JAN05 20 - Sandiganbayansb.judiciary.gov.ph/RESOLUTIONS/2018/A_Crim_SB-17-CRM-0483_Pe… · RESOLUTION 5 People v. Pablo Pan III, et al. SB- 1 7-CRM-0483 time, filed an Urgent Motion

Republic of the Philippines SANDIGANBAYAN

Quezon City

SIXTH DIVISION

PEOPLE OF

THE

SB-i 7-CRM-0483 PHILIPPINES, For: Violation of Section 3 (e) of

Plaintiff, Republic Act (R.A.) No. 3019

-versus-

PABLO M. PAN III, ROLALNDO G. GREGORIO, EFIGENIO E. JULIAN, JR., NOEL T. TARRAZONA, ALEXIS T. ORTEGA, GILBERT R. ALVAREZ, LEOMYR DC. TORIBIO, TITO B. ESPIRITUSANTO, REINERIO R. RAMOS, CESAR T. MELAD, WILHELMINO P. BAZAN, SANTIAGO G. ACU1A, REINFREDO R. SE VILLA, JO VITA K. YEO,

Accused, x ------------------

PRESENT:

FERNANDEZ, SP, I, Chairperson MIRANDA, & MUSNGI2 , Ji

Promulgated:

JAN05 20

-x

J. Ponferrada, Chairperson of the 6 11 Division when the present incident was submitted for resolution, retired on September 13, 2017. J. Fernandez, SJ will participate in the resolution of the present incident in view of her assumption as Chairperson of the 6" Division on the same date. [As per Administrative Order (A.O.) No. 314-2017 dated September 13, 2017; Revised Internal Rules of the Sandiganbayan, Rule XII, Section 3].

2 At the time the present incident was submitted for resolution, J. Musngi was designated as a temporary member of the Sixth Division, in view of the vacancy therein (as per A.O. No. 124-2017 dated April 4,2017; Revised Internal Rules of the Sandiganbayan, Rule XII, Section 3).

RESOLUTION People v. Pablo Pan III, et al. SB-I 7-CRM-0483

2

RESOLUTION

MIRANDA, J.:

This resolves: 1) Accused Jovita K. Yeo's (Yeo) Motion to Quash dated May 25, 2017; 2) Accused Santiago G. Acufia (Acufla), Wilhelmino P. Bazan (Bazan), Cesar T. Melad (Melad), and Reinfredo R. Sevilla's (Sevilla) Motion to Quash Information and To Dismiss the Case dated June 7, 2017; 3) The Prosecution's Omnibus Comment dated June 20, 2017; 4) Accused Tito B. Espiritusanto's (Espiritusanto) Motion for Reconsideration dated May 13, 2017, and 5) Accused Espiritusanto' s Manifestation dated June 6, 2017.

In her motion to quash, accused Yeo seeks to quash the Information dated August 1, 2016 against her on the grounds that the facts charged do not constitute a violation of Section 3 (e) of R.A. No. 3019, and that the Sandiganbayan has no jurisdiction over the case. In particular, she alleges that: 1) No laws were violated when she sold two (2) lots in Camanchile Drive, Zamboanga City, despite not being the owner of the same, to Zamboanga Electric Cooperative (ZAMCELCO); 2) There is nothing irregular in selling the said lots to ZAMCELCO in the amount of Twenty-Eight Million Seven Hundred Forty-Eight Thousand Two Hundred Sixteen Pesos (Php 28,748,216.00) despite having previously purchased them at Four Million Seven Hundred Forty-Four Thousand Eight Hundred Pesos (Php 4,744,800.00) only; 3) She is a private individual and there is no proof of conspiracy between her and her co-accused public officers; and 5) The provisions of R.A. No. 9184 or the Government Procurement Reform Act were faithfully complied with in the subject procurement.

In their motion to quash and to dismiss the case, accused Acufia, Bazan, Melad, and Sevilla seek the immediate dismissal of this case for violation of their constitutional right to the speedy disposition of cases. They claim that the Office of the Ombudsman took six (6) years to terminate the preliminary investigation, and the OSP to file the information in this case.

In its omnibus comment, the Prosecution, through the Office of the Special Prosecutor (OSP), maintains that: 1) The Information dated August 1, 2016 clearly and sufficiently alleges the ultimate facts constituting a violation of Section 3 (e) of R.A. No. 3019; 2) The Sandiganbayan has jurisdiction over the case because of the charge of conspiracy between a private individual and several public officers; and 3) The alleged delay is attributed to the complicated nature of the case, the volume of records., and the number of respondents involved in this case.

RESOLUTION 3 People v. Pablo Pan III, et al. SB-I 7-CRM-0483

In his motion for reconsideration and manifestation, accused Espiritusanto seeks the reconsideration of the Order dated May 11, 2017 cancelling his cash bond and issuing a warrant of arrest against him for his absence in the hearing held on May 11, 2017. He claims that he did not receive any notice of the said scheduled hearing and that he had no intention to willfully disobey the orders of the Court.

