Rep of the Phil vs Desierto : 136506 : August 23, 2001 : J. De Leon, Jr : Second Division

SECOND DIVISION

[G.R. No. 136506. August 23, 2001]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. THE HONORABLE ANIANO A. DESIERTO as OMBUDSMAN, EDUARDO COJUANGCO, JR., JUAN PONCE ENRILE, MARIA CLARA LOBREGAT, ROLANDO DELA CUESTA, JOSE ELEAZAR, JR., JOSE C. CONCEPCION, DANILO URSUA, NARCISO PINEDA and AUGUSTO OROSA, respondents.

D E C I S I O N

DE LEON, JR., J.:

Before us is a petition for certiorari[1] which seeks to annul the Review and Recommendation[2] dated August 6, 1998 of Graft Investigation Officer I Emora C. Pagunuran, approved by Ombudsman Aniano A. Desierto, dismissing the petitioner’s complaint in OMB-0-90-2808 against private respondents Eduardo M. Cojuangco, Jr., Juan Ponce Enrile, Maria Clara Lobregat, Rolando Dela Cuesta, Jose R. Eleazar, Jr., Jose C. Concepcion, Danilo S. Ursua, Narciso M. Pineda and Augusto Orosa, for violation of Republic Act No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act as well as the Order[3] dated September 25, 1998 denying petitioner’s subsequent motion for reconsideration of the said Review and Recommendation.

It appears that on February 12, 1990 the Office of the Solicitor General (OSG)[4] initiated the complaint for violation of R.A. No. 3019 before the Presidential Commission on Good Government (PCGG). The complaint was subsequently referred to the Office of the Ombudsman[5] and docketed as OMB-0-90-2808. The referral of the case to the Ombudsman was in line with our decision in Cojuangco, Jr. v. PCGG,[6] promulgated on October 2, 1990, wherein we declared that while the PCGG has the power to conduct preliminary investigation, it “cannot possibly conduct the preliminary investigation of said criminal complaints with the cold neutrality of an impartial judge”, after having earlier gathered evidence concerning alleged ill-gotten wealth against the respondents, and also after having issued a freeze order against all properties of respondent Cojuangco, Jr.[7]

The complaint alleged, inter alia, that respondent Cojuangco, Jr., taking advantage of his close relationship with then President Marcos, had caused the latter to issue favorable decrees to advance his personal and business interests, had caused the government through the National Investment Development Corporation (NIDC) to enter into a contract with him under terms and conditions grossly disadvantageous to the government, and, in conspiracy with the aforenamed members of the UCPB Board of Directors, in flagrant breach of the fiduciary duty as administrator-trustee of the Coconut Industry Development Fund (CIDF), manipulated the said Fund resulting in the successful siphoning of Eight Hundred Forty Million Seven Hundred Eighty-Nine Thousand Eight Hundred Fifty-Five Pesos and Fifty-Three Centavos (P840,789,855.53) of CIDF to his own corporation, the Agricultural Investors, Inc. (AII); and that respondents were directly or indirectly interested for personal gain or had material interest in the transactions requiring the approval of a board, panel or group of which they were members, in violation of the Anti-Graft and Corrupt Practices Act to the grave damage and prejudice of public interest, the Filipino people, the Republic of the Philippines, and the coconut farmers.

Apparently, during the early stage of the Martial Law rule of the then President Ferdinand E. Marcos in 1972, respondent Eduardo “Danding” Cojuangco, Jr., through AII, a private corporation owned and controlled by respondent Cojuangco, Jr., started to develop a coconut seed garden in its property in Bugsuk Island, Palawan.[8]

On November 14, 1974, Presidential Decree No. 582 was issued by then President Marcos,[9] which created the Coconut Industry Development Fund (CIDF). The CIDF is one of the four (4) so-called “Coco-Levy Funds” set-up to revitalize the coconut industry. The CIDF was envisioned to finance a nationwide coconut-replanting program using “precocious high-yielding hybrid seednuts” to be distributed for free to coconut farmers.[10] Its initial capital of One Hundred Million Pesos (P100,000,000.00) was to be paid from the Coconut Consumers Stabilization Fund (CCSF), with an additional amount of at least twenty centavos (P0.20) per kilogram of copra resecada out of the CCSF collected by the Philippine Coconut Authority.[11]

