G.R. No. 139930

G.R. No. 139930 REPUBLIC OF THE PHILIPPINES, petitioner versus EDUARDO M. COJUANGCO, JR., ET AL., respondents.

Promulgated:

June 26, 2012

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CONCURRING AND DISSENTING OPINION

BRION, J.:

I concur with the majority except on the question of prescription with respect to respondent Eduardo M. Conjuangco, Jr.

The primary issue in this case with respect to respondent Eduardo M. Cojuangco is on the question of whether the right of the State to prosecute the respondents for violation of Section 3(e) of Republic Act No. (RA) 3019[1] or the Anti-Graft and Corrupt Practices Act has prescribed. Corollary to this issue are the questions -

a. when the prescriptive period provided by law should begin to run; and

b. whether the prescriptive period should be tolled or interrupted when the offender is outside the countrys jurisdiction.

The case of Domingo v. Sandiganbayan[2] instructs us that, in resolving the issue of prescription of the offense charged, the following should be considered:

1. the period of prescription for the offense charged;

2. the time the period of prescription starts to run; and

3. the time the prescriptive period was interrupted.

The period of prescription for the offense charged

Prior to its amendment by Batas Pambansa Bilang 195 in 1982 and insofar as it applies to the facts of this case, Section 11 of RA 3019 provided for a 10-year prescriptive period for all offenses punishable under it.[3] Any criminal proceeding for violation of RA 3019, initiated after the 10-year period, is barred and the State forfeits its power to prosecute and penalize the offender.

The time the period of prescription starts to run

Since RA 3019 is a special penal law, the applicable law for the computation of the prescriptive period is Section 2, Act No. 3326:[4]

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 proceeding 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. [emphasis supplied].

Applied to the present case, the ponencia considers February 8, 1980 as the point when the 10-year prescriptive period began to run, as it was at this time that the Securities and Exchange Commission (SEC) issued to Unicom the Certificate of Filing of the Amended Articles of Incorporation (AAOI), which reflected the increase in Unicoms capitalization, as well as the conversion and classification of its shares. The ponencia considered the filing of the AAOI with a public office as the equivalent of the discovery of the crime because the document supposedly evidencing the acts charged then became accessible to the public, thus providing it with sufficient notice. Since ten years lapsed from the time the crime charged was deemed discovered on February 8, 1980 up to time when the complaint was filed with the Ombudsman on March 1, 1990, the ponencia concluded that the criminal charge had already prescribed and, therefore, it found the Ombudsmans dismissal of the complaint proper.

I agree with the ponencias explanation, but only to the extent that the filing of Unicoms AAOI with the SEC provided the public constructive notice of the increase of its capitalization and the conversion of its shares. The disclosure of these facts in the AAOI alone, however, did not establish or at least give reasonable notice to the public of any undue injury to the government that constitutes the crime penalized under Section 3(e) of RA 3019.

The gravamen of the crime penalized under Section 3(e) of RA 3019 is the undue injury caused to the government, which, in the present case is allegedly the dilution of UCPBs investment in Unicoms shares of stock when Unicom increased its capitalization from 10 million shares to 1 billion shares and converted the shares into three difference classes. The undue injury could be discovered only upon the filing, not of the AAOI on February 8, 1980 (which does not contain a listing of the shareholders and the amount of their shareholdings), but of Unicoms General Information Sheet (GIS) for 1980. Notably, the AAOI does not contain a listing of the corporations shareholders and the amount of their shareholdings;[5] these are matters properly reported and reflected instead in the corporations GIS a matter the ponencia recognized when it declared that [c]hanges in shareholdings are reflected in the GIS that corporations have been mandated to submit annually to the SEC.[6]

The alleged undue injury to the public through the dilution of United Coconut Planters Banks (UCPBs) investment in Unicoms shares of stock would thus be discovered only upon a review of Unicoms GIS for 1980 (the year when the increase of capital stock was approved), whose filing does not necessarily coincide with the filing of the AAOI. It was only at this point that the public could be deemed to have constructive notice of the acts constituting the crime. Thus, the proper period to reckon the running of the prescriptive period should be from the filing of Unicoms GIS for 1980, which date would definitely be later than February 8, 1980.

Section 2 of Act No. 3326 provides for two instances when the prescriptive period shall begin to run from the date of the commission of the crime, and, if not known, from the date of its discovery. Although the violation of Section 3(e), RA 3019 appears to have been consummated and completed by February 8, 1980, insofar as the public is concerned, the crime could have only been discovered when Unicoms GIS for 1980 was filed. The public would have access to the documents bearing the pertinent facts constituting the crime upon the filing of Unicoms GIS for 1980; only then could the public have known of the undue injury caused to the government.