FACTUAL ANTECEDENTS

On November 10, 2011, Expedito R. Marquez, Jr., (Marquez) filed a Complaint-Affidavit dated October 31, 2011 with the Office of the Ombudsman. 3 On the same date, a separate Complaint-Affidavit dated November 8, 2011 was filed by Roberto G. Valerio (Valerio), which adapted all allegations raised in the complaint-affidavit of Marquez.' Said complaint-affidavits charged the following persons with violations of Articles 3 15(lb) and 316(l) of the Revised Penal Code (R.P.C.), Presidential Decree (P.D.) No. 1689 for Syndicated Estafa, the Anti-Graft Practices Law and the Law against Plunder, in connection with the purchase of two (2) lots in Camanchile Drive, Zamboanga City and a 20 MW power transformer, and the construction of a 69 K line:

1. Rolando G. Gregorio (Gregorio), President of ZAMCELCO; 2. Efigenio E. Julian, Jr. (Julian), Board Director of

ZAMCELCO; 3. Noel T. Tarrazona (Tarrazona), Board Member of

ZAMCELCO; 4. Alexis T. Ortega (Ortega), Board Member of ZAMCELCO; 5. Gilbert R. Alvarez (Alvarez), Board Member of

ZAMCELCO; 6. Leomyr DC Toribio (Toribio), Board Member of

ZAMCELCO; 7. Tito B. Espiritusanto, Board Member of ZAMCELCO; 8. Reinerio R. Ramos (Ramos), ZAMCELCO General Manager; 9. Engr. Samuel Julio (Julio), ZAMCELCO Technical Assistant

to the General Manager; 10. Anne Rodriguez Salasain (Salasain), Board Secretary of

ZAMCELCO; 11. Jacqueline T. Bue (Bue), Chief Accountant of ZAMCELCO; 12. Ma. Luisa G. Gaspar (Gaspar), Internal Auditor of

ZAMCELCO;

' Complaint-affidavit dated November 10, 2011, Records, Vol. I, pp. 68-78 Complaint-affidavit dated November 8, 2011, Records, Vol. I, pp. 79-80.

RESOLUTION People v. Pablo Pan III, et al. SB-I 7-CRM-0483

13. Julieta Bacason (Bacason), Finance Manager of ZAMCELCO;

14. Cesar T. Melad, BAC Member; 15. Wilhelmino P. Bazan, BAC Member; 16. Santiago G. Acufla, BAC Member; 17. Reinfredo R. Sevilla, BAC Member; 18. Pablo M. Pan III (Pan), Deputy Administrator of the Electric

Distribution Utilities Services of the National Electrification Administration (NEA);

19. Jose H. Seguban, Jr. (Seguban), Director of NEA; 20. Thomas L. Villaflor (Villaflor), Rural Electrification

Financing Corporation (REFC) Chief Operating Officer; 21. Jovita K. Yeo, from UNMAN Technology; 22. Richard Rillo (Rillo), from UNMAN Technology; and 23. Victoria Tubo (Tubo), from LINMAN Technology'

On December 20, 2011, the Office of the Ombudsman issued an order requiring the twenty-three (23) respondents to file their respective answers/counter-affidavits 6

On January 19, 2012, Villafor filed a Motion for Extension of Time to File a Counter-Affidavit.' It was granted by the Office of the Ombudsman on January 20, 2012. 8

On the same day, Pan and Seguban filed an Entry of Appearance with Urgent Motion for Extension of Time to File Counter-Affidavit. 9 It was granted by the Office of the Ombudsman on January 27, 2012.' °

On January 30, 2012, Villafor filed his consolidated counter-affidavit with the Office of the Ombudsman."

On February 6, 2012, Ramos filed a Motion for Extension of Time to File Counter-Affidavit. 12 On the same day, Pan and Seguban, for the second

Complaint-affidavit dated November 10, 2011, Records, Vol. 1, pp. 68-78 6 Omnibus Comment/Opposition dated June 20, 2017, Records, Vol. II, pp 293-305 7

Id. 9

10 Id 11 Id. 12 Id.

rel

RESOLUTION 5 People v. Pablo Pan III, et al. SB- 1 7-CRM-0483

time, filed an Urgent Motion for Extension of Time to File Counter-Affidavit. '

On February 8, 2012, the Office of the Ombudsman granted the respective motions for extension of Ramos, Pan and Seguban.' 4 On the same day, Acufla, Bazan, Melad and Sevilla filed their joint counter-affidavit with the Office of the Ombudsman.' 5

On February 9, 2012, Bacason, Julio and Salasain filed their respective counter-affidavits with the Office of the Ombudsman. 16 Bue, Gaspar and Gregorio also filed their respective Motions for Extension of Time to File Counter-Affidavit with the said office. 17

On February 16, 2012, Pan and Seguban filed their respective counter-affidavits with the Office of the Ombudsman.' 8

On February 22, 2012, Bue, Gaspar, Gregorio and Ramos filed their respective counter-affidavits with the Office of the Ombudsman. 19