Six (6) days after the issuance of P.D. No. 582, or on November 20, 1974, at the instigation of respondent Cojuangco, Jr., AII, represented by respondent Cojuangco, Jr. as Chairman and President, and NIDC, represented by its Senior Vice-President, Augusto E. Orosa, entered into a Memorandum of Agreement (MOA). Cojuangco had an exclusive contract with Dr. Yann Fremond of the Research Institute for Oil and Oilseeds, granting the former the exclusive right to establish and operate a seed garden for the production of Ivory Coast Hybrid Seednuts, a hybrid developed by Dr. Fremond, and supposedly most suitable for Philippine soil and climate.[12] AII and NIDC stipulated, in fine, that AII shall develop the Bugsuk property for the growing of hybrid seednuts and sell the entire production to NIDC, which shall in turn pay AII part of the costs in the development and operation of the seed garden and the support facilities.[13]

On June 11, 1978, President Marcos issued P.D. No. 1468, otherwise known as the Revised Coconut Industry Code, substituting the United Coconut Planters Bank (UCPB) for the NIDC as administrator-trustee of the CIDF. UCPB is a commercial bank acquired by the government through the CCSF for the benefit of the coconut farmers. On August 27, 1982, President Marcos lifted the coconut levy. With the only financial source of the CIDF depleted, UCPB had no choice but to terminate the agreement with the AII effective December 31, 1982.

Adversely affected by this turn of events, AII demanded arbitration. A Board of Arbitrators was created pursuant to the arbitration clause in the MOA. AII nominated Atty. Esteban Bautista while UCPB designated Atty. Anacleto Dideles. In turn, the two appointed Atty. Bartolome Carale, a professor at the UP College of Law, as third member and Chairman of the Board.

On March 29, 1983, the Board of Arbitrators rendered a decision awarding to AII liquidated damages for Nine Hundred Fifty-Eight Million Six Hundred Fifty Thousand Pesos (P958,650,000.00) from the CIDF. From this award was deducted the Four Hundred Twenty-Six Million Two Hundred Sixty-One Thousand Six Hundred Forty Pesos (P426,261,640.00) advanced by the NIDC for the development of the seed garden, leaving a balance due to AII amounting to Five Hundred Thirty-Two Million Three Hundred Eighty-Eight Thousand Three Hundred Fifty-Four Pesos (P532,388,354.00). Costs of arbitration and the arbitrator’s fee of One Hundred Fifty Thousand Pesos (P150,000.00) were also taken from the CIDF.[14]

On April 19, 1983, the UCPB Board of Directors, composed of respondents Cojuangco, Jr., as President, Enrile as Chairman, Dela Cuesta, Zayco, Ursua and Pineda as members, adopted Resolution No. 111-83, resolving to “note” the decision of the Board of Arbitrators, allowing the arbitral award to lapse with finality.

The complaint filed by the Solicitor General alleged that the MOA “is a one-sided contract with provisions clearly stacked up against the NIDC thereby placing the latter in a no-win situation.” It cited several stipulations in the contract to substantiate its claim, to wit:[15]

1. Under Section 9.1 of the MOA, neither party shall be liable for any loss or damage due to the non-performance of their respective obligations resulting from any cause beyond the reasonable control of the party concerned. However, under Section 9.3, notwithstanding the occurrence of such causes, the obligation of the NIDC to pay AII’s share of the development costs amounting to P426,260,000.00 would still remain enforceable.

2. Under Sec. 11.2, if NIDC fails to perform its obligations, for any cause whatsoever, it will be liable out of the CIDF, not only for the development costs, but also for liquidated damages equal to the stipulated price of the hybrid seednuts for a period of five (5) years at the rate of 19,173,000 seednuts per annum, totaling P958,650.00.[16]

3. Under Section 11.3, while AII was given the right to terminate the contract in case of force majeure, no such right was given in favor of NIDC. Moreover, AII can do so without incurring any liability for damages.

4. AII was only required to exert best efforts to produce a projected number of seednuts while NIDC was required to set aside and reserve from CIDF such amount as would insure full and prompt payment.

Respondent Cojuangco, Jr. sought the dismissal of the complaint on the ground of prescription, citing the 1992 cases of People v. Sandiganbayan[17] and Zaldivia v. Hon. Andres B. Reyes.[18]

On December 29, 1997, Graft Investigation Officer (GIO) Manuel J. Tablada recommended the dismissal of the case, which was subsequently assigned to GIO I Emora C. Pagunuran. GIO I Pagunuran issued the assailed memorandum, denominated “Review and Recommendation”, dated August 6, 1998 wherein she found that the alleged offense had allegedly prescribed. Following the case of People v. Sandiganbayan, GIO I Pagunuran reckoned the prescription period from the date the Memorandum of Agreement was entered into, or on November 20, 1974. As the case was filed only on February 12, 1990, respondent Ombudsman ruled that the same was filed beyond the prescriptive period of ten (10) years as fixed under Sec. 11 of R.A. No. 3019. In addition, the “Review and Recommendation” ruled that the questioned MOA was expressly confirmed and ratified by P.D. No. 961[19] (1976) and P.D. No. 1468[20] (1978) and, thus, was given “legislative imprimatur.”

