G.R. Nos. 120681-83 October 1, 1999 JEJOMAR C. BINAY, petitioner, vs. HON.

SANDIGANBAYAN (Third Division) and the DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, respondents. G.R. No. 128136 October 1, 1999 MARIO C. MAGSAYSAY, FRANCISCO B. CASTILLO, CRISTINA D. MABIOG, REGINO E. MALAPIT, ERLINDA I. MASANGCAY and VICENTE DE LA ROSA, petitioner, vs. HON. SANDIGANBAYAN, HON. OMBUDSMAN and its PROSECUTOR WENDELL BARERRAS-SULIT and STATE PROSECUTORS ERIC HENRY JOSEPH F. MALLONGA and GIDEON C. MENDOZA, respondents. KAPUNAN, J.: Pursuant to Section 4, Article XIII of the 1973 Constitution, Presidential Decree No. 1486 created an Anti-Graft Court known as the Sandiganbayan. Since then the jurisdiction of the Sandiganbayan has undergone various changes, 1 the most recent of which were effected through Republic Act Nos. 7975 2 and 8249. 3 Whether the Sandiganbayan, under these laws, exercises exclusive original jurisdiction over criminal cases involving municipal mayors accused of violations of Republic Act No. 3019 4 and Article 220 of the Revised Penal Code 5 is the central issue in these consolidated petitions. In G.R. Nos. 120681-83, petitioner Jejomar Binay seeks to annul, among others, the Resolution of the Sandiganbayan denying his motion to refer Criminal Case Nos. 21001, 21005 and 21007 to the Regional Trial Court (RTC) of Makati and declaring that the Sandiganbayan has jurisdiction over said cases despite the enactment of R.A. No. 7975. In G.R. No. 128136, petitioner Mario C. Magsaysay, et al. assail the October 22, 1996 Resolution of the Sandiganbayan, reversing its Order of June 21, 1996 which suspended the proceedings in Criminal Case No 23278 in deference to whatever ruling this Court will lay down in the Binay cases.1wphi1.nt The, facts, as gathered from the records, are as follows: G.R. Nos. 120681-83 On September 7, 1994, the Office of the Ombudsman filed before the Sandiganbayan three separate informations against petitioner Jejomar Binay, one for violation of Article 220 of the Revised Penal Code, 6 and two for violation of Section 3 (e) of R.A. No. 3019. 7 The informations, which were subsequently amended on September 15, 1994, all alleged that the acts constituting these crimes were committed in 1987 during petitioner's incumbency as Mayor of Makati, then a municipality of Metro Manila. Thereafter, petitioner moved to quash the informations. He contented that the six-year delay from the time the charges were filed in the Office of the Ombudsman on July 27, 1988 to the

time the informations were filed in the Sandiganbayan on September 7, 1994 constituted a violation of his right to due process. Arraignment of the accused was held in abeyance pending the resolution of this motion. On March 29, 1995, the Sandiganbayan issued a Resolution denying petitioner's motion to quash. Petitioner's motion for reconsideration, which was opposed by the prosecution, was likewise denied by the Sandiganbayan. The resolution denying the motion for reconsideration, however, was issued before petitioner could file a reply to the prosecution's opposition to the motion for reconsideration. In the meantime, on March 31, 1995, the prosecution filed a "Motion to Suspend Accused Pendente Lite." The Sandiganbayan, in a Resolution dated April 25, 1995, granted the motion and ordered the suspension of petitioner for ninety days from receipt of the resolution. The court ruled that the requisites for suspension pendente lite were present as petitioner was charged with one of the offenses under Section 13 of R.A. No. 3019 8 and the informations containing these charges had previously been held valid in the resolution denying the motion to quash and the resolution denying the motion for reconsideration. Petitioner thus filed before this Court a petition for certiorari, 9 to set aside the resolution denying his motion for reconsideration, claiming that he was denied due process when the Sandiganbayan ordered his suspension pendente lite before he could file a reply to the prosecution's opposition to his motion for reconsideration of the resolution denying the motion to quash. In a Resolution dated April 28, 1995, the Court directed the Sandiganbayan to, among other things, permit petitioner to file said reply. After allowing and considering petitioner's reply, the Sandiganbayan, on June 6, 1995, issued a Resolution reiterating the denial of his motion for reconsideration of the denial of the motion to quash. On the same day, the Sandiganbayan issued another resolution reiterating the order suspending petitioner pendente lite. Meanwhile, R.A. No. 7975, redefining the jurisdiction of the Sandiganbayan, took effect on May 16, 1995. 10 On June 13, 1995, petitioner filed before the Sandiganbayan a motion to refer his cases to the "proper court" for further proceedings, alleging that when the two Resolutions, both dated June 6, 1995, were issued by the Anti-Graft Court, it had already lost jurisdiction over the subject cases. The Sandiganbayan, in a Resolution dated July 4, 1995, denied petitioner's motion, holding thus: There is no question that Municipal Mayors are classified as Grade "27" under the Compensation & Position Classification Act of 1989. Since, at the time of the commission of the offenses charged in the above-entitled cases, the accused Mayor Jejomar C. Binay was a Municipal Mayor, although in an acting or interim capacity, the Sandiganbayan, has, under Section 4 (e) 5, original jurisdiction over the cases therein filed against him. The allegation that Mayor Binay ought to have been classified with a salary grade lower than Grade "27", because at the time of the commission of the offenses charged he was paid a salary which merits a grade lower than Grade "27" does not hold water. In 1986 when the herein offenses were committed by the accused, the Compensation & Position Classification Act of 1989 was not as yet in existence. From the very definition of the very Act itself, it is evident that the Act was passed and had been effective only in 1989. The Grade classification of a public officer, whether at the time of the commission of the offense or thereafter, is determined by his classification under the Compensation & Position Classification Act of 1989. Thus since the

accused Mayor Jejomar C. Binay was a Municipal Mayor at the time of the commission of the offenses and the Compensation & Position Classification Act of 1989 classifies Municipal Mayors as Grade "27", it is a conclusion beyond cavil that the Sandiganbayan has jurisdiction over the accused herein. As of July 1, 1989, when Republic Act No. 6758 took effect, Municipal Mayor Jejomar C. Binay had begun receiving a monthly salary of P15,180.00 which is equivalent to Grade "28" under the salary scale provided for in Section 27 of the said Act. Under the Index of Occupational Services, the position titles and salary grades of the Compensation & Position Classification system prepared by the Department of Budget and Management pursuant to Section 6 of Republic [A]ct No. 6758, the position of Municipal Mayor had been classified as Grade "27." 11 On July 7, 1995, petitioner filed the present petition for certiorari, prohibition and mandamus questioning the jurisdiction of the Sandiganbayan over Criminal Case Nos. 21001, 21005 and 21007. He prayed, among others, that the Court annul and set aside: (1) the Resolution of the Sandiganbayan dated June 6, 1995 reiterating the denial of the motion for reconsideration of the motion to quash; (2) the Resolution of the same court also dated June 6, 1995 reiterating the order suspending petitioner pendente lite; and (3) the Resolution of the Sandiganbayan dated July 4, 1995 denying the motion to refer case to the RTC. Petitioner also asked that the Court issue a temporary restraining order preventing the suspension and arraignment of petitioner. The Court on July 7, 1995, resolved, among others, to issue the temporary restraining order prayed for. On July 14, 1995, petitioner filed an "Addendum to Petition (To allow the introduction of alternative reliefs)," praying that, should this Court hold that the Sandiganbayan has jurisdiction over the cases, the criminal cases filed against him be dismissed just the same on the ground that the long delay of the preliminary investigation before the Ombudsman prior to the filing of the informations, deprived him of his right to due process; and that, moreover, there was no probable cause to warrant the filing of the informations. G.R. No. 128136 Petitioner Mario Magsaysay is the Mayor of the Municipality of San Pascual, Batangas. Save for petitioner Vicente dela Rosa, all of Mayor Magsaysay's co-petitioners are officials of the same municipality. In a complaint dated April 16, 1994, Victor Cusi, then Vice-Mayor of San Pascual, Batangas, charged petitioners along with Elpidia Amada, Jovey C. Babago, and Brigido H. Buhain, also officials of San Pascual Batangas, with violation of R.A. No. 3019, as amended. The complaint charged the respondent municipal officials of overpaying Vicente de la Rosa of TDR Construction for the landscaping project of the San Pascual Central School. This case was docketed in the Office of the Ombudsman as OMB-1-94-1232. In a Resolution dated June 14, 1995, Graft Investigation Officer Lourdes A. Alarilla recommended the filing of an information for violation of Section 3(e) and (g) of R.A. No. 3019, as amended, against petitioners with the Sandiganbayan. Director Elvis John S. Asuncion concurred in the resolution, and Manuel C. Domingo, Deputy Ombudsman for Luzon, recommended approval of the same. The resolution was approved by then Acting Ombudsman Francisco A. Villa with the following marginal note: Authority is given to the Deputy Ombudsman for Luzon to cause the preparation of the information and to approve the same for filing with the proper court. 12