On February 29, 2012, Tarrazona filed his counter-affidavit with the Office of the Ombudsman. 20

On March 19,'2012, Yeo filed her counter-affidavit with the Office of the Ombudsman. 21

On December 13, 2013, Graft Investigation and Prosecution Officer (GIPO) I Fatima Kristine J. Franco (Franco) drafted a resolution finding probable cause for violation of Section 3 (e) of R.A. No. 3019 against Pan, Gregorio, Ramos, Yeo, Julian, Tarrazona, Ortega, Alvarez, Toribio, Espiritusanto, Melad, Bazan, Acufla and Sevilla for the anomalous procurement of the two (2) lots in Camanchile Drive, Zamboanga City. 22 The same resolution also found probable cause for another violation of Section 3 (e) of R.A. No. 3019 against Seguban, Gregorio, Ramos, Yeo, Julian,

" Id 14 Id 15 Counter-affidavit dated January 30, 2012, Records, Vol. I, pp. 463-465 16 Supra, 6.

Ibid. 18 Counter-affidavit dated February 14, 2012, Records, Vol. 1, pp. 337-344 19 Counter-affidavit dated February 13, 2012, Records, vol. I, pp. 345-355 20 Supra, 6. 21 Counter-affidavit dated March 9, 2012, Records, Vol. 1, pp. 481-500 22 Resolution dated December 13, 2013, Records, Vol. I, pp. 5-47.

c&4v1

RESOLUTION 6 People v. Pablo Pan III, et al. SB-17-CRM-0483

Tarrazona, Ortega, Alvarez, Toribio and Espiritusanto for the anomalous cash payment to Yeo in the amount of Twelve Million Three Hundred Thousand Pesos (Php 12, 300,000.0O).23 The charge for violation of Section 3 (e) of R.A. No. 3019 against Julio, Salasain, Bue, Gaspar, Bacason, Villafor, Rillo and Tubo were dismissed for insufficiency of evidence. 24 The charges for violation of Articles 315(lb) and 316(l) of the R.P.C., P.D. No. 1689 for Syndicated Estafa, and the Law against Plunder against all accused and their co-respondents were also dismissed for lack of probable cause. 25

On December 16, 2013, Director Mothalib C. Onos (Onos) reviewed and recommended the approval of the Resolution dated December 13, 2013. 26

On December 26, 2013, Ombudsman Conchita Carpio-Morales (Carpio-Morales) approved the Resolution dated December 13, 2013.

On July 25, 2014, Tarrazona sought the reconsideration of the resolution of the Office of the Ombudsman. 27

On August 1, 2014, Tarrazona filed an Amended Motion for Reconsideration with the Office of the Ombudsman. 28

On August 20, 2014,, Seguban sought the reconsideration of the resolution of the Office of the Ombudsman. 29

On August 27, 2014, Alvarez, Espiritusanto, Gregorio, Julian, Ramos and Toribio filed an Urgent Motion for Reconsideration with the Office of the Ombudsman. 30

On September 12, 2014, Yeo sought the reconsideration of the resolution of the Office of the Ombudsman. 31

23 Ibid. Id.

25 Id 26 1d 27 Supra, 6. 28 Id 29 Id 30 Id 31 Id

RESOLUTION 7 People v. Pablo Pan III, et al. SB-I 7-CRM-0483

On October 13, 2014, private complainants Marquez and Valerio filed an Omnibus Comment with the Office of the Ombudsman. 12

On July 8, 2016, GIPO I Ronald Brian Go Evangelista (Evangelista) drafted an order partially granting the motions for reconsideration. 33 The said order affirmed the finding of probable cause for violation of Section 3 (e) of R.A. No. 3019 against Pan, Gregorio, Ramos, Yeo, Julian, Tarrazona, Ortega, Alvarez, Toribio, Espiritusanto, Melad, Bazan, Acuña and Sevilla. 34 It, however, set aside the initial finding of probable cause and dismissed the charge for violation of Section 3 (e) of R.A. No. 3019 against Seguban, Gregorio, Ramos, Yeo, Julian, Tarrazona, Ortega, Alvarez, Toribio and Espiritusanto for the anomalous cash payment to Yeo. 35

On July 11, 2016, Ombudsman Carpio-Morales approved the Order dated July 8, 2016 partially granting the motions for reconsideration. 36

On March 13, 2017, the Information was filed before the Sandiganbayan.

The above-stated incidents can be summarized in a table as follows:

Incident/s Date

Marquez and Valerio filed their complaint-affidavits November 10, 2011 with the Office of the Ombudsman charging the accused with violations of Articles 3 15(lb) and 316(1) of the R.P.C., P.D. 1689 for Syndicated Estafa, the Anti-Graft Practices Law and the Law against Plunder.

The Office of the Ombudsman issued an order December 20, 2011 requiring the 23 respondents to file their respective answers/counter-affidavits.

Villafor filed a Motion for Extension of Time to File January 19, 2012 a Counter-affidavit.

Pan and Seguban filed an Entry of Appearance with January 20, 2012 Urgent Motion for Extension of Time to File Counter-Affidavit.

32 Id ' Order dated July 8, 2016, Records, Vol. I, pp. 52-65.

34 Ibid Id Id.

RESOLUTION People v. Pablo Pan III, et al. SB-I 7-CRM-0483

Incident/s Date

The Office of the Ombudsman granted Pan and January 27, 2012 Seguban's Motion.

Villafor submitted his consolidated counter-affidavit January 30, 2012 with the Office of the Ombudsman.

Ramos filed a Motion for Extension of Time to File February 6, 2012 Counter-Affidavit.

Pan and Seguban filed their Second Urgent Motion for Extension of Time to File Counter-Affidavit.

The Office of the Ombudsman granted the respective February 8, 2012 motions for extension of Ramos, Pan and Seguban.

Acufla, Bazan, Melad and Sevilla submitted their joint counter-affidavit to the Office of the Ombudsman.

Bacason, Julio and Salasain submitted their February 9, 2012 respective counter-affidavits to the Office of the Ombudsman.

Bue, Gaspar and Gregorio filed their respective Motions for Extension of Time to File Counter- Affidavit with the Office of the Ombudsman.

Pan and Seguban submitted their respective counter- February 16, 2012 affidavits to the Office of the Ombudsman.

Bue, Gaspar, Gregorio and Ramos submitted their February 22, 2012 respective counter-affidavits to the Office of the Ombudsman.

Tarrazona submitted his counter-affidavit to the February 29, 2012 Office of the Ombudsman.

Yeo submitted her counter-affidavit to the Office of March 19, 2012 the Ombudsman.

GIPO I Franco drafted the resolution in this case. December 13, 2013

Director Onos reviewed and recommended the December 16, 2013 approval of the Resolution dated December 13 5 2013.

Ombudsman Carpio-Morales approved the December 26, 2013 Resolution dated December 13, 2013.

Tarrazona sought the reconsideration of the July 25, 2014 resolution of the Office of the Ombudsman.

RESOLUTION People v. Pablo Pan III, et al. SB- 1 7-CRM-0483

Incident/s Date

Tarrazona filed an Amended Motion for August 1, 2014 Reconsideration with the Office of the Ombudsman.

Seguban sought the reconsideration of the resolution August 20, 2014 of the Office of the Ombudsman.

Alvarez, Espiritusanto, Gregorio, Julian, Ramos and August 27, 2014 Toribio filed an Urgent Motion for Reconsideration with the Office of the Ombudsman.

Yeo sought the reconsideration of the resolution of September 12, 2014 the Office of the Ombudsman.

Private complainants Marquez and Valerio filed an October 13, 2014 Omnibus Comment with the Office of the Ombudsman.

GIPO I Evangelista drafted an order partially July 8, 2016 granting the motions for reconsideration.

Ombudsman Conchita Carpio-Morales approved July 11, 2016 the Order dated July 8, 2016.

The Information was filed with the Sandiganbayan. March 13, 2017

DISCUSSION AND RULING

The Court will first rule on Yeo's motion to quash.

On Yeo's claim that the facts charged in the assailed information do not constitute a violation of Section 3 (e) of R.A. No. 3019, the provisions of Sections 6 and 9, Rule 110 of the Rules of Court are relevant, to wit:

Sec. 6 Sufficiency of complaint or information. - A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the complaint or information.

RESOLUTION

10 People v. Pablo Pan III, et al. SB-i 7-CRM-0483

xxx

Sec. 9. Cause of the accusation. - The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.

In Lazarte v. Sandiganbayan, 37 the Supreme Court laid out the two important purposes of the said procedural rules: 1) To enable the accused to suitably prepare for his defense; and 2) To allow the accused to plead his conviction in a subsequent prosecution for the same offense, if found guilty. The fundamental test in determining the adequacy of the averments in an information is whether the facts alleged, if hypothetically admitted, would establish the essential elements of the crime. 38 Evidence aliunde or matters extrinsic to the information are not to be considered. 39

The Information dated August 1, 2016 filed against Yeo and her co-accused reads:

That during the period from 03 April 2007 to 06 July 2007, or sometime prior or subsequent thereto, in Quezon City, Philippines and within the jurisdiction of the Honorable Sandiganbayan, accused PABLO M. PAIN III, a high ranking public officer, being then the Deputy Administrator of the Electric Distribution Utilities Services of the National Electrification Administration, committing the offense in relation to office and while in the performance of his official function, with manifest partiality, evident bad faith, or gross inexcusable negligence, conspiring with accused ROLANDO G. GREGORIO, EFIGENIO E. JULIAN, JR., NOEL TOMALE TARRAZONA, ALEXIS ORTEGA, GILBERT R. ALVAREZ, LEOMYR DC. TORIBIO, TITO B. ESPIRITUSANTO, REINERIO R. RAMOS,

11 Cabrera v. Sandiganbayan, G.R. Nos. 162314-17, October 25, 2004. 38 Ibid. 39 lngco v. Sandiganbayan, G.R. No. 112584, May 23, 1997, citing Florenz Regalado, Remedial Law

Compendium, Vol. 2, Seventh Revised ed. [1995], p. 392.

RESOLUTION

11 People v. Pablo Pan lIE, et al. SB-i 7-CRM-0483

CESAR T. MIELAD, WILHELMINO P. BAZAN, SANTIAGO G. ACURA, and REINFREDO R. SE VILLA, officers of the Zamboanga Electric Cooperative, and JOVITA K. YEO, a private individual, did then and there willfully, unlawfully, and criminally give unwarranted benefits, advantage and preference to Jovita K. Yeo by causing the approval of the procurement of the two lots situated in Camanchile Drive, Zamboanga City, covered by Transfer Certificate Title Nos. T-129-2011-000346 and T-129-2011000347, from Jovita K. Yeo in the amount of Php 28,748, 216.00, knowing fully well that Jovita K. Yeo was not a qualified bidder, she being not the registered owner of the subject lots at the time of the procurement project was awarded to her, and that the subject lots were purchased by Jovita K. Yeo for only Php 4,744,800.00 from the previous owner, to the damage and prejudice of the ZAMCELCO and its consumer-members. (Underscoring supplied)

The charge filed against the accused is violation Section 3(e) of R.A. No. 3019, which provides:

SEC. 3. Corrupt practices ofpublic 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:

xxxx

(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.

The elements of this offense are: 1) The accused are public officers or private persons charged in conspiracy with them; 2) Said public officers committed the prohibited acts during the performance of their official duties or in relation to their public positions; 3) The public officer acted with manifest partiality, evident bad faith or gross inexcusable negligence; 4) They

RESOLUTION 12 People v. Pablo Pan UI, et al. SB-I 7-CRM-0483

caused undue injury to any party, whether the Government or a private party; and 5) Such injury was caused by giving unwarranted benefits, advantage or preference to such parties. 40

In this case, the assailed information states that: 1) Yeo is a private individual charged in conspiracy with Pan, a former Deputy Administrator of the Electric Distribution Utilities Services of the National Electrification Administration, and with Gregorio, Julian, Tarrazona, Ortega, Alvarez, Toribio, Espiritusanto, Ramos, Melad, Bazan, Acufla and Sevilla, former officers of the ZAMCELCO, for violation of Section 3 (e) of R.A. No. 3019; 2) During the period from April 3, 2007 to July 6, 2007, or sometime prior or subsequent thereto, in Quezon City, Philippines, they approved the procurement of the two lots situated in Camanchile Drive, Zamboanga City in the performance of their official functions; 3) They approved the said procurement with manifest partiality, evident bad faith or gross inexcusable negligence knowing fully well that Yeo was not a qualified bidder as she was not the registered owner of the lots at the time of the procurement, and that the subject lots were purchased by Yeo for only Php 4,744,800.00 from the previous owner; 4) They caused damage and prejudice to ZAMCELCO and its consumer-members; and 5) The damage and prejudice were caused when they gave unwarranted benefits, advantage and preference to Yeo in the approval of said procurement.

Clearly, the Information dated August 1, 2016 states the elements of violation of Section 3(e) of R.A. No. 3019 that the accused were charged with. It includes all the details required by Sections 6 and 9, Rule 110 of the Rules of Court. The Information is, thus, sufficient to inform the accused of the offense they are being charged of and for this Court to pronounce judgment.

On Yeo's contention that the Sandiganbayan has no jurisdiction over this case because she is a private individual and there is no proof of conspiracy between her and her co-accused who are public officers, the same has long been settled by the Supreme Court in many cases.

Section 2' of R.A. No. 10660 stipulates:

"SEC. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

40 Dela Chica v. Sandiganbayan, G.R. No. 144823. December 8, 2003. 41 Amends Section 4 of R.A. No. 8249.

iT

RESOLUTION People v. Pablo Pan 111, et al. SB-i 7-CRM-0483

13

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

"(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

xxx

"In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. (Underscoring supplied)

Private individuals who acted in conspiracy with public officers may therefore be indicted, tried and if found guilty, held liable for the pertinent offenses under Section 3 of R.A. No. 3019.42 This is in consonance with the avowed policy of the anti-graft law to repress certain acts of public officers and private individuals alike constituting graft or corrupt practices or which may lead thereto. 43

A general allegation of conspiracy without the specific acts attributed to the accused to depict his or her participation in the offense charged does not even make an information insufficient. There is a distinction in the manner of alleging the indictment between conspiracy as a crime and conspiracy as a mode of committing a crime. As a crime, conspiracy itself and all the elements of said crime must be set forth in the complaint or information. As a mode of committing a crime, there is less necessity of reciting its particularities in the

42 Gregorio Singian, Jr. v. Sandiganbayan, et al., G.R. Nos. 195011719, September 30, 2013. 11 Go v. Fifth Division, Sandiganbayan, G.R. No. 172602, April 13, 2007.

RESOLUTION People v. Pablo Pan HI, et al. SB-i 7-CRM-0483

14

information because conspiracy is not the gravamen of the offense charged, such as in this case. 44 In People v. Quitlong45, the Supreme Court held:

A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details thereof, like the part that each of the parties therein have performed, the evidence proving the common design or the facts connecting all the accused with one another in the web of the conspiracy. Neither is it necessary to describe conspiracy with the same degree of particularity required in describing a substantive offense. It is enough that the indictment contains a statement of facts relied upon to be constitutive of the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in a manner that can enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a subsequent indictment based on the same facts. (Emphasis supplied; Citations omitted)

An allegation of conspiracy in the information should not be confused with the adequacy of evidence that may be required to prove it. 46 A conspiracy is proved by evidence of actual cooperation, acts indicative of an agreement, a common purpose or design, or a concerted action or concurrence of sentiments to commit the felony and actually pursue it. 47 For this reason, a statement of the evidence on the conspiracy is not necessary in the Information. 48

The other grounds raised by Yeo in her motion to quash are matters of defense. A motion to quash is based on a defect in the information that is evident on its face. Matters of defense, such as non-violation of any law in her participation as a bidder and the compliance by the accused with the provisions of R.A. No. 9184 in the procurement, are matters aliunde and should therefore, not be considered in this motion. It must be emphasized that the innocence or guilt of the accused for violation of Section 3 (e) of R.A. No. 3019, as charged in the information, is subject to the evidence to be presented by the parties in the trial of the case. The Court cannot decide on the

Estrada v. Sandiganbayan, G.R. No. 148965, February 26, 2002. u G.R. No. 121562, July 10, 1998.

Lazarte v. Sandiganbayan, G.R. No. 180122, March 13, 2009. 47 Ibed. 48 Id

RESOLUTION 15 People v. Pablo Pan III, et al. SB-I 7-CRM-0483

sufficiency of the evidence of the Prosecution at this point. Hence, the motion to quash is denied.

With regard to the allegation of inordinate delay, the Court holds that the time it took the Office of the Ombudsman to investigate the complaint against the accused, and file the necessary information against them, does not constitute inordinate delay. Accordingly, the motion to dismiss must be denied.

The right to the speedy disposition of cases under Section 16, Article III of the Constitution states:

All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

Each case must be decided upon the facts peculiar to it. 49 A mere mathematical reckoning of the time involved is not sufficient. 5° The Court is required to do more than a computation of the number of years that elapsed in the conduct of the preliminary investigation and filing of the information in court. The inquiry as to whether or not an accused has been denied such right is not susceptible by precise qualification. The conduct and interests of both the prosecution and the accused are considered and balanced in determining whether the right to the speedy disposition of cases is violated.

The concept of "speedy disposition of cases", like "speedy trial", is, however, relative or flexible." These rights are deemed violated only when the proceedings are attended by vexatious, capricious, and oppressive delays, or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive, a long time is allowed to elapse without the party having his case tried. 52

The right to the speedy disposition of a case is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory. 53 The desideratum of a speedy disposition of cases should not, if at all possible,

' Benares v. Lim, G.R. No. 173421, December 14, 2006. ° Ibid.

51 Dela Pea v. Sandiganbayan, G.R. No. 144542, June 29, 2001. 52 Gonzales v. Sandiganbayan, G.R. No. 94750, July 16, 1991.

G.R. No. 154155, August 6, 2008.

RESOLUTION 16 People v. Pablo Pan III, et al. SB-i 7-CRM-0483

result in the precipitate loss of a party's right to present evidence and either in a plaintiffs being non-suited or the defendants being pronounced liable under an ex parte judgment. 54

In Corpuz v. Sandiganbayan, the Supreme Court held that in determining whether the right to speedy disposition of cases has been violated, the following factors may be considered and balanced: (1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.

Records of this case indicate that the Office of the Ombudsman spent an aggregate period offive (5) years, three (3) months and three (3) days from receipt of the complaint-affidavit on November 10, 2011, to file the information with this Court on March 13, 2017. However, said period is not unreasonable, arbitrary and oppressive to the accused because of the attendant circumstances discussed below.

The period from November 10, 2011 to December 20, 2011, or one (1) month and ten (10) days, is attributed to the Office of the Ombudsman. The complaint-affidavits filed by private complainants Marquez and Valerio charged five (5) violations of different laws against twenty-three (23) respondents. The time spent to conduct a proper evaluation of the complaints and issue orders to the accused and respondents for submission of their counter-affidavits is reasonable.