The OSG filed a Motion for Reconsideration dated September 11, 1998, arguing that (a) the offense charged in the complaint falls within the category of an ill-gotten wealth case which under the Constitution is imprescriptible; and (b) that void contracts are not subject to ratification and/or confirmation. Inasmuch public respondent Ombudsman denied petitioner’s motion for reconsideration in the Order dated September 25, 1998, petitioner interposed on December 28, 1998 the instant petition raising two (2) issues for resolution, to wit:[21]

WHETHER THE OMBUDSMAN ACTED WITH GRAVE ABUSE OF DISCRETION IN DECLARING THAT THE OFFENSE CHARGED IN THE COMPLAINT FOR VIOLATION OF R.A. NO. 3019 HAD ALREADY PRECRIBED WHEN THE COMPLAINT WAS FILED.

WHETHER THE OMBUDSMAN ACTED WITH GRAVE ABUSE OF DISCRETION IN DECLARING THAT THERE IS NO BASIS TO INDICT PRIVATE RESPONDENTS FOR VIOLATION OF THE ANTI-GRAFT LAW BASED ON THE CONTRACT IN QUESTION.

Respondents aver that the instant petition for certiorari is but a mere attempt to substitute for a lost appeal and was filed out of time. While the petitioner concedes that its petition suffers from procedural infirmities, it urges this Court to exercise its equity jurisdiction.

At the outset, this Court notes that the petitioner received a copy of the assailed memorandum dated August 6, 1998 on August 28, 1998. Petitioner interposed a motion for reconsideration on September 11, 1998. On October 28, 1998, petitioner received a copy of the order denying its motion for reconsideration. Following Section 4 of Rule 65 of the 1997 Rules of Civil Procedure, as amended by Circular No. 39-98[22], which took effect on September 1, 1998, the instant petition should have been filed on December 13, 1998. Thus, since the instant petition was filed only on December 28, 1998, it was filed fifteen (15) days beyond the sixty (60) day reglementary period prescribed by the Rules. However, during the pendency of the instant petition, the Court promulgated A.M. No. 00-2-03-SC,[23] effective on September 1, 2000, which further amended Section 4 of Rule 65 of the 1997 Rules of Civil Procedure to read as:

Sec. 4. When and where petition filed. – The petition shall be filed not later than sixty (60) days from notice of judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.

The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals.

No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days.[24]

Statutes regulating procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. In that context and in view of the retroactive application of procedural laws,[25] the instant petition should thus be considered timely filed.

On the matter of prescription, before B.P. Blg. 195, which was approved on March 16, 1982, the prescription period for violation of the Anti-Graft Practices Act was ten (10) years. The complaint for violation of R.A. No. 3019 was filed before the PCGG on February 12, 1990 or more than fifteen (15) years after the birth of the allegedly illegal contract.

The Solicitor General presents a novel theory to advance his view that the prescription period in R.A. No. 3019 does not apply to respondents. The Solicitor General asserts that the respondents are public officers within the coverage of the Anti-Graft Law since they are being prosecuted as members and officers of the Board of Directors of the UCPB, which was acquired by the government through the coco-levy funds. He argues that while the dismissed complaint is for violation of R.A. No. 3019, or the Anti-Graft and Corrupt Practices Act, the prosecution thereof is actually a suit intended to recover ill-gotten wealth from public officials, and therefore covered by R.A. No. 1379, entitled “An Act Declaring Forfeited in Favor of the State Any Property Found to Have been Unlawfully Acquired By Any Public Officer or Employee and Providing for the Procedure Therefor.”

As this is supposedly a suit under R.A. No. 1379, the Solicitor General urges the Court to follow its ruling in Republic v. Migrino,[26] which held that cases falling under the said law are imprescriptible. According to Migrino, Sec. 2 of R.A. No. 1379 which provides that petition for forfeiture of unlawfully acquired wealth shall prescribe within four (4) years from the date of resignation, dismissal or separation or expiration of the officer or employee concerned should be deemed amended or repealed by Section 15, Article XI of the 1987 Constitution which provides:

The right of the State to recover properties unlawfully acquired by public officials or employees, from them or their nominees, shall not be barred by prescription, laches, or estoppel.