On August 11, 1995, an Information for violation of Section 3(e) and (g) was filed against petitioners and Jovey C. Babago, not with the Sandiganbayan per the June 14, 1995 Resolution, but with the RTC of Batangas City. The information was signed by Lourdes A. Alarilla, the same Graft Investigation Officer who recommended the filing of the information with the Sandiganbayan. In the meantime, a group denominated as the Concerned Citizens of San Pascual, Batangas filed a complaint before the Ombudsman against petitioners, and Elpidia Amada and Brigido Buhain, with violations of R.A. No. 3019. The complaint also alleged, among others, the overpricing of the landscaping project of San Pascual Central School. The case was docketed as OMB-0-94-0149. In a Resolution dated July 27, 1995, Graft Investigation Officer Ernesto M. Nocos recommended the filing of an information charging petitioners with violation of Section 3(e) and (g) of R.A. No. 3019, as amended "with the proper court." The resolution, which was recommended for approval by Nicanor J. Cruz, OIC-Deputy Ombudsman for Luzon, and approved by Ombudsman Aniano A. Desierto, adopted the findings and conclusions in the resolution in OMB-1-94-1232 that the landscaping project was overpriced. On February 9, 1996, another Information for violation of Section 3(e)of R.A. No. 3019, as amended, was filed against petitioners for the overpricing of the landscaping project, this time before the Sandiganbayan. The information was subsequently amended on May 17, 1996. Except for the date the alleged crime was committed, the information charged essentially the same inculpatory facts as the information filed in the RTC. The case was docketed in the Sandiganbayan as Crim. Case No. 22378. On June 1, 1996, the accused filed with the Sandiganbayan a motion to quash the information in Crim. Case No. 22378 on the following grounds: that the Sandiganbayan had no jurisdiction over the case; that the accused were charged with the same offense in two informations; and that the proceedings in the Sandiganbayan would expose petitioners to double jeopardy. The Sandiganbayan denied the accused's motion to quash in a Resolution dated June 21, 1996. The court, however, suspended proceedings in the case until the Supreme Court resolved the question of the Sandiganbayan's jurisdiction involved in the Binay petition. Meanwhile, on June 7, 1996, Prosecutor Eric Mallonga filed a motion before the RTC to refer the R.A. No. 3019 case pending therein to the Sandiganbayan, arguing that under R.A. No. 7975 the Sandiganbayan, not the RTC, had jurisdiction over the case. On July 3, 1996, the RTC issued an order holding in abeyance the resolution of the motion to refer the case since the issue of jurisdiction was pending before the Sandiganbayan. Back at the Sandiganbayan, the prosecution, on July 24, 1996, filed a motion for reconsideration of the Sandiganbayan's Order dated June 21, 1996. On August 2, 1996, filed their own motion for the reconsideration of the same order. On October 22, 1996, the Sandiganbayan granted the motion for reconsideration filed by the prosecution and set the case for arraignment. Petitioners moved for a reconsideration of the October 22, 1996 Resolution ordering their arraignment, which motion was denied on February 17, 1997. On February 27, 1997, the accused filed the present petition. On October 1, 1997, the Court resolved to issue a temporary restraining order to prevent respondents from further proceeding with Crim. Case No. 23278 of the Sandiganbayan.

The petition raises the following issues: I Had the Sandiganbayan been ousted of its jurisdiction over the case of municipal mayor after the passage of Republic Act No. 7975, coupled with the filing earlier of an information for the same offense before the Regional Trial Court having territorial jurisdiction and venue of the commission of the offense? II Are the respondents Ombudsman and the prosecutors estopped by laches or waiver from filing and prosecuting the case before respondent Sandiganbayan after the filing earlier of the information in the proper court, thereafter repudiating it, seeking another court of the same category and finally to respondent court? III Whether or not the filing of two (2) informations for the same offense violated the rule on duplicity of information? IV Whether or not the trial to be conducted by respondent court, if the case shall not be dismissed, will expose the petitioners who are accused therein to double jeopardy? V Under the circumstances, are the respondent Ombudsman and the prosecutors guilty of forum shopping? 13 On October 6, 1997, the Court resolved to consolidate G.R. No. 128136 (the Magsaysay petition) with G.R. Nos. 120681-83 (the Binay petition). In resolving these consolidated petitions, the Court shall first address the common question of the Sandiganbayan's jurisdiction. I The Court rules that it is the Sandiganbayan which has jurisdiction over the subject cases. The informations against Mayor Binay were filed in the Sandiganbayan on July 7, 1994 pursuant to Presidential Decree No. 1606, 14 as amended by Presidential Decree No. 1861, 15 the pertinent provisions of which state: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise:

(a) Exclusive original jurisdiction in all cases involving: (1) 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 of the Revised Penal Code; (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00; PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court and Municipal Circuit Trial Court. xxx xxx xxx On May 16, 1995, R.A. No. 7975 took effect. At this time, Mayor Binay had not yet been arraigned in the Sandiganbayan. On the other hand, R.A. No. 7975 was already in effect when the information against Mayor Magsaysay et al., was filed on August 11, 1995 in the RTC of Batangas City. Sec. 2 of R.A. No. 7975 amended Section 4 of P.D. No. 1606 to read as follows: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise original jurisdiction in all cases involving: 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 of the Revised Penal Code, where one or more of the principal 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: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlunsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all officers of higher rank; (e) PNP chief superintendent and PNP officers of higher rank;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution;

(1) Officials of the executive branch occupying the position 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: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlunsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher;

(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office. c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A. In cases where none of the principal accused are occupying positions corresponding to salary grade "27" or higher, as prescribed in the said Republic Act No. 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court, as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129. xxx xxx xxx While the cases against petitioners were pending in this Court, Congress enacted R.A. No. 8249, again redefining the jurisdiction of the Anti-Graft Court. This law took effect, per Section 10 thereof, on February 23, 1997, fifteen days after its complete publication on February 8, 1997 in the Journal and Malaya, two newspapers of general circulation. As further amended by Section 4 of R.A. No. 8249, Section 4 of P.D. No. 1606 now reads: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: 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:

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. (2) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office. d. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to salary grade "27" or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended.

