapsed since the complaint was ripe for resolution upon thesubmission of the counter-affidavits in 2013. A finding of probablecause could have been accomplished before these concerns of theOMB surfaced in 2017-2018.

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On the assertion of the right at the opportune time. It is ofno moment that the accused-movants did not assert their right tospeedy disposition of their cases at the first instance. The SupremeCourt in the more recent case of Remulla v. Sandiganbayan(Second DivisionyB has clarified that the utter failure of theprosecution to explain the delay in the proceedings outweighs thelack of follow-ups from the accused. The High Tribunal said so afterreconciling the seeming inconsistencies in the pronouncements ofthe Supreme Court in the cases of Tilendo v. Ombudsman, 9

Guerrero v. CA,10Bernat v. Sandiganbayan, 11and Tello v. Peopie'"(first set) and the cases of Coscolluela v. Sandiganbayan13 and itsrelated cases 14 (second set). Thus:

The first set of cases shows that the criminal cases were notdismissed because of the non-assertion of the accused of their rightto a speedy disposition of cases or speedy trial. Other factors in thebalancing test were also considered by the Court, particularly, thereason for the delay in the proceedings and the prejudice causedby the delay.

In Guerrero and Bemat, it was held that the delay wasacceptable because there was a necessity to retake the testimoniesof the witnesses due to the lost TSN. The courts could have notadjudicated the case without the TSN. On the other hand, inTilendo, the Court accepted the explanation of the OSP that therewas inordinate delay because the NBl's inquiry was not part of thepreliminary investigation. Hence, as the length of delay in thesecases were properly justified by the prosecution and the accusedtherein failed to take steps to accelerate their cases, the Courtfound that there was no prejudice caused, which would warrant theassertion of their right to a speedy disposition of cases.

In the second set of cases, the lengthy delay in theproceedings against the accused therein was not satisfactorilyexplained. In Cervantes, the prosecution provided a lacklusterexcuse that there was no inordinate delay because the case wasnot politically motivated. In People, the filing of the case in courtwas drastically delayed because it was subjected to unnecessaryreviews, and the Ombudsman basically failed to decide whether tofile the case or not. In Inocentes, there was unwarranted delay inthe filing of the case due to the lethargic transfer of the records

8 G.R. No. 218040, April 17, 20179559 Phi!. 739 (2007)10327 Phi!. 496 (1996)11472 Phi!. 869 (2004)12606 Phi!. 514 (2009)13 supra

14 Cervantes v. Sandiganbayan, 366 Phi!. 602 (1999); People v. Sandiganabayan, 798 SCRA 36; Inocentes v. People,796 5CRA 34

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from the RTC to the Sandiganbayan. Finally, in Coscolluela, theOmbudsman could not give an explanation why the preliminaryinvestigation was delayed for six years.

Essentially, the Court found in those cases that the Statemiserably failed to give an acceptable reason for the extensivedelay. Due to the manifest prejudice caused to the accused therein,the Court no longer gave weighty consideration to their lack ofobjection during the period of delay. It was emphasized in thosecases that it was the duty of the prosecutor to expedite theprosecution of the case regardless if the accused failed to object tothe delay.

On the prejudice caused by the delay. As inordinate delayattended the conduct of the preliminary investigation, the prejudicecaused to the accused-movants by reason of the delay may beconsidered in light of the case of Coscolluela, which says:

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

Prescinding from the foregoing, the Court is constrained, muchto its regret, to decree the dismissal of these cases.

Considering the declaration that the accused-movants' right tospeedy disposition of their cases has been violated due to inordinatedelay in the conduct of the preliminary investigation, the Courtdeems it no longer necessary to discuss the rest of the issues raisedin these cases.

WHEREFORE, in light of all the foregoing, the motions toquash/dismiss separately filed by accused Te, Santiago, Paulinoand Delos Santos, Oblena, and Martinez, are hereby GRANTED.Accordingly, these cases is ordered DISMISSED for violation of theright of the accused-movants to speedy disposition of their cases.

15 Id., p. 200

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Considering that this dismissal is tantamount to an acquittal,the hold departure orders issued against the above-namedaccused-movants by reason of these cases are hereby LIFTED andSET ASIDE, and the bonds they posted are ordered RELEASED,subject to the usual accounting and auditing procedures.

SO ORDERED.

EFREN ~ LA CRUZchairpers~l ~Jociate Justice

WE CONCUR:

.~GERA~FAITH ~CONG

Associate Justice~-RD~~~

Associate Justice