The period from December 20, 2011 to March 19, 2012, or two (2) months and twenty-eight (28) days, is charged against the accused. During this period, Villafor, Ramos, Bue, Gaspar and Gregorio sought an extension of time to submit their counter-affidavits. Pan and Seguban even filed two (2) motions for extension of time to submit a counter-affidavit. While the filing of a counter-affidavit by the accused is an exercise of the right to procedural due process, it cannot be denied that this period contributed a certain degree of delay in the resolution of this case by the Office of the Ombudsman. They cannot be allowed to complain against a circumstance to which they had contributed. 56 The accused and their co-respondents submitted their respective counter-affidavits at different dates. However, the date of

' Dansal v. Fernandez, G.R. No. 126814, March 2, 2000. ' G.R. No. 162214, November 11, 2004. 56 See Dela Rosa v. Court of Appeals, G.R. No. 116945, February 9, 1996.

villafor submitted his consolidated counter-affidavit on January 30, 2012; Acufla, Bazon, Melad and Sevilla on February 8, 2012; Bacason, Julio and Salasain on February 9, 2012; Pan and Seguban on February 16, 2012; Bue, Gaspar, Gregorio and Ramos on February 22, 2012; Tarrazona on February 29, 2012; and Yeo on March 19, 2012.

RESOLUTION 17 People v. Pablo Pan III, et al. SB-i 7-CRM-0483

submission of the last counter-affidavit on March 19, 2012 shall be used in determining the length of the alleged delay in this case.

The period from March 19, 2012 to December 13, 2013, or eleven (11) months and twenty-two (22) days, encompasses the time from the submission of the last counter-affidavit by the accused to the preparation of the draft resolution in this case. As earlier stated, the complaint-affidavits charged five (5) violations of different laws against twenty-three (23) respondents. A period of less than a year to investigate the charges and the arguments raised by the parties in their respective pleadings is not excessive considering the number of the respondents and the charges filed against them. Director Onos reviewed the draft resolution and recommended approval of the same on December 16, 2013, or after three (3) days. Ombudsman Carpio-Morales approved the draft resolution on December 26, 2013, or after ten (10) days. To the mind of the Court, these periods in fact show that the Office of the Ombudsman had properly disposed of the complaints with reasonable dispatch.

The accused even benefitted from this period because the Office of the Ombudsman only found probable cause against them for two (2) counts of violation of Section 3 (e) of R.A. No. 3019. All the charges against them for violation of Articles 3 15(lb) and, 316(1) of the R.P.C., P.D. No. 1689 for Syndicated Estafa, and the Law against Plunder were dismissed for lack of probable cause. The Office of the Ombudsman made sure that only those responsible for the crime are charged and prosecuted in court.

The period from December 26, 2013 to September 12, 2014, or eight (8) months and seventeen (17) days, refers to the time spent by the acoused in seeking the reconsideration of the Resolution dated December 13, 2013. This period should be properly attributed to the accused being part of their exercise of the right to procedural due-process. The Office of the Ombudsman cannot be faulted for granting them sufficient opportunity to seek a reconsideration of the resolution.

The period from September 12, 2014 to October 13, 2014, or one (1) month and one (1) day, is neither charged against the Office of the Ombudsman nor the accused because it was used to accommodate the filing by complainants Marquez and Valerio of their Omnibus Comment to the Motions for Reconsideration.

The period from October 13, 2014 to July 11, 2016, or one (1) year, eight (8) months and twenty-eight (28) days, was spent by the Office of the

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18

Ombudsman to review its resolution on the basis of the arguments of the accused in their motions for reconsideration and the opposition of the complainants in their omnibus comment. The draft order partially granting the motions for reconsideration was prepared by GIPO I Evangelista on July 8, 2016. It was approved by Ombudsman Carpio-Morales on July 11, 2016, or three (3) days after. The fact that a different GIPO evaluated the motions for reconsideration presupposes that he went through all the records once more. Thus, the time spent here is not unreasonable. In fact, the accused benefitted again from this period because the Order dated July 8, 2016 eventually set aside the initial finding of probable cause and dismissed the charge for violation of Section 3(e) of R.A. No. 3019 against Seguban, Gregorio, Ramos, Yeo, Julian, Tarrazona, Ortega, Alvarez, Toribio and Espiritusanto.

The period from July 11, 2016 to March 13, 2017, or eight (8) months and two (2) days, is visited upon the Office of the Ombudsman. The records of the case were transmitted to the OSP for the filing of information and prosecution of the case in court. The OSP conducted a review of the records to make sure .that only those cases that could stand the rigors of trial would be filed and prosecuted in court.

Based on the foregoing, the total period of eleven (11) months and six (6) days, is attributed to the accused because they spent it in requesting for additional time to submit their counter-affidavits, filing their counter-affidavits afterwards, and seeking the reconsideration of the resolution in this case. The period of one (1) month and one (1) spent by the private complainants in opposing the accused's motions for reconsideration is also excluded from the computation of the period attributed to the Office of the Ombudsman. Since these periods were consumed for the benefit of the accused and private complainants, it is proper to exclude them from the computation of the total time spent by the Office of the Ombudsman in the conduct of the preliminary investigation.

Subtracting the periods attributable to the accused and the private complainants, the total period spent by the Office of the Ombudsman to finish its preliminary investigation, and for the OSP to file the corresponding information is four (4) years, two (2) months and twenty-nine (29) days. The Court does not hold the said period as capricious, oppressive and vexatious to the accused.

Notably, the present motion to dismiss by reason of inordinate delay is the first instance that the accused raised an alleged violation of their right to the speedy disposition of cases. Records are bereft of any proof that the

RESOLUTION 19 People v. Pablo Pan III, et al. SB-i 7-CRM-0483

accused had previously invoked the said constitutional right at the earliest possible time before the Office of the Ombudsman.

In Coscolluela v. Sandiganbayan58, the Supreme Court held that it is not the duty of the accused in the preliminary investigation proceedings to follow up the prosecution of their case. In that case, the accused could not have sought the speedy resolution of their case because they were completely unaware that the investigation against them was still on-going. They were only informed of the resolution and information against them after the lapse of six (6) years, or when they received a copy of the said information after its filing with the Sandiganbayan. The Supreme Court, thus, ruled that they could have reasonably assumed that the proceedings against them have already been terminated.

However, the ruling in Coscolluela is not applicable in this case because the accused were very much aware of the pendency of the cases against them. In fact, they submitted their counter-affidavits and filed their motions for reconsideration on the resolution of the Office of the Ombudsman. On April 19, 2017, all the accused, except Pan, filed a Manifestation and Motion to Hold Proceedings in Abeyance in view of the Petition before the Honorable Supreme Court for Certiorari under Rule 65 of the Rules of Court. Subsequently on April 26, 2017, accused Yeo sought a re-determination of probable cause which was denied by this Court for being moot. None of the accused, however, raised the alleged delay in their counter-affidavits, motions for reconsideration, motion for suspension of proceedings, and motion for judicial re-determination of probable cause despite having the opportunity to do so.

Under the present circumstances, such failure amounted to an abandonment or waiver of their right to the speedy disposition of cases against them. Vigilantibus, sed non dorm ientibus, jura subveniunt. The laws aid the vigilant, not those who slumber on their rights. 59

The accused failed to establish any serious prejudice caused by the alleged delay in the conduct of the preliminary investigation or that the Office of the Ombudsman deliberately delayed the preliminary investigation to prejudice them. Also, no accused was incarcerated or preventively suspended before and during the fact-finding investigation, preliminary investigation and

F" 58 GRNos 191411, July 15, 2013. Eduarte v. Court ofAppeals, G.R. No. 121038, July 22, 1999.

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20

trial of this case. In fact, all of them posted bail after the filing of the information in court. 60

Verily, while justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere speed. It cannot be definitely said how long is too long in a system where justice is supposed to be swift, but deliberate. It is consistent with delays and depends upon circumstances. It secures rights to the accused, but it does not preclude the rights of public justice. Also, it must be borne in mind that the rights given to the accused by the Constitution and the Rules of Court are shields, not weapons; hence, courts are to give meaning to that intent. 61

In Datukan Guiani v. Sandiganbayan, 62 the Supreme Court held:

"The right of an accused to a speedy trial is guaranteed to him by the Constitution but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly indicting criminals. While accused persons do have rights, many of them choose to forget that the aggrieved also have the same rights. It secures rights to a defendant but it does not preclude the rights of public justice. A party's individual rights should not work against and preclude the people's equally important right to public justice."

The protection under the right to a speedy disposition of a case should not operate to deprive the government of its inherent prerogative in prosecuting criminal cases or in generally seeing to it that all who approach the bar of justice be afforded a fair opportunity to present their side. 63

On Espiritusanto's motion for reconsideration and manifestation on the Order dated May 11, 2017 cancelling his cash bond and issuing a warrant of arrest against him for failure to appear at the hearing of this case, the Court sees the reason stated therein as valid, and therefore resolves to grant the same.

60 Yeo posted bail on March 30, 2017; Espiritusanto on April 3, 2017; Tarrazona on April 4, 2017; Gregorio, Julian, Alvarez, Toribio, Melad, Bazan, Acufla, Sevilla, Ortega and Ramos on April 5, 2017; and Pan on July 26, 2017.

' Supra, 55. 62 G.R. No. 146897-917, August 6, 2002. 63 Supra, 51. 1

4 04 ~

RESOLUTION

21 People v. Pablo Pan lii, et al. SB-i 7-CRM-0483

WHEREFORE, the Motion to Quash dated May 25, 2017 of accused Jovita K. Yeo, and the Motion to Quash Information and To Dismiss the Case dated June 7, 2017 of accused Santiago G. Acufla, Wilhelmino P. Bazan, Cesar T. Melad, and Reinfredo R. Sevilla, are DENIED for lack of merit.

The Motion for Reconsideration dated May 13, 2017 of accused Tito B. Espiritusanto is GRANTED. His Manifestation dated June 6, 2017 is NOTED. Accordingly, his bail bond is ordered restored and the warrant of arrest is hereby recalled.

SO ORDERED.

/tlRtL L

6IRANDA 6te Justice

(4:* 114A.

Associate ~ust .

,

Chairpeson

MICHAEL FREDERI< L. MUSNGI Associate Julltice