THIRD DIVISION
|
ORLANDO L. SALVADOR, for
and in behalf of the Presidential Ad Hoc Fact-Finding Committee on Behest
Loans, Petitioner, - versus - PLACIDO
L. MAPA, JR., RAFAEL A. SISON, ROLANDO M. ZOSA, CESAR C. ZALAMEA, BENJAMIN
BAROT, CASIMIRO TANEDO, J.V. DE OCAMPO, ALICIA L. REYES, BIENVENIDO R.
TANTOCO, JR., BIENVENIDO R. TANTOCO, SR., FRANCIS B. BANES, ERNESTO M.
CARINGAL, ROMEO V. JACINTO, and MANUEL D. TANGLAO, Respondents. |
G.R.
No. 135080
Present: YNARES-SANTIAGO, Acting C.J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated: November
28, 2007 |
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
The Presidential Ad Hoc Fact-Finding Committee on Behest Loans, (the Committee),
through Atty. Orlando L.
On
WHEREAS, Sec. 28, Article II of the 1987
Constitution provides that “Subject to reasonable conditions prescribed by law,
the State adopts and implements a policy of full public disclosure of all its transactions
involving public interest”;
WHEREAS, Sec. 15, Article XI of the 1987
Constitution provides that “The right of the state to recover properties
unlawfully acquired by public officials or employees, from them or from their
nominees or transferees, shall not be barred by prescription, laches or
estoppel”;
WHEREAS, there have been allegations of
loans, guarantees, and other forms of financial accommodations granted,
directly or indirectly, by government-owned and controlled bank or financial
institutions, at the behest, command, or urging by previous government
officials to the disadvantage and detriment of the Philippines government and
the Filipino people;
ACCORDINGLY, an “Ad-Hoc FACT FINDING
COMMITTEE ON BEHEST LOANS” is hereby created to be composed of the following:
Chairman of the Presidential
Commission on Good Government - Chairman
The Solicitor General - Vice-Chairman
Representative from the
Office of the Executive Secretary - Member
Representative from the
Department of Finance - Member
Representative from the
Department of Justice - Member
Representative from the
Development Bank of the
Representative from the
Philippine National Bank - Member
Representative from the
Asset Privatization Trust - Member
Government Corporate Counsel - Member
Representative from the
Philippine Export and Foreign
Loan Guarantee Corporation - Member
The Ad Hoc Committee shall perform the
following functions:
1. Inventory all behest loans; identify the
lenders and borrowers, including the principal officers and stockholders of the
borrowing firms, as well as the persons responsible for granting the loans or
who influenced the grant thereof;
2. Identify the borrowers who were granted
“friendly waivers,” as well as the government officials who granted these
waivers; determine the validity of these waivers;
3. Determine the courses of action that the
government should take to recover those loans, and to recommend appropriate
actions to the Office of the President within sixty (60) days from the date
hereof.
The
Committee is hereby empowered to call upon any department, bureau, office,
agency, instrumentality or corporation of the government, or any officer or
employee thereof, for such assistance as it may need in the discharge of its
functions.[3]
By Memorandum Order No. 61 dated
WHEREAS, among the underlying purposes for the creation of the Ad Hoc Fact-Finding Committee on Behest Loans is to facilitate the collection and recovery of defaulted loans owing government-owned and controlled banking and/or financing institutions;
WHEREAS, this end may be better served by broadening the scope of the fact-finding mission of the Committee to include all non-performing loans which shall embrace behest and non-behest loans;
NOW
THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the
Sec.
1. The Ad Hoc Fact-Finding Committee on Behest Loans shall include in its
investigation, inventory, and study, all non-performing loans which shall
embrace both behest and non-behest loans:
The
following criteria may be utilized as a frame of reference in determining a
behest loan:
1.
It is under-collateralized;
2.
The borrower corporation is undercapitalized;
3.
Direct or indirect endorsement by high government
officials like presence of marginal notes;
4.
Stockholders, officers or agents of the borrower
corporation are identified as cronies;
5.
Deviation of use of loan proceeds from the purpose
intended;
6.
Use of corporate layering;
7.
Non-feasibility of the project for which financing is
being sought; and
8. Extraordinary speed in which the loan release was made.
Moreover, a behest loan may be distinguished from a non-behest loan in that while both may involve civil liability for non-payment or non-recovery, the former may likewise entail criminal liability.[4]
Several loan accounts were referred
to the Committee for investigation, including the loan transactions between
Metals Exploration Asia, Inc. (MEA), now Philippine Eagle Mines, Inc. (PEMI)
and the Development Bank of the Philippines (DBP).