Petitioners contend that they do not come under the exclusive original jurisdiction of the Sandiganbayan because: (1) At the alleged time of the commission of the crimes charged, petitioner municipal mayors were not classified as Grade 27. (2) Municipal mayors are not included in the enumeration in Section 4a(1) of P.D. No. 1606, as amended by R.A. No. 7975. (3) Congressional records reveal that the law did not intend municipal mayors to come under the exclusive original jurisdiction of the Sandiganbayan. A In support of his contention that his position was not that of Grade 27, Mayor Binay argues: . . . The new law's consistent and repeated reference to salary grades show[s] an intention to base the separation of jurisdiction between the Sandiganbayan and the regular courts on pay scale. Grades are determined by compensation. The essence of grades is pay scales. Therefor, pay scales determine grades. 16 Mayor Binay, thus, presented a Certification 17 from the City Personnel Officer of Makati stating that petitioner as mayor received a monthly salary of only P10,793.00 from March 1987 to December 31, 1988. This amount was supposedly equivalent to Grade 22 under R.A. No. 6758. Mayor Magsaysay, for his part, submitted a similar Certification 18 from the Municipal Treasurer of San Pascual, Batangas, stating: . . . that the basic monthly salary received by Mario C. Magsaysay Municipal Mayor of San Pascual, Batangas with Salary Grade 27 is ELEVEN THOUSAND EIGHT HUNDRED TWENTY EIGHT PESOS (P11,828.00) per month as of November 3, 1993 equivalent only to Grade 25, Step 5 of RA 6758, the Compensation and Position Classification Act of 1989. Sec. 444(1) (Grad[e] 27) of RA 6758 is not as yet implemented due to budgetary constraints. This certification is issued to Mayor Mario C. Magsaysay this 30th day of May 1996 at San Pascual, Batangas for whatever legal purpose and/or purposes it may serve. The Court does not subscribe to the manner by which petitioners classify Grades. The Constitution 19 states that in providing for the standardization of compensation of government officials and employees, Congress shall take "into account the nature of the responsibilities pertaining to, and the qualifications required for their positions," thus: The Congress shall provide for the standardization of compensation of government officials, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions.

Corollary thereto, Republic Act No. 6758 20 provides in Section 2 thereof that differences in pay are to be based "upon substantive differences in duties and responsibilities, and qualification requirements of the positions." In short, the nature of an official's position should be the determining factor in the fixing of his or her salary. This is not only mandated by law but dictated by logic as well. Consistent with these policies, the law employs the scheme known as the "grade" defined in Presidential Decree No. 985 21 as including . . . all classes of positions which, although different with respect to kind or subject matter of work, are sufficiently equivalent as to level of difficulty and responsibilities and level of qualification requirements of the work to warrant the inclusion of such classes of positions within one range of basic compensation. 22 The grade, therefore, depends upon the nature of one's position the level of difficulty, responsibilities, and qualification requirements thereof relative to that of another position. It is the official's Grade that determines his or her salary, not the other way around. It is possible that a local government official's salary may be less than that prescribed for his Grade since his salary depends also on the class and financial capability of his or her respective local government unit. 23 Nevertheless, it is the law which fixes the official's grade. Thus, Section 8 of R.A. No. 6758 fixes the salary grades of the President, Vice-President, Senate President, Speaker, Chief Justice, Senators, Members of the House of Representatives, Associate Justices of the Supreme Court, as well as the Chairmen and Members of the Constitutional Commissions. Section 8 also authorizes the Department of Budget and Management (DBM) to "determine the officials who are of equivalent rank to the foregoing officials, where applicable" and to assign such officials the same Salary Grades subject to a set of guidelines found in said section. For positions below those mentioned under Section 8, Section 9 instructs the DBM to prepare the "Index of Occupational Services" guided by the Benchmark Position prescribed in Section 9 and the factors enumerated therein. To determine whether an official is within the exclusive original jurisdiction of the Sandiganbayan, therefore, reference should be made to R.A. No. 6758 and the Index of Occupational Services, Position Titles and Salary Grades. Salary level is not determinative. An official's grade is not a matter of proof, but a matter of law, of which the Court must take judicial notice. 24 As both the 1989 and 1997 versions of the Index of Occupational Services, Position Titles and Salary Grades list the Municipal Mayor under Salary Grade 27, petitioner mayors come within the exclusive original jurisdiction of the Sandiganbayan. Petitioner mayors are "local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989," under the catchall provision, Section 4a(5) of P.D. No. 1606, as amended by R.A. No. 7975. More accurately, petitioner mayors are "[o]fficials 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," under Section 4a(1) of P.D. No. 1606, as amended by R.A. No. 7975. 25 B

Petitioners, however, argue that they are not included in the enumeration in Section 4a(1). They invoke the rule in statutory construction expressio unius est expressio alterius. As what is not included in those enumerated is deemed excluded, municipal officials are excluded from the Sandiganbayan's exclusive original jurisdiction. Resort to statutory construction, however, is not appropriate where the law is clear and unambiguous. 26 The law is clear in this case. As stated earlier, Section 4a(1) of P.D. No. 1606, as amended by R.A. No. 7975, speaks of "[o]fficials 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." The Court fails to see how a different interpretation could arise even if the plain meaning rule were disregarded and the law subjected to interpretation. The premise of petitioners' argument is that the enumeration in Section 4a(1) is exclusive. It is not. The phrase "specifically including" after "[o]fficials 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" necessarily conveys the very idea of non-exclusivity of the enumeration. The principle of expressio unius est exclusio alterius does not apply where other circumstances indicate that the enumeration was not intended to be exclusive, 27 or where the enumeration is by way of example only. 28 In Conrado B. Rodrigo, et al. vs. The Honorable Sandiganbayan (First Division), supra, the Court held that the catchall in Section 4a(5) was "necessary for it would be impractical, if not impossible, for Congress to list down each position created or will be created pertaining to Grades 27 and above." The same rationale applies to the enumeration in Section 4a(1). Clearly, the law did not intend said enumeration to be an exhaustive list. Should there be any doubt as to whether petitioner mayors are under the category of Grade 27, Section 444(d) of the Local Government Code settles the matter: The municipal mayor shall receive a minimum monthly compensation corresponding to Salary Grade twenty-seven (27) as prescribed under R.A. No. 6758 and the implementing guidelines issued pursuant thereto. In the Court's Resolution in Rodrigo dated July 2, 1999 denying the motion for reconsideration, we treated the above provision as "confirmatory of the Salary Grade assigned by the DBM to Municipal Mayors." C Petitioner Binay cites previous bills 29 in Congress dealing with the jurisdiction of the Sandiganbayan. These bills supposedly sought to exclude municipal officials from the Sandiganbayan's exclusive original jurisdiction to relieve these officials, especially those from the provinces, of the financial burden brought about by trials in Manila. The resort to congressional records to determine the proper application of the law in this case is unwarranted in this case for the same reason that the resort to the rule of inclusio unius est expressio alterius is inappropriate. Verily, the interpretation of the law desired by the petitioner may be more humane but it is also an elementary rule in statutory construction that

when the words and phrases of the statute are clear and unequivocal, their meaning must be determined from the language employed and the statute must be taken to mean exactly what it says. (Baranda v. Gustilo, 165 SCRA 758-759 [1988]). The courts may not speculate as to the probable intent of the legislature apart from the words (Aparri v. CA, 127 SCRA 233 [1984]). When the law is clear, it is not susceptible to interpretation. It must be applied regardless of who may be affected, even if the law may be harsh or onerous. (Nepomuceno, et al. v. FC, 110 Phil. 42). And even granting that exceptions may be conceded, the same as a general rule, should be strictly but reasonably construed; they extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception. Thus, where a general rule is established by statute, the court will not curtail the former nor add to the latter by implication (Samson v. C.A., 145 SCRA 654 [1986]). 30 Thus, in Rodrigo, petitioners therein argued in their motion for reconsideration: . . . that the inclusion of Municipal Mayors within the jurisdiction of the Sandiganbayan would be inconvenient since the witnesses in their case would come from Baguio City and San Nicolas, Pangasinan. This, according to petitioners, would defeat one of the purposes of R.A. No. 7975, that is, the convenience of the accused. The Court, in denying the motion for reconsideration, held, among others, that: The legislature has nevertheless chosen the mode and standard by which to implement its intent, and courts have no choice but to apply it. Congress has willed that positions with Grade 27 and above shall come within the jurisdiction of the Sandiganbayan and this Court is duty-bound to obey the congressional will. Petitioner Binay also quotes the Sponsorship Speech of Senator Roco, stating: Since February 1979, when the Sandiganbayan was established up to the present, the Court has been confronted with the problem of those accused who are of limited means who stand trial for "petty crimes," the so-called "small fry" the barangay officials, the municipal officials and employees, postal clerks and letter carriers and the like who are involved with "nickel-and-dime" cases and money-related cases such as malversation, estafa and theft. . . .1wphi1.nt xxx xxx xxx Senate Bill No. 1353 modifies the present jurisdiction of the Sandiganbayan such that only those occupying high positions in the Government and the military fall under the jurisdiction of the court. 31