In his concurring opinion, Justice Bersamin states that the transaction subject of the criminal charge was evidenced by the Certificate of Increase of Capital Stock filed on September 17, 1979 and the AAOI filed on February 8, 1980, both of which are public records under the SECs custody. Hence, he posits that the illegal transaction was made known to the public as soon as these documents were filed, and the prescription period began to run on those dates.

However, I find the Certificate of Increase of Capital Stock filed on September 17, 1979 immaterial because it does not pertain to the increase of capitalization of September 18, 1979, which supposedly caused the dilution of UCPBs shares. From 1978 to 1979, Unicom increased its capitalization thrice: (1) in 1978, from 1 million shares to 3 million shares with par value of P100 per share; (2) on September 4, 1979, from 3 million to 10 million shares, without par value; and (3) on September 18, 1979, from 10 million to 1 billion shares, divided into three classes. The Certificate of Increase of Capital Stock dated September 17, 1979 only reflected the September 4, 1979 increase and did not document the assailed dilution of shares caused by the September 18, 1979 increase.

Jurisprudence has in fact set a much later date when to reckon the running of the prescriptive period of crimes punished under RA 3019, committed by the cohorts and cronies of the deposed President Ferdinand Marcos during Martial Law. The circumstances prevailing at the time of the questioned transaction do not provide reasonable opportunity for anyone curious and bold enough to assail the cronies acts. The Court thus declared in Domingo v. Sandiganbayan[7] that

[I]t 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. [Emphases ours.]

The ponencia sought to exempt the present case from the application of the principle settled in Domingo by contending that the questioned transaction in the present case does not involve the grant of behest loans that was the subject of Domingo and similar cases.[8] To the ponencia, the grant of behest loans, by their nature, could be concealed from the public eye[.] The investment questioned in the present case, on the other hand, does not appear x x x to have been withheld from the curious x x x [since] no allegation that the SEC denied public access to UCPBs investment in Unicom during martial law at the Presidents or anyone elses instance. The ponencia also observed that there was no allegation that the respondent members of the board of directors of UCPB connived with Unicom to suppress public knowledge of the investment.

I disagree.

Although by nature, a difference exists between the grant of behest loans and UCPBs investments in Unicoms shares of stock, both transactions nonetheless involve public funds (i.e., coconut levy funds) and are evidenced by public instruments and records. Indeed, even if these transactions are of public record (hence, presumably of public knowledge), the Court declared that the principle in Domingo should still apply: the running of the prescriptive period should be computed from the presumed discovery (i.e., after the February 1986 Revolution) of the crime and not from the day of such commission.[9]

The lack of allegation that the members of the board of directors of UCPB connived with Unicom to suppress public knowledge of the investment is rendered unnecessary by the fact that majority of the board of directors of UCPB also served as board of directors of Unicom during the relevant period:

UCPB

Board of Directors as of August 29, 1979

UNICOM

Board of Directors as of September 18, 1979

1. Eduardo M. Cojuangco, Jr.

2. Juan Ponce Enrile

3. Maria Clara L. Lobregat

4. Jose R. Eleazar, Jr.

5. Jose C. Concepcion

6. Emmanuel M. Almeda

7. Inaki R. Mendezona

8. Rolando P. Dela Cuesta

9. Hermenegildo C. Zayco

10. Narciso M. Pineda

11. Danilo S. Ursua

1. Eduardo M. Cojuangco, Jr.

2. Juan Ponce Enrile

3. Maria Clara L. Lobregat

4. Jose R. Eleazar, Jr.

5. Jose C. Concepcion

6. Emmanuel M. Almeda

7. Inaki R. Mendezona

8. Teodoro D. Regala

9. Douglas Lu Ym

10. Sigfredo Veloso

11. Jaime Gandianga

The surrounding circumstances and the interlocking members of the board of directors of the two corporations provide reasonable ground to presume the existence of connivance. These factors make it likely that the questioned transaction was indeed withheld from the curious or from those who were minded to know.

The time the prescriptive period was interrupted

A matter of significant consideration in the resolution of this case but has been glaringly omitted from the discussion of the facts is the publicly-known fact[10] that from 1986 to 1991, respondent Eduardo Cojuangco, Jr. was absent from Philippine Archipelago.[11]

Notably, the second paragraph of Section 2, Act No. 3326 is silent on the effect of the offenders absence from the country on the running of the prescriptive period. The law simply states that

Sec. 2. x x x

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

The silence of the law, however, does not preclude the suppletory application of Article 91 of the Revised Penal Code (RPC). Article 91 of the RPC provides that [t]he term of prescription shall not run when the offender is absent from the Philippine Archipelago. The suppletory application of Article 91 of the RPC is authorized and even mandated under Article 10 of the same Code, which states:

Art. 10. Offenses not subject to the provisions of this Code. Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specifically provide the contrary. [Emphasis ours.]

The only instance when the application of the RPC to special penal laws (like RA 3019) is barred is when the special penal law itself should specifically provide the contrary. The silence of Act No. 3326 and RA 3019, however, cannot be construed as specifically providing terms contrary to Article 91 of the RPC.

The combined application of these provisions, therefore, dictates that the 10-year period to file charges for violation of RA 3019 should not run when the offender was absent from the Philippines. Otherwise stated, the offenders absence from the countrys jurisdiction interrupts the running of the prescriptive period, and shall begin to run again only upon his return.

Does the application of Article 91 of the RPC to violation of special penal laws violate the rule that penal laws should be construed strictly against the state and liberally in favor of the accused? I do not believe so.

As already mentioned, the suppletory application of Article 91 of the RPC is mandated by the law itself. Indeed, the laws express command precludes the application of statutory rules of construction, which are used only when the law is ambiguous.[12] Assuming there was an ambiguity, the liberal construction of penal laws in favor of the accused is not the only factor in the interpretation of criminal laws:

A [liberal construction] should not be permitted to defeat the intent, policy, and purpose of the statute. The court should consider the spirit and reason of a statute where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the law, for [liberal construction] of a criminal statute does not mean such construction as to deprive it of the meaning intended.[13]

More importantly, to literally construe Act No. 3326s silence on the effect of the accuseds absence from our jurisdiction as not interrupting the running of the prescriptive period is discriminatory and goes against public interest. I agree with Justice Antonio T. Carpios explanation in his dissent in Romualdez v. Hon. Marcelo:[14]

The accused should not have the sole discretion of preventing his own prosecution by the simple expedient of escaping from the State's jurisdiction. x x x. An accused cannot acquire legal immunity by being a fugitive from the State's jurisdiction.

To allow an accused to prevent his prosecution by simply leaving this jurisdiction unjustifiably tilts the balance of criminal justice in favor of the accused to the detriment of the State's ability to investigate and prosecute crimes. In this age of cheap and accessible global travel, this Court should not encourage individuals facing investigation or prosecution for violation of special laws to leave Philippine jurisdiction to sit-out abroad the prescriptive period.[15] [Emphases ours.]

Accordingly, the charge insofar as it involves respondent Eduardo M. Cojuangco, Jr. was filed within the prescriptive period. He was absent from the country from 1986 to 1991. Hence, the filing of the charge on March 1, 1990 was well within the 10-year prescriptive period, even assuming it began to run on February 8, 1980.

ARTURO D. BRION

Associate Justice

[1] Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x x

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

[3] As amended by Batas Pambansa Bilang 195 on March 16, 1982, the period of prescription is now 15 years.

[4] An Act To Establish Periods Of Prescription For Violations Penalized By Special Acts And Municipal Ordinances And To Provide When Prescription Shall Begin To Run.

[5] Only the shareholdings of the original incorporators are stated in the AAOI.

[8] See Presidential Ad Hoc Committee v. Hon. Desierto, 375 Phil. 697 (1999). See also Rep. of the Philippines v. Hon. Desierto, 416 Phil. 59 (2001); and Republic of the Philippines v. Hon. Desierto, 438 Phil. 201 (2002).

[9] The Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Ombudsman Desierto, 519 Phil. 15 (2006).

[10] New-old UCPB boss alarms coco farmers; Exec linked to Eduardo Cojuangco Jr. takes over bank Tuesday, Philippine Daily Inquirer, November 14, 2011, http://newsinfo.inquirer.net/93943/new-old-ucpb-boss-alarms-coco-farmers:

In 1983, while he was UCPB president, Cojuangco, Mr. Aquinos uncle and a major financial supporter during his run for the presidency last year, acquired the SMC shares for P2 billion.

The shares were sequestered by Corazon Aquino, the Presidents mother, in a bid to recover ill-gotten wealth after the Edsa People Power Revolution in 1986 forced the dictator into exile in Hawaii, along with Cojuangco.

The businessman returned in November 1991, seven months before the end of the first Aquino administration. He denounced the frivolity and baselessness of the charges against him and vowed to vindicate himself in courts.

[11] Under Section 2, Rule 129 of the Rules of Court, a court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions.

[12] Ruben Agpalo, Statutory Construction (Third Edition), p. 227, citing United States v. Go Chico, 14 Phil. 128 (1909).

[13] Id. at 230, citing People v. Manantan, 115 Phil. 657 (1962); and People v. Gatchalian, 104 Phil. 664 (1958).