It has already been settled in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto[27] that Section 15 of Article XI of the Constitution applies only to civil actions for recovery of ill-gotten wealth, and not to criminal cases such as the complaint against the respondents in OMB-0-90-2808. Conversely, prescription of criminal cases are governed by special laws on prescription.

Furthermore, to construe Section 15, Article XI of the 1987 Constitution in order to give it retroactive application to the private respondents will run counter to another constitutional provision, that is, Section 22, Article III which provides that “No ex post facto law or bill of attainder shall be enacted.” An ex post facto law is defined, in part, as a law which deprives persons accused of crime of some lawful protection of a former conviction or acquittal, or of the proclamation of amnesty; every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage.[28] A construction which raises a conflict between different parts of the constitution is not permissible when by reasonable construction, the parts may made to harmonize.[29]

We now turn to another novel theory of the Solicitor General. He claims that there are “special circumstances” that would warrant the reckoning of the prescription period, not from the date of the violation of the penalizing law because “it could not have been known at that time”, but from the EDSA Revolution of February 1986, which is supposedly the only time that the offense could have been discovered. According to the Solicitor General:[30]

It bears emphasizing that the criminal acts complained of against private respondents in this case were committed during the Marcos regime. Private respondents were closely associated with Marcos who unquestionably wielded power and influence and/or who, by themselves, were also highly-placed in government. Thus assuming that the offense charged is deemed to have been committed upon the execution of the contract in question, who could have known of the existence of this contract apart from the contracting parties thereto? Being privies to the contract, would private respondents have initiated criminal suits against themselves? Assuming that third persons to the contract knew of its existence, was there a reasonable opportunity, or even political will, to prosecute those involved in the execution of the questioned contract?

To recall, due to the abnormal situation obtaining at that time, no one dared question the excesses and abscesses of the officialdom which is eloquently exemplified by subject case.

The applicable provisions of law on prescription of offenses are found in Article 90 and Article 91 of the Revised Penal Code for offenses punishable thereunder and Act No. 3326 for those penalized by special laws. R.A. No. 3019 being a special law, the commencement of the period for the prescription for any act violating it is governed by Section 2 of Act No. 3326,[31] 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 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.

As a rule, if the commission of the crime is known, the prescriptive period shall commence to run on the day it was committed.[32] However, in cases where the time of commission is unknown, prescription shall only run from its discovery and institution of judicial proceedings for its investigation and punishment. Ordinarily, there is no problem in determining the date when the crime consists of a series of acts, especially when some or all of these acts are innocent in themselves.

The Ombudsman and private respondents relied on our ruling in People v. Sandiganbayan, involving the prosecution of a Provincial Attorney who allegedly influenced officials in the Bureau of Lands to issue a free patent in his favor. The prosecution advanced the theory that the prescriptive period should not commence upon the filing of the application because no one could have known about it except the accused and the Lands Inspector. In rejecting his theory and ruling that “the date of the violation of the law becomes the operative date of the commencement of the period of prescription”, this Court ratiocinated:

It is not only the Lands Inspector who passes upon the disposability of public land x x x other public officials pass upon the application for a free patent including the location of the land and, therefore, the disposable character thereof. Indeed, practically all the department personnel, who had a hand in processing and approving the application, namely x x x could not have helped “discovering” that the subject of the application was nondisposable public agricultural land.

This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto.[33] In the said recent case, the Board of Directors of the Philippine Seeds, Inc. and Development Bank of the Philippines were charged with violation of paragraphs (e) and (g) of Section 3 of R.A. No. 3019, by the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, created by then President Fidel V. Ramos to investigate and to recover the so-called “Behest Loans”, where the Philippine Government guaranteed several foreign loans to corporations and entities connected with the former President Marcos. As in the present case, the Ombudsman in that case dismissed the complaint on the ground of prescription. In holding that the case had not yet prescribed, this Court ruled that:

In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the violations of R.A. No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the “beneficiaries of the loans.” Thus, we agree with the COMMITTEE that the prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission.

xxx xxx xxx

People v. Duque is more in point, and what was stated there stands reiteration: In the nature of things, acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the applicable statute requires that if the violation of the special law is not known at the time, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts. (Underscoring supplied)

There are striking parallelisms between the said Behest Loans Case and the present one which lead us to apply the ruling of the former to the latter. First, both cases arose out of seemingly innocent business transactions; second, both were “discovered” only after the government created bodies to investigate these anomalous transactions; third, both involve prosecutions for violations of R.A. No. 3019; and, fourth, in both cases, it was sufficiently raised in the pleadings that the respondents conspired and connived with one another in order to keep the alleged violations hidden from public scrutiny.

This Court’s pronouncement in the case of Domingo v. Sandiganbayan[34] is quite relevant and instructive as to the date when the discovery of the offense should be reckoned, thus:

“In the present case, it was well-nigh impossible for the government, the aggrieved party, to have known the violations committed at the time the questioned transactions were made because both parties to the transactions were allegedly in conspiracy to perpetrate fraud against the government. The alleged anomalous transactions could only have been discovered after the February 1986 Revolution when one of the original respondents, then President Ferdinand Marcos, was ousted from office. Prior to said date, no person would have dared to question the legality or propriety of those transactions. Hence, the counting of the prescriptive period would commence from the date of discovery of the offense, which could have been between February 1986 after the EDSA Revolution and 26 May 1987 when the initiatory complaint was filed.”[35]

We do not subscribe to the Ombudsman’s view that P.D. Nos. 961 and 1468 ipso facto served to insulate the private respondents from prosecution. The “legislative imprimatur” allegedly granted by the then President Marcos to the MOA is not necessarily inconsistent with the existence of a violation of R.A. No. 3019. Thus, Section 1, Article III of P.D. No. 961, promulgated in 1976, reads:

SEC. 3. Coconut Industry Development Fund. - There is hereby created a permanent fund to be known as Coconut Industry Development Fund which shall be deposited, subject to the provisions of P.D. No. 755, with, and administered and utilized by the Philippine National Bank subsidiary, the National Investment and Development Corporation for the following purposes:

a) To finance the establishment operation and maintenance of a hybrid coconut seednut farm under such terms and conditions that may be negotiated by the National Investment and Development Corporation with any private person, corporation, firm or entity as would insure that the country shall have, at the earliest possible time, a proper, adequate and continuous supply of high-yielding hybrid seednuts and, for this purpose, the contract entered into by the NIDC as herein authorized is hereby confirmed and ratified; x x x

A similarly worded provision in P.D. 1468, promulgated in 1978, reads:

SEC. 3 Coconut Industry Development Fund. - There is hereby created a permanent fund to be known as Coconut Industry Development Fund which shall be administered and utilized by the bank acquired for the benefit of the coconut farmers under P.D. 755 for the following purposes:

a) To finance the establishment, operation and maintenance of a hybrid coconut seednut farm under such terms and conditions that may be negotiated by the National Investment and Development Corporation (NIDC) with any private person, corporation, firm or entity as would insure that the country shall have, at the earliest possible time, a proper, adequate and continuous supply of high-yielding hybrid seednuts and, for this purpose, the contract, including the amendments and supplements thereto as provided for herein, entered into by NIDC as herein authorized is hereby confirmed and ratified, and the bank acquired for the benefit of the coconut farmers under P.D. 755 shall administer the said contract, including its amendments and supplements, and perform all the rights and obligation of NIDC thereunder, utilizing for that purpose the Coconut Industry Development find; x x x

R.A. No. 3019, as applied to the instant case, covers not only the alleged one-sidedness of the MOA, but also as to whether the contracts or transactions entered pursuant thereto by private respondents were manifestly and grossly disadvantageous to the government[36], whether they caused undue injury to the government,[37] and whether the private respondents were interested for personal gain or had material interest in the transactions.[38]

The task to determine and find whether probable cause to charge the private respondents exists properly belongs to the Ombudsman. We only rule that the Office of the Ombudsman should not have dismissed the complaint on the basis of prescription which is erroneous as hereinabove discussed. The Ombudsman should have given the Solicitor General the opportunity to present his evidence and then resolve the case for purposes of preliminary investigation. Failing to do so, the Ombudsman acted with grave abuse of discretion.

WHEREFORE, the instant petition is hereby GRANTED. The assailed Review and Recommendation dated August 6, 1998 of Graft Investigation Officer Emora C. Pagunuran, and approved by Ombudsman Aniano A. Desierto, dismissing the petitioner’s complaint in OMB-0-90-2808, and the Order dated September 25, 1998 denying the petitioner’s motion for reconsideration, are hereby REVERSED and SET ASIDE.

The Ombudsman is hereby directed to proceed with the preliminary investigation of the case OMB-0-90-2808.

No pronouncement as to costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.