It is not clear, however, whether Senator Roco meant that all municipal officials are excluded from the jurisdiction of the Sandiganbayan. In any case, courts are not bound by a legislator's opinion in congressional debates regarding the interpretation of a particular legislation. It is deemed a mere personal opinion of the legislator. 32 Such opinions do not necessarily reflect the view of the entire Congress. 33 D From the foregoing discussion, it is clear that the cases against petitioner Binay cannot be referred to the regular courts under Section 7 of R.A. No. 7975, which provides: Sec. 7. Upon effectivity of this Act, all criminal cases in which trial has not begun in the Sandiganbayan shall be referred to the proper courts. In construing the correct import of Section 7, it may be helpful to refer to the guidelines in determining jurisdiction laid down in Bengzon vs. Inciong: 34 The rule is that where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the cause is not affected by new legislation placing jurisdiction over such proceedings in another tribunal. The exception to the rule is where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment. Where a statute changing the jurisdiction of a court has no retroactive effect, it cannot be applied to a case that was pending prior to the enactment of the statute. R.A. No. 7975, by virtue of Section 7, belongs to the exception rather than the rule. The provision is transitory in nature and expresses the legislature's intention to apply its provisions on jurisdiction to "criminal cases in which trial has not begun in the Sandiganbayan." To this extent, R.A. 7975 is retroactive. Such a transitory provision is not peculiar to R.A. No. 7975; similar provisions are found in other laws reallocating the jurisdiction of the courts. 35 There is no reason why Section 7 of R.A. No. 7975 should be any different. The term "proper courts," as used in Section 7, means "courts of competent jurisdiction," and such jurisdiction is defined in Section 4 of P.D. No. 1606, as amended by R.A. No. 7975. The former should not be read in isolation but construed in conjunction with the latter. The term "proper courts" as used in Section 7, therefore, is not restricted to "regular courts," but includes as well the Sandiganbayan, a special court. If the intent of Congress were to refer all cases the trials of which have not begun to the regular courts, it should have employed the term "proper regular courts" or "regular courts" instead of "proper courts." Accordingly, the law in the third paragraph of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, uses the term "regular courts," not "proper courts": The Sandiganbayan shall exercise exclusive appellate jurisdiction on appeals from the final judgments, resolutions or orders of regular courts where all the accused are occupying positions lower than salary grade "27," or not otherwise covered by the preceding enumeration. [emphasis supplied.]

Construed thus, the effects of Section 7 may be summarized as follows: 1. If trial of cases before the Sandiganbayan has already begun as of the approval of R.A. No. 7975, R.A. No. 775 does not apply. 2. If trial of cases before the Sandiganbayan has not begun as of the approval of R.A. No. 7975, then R.A. No. 7975 applies. (a) If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, the Sandiganbayan has jurisdiction over a case before it, then the cases shall be referred to the Sandiganbayan. (b) If by virtue of Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975, the Sandiganbayan has no jurisdiction over a case before it, the case shall be referred to the regular courts. The trial of the cases involving Mayor Binay had not yet begun as of the date of the approval of R.A. No. 7975; consequently, the Anti-Graft Court retains jurisdiction over said cases. In any case, whatever seeming ambiguity or doubt regarding the application of Section 7 of R.A. No. 7975 should be laid to rest by Section 7 of R.A. No. 8249, which states: Sec. 7. Transitory Provision. This Act shall apply to all cases pending in any court over which trial has not begun as of the approval hereof. The latter provision more accurately expresses the legislature's intent and in any event should be applied in this case, R.A. No. 8249 having superseded R.A. No. 7975. In Panfilo M. Lacson vs. The Executive Secretary, et al., the foregoing provision.
36

the Court explained the purpose of

. . . it can be reasonably anticipated that an alteration of [the Sandiganbayan's] jurisdiction would necessarily affect pending cases, which is why it has to provide for a remedy in the form of a transitory provision. . . . . The transitory provision does not only cover cases which are in the Sandiganbayan but also in "any court." . . . . Moreover, those cases where trial had already begun are not affected by the transitory provision under Section 7 of the new law (RA 8249). [Emphasis in the original.] The possible disruptive effect of the amendments to the Sandiganbayan's jurisdiction on pending cases was, therefore, not lost on the legislature. Congress has, furthermore, deemed the commencement of the trial as the crucial point in determining whether a court retains a case pending before it or lose the same on the ground of lack of jurisdiction per the provisions of R.A. No. 8249. The law obviously does not want to waste the time and effort already devoted to the presentation of evidence if trial had already begun. On the other hand, not much disruption would be caused if the amendment were made to apply to cases the trials of which have yet to start. The ramifications of Section 7 of R.A. No. 8249 may be stated as follows:

1. If trial of the cases pending before whatever court has already begun as of the approval of R.A. No. 8249, said law does not apply. 2. If trial of cases pending before whatever court has not begun as of the approval of R.A. No. 8249, then said law applies. (a) If the Sandiganbayan has jurisdiction over a case pending before it, then it retains jurisdiction. (b) If the Sandiganbayan has no jurisdiction over a case pending before it, the case shall be referred to the regular courts. (c) If the Sandiganbayan has jurisdiction over a case pending before a regular court, the latter loses jurisdiction and the same shall b referred to the Sandiganbayan. (d) If a regular court has jurisdiction over a case pending before it, then said court retains jurisdiction. Thus, under both R.A. Nos. 7975 and 8429, the Sandiganbayan retains jurisdiction over said cases. II Petitioner Binay avers in his Addendum to Petition that his right to speedy disposition has been violated by the inordinate delay in the resolution of the subject cases by the Ombudsman. Art. III of the Constitution provides that: Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. The constitutional right to "a speedy disposition of cases" is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings. 37 Hence, under the Constitution, any party to a case may demand expeditious action on all officials who are tasked with the administration of justice. 38 However, the right to a speedy disposition of a case, like the right to speedy trial, 39 is deemed violated only when the proceedings is 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 period of time is allowed to elapse without the party having his case tried. 40 Equally applicable is the balancing test used to determine whether a defendant has been denied his right to a speedy trial, or a speedy disposition of a case for that matter, in which the conduct of both the prosecution and the defendant is weighed, and such factors as the length of the delay, the reasons for such delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the delay. 41 The concept of speedy disposition is a relative term and must necessarily be a flexible concept. 42

A mere mathematical reckoning of the time involved, therefore, would not be sufficient. 43 In the application of the constitutional guarantee of the right to speedy disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case. 44 In Tatad vs. Sandiganbayan, 45 the Court held that the length of delay and the simplicity of the issues did not justify the delay in the disposition of the cases therein. The "unexplained inaction" 46 of the prosecutors called for the dismissal of the cases against petitioner Tatad. In Alvizo vs. Sandiganbayan, 47 the Court also ruled that there was no violation of the right to speedy disposition. The Court took into account the reasons for the delay, i.e., the frequent amendments of procedural laws by presidential decrees, the structural reorganizations in existing prosecutorial agencies and the creation of new ones by executive fiat, resulting in changes of personnel, preliminary jurisdiction, and the functions and powers of prosecuting agencies. The Court likewise considered the failure of the accused to assert such right, and the lack of prejudice caused by the delay to the accused. In Santiago vs. Garchitorena, 48 the complexity of the issues and the failure of the accused to invoke her right to speedy disposition at the appropriate time spelled defeat to her claim to the constitutional guarantee. In Cadalin vs. POEA's Administrator, 49 the Court, considering also the complexity of the cases ("not run-of-the-mill variety") and the conduct of the parties' lawyers, held that the right to speedy disposition was not violated therein. In petitioner Binay's case, the Court finds that there was no undue delay in the disposition of the subject cases. The proceedings conducted before the Office of the Tanodbayan, and later with the Office of the Ombudsman, adequately explains the length of the delay: 1. That on July 27, 1988 Bobby Brillante filed with the Office of the Tanodbayan an affidavitcomplaint charging, Jejomar Binay, Sergio Santos, Roberto Chang, Delfin Almeda, Nelson Irasga, Nicasio Santiago, Feliciano Basam, Maria Chan, Romeo Barrios, Azucena Diaz, Virgilio Clarete, Godofredo Marcelo, Armando San Miguel, Salvador Pangilinan and John Does of the following offenses: (a) Massive Malversation of Public Funds; (b) Multiple Falsification of Public Documents; (c) Usurpation of Official Functions; (d) Violation of Election Law; and (e) Violation of Sec. 3(e) of R.A. 3019. 1.1. Brillante's complaint was based on the initial findings and observations of the COA on the examination of the cash and accounts covering transactions from April 1, 1987 to January 4, 1988 and Post-Audit of Selected Accounts for the last quarter of 1987 of the Municipality of Makati contained in its Report dated January 11, 1988. The COA furnished the Tanodbayan a copy of this report on August 1, 1988 upon request of the latter. 1.2. In the letter of the COA transmitting a copy of the report, the Tanodbayan was informed that this COA audit report of January 11, 1988 is not yet released since the Mayor of Makati was given thirty days within which to explain/clarify the findings in the report and is subject to change or modification depending upon the explanation/clarification to be submitted by the Mayor of Makati. Because of this the information from the COA the preliminary investigation was held in abeyance until the submission of the final report.