After examining and studying the
documents relative to the loan transactions, the Committee determined that they
bore the characteristics of behest loans, as defined under Memorandum Order No.
61 because the stockholders and officers of PEMI were known cronies of then
President Ferdinand Marcos; the loan was under-collateralized; and PEMI was
undercapitalized at the time the loan was granted.
Specifically, the investigation
revealed that in 1978, PEMI applied for a foreign currency loan and bank
investment on its preferred shares with DBP. The loan application was approved
on P146,601,979.00, and it was released despite
non-compliance with the conditions imposed by DBP. The Committee claimed that the loan had no
sufficient collaterals and PEMI had no sufficient capital at that time because
its acquired assets were only valued at P72,045,700.00, and its paid up
capital was only P46,488,834.00.
Consequently, Atty. Orlando L.
Salvador, Consultant of the Fact-Finding Committee, and representing the
Presidential Commission on Good Government (PCGG), filed with the Office of the
Ombudsman (Ombudsman) a sworn complaint for violation of Sections 3(e) and (g)
of Republic Act No. 3019, or the Anti-Graft
and Corrupt Practices Act, against the respondents Placido I. Mapa, Jr.,
Rafael A. Sison; Rolando M. Zosa; Cesar C. Zalamea; Benjamin Barot, Casimiro
Tanedo, J.V. de Ocampo, Bienvenido R. Tantoco, Jr., Francis B. Banes, Ernesto
M. Caringal, Romeo V. Jacinto, Manuel D. Tanglao and Alicia Ll. Reyes.[5]
After considering the Committee’s
allegation, the Ombudsman handed down the assailed Resolution,[6]
dismissing the complaint. The Ombudsman
conceded that there was ground to proceed with the conduct of preliminary
investigation. Nonetheless, it dismissed
the complaint holding that the offenses charged had already prescribed, viz.:
[W]hile apparently, PEMI was undercapitalized at the time the subject loans were entered into; the financial accommodations were undercollateralized at the time they were granted; the stockholders and officers of the borrower corporation are identified cronies of then President Marcos; and the release of the said loans was made despite non-compliance by PEMI of the conditions attached therewith, which consequently give a semblance that the subject Foreign Currency Loans are indeed Behest Loans, the prosecution of the offenses charged cannot, at this point, prosper on grounds of prescription.
It
bears to stress that Section 11 of R.A. No. 3019 as originally enacted,
provides that the prescriptive period for violations of the said Act (R.A.
3019) is ten (10) years. Subsequently,
BP 195, enacted on
Moreover as enunciated in [the] case of People vs. Sandiganbayan, 211 SCRA 241, the computation of the prescriptive period of a crime violating a special law like R.A. 3019 is governed by Act No. 3326 which provides, thus:
x x x x
Section 2. Prescription shall begin to run from the day of the commission of the violation of law, and if the same be not known at the time, from the discovery thereof and the institution of the judicial proceedings for its investigation and punishment.
The prescription shall be interrupted when the proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.
Corollary
thereto, the Supreme Court in the case of People vs.
The aforesaid principle was further elucidated in the cases of People vs. Sandiganbayan, 211 SCRA 241, 1992, and People vs. Villalon, 192 SCRA 521, 1990, where the Supreme Court pronounced that when the transactions are contained in public documents and the execution thereof gave rise to unlawful acts, the violation of the law commences therefrom. Thus, the reckoning period for purposes of prescription shall begin to run from the time the public instruments came into existence.
In
the case at bar, the subject financial accommodations were entered into by
virtue of public documents (e.g., notarized contracts, board resolutions,
approved letter-request) during the period of 1978 to 1981 and for purposes of
computing the prescriptive period, the aforementioned principles in the Dinsay,
Villalon and Sandiganbayan cases will apply.
Records show that the complaint was referred and filed with this Office
on
It
bears mention that the acts complained of were committed before the issuance of
BP 195 on
Equally important to stress is that the subject financial transactions between 1978 and 1981 transpired at the time when there was yet no Presidential Order or Directive naming, classifying or categorizing them as Behest or Non-Behest Loans.
To
reiterate, the Presidential Ad Hoc Committee on Behest Loans was created on
Thus, the Ombudsman disposed:
WHEREFORE, premises considered, it is hereby respectfully recommended that the instant case be DISMISSED.
SO RESOLVED.[8]
The Committee filed a Motion for
Reconsideration, but the Ombudsman denied it on
Hence, this petition positing these
issues:
A. WHETHER OR NOT THE CRIME DEFINED BY SEC. 3(e) AND (g) OF R.A. 3019 HAS ALREADY PRESCRIBED AT THE TIME THE PETITIONER FILED ITS COMPLAINT.
B. WHETHER OR NOT ADMINISTRATIVE ORDER NO. 13 AND MEMORANDUM ORDER NO. 61 ARE EX-POST FACTO LAW[S].[9]
The
Court shall deal first with the procedural issue.
Commenting
on the petition, Tantoco, Reyes, Mapa, Zalamea and Caringal argued that the
petition suffers from a procedural infirmity which warrants its dismissal. They claimed that the PCGG availed of the
wrong remedy in elevating the case to this Court.
Indeed,
what was filed before this Court is a petition captioned as Petition for Review on Certiorari. We have ruled, time and again, that a petition
for review on certiorari is not the
proper mode by which resolutions of the Ombudsman in preliminary investigations
of criminal cases are reviewed by this Court. The remedy from the adverse
resolution of the Ombudsman is a petition for certiorari under Rule 65,[10]
not a petition for review on certiorari
under Rule 45.
However, though captioned as a Petition
for Review on Certiorari, we will treat this petition as one filed under
Rule 65 since a reading of its contents reveals that petitioner imputes grave
abuse of discretion to the Ombudsman for dismissing the complaint. The averments in the complaint, not the nomenclature given by the parties, determine the nature of the
action.[11] In previous rulings, we have treated
differently labeled actions as special civil actions for certiorari under Rule 65 for reasons such as justice, equity, and
fair play.[12]
Having resolved the procedural issue,
we proceed to the merits of the case.
As the
Committee puts it, the issues to be resolved are: (i) whether or not the
offenses subject of its criminal complaint have prescribed, and (ii) whether
Administrative Order No. 13 and Memorandum Order No. 61 are ex post facto laws.
The issue of prescription has long
been settled by this Court in Presidential
Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto,[13]
thus:
[I]t is 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.[14]
The ruling was reiterated in Presidential Ad Hoc Fact-Finding Committee
on Behest Loans v. Ombudsman Desierto,[15]
wherein the Court explained:
In cases involving violations of R.A. No. 3019 committed prior to the February 1986 EDSA Revolution that ousted President Ferdinand E. Marcos, we ruled that the government as the aggrieved party could not have known of the violations at the time the questioned transactions were made. Moreover, no person would have dared to question the legality of those transactions. Thus, the counting of the prescriptive period commenced from the date of discovery of the offense in 1992 after an exhaustive investigation by the Presidential Ad Hoc Committee on Behest Loans.[16]
This is now a well-settled doctrine
which the Court has applied in subsequent cases involving the PCGG and the
Ombudsman.[17]
Since the prescriptive period
commenced to run on the date of the discovery of the offenses, and since
discovery could not have been made earlier than
Even the Ombudsman, in its
Manifestation & Motion (In Lieu of Comment),[18]
conceded that the prescriptive period commenced from the date the Committee
discovered the crime, and not from the date the loan documents were registered
with the Register of Deeds. As a matter
of fact, it requested that the record of the case be referred back to the
Ombudsman for a proper evaluation of its merit.
Likewise, we
cannot sustain the Ombudsman’s declaration that Administrative Order No. 13 and
Memorandum Order No. 61 violate the prohibition against ex post facto laws for ostensibly inflicting punishment upon a
person for an act done prior to their issuance and which was innocent when done.
The constitutionality of laws is
presumed. To justify nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful or arguable implication;
a law shall not be declared invalid unless the conflict with the Constitution
is clear beyond reasonable doubt. The
presumption is always in favor of constitutionality. To doubt is to sustain.[19] Even this Court does not decide a question of
constitutional dimension, unless that question is properly raised and presented
in an appropriate case and is necessary to a determination of the case, i.e.,
the issue of constitutionality must be the very lis mota presented.[20]
Furthermore, in Estarija v. Ranada,[21]
where the petitioner raised the issue of constitutionality of Republic Act No.
6770 in his motion for reconsideration of the Ombudsman’s decision, we had
occasion to state that the Ombudsman had no jurisdiction to entertain questions
on the constitutionality of a law. The
Ombudsman, therefore, acted in excess of its jurisdiction in declaring
unconstitutional the subject administrative and memorandum orders.
In any
event, we hold that Administrative Order No. 13 and Memorandum Order No. 61 are
not ex post facto laws.
An ex post facto law has been defined as one — (a) which makes an
action done before the passing of the law and which was innocent when done
criminal, and punishes such action; or (b) which aggravates a crime or makes it
greater than it was when committed; or (c) which changes the punishment and
inflicts a greater punishment than the law annexed to the crime when it was
committed; or (d) which alters the legal rules of evidence and receives less or
different testimony than the law required at the time of the commission of the
offense in order to convict the defendant.[22] This Court added two (2) more to the list,
namely: (e) that which assumes to regulate civil rights and remedies only but
in effect imposes a penalty or deprivation of a right which when done was
lawful; or (f) that which deprives a person accused of a crime of some lawful
protection to which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty.[23]
The constitutional doctrine that
outlaws an ex post facto law generally
prohibits the retrospectivity of penal laws. Penal laws are those acts of the
legislature which prohibit certain acts and establish penalties for their
violations; or those that define crimes, treat of their nature, and provide for
their punishment.[24] The subject administrative and memorandum
orders clearly do not come within the shadow of this definition. Administrative
Order No. 13 creates the Presidential Ad
Hoc Fact-Finding Committee on Behest Loans, and provides for its
composition and functions. It does not
mete out penalty for the act of granting behest loans. Memorandum Order No. 61 merely provides a
frame of reference for determining behest loans. Not being penal laws, Administrative
Order No. 13 and Memorandum Order No. 61 cannot be characterized as ex post facto laws. There is, therefore, no basis for the
Ombudsman to rule that the subject administrative and memorandum orders are ex post facto.
One final note. Respondents Mapa and Zalamea, in their
respective comments, moved for the dismissal of the case against them. Mapa claims that he was granted transactional
immunity from all PCGG-initiated cases,[25]
while Zalamea denied participation in the approval of the subject loans.[26] The arguments advanced by Mapa and Zalamea
are matters of defense which should be raised in their respective
counter-affidavits. Since the Ombudsman erroneously
dismissed the complaint on ground of prescription, respondents’ respective
defenses were never passed upon during the preliminary investigation. Thus, the
complaint should be referred back to the Ombudsman for proper evaluation of its
merit.
WHEREFORE, the
petition is GRANTED. The assailed Resolution and Order of the Office
of Ombudsman in OMB-0-96-2428, are SET
ASIDE. The Office of the Ombudsman
is directed to conduct with dispatch an evaluation of the merits of the
complaint against the herein respondents.
SO ORDERED.
ANTONIO
EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Acting Chief
Justice
Chairperson
|
MA. ALICIA AUSTRIA-MARTINEZ Associate
Justice |
MINITA V. CHICO-NAZARIO Associate Justice |
RUBEN T. REYES
Associate
Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, I
certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
CONSUELO
YNARES-SANTIAGO
Acting Chief
Justice
[1] Annex “A,” rollo, pp. 46-54.
[2] Annex “B,” id. at 55-66.
[3] Annex “C,” id. at 67-68.
[4] Annex “D,” id. at 69-70.
[5] Annex “E,” id. at 71-75.
[6] Supra note 1.
[7]
[8]
[9]
[10] Cabrera
v. Lapid, G.R. No. 129098,
[11] Partido ng Manggagawa v. Commission of Elections, G.R. No. 164702, March 15, 2006, 484 SCRA 671, 684-685.
[12]
[13] 375 Phil. 697 (1999).
[14]
[15] 415 Phil. 723 (2001).
[16]
[17] Presidential
Ad Hoc Fact-Finding Committee on Behest Loans v. Ombudsman, G.R. No.
138142, September 19, 2007; Presidential Ad
Hoc Fact-Finding Committee on Behest Loans v. Hon. Ombudsman Aniano Desierto, G.R.
No. 135687, July 24, 2007; Presidential
Commission on Good Government v. Desierto, G.R. No. 139675, July 21, 2006,
496 SCRA 112; Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Ombudsman, G.R. No. 135350, March 3, 2006, 484
SCRA 16; Atty. Salvador v. Hon. Desierto,
464 Phil. 988 (2004); PAFFC on Behest
Loans v. Ombudsman Desierto, 418 Phil. 715 (2001).
[18] Rollo, pp. 209-212.
[19] Virata
v. Sandiganbayan, G.R. Nos. 86926 and 86949, October 15, 1991, 202 SCRA
680, 698-699.
[20] Caleon
v. Agus Development Corporation, G.R. No. 77365,
[21] G.R.
No. 159314, June 26, 2006, 492 SCRA 652, 665.
[22] Chavez v. Romulo,
G.R. No. 157036, June 9, 2004, 431 SCRA 534, 565.
[23] Lacson v. The Executive Secretary, 361 Phil. 251, 275 (1999).
[24]
[25] Rollo,
pp. 276-283.
[26]