1.3. On March 1, 1989, the first part of the Final Report on Audit of Makati was received by the Office of the Ombudsman and was transmitted for purposes of the ensuring preliminary investigation to the Tanodbayan which received the same on March 22, 1989. 1.4. This first part of the Final Report contained the fifteen (15) adverse findings, above elsewhere stated as the basis of Bobby Brillante's complaint. 1.5. Eleven (11) COA auditors participated in the documentation and analysis of its findings and preparation of the final report. 1.6. The first part of the final report was followed by a Supplemental Report on Findings No. 1 and 3. This Supplemental Report is dated July 3, 1989. 2. After securing machine copies of the voluminous documents supporting the COA findings, Pros. Margarito Gervacio, Chairman of the Panel of Prosecutors, issued the corresponding subpoena directing the respondents to submit their respective counter-affidavits. 2.1. In compliance with the subpoena, Mayor Jejomar Binay submitted his counter-affidavit on May 18, 1990, Marissa Chan, Feliciano Bascon, Nicanor Santiago, Jr. on June 19, 1990, Renato Manrique on June 4, 1990, Alfredo Ignacio on June 6, 1990, Roberto Chang on August 27, 1990. Feliciano Bascon submitted his Supplemental Affidavit on November 22, 1990. 2.2. Thereafter, clarificatory examinations were conducted on September 27, 1990, October 26, 1990, November 8, 9, 14, 22, 1990. 3. On January 15, 1991 Mayor Jejomar Binay submitted a copy of this Petition for Certiorari in G.R. No. 92380 which he and the municipality of Makati filed with the Supreme Court against COA Chairman, Eufemio Domingo and the Commission on Audit, with a manifestation that said petition is submitted to support Binay's stand as regard COA Finding No. 9 aforestated. 4. On April 2, 1992 respondent Marissa Chan filed an affidavit containing allegations incriminating Jejomar Binay; 5. Upon being ordered to comment on the said April 2, 1992 affidavit of Marissa Chan, Jejomar Binay submitted his comment thereto on April 30, 1992. 6. On August 4, 1993, the Investigation Panel submitted to the Deputy Special Prosecutor its Resolution disposing the preliminary investigation of the case. 6.1. On August 10, 1993 the said Resolution was approved by the Special Prosecutor, who forwarded the same and the entire records to the Office of the Ombudsman for review and/or final action. 6.2. On August 16, 1994, the Review Panel of the Ombudsman submitted to the latter its review action for approval. 6.3. On August 19, 1994; the Ombudsman approved some of the recommendations of the Review Panel and directed the preparation and filing of the informations. 50

Furthermore, the prosecution is not bound by the findings of the Commission on Audit (COA); it must rely on its own independent judgment in the determination of probable cause. Accordingly, the prosecution had to conduct its own review of the COA findings. Judging from said findings, we find that the cases were sufficiently complex, thus justifying the length of time for their resolution. As held by the Sandiganbayan in its Resolution dated March 29, 1995 denying the Motion to Quash: 2. Ten charges are involved in these cases and the prosecution, unable to rely on the raw findings of the Commission on Audit in 15 reports caused the investigation and examination of thousands of vouchers, payrolls, and supporting documents considering that no less than the Chairman of the Commission on Audit, assisted by a team supervisor and 10 team members had to take part in the conduct of a final audit consisting of evaluation and analysis of the initial findings in the 15 raw reports, the cases must have involved complicated legal and factual issues which do warrant or justify a longer period of time for preliminary investigation. xxx xxx xxx 5. In the TATAD case, the preliminary investigation was resolved close to three (3) years from the time all the counter-affidavits were submitted to the Tanodbayan, notwithstanding the fact that very few documentary and testimonial evidence were involved. In the above-entitled cases, the preliminary investigation of all ten (10) cases was terminated in merely two (2) years and four (4) months from the date Mayor Binay filed his last pleading, on April 30, 1992.
51

Petitioner claims that the Resolution of the Sandiganbayan ordering his suspension pendente lite is unwarranted since the informations charging him were not valid. This contention, however, must fail in view of our pronouncement that there was no delay in the resolution of the subject cases in violation of his right to speedy disposition. Accordingly, the informations in question are valid and petitioner's suspension pendente lite must be upheld. Finally, whether or not there is probable cause to warrant the filing of the subject cases is a question best left to the discretion of the Ombudsman. Absent any grave abuse of such discretion, the Court will not interfere in the exercise thereof. 52 Petitioner in this case has failed to establish any such abuse on the part of the Ombudsman. III Having ruled that the criminal case against petitioners in G.R. No. 128136 is within the exclusive original jurisdiction of the Sandiganbayan, the Court will now dispose of the following issues raised by them: (1) The Sandiganbayan was ousted of its jurisdiction by the filing of an information alleging the same facts with the Regional Trial Court. (2) Respondents are estopped from filing an information before the Sandiganbayan considering that they had already filed another information alleging the same facts before the Regional Trial Court. (3) The filing of the information before the Sandiganbayan constitutes double jeopardy.

The Court tackles these arguments successively then deals with the questions of duplicity of information and forum shopping. Petitioners invoke the rule that "the jurisdiction of a court once it attaches cannot be ousted by subsequent happenings or events, although of such character which would have prevented jurisdiction from attaching in the first instance." 53 They claim that the filing of the information in the Sandiganbayan was a "subsequent happening or event" which cannot oust the RTC of its jurisdiction. This rule has no application here for the simple reason that the RTC had no jurisdiction over the case. Jurisdiction never attached to the RTC. When the information was filed before the RTC, R.A. No. 7975 was already in effect and, under said law, jurisdiction over the case pertained to the Sandiganbayan. Neither can estoppel be successfully invoked. First, jurisdiction is determined by law, not by the consent or agreement of the parties or by estoppel. 54 As a consequence of this principle, the Court held in Zamora vs. Court of Appeals 55 that: It follows that as a rule the filing of a complaint with one court which has no jurisdiction over it does not prevent the plaintiff from filing the same complaint later with the competent court. The plaintiff is not estopped from doing so simply because it made a mistake before in the choice of the proper forum. In such a situation, the only authority the first court can exercise is to dismiss the case for lack of jurisdiction. This has to be so as a contrary conclusion would allow a party to divest the competent court of its jurisdiction, whether erroneously or even deliberately, in derogation of the law. It is true that the Court has ruled in certain cases 56 that estoppel prevents a party from questioning the jurisdiction of the court that the party himself invoked. Estoppel, however, remains the exception rather than the rule, the rule being that jurisdiction is vested by law. 57 Even in those instances where the Court applied estoppel, the party estopped consistently invoked the jurisdiction of the court and actively participated in the proceedings, impugning such jurisdiction only when faced with an adverse decision. This is not the case here. After discovering that a similar information had earlier been filed in the RTC, respondents promptly asked the trial court to refer the case to the Sandiganbayan, which motion was followed by a motion to resolve the previous motion. There was no consistent invocation of the RTC's jurisdiction. There were no further proceedings after the filing of the information save for the motion to refer the case precisely on the ground of lack of jurisdiction, and the motion to resolve the earlier motion. Finally, the trial court had not rendered any decision, much less one adverse to petitioners. Second, petitioners cannot hold respondents in estoppel for the latter are not themselves party to the criminal action. In a criminal action, the State is the plaintiff, for the commission of a crime is an offense against the State. Thus, the complaint or information filed in court is required to be brought in the name of the "People of the Philippines." 58 Even then, the doctrine of estoppel does not apply as against the people in criminal prosecutions. 59 Violations of the Anti-Graft and Corrupt Practices Act, like attempted murder, 60 is a public offense. Social and public interest demand the punishment of the offender; hence, criminal actions for public offenses can not be waived or condoned, much less barred by the rules of estoppel. 61 The filing of the information in the Sandiganbayan did not put petitioners in double jeopardy even though they had already pleaded "not guilty" to the information earlier filed in the RTC. The first jeopardy never attached in the first place, the RTC not being not being a court of

competent jurisdiction. There can be no double jeopardy where the accused entered a plea in a court that had no jurisdiction. 62 The remedy of petitioners, therefore, was not to move for the quashal of the information pending in the Sandiganbayan on the ground of double jeopardy. 63 Their remedy was to move for the quashal of the information pending in the RTC on the ground of lack of jurisdiction. 64 The contention that the filing of the information in the Sandiganbayan violated the rule against duplicitous informations is patently unmeritorious. That rule presupposes that there is one complaint or information charging not one offense, but two or more offenses. Thus, Rule 110 of the Rules of Court states: Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses. Non-compliance with this rule is a ground for quashing the duplicitous complaint or information under Rule 117: Sec. 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds: xxx xxx xxx (e) That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses; xxx xxx xxx Here, petitioners are faced not with one information charging more than one offense but with more than one information charging one offense. The Court does not find the prosecution guilty of forum-shopping. Broadly speaking, forum shopping exists when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another, or when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition. 65 We discern no intent on the part of the State, in filing two informations in two different courts, to "gamble that one or the other court would make a favorable disposition." Obviously, respondents got their signals crossed. One set of officials, after investigating a complaint filed by the Vice-Mayor of San Pascual, Batangas charging petitioners of overpricing, filed the information for violation of Section 3(e) of R.A. No. 3019 in the RTC. Another set of officials investigated another complaint from the Concerned Citizens Group accusing petitioners of, among others, overpricing the same project subject of the previous complaint. Finding probable cause, the second set of officials instituted the criminal action, charging the same offense and alleging essentially the same facts as the first, this time in the Sandiganbayan. Later learning of the procedural faux pas, respondents without undue delay asked the RTC to refer the case to the Sandiganbayan. WHEREFORE, the consolidated petitions are hereby DISMISSED.

10

Bellosillo, Melo, Puno, Vitug, Mendoza, Purisima, Pardo, Buena, Gonzaga-Reyes and YnaresSantiago, JJ., concur. Davide, Jr., C.J., I join Mr. Justice Panganiban in his separate opinion. Panganiban, J., please see separate opinion. Quizumbing, J., concur in the separate opinion of Justice Panganiban. Separate Opinions PANGANIBAN, J., separate opinion; I concur with the majority that, as a rule, the Sandiganbayan retains jurisdiction over criminal cases involving municipal mayors. Due to their peculiar factual circumstances, however, Petitioner Binay's cases, I believe, should be deemed exceptions and referred to the "proper courts," that is, the regional trial courts. These factual circumstances are simple: (1) the Informations charging Binay were filed in the Sandiganbayan on July 7, 1994, prior the enactment of RA 7975; and (2) when RA 7975 took effect on May 16, 1995, trial in the anti-graft court had not yet commenced. In fact, Binay had not been arraigned yet. These undisputed facts are plainly governed by the unambiguous provision of Section 7, RA 7975, which reads: Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun in the Sandiganbayan shall be referred to the proper courts. The majority, however, complicates the above syllogistic application of the law by ruling that before Section 7 could be used, a prior determination as to which court has jurisdiction over the cases should first be undertaken. Since the aforesaid general rule states that the Sandiganbayan retains jurisdiction over municipal mayors, then Binay's cases should be referred by the anti-graft court to itself, not to the regional trial courts. With due respect, I believe this rather circumlocutory interpretation renders Section 7 useless. In fact, I daresay that said interpretation or explanation is much more difficult to understand than the provision itself. Indeed, why should the words "proper courts" be deemed to include the Sandiganbayan? The majority's ruling leads to the absurdity of the Sandiganbayan's being required to refer to itself a criminal case already pending before it, one in which trial has not yet begun. I would rather rest on the most fundamental rule in statutory construction: Interpretation is needed only when the law is vague, not when it is clear and unambiguous, 1 as in the case of Section 7, RA 7975. Consequently, I vote (1) to GRANT the Petition in G.R. Nos. 120681-83, because Binay's cases fall under the exception stated in Section 7, RA 7975; and (2) to DISMISS the Petition in G.R. No. 128136, because Petitioner Magsaysay's cases were filed after RA 7975 had taken effect; they are thus covered by the general rule that the Sandiganbayan has jurisdiction over municipal mayors. Separate Opinions

PANGANIBAN, J., separate opinion; I concur with the majority that, as a rule, the Sandiganbayan retains jurisdiction over criminal cases involving municipal mayors. Due to their peculiar factual circumstances, however, Petitioner Binay's cases, I believe, should be deemed exceptions and referred to the "proper courts," that is, the regional trial courts. These factual circumstances are simple: (1) the Informations charging Binay were filed in the Sandiganbayan on July 7, 1994, prior the enactment of RA 7975; and (2) when RA 7975 took effect on May 16, 1995, trial in the anti-graft court had not yet commenced. In fact, Binay had not been arraigned yet. These undisputed facts are plainly governed by the unambiguous provision of Section 7, RA 7975, which reads: Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun in the Sandiganbayan shall be referred to the proper courts. The majority, however, complicates the above syllogistic application of the law by ruling that before Section 7 could be used, a prior determination as to which court has jurisdiction over the cases should first be undertaken. Since the aforesaid general rule states that the Sandiganbayan retains jurisdiction over municipal mayors, then Binay's cases should be referred by the anti-graft court to itself, not to the regional trial courts. With due respect, I believe this rather circumlocutory interpretation renders Section 7 useless. In fact, I daresay that said interpretation or explanation is much more difficult to understand than the provision itself. Indeed, why should the words "proper courts" be deemed to include the Sandiganbayan? The majority's ruling leads to the absurdity of the Sandiganbayan's being required to refer to itself a criminal case already pending before it, one in which trial has not yet begun. I would rather rest on the most fundamental rule in statutory construction: Interpretation is needed only when the law is vague, not when it is clear and unambiguous, 1 as in the case of Section 7, RA 7975. Consequently, I vote (1) to GRANT the Petition in G.R. Nos. 120681-83, because Binay's cases fall under the exception stated in Section 7, RA 7975; and (2) to DISMISS the Petition in G.R. No. 128136, because Petitioner Magsaysay's cases were filed after RA 7975 had taken effect; they are thus covered by the general rule that the Sandiganbayan has jurisdiction over municipal mayors.

11

Since the constitutionality of the "Bouncing Check Law" has already been sustained by this Court in Lozano v. Martinez 3 and the seven (7) other cases decided jointly with it, 4 the remaining issue, as aptly stated by private respondent in his Memorandum, is whether a memorandum check issued postdated in partial payment of a pre-existing obligation is within the coverage of B.P. 22. Citing U.S. v. Isham, 5 private respondent contends that although a memorandum check may not differ in form and appearance from an ordinary check, such a check is given by the drawer to the payee more in the nature of memorandum of indebtedness and, should be sued upon in a civil action. G.R. No. 75954 October 22, 1992 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court, Branch 52, Manila, and K.T. LIM alias MARIANO LIM, respondents. We are not persuaded. A memorandum check is in the form of an ordinary check, with the word "memorandum", "memo" or "mem" written across its face, signifying that the maker or drawer engages to pay the bona fide holder absolutely, without any condition concerning its presentment. 6 Such a check is an evidence of debt against the drawer, and although may not be intended to be presented, 7 has the same effect as an ordinary check, 8 and if passed to the third person, will be valid in his hands like any other check. 9 From the above definition, it is clear that a memorandum check, which is in the form of an ordinary check, is still drawn on a bank and should therefore be distinguished from a promissory note, which is but a mere promise to pay. If private respondent seeks to equate memorandum check with promissory note, as he does to skirt the provisions of B.P. 22, he could very well have issued a promissory note, and this would be have exempted him form the coverage of the law. In the business community a promissory note, certainly, has less impact and persuadability than a check. Verily, a memorandum check comes within the meaning of Sec. 185 of the Negotiable Instruments Law which defines a check as "a bill of exchange drawn on a bank payable on demand." A check is also defined as " [a] written order or request to a bank or persons carrying on the business of banking, by a party having money in their hands, desiring them to pay, on presentment, to a person therein named or bearer, or to such person or order, a named sum of money," citing 2 Dan. Neg. Inst. 528; Blair v. Wilson, 28 Gratt. (Va.) 170; Deener v. Brown, 1 MacArth. (D.C.) 350; In re Brown, 2 Sto. 502, Fed. Cas. No. 1,985. See Chapman v. White, 6 N.Y. 412, 57 Am. Dec 464. 10 Another definition of check is that is "[a] draft drawn upon a bank and payable on demand, signed by the maker or drawer, containing an unconditional promise to pay a sum certain in money to the order of the payee," citing State v. Perrigoue, 81 Wash, 2d 640, 503 p. 2d 1063, 1066. 11 A memorandum check must therefore fall within the ambit of B.P. 22 which does not distinguish but merely provides that "[a]ny person who makes or draws and issues any check knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank . . . which check is subsequently dishonored . . . shall be punished by imprisonment . . ." (Emphasis supplied ). 12 Ubi lex no distinguit nec nos distinguere debemus. But even if We retrace the enactment of the "Bouncing Check Law" to determine the parameters of the concept of "check", We can easily glean that the members of the then Batasang Pambansa intended it to be comprehensive as to include all checks drawn against banks. This was particularly the ratiocination of Mar. Estelito P. Mendoza, co-sponsor of Cabinet Bill No. 9 which later became B.P. 22, when in response to the interpellation of Mr. Januario T. Seo, Mr. Mendoza explained that the draft or order must be addressed to a bank

BELLOSILLO, J.: Failing in his argument that B.P. 22, otherwise known as the "Bouncing Check Law", is unconstitutional, 1 private respondent now argues that the check he issued, a memorandum check, is in the nature of a promissory note, hence, outside the purview of the statute. Here, his argument must also fail. The facts are simple. Private respondent K.T. Lim was charged before respondent court with violation of B.P. 22 in an Information alleging That on . . . January 10, 1985, in the City of Manila . . . the said accused did then and there wilfully, unlawfully and feloniously make or draw and issue to Fatima Cortez Sasaki . . . Philippine Trust Company Check No. 117383 dated February 9, 1985 . . . in the amount of P143,000.00, . . . well knowing that at the time of issue he . . . did not have sufficient funds in or credit with the drawee bank . . . which check . . . was subsequently dishonored by the drawee bank for insufficiency of funds, and despite receipt of notice of such dishonor, said accused failed to pay said Fatima Cortez Sasaki the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. 2 On 18 July 1986, private respondent moved to quash the Information of the ground that the facts charged did not constitute a felony as B.P. 22 was unconstitutional and that the check he issued was a memorandum check which was in the nature of a promissory note, perforce, civil in nature. On 1 September 1986, respondent judge, ruling that B.P. 22 on which the Information was based was unconstitutional, issued the questioned Order quashing the Information. Hence, this petition for review on certiorari filed by the Solicitor General in behalf of the government.

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or depository, 13 and accepted the proposed amendment of Messrs. Antonio P. Roman and Arturo M. Tolentino that the words "draft or order", and certain terms which technically meant promissory notes, wherever they were found in the text of the bill, should be deleted since the bill was mainly directed against the pernicious practice of issuing checks with insufficient or no funds, and not to drafts which were not drawn against banks. 14 A memorandum check, upon presentment, is generally accepted by the bank. Hence it does not matter whether the check issued is in the nature of a memorandum as evidence of indebtedness or whether it was issued is partial fulfillment of a pre-existing obligation, for what the law punishes is the issuance itself of a bouncing check 15 and not the purpose for which it was issuance. The mere act of issuing a worthless check, whether as a deposit, as a guarantee, or even as an evidence of a pre-existing debt, is malum prohibitum. 16 We are not unaware that a memorandum check may carry with it the understanding that it is not be presented at the bank but will be redeemed by the maker himself when the loan fall due. This understanding may be manifested by writing across the check "Memorandum", "Memo" or "Mem." However, with the promulgation of B.P. 22, such understanding or private arrangement may no longer prevail to exempt it from penal sanction imposed by the law. To require that the agreement surrounding the issuance of check be first looked into and thereafter exempt such issuance from the punitive provision of B.P. 22 on the basis of such agreement or understanding would frustrate the very purpose for which the law was enacted to stem the proliferation of unfunded checks. After having effectively reduced the incidence of worthless checks changing hands, the country will once again experience the limitless circulation of bouncing checks in the guise of memorandum checks if such checks will be considered exempt from the operation of B.P. 22. It is common practice in commercial transactions to require debtors to issue checks on which creditors must rely as guarantee of payment. To determine the reasons for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public responses in the stability and commercial value of checks as currency substitutes, and bring about havoc in trade and in banking communities. 17 WHEREFORE, the petition is GRANTED and the Order of respondent Judge of 1 September 1986 is SET ASIDE. Consequently, respondent Judge, or whoever presides over the Regional Trial Court of Manila, Branch 52, is hereby directed forthwith to proceed with the hearing of the case until terminated. SO ORDERED. Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon, Bellosillo and Melo, JJ., concur. Narvasa, C.J., is on leave.

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for further hearing so as to give the prosecution time to secure such temporary restraining order from the Supreme Court. On July 13, 1994, herein private respondents filed a motion to set the case for hearing, invoking their constitutional right to speedy trial. The respondent judge granted the motion, and set the case for hearing on July 29, 1994. On the said date, the prosecution filed a motion for reconsideration, instead of presenting further evidence. The respondent Judge postponed the hearing and reset the same for August 9, 1994. On August 9, 1994, again the prosecution filed a motion for reconsideration, invoking its pending petition for certiorari with the Supreme Court. The private respondents, thru counsel, objected to any further resetting as this would constitute a violation of their right to a speedy trial. The respondent judge called for a recess so as to let the prosecution decide whether or not to present an NBI agent, who was then present, to prove the due execution of the accused Nuada's extrajudicial confession. However, after the recess, the public prosecutor declined to present the NBI agent, and instead manifested that he was not presenting any further evidence. The defense then moved that the cases be deemed submitted for decision, and asked leave of court to file a demurrer to evidence. On August 29, 1994, the Solicitor General filed [in G.R. No. 113273-78] a motion for issuance of a writ of preliminary injunction or temporary restraining order with the Supreme Court, to enjoin the respondent judge from proceeding with the resolution of the case. However, on September 19, 1994, the motion was denied by the Supreme Court. In due time, the accused filed their demurrer to evidence x x x.4 On October 21, 1994, the trial court issued the assailed Order, the dispositive portion of which reads: For lack of sufficient evidence to prove the guilt of the accused beyond reasonable doubt, all the accused in all these cases are hereby ACQUITTED and the cases filed against them are hereby DISMISSED. The accused in all these cases, being detention prisoners, are hereby ordered RELEASED from detention, unless they are being detained for some other legal cause. SO ORDERED.5 Petitioner Leticia Merciales, who is the mother of the victim in the said criminal cases, filed before the respondent Court of Appeals a petition to annul the foregoing Order of the trial court. However, the Court of Appeals dismissed the petition on October 4, 1995. A motion for reconsideration was denied on March 6, 1996. Hence, the instant petition based on the ground that:

G.R. No. 124171

March 18, 2002

LETICIA R. MERCIALES, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES, JOSELITO NUADA, PAT. EDWIN MORAL, ADONIS NIEVES, ERNESTO LOBETE, DOMIL GRAGEDA, and RAMON "POL" FLORES, respondents. YNARES-SANTIAGO, J.: Petitioner seeks the reversal of the Decision of the Court of Appeals1 in CA-G.R. SP No. 37341, denying her petition to annul the Order of the Regional Trial Court of Legazpi City, Branch 8,2 in Criminal Case Nos. 6307-6312, which dismissed the charge of rape with homicide based on a demurrer to evidence filed by private respondents, accused therein. The antecedent facts as succinctly synthesized by the respondent court are as follows: On August 12, 1993, Criminal Case Nos. 6307, 6308, 6309, 6310, 6311, and 6312, for rape with homicide, in connection with the death of one Maritess Ricafort Merciales, were filed against the private respondents, Joselito Nuada, Pat. Edwin Moral, Adonis Nieves, Ernesto Lobete, Domil Grageda and Ramon "Pol" Flores, before the Regional Trial Court, Fifth Judicial Region, Legaspi City. The said cases were consolidated in Branch 8, presided over by the respondent judge. During the trial, after presenting seven witnesses, the public prosecutor filed a motion for the discharge of accused Joselito Nuada, in order that he may be utilized as a state witness. However, the prosecution contended that it was not required to present evidence to warrant the discharge of accused Nuada, since the latter had already been admitted into the Witness Protection Program of the Department of Justice. Consequently, the respondent judge denied the motion for discharge, for failure of the prosecution to present evidence as provided for by Section 9, Rule 119 of the 1985 Rules on Criminal Procedure. On December 22, 1993, the prosecution filed a petition3 for certiorari [G.R. No. 113273-78] before the Supreme Court, questioning the respondent judge's denial of the motion to discharge the accused Nuada. Despite the fact that the petition did not contain a prayer for a temporary restraining order, the trial judge did not set the case

14

THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT REFUSED TO NULLIFY THE ORDER DATED OCTOBER 21, 1994 OF THE TRIAL COURT FOR BEING NULL AND VOID ON THE GROUND THAT THE TRIAL JUDGE TOLERATED AND/OR COMMITTED INJUSTICE BY FAILING TO REQUIRE THE PROSECUTION TO PRESENT ALL THEIR EVIDENCE INSTEAD OF SUPPRESSING THEM APPARENTLY TO FAVOR THE ACCUSED IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO DUE PROCESS, OUSTING THE TRIAL COURT OF ITS JURISDICTION.6 The case was set for oral argument on December 11, 2001. Counsel for petitioner and the Solicitor General appeared. During the oral argument, the Solicitor General manifested that he was joining the cause of petitioner in order to prevent a miscarriage of justice. The Court directed the parties to submit their respective memoranda in amplification of the points raised during the oral argument. Petitioner maintains that the reopening of the criminal case will not violate the accused's right to double jeopardy. More particularly, she ascribes prosecutorial and judicial misconduct in the undue haste which attended the prosecution's premature resting and the trial court's grant of the demurrer to evidence when the presentation of the evidence for the prosecution has not been completed. Private respondent Ramon Flores filed his Memorandum, arguing that petitioner, being the private complainant in the criminal case below, has no legal standing to appeal the acquittal of private respondents; that there was no extrinsic fraud, abuse of discretion or jurisdictional defect to warrant either a petition for annulment of judgment or certiorari; and that the reopening of the criminal case will violate the accused's right against double jeopardy. It is true that a private complainant cannot bring an action questioning a judgment of acquittal, except insofar as the civil aspect of the criminal case is concerned.7 In the case at bar, we agree with petitioner that this issue was rendered moot when the Solicitor General, in representation of the People, changed his position and joined the cause of petitioner, thus fulfilling the requirement that all criminal actions shall be prosecuted under the direction and control of the public prosecutor.8 In any event, petitioner has an interest in the maintenance of the criminal prosecution, being the mother of the deceased rape victim. The right of offended parties to appeal an order of the trial court which deprives them of due process has always been recognized, the only limitation being that they cannot appeal any adverse ruling if to do so would place the accused in double jeopardy.9 The criminal case below was for rape with homicide. Although the public prosecutor presented seven witnesses, none of these actually saw the commission of the crime. It was only Joselito Nuada, one of the accused, who came forward and expressed willingness to turn state witness. His testimony was vital for the prosecution, as it would provide the only eyewitness account of the accused's complicity in the crime. The trial court required the public prosecutor to present evidence to justify Nuada's discharge as a state witness, but the latter insisted that there was no need for such proof since Nuada had already been admitted into the Witness Protection Program of the Department of Justice. The public prosecutor's obstinate refusal to present the required evidence prompted the trial court to deny the motion to discharge Nuada. The prosecution elevated the matter to the Supreme Court on a petition for certiorari. Meanwhile, the accused moved to set the case for hearing, invoking their constitutional right to

speedy trial. The trial court granted the motion. The public prosecutor moved for a continuance, and the trial court acceded. At the next scheduled hearing, however, the trial court denied a similar motion by the prosecution in view of the objection of the accused. The trial court directed the public prosecutor to present Atty. Carlos S. Caabay, the NBI Agent who took Nuada's extrajudicial confession. At the resumption of the hearing, the public prosecutor declared that he was resting the prosecution's case, knowing fully well that the evidence he has presented was not sufficient to convict the accused. Consequently, the ensuing demurrer to evidence filed by the accused was granted by the trial court. It is clear from the foregoing that the public prosecutor was guilty of serious nonfeasance. It is the duty of the public prosecutor to bring the criminal proceedings for the punishment of the guilty.10 Concomitant with this is the duty to pursue the prosecution of a criminal action and to represent the public interest. A crime is an offense against the State, and hence is prosecuted in the name of the People of the Philippines. For this reason, Section 5 of Rule 110 provides that "all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal x x x." As the representative of the State, the public prosecutor has the right and the duty to take all steps to protect the rights of the People in the trial of an accused.11 If the public prosecutor commits a nonfeasance in refusing to perform a specific duty imposed on him by law, he can be compelled by an action for mandamus.12 In the case at bar, the public prosecutor knew that he had not presented sufficient evidence to convict the accused. Yet, despite repeated moves by the accused for the trial court to continue hearing the case, he deliberately failed to present an available witness and thereby allowed the court to declare that the prosecution has rested its case. In this sense, he was remiss in his duty to protect the interest of the offended parties. More specifically, the public prosecutor in this case was guilty of blatant error and abuse of discretion, thereby causing prejudice to the offended party. Indeed, the family of the deceased victim, Maritess Merciales, could do nothing during the proceedings, having entrusted the conduct of the case in the hands of the said prosecutor. All they could do was helplessly watch as the public prosecutor, who was under legal obligation to pursue the action on their behalf, renege on that obligation and refuse to perform his sworn duty. Indeed, Rule 119, Section 9 (now Section 17) of the Rules of Court expressly requires the presentation of evidence in support of the prosecution's prayer for the discharge of an accused to be a state witness, viz: When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, xxx xxx xxx. By refusing to comply with the trial court's order to present evidence, the public prosecutor grossly violated the above-quoted rule. Moreover, the public prosecutor violated his bounden duty to protect the interest of the offended party, at least insofar as the criminal aspect is concerned. After the trial court denied his motion to discharge Nuada as a state witness, he should have proceeded to complete the evidence of the prosecution by other means. Instead, he willfully and deliberately refused to present an available witness, i.e., the NBI Agent who was present in court on that date and time. The public prosecutor was duty-bound to exhaust all available proofs to establish the guilt of the accused and bring them to justice for their offense against the injured party.

15

Likewise guilty for serious nonfeasance was the trial court. Notwithstanding its knowledge that the evidence for the prosecution was insufficient to convict, especially after the public prosecutor tenaciously insisted on utilizing Nuada as state witness, the trial court passively watched as the public prosecutor bungled the case. The trial court was well aware of the nature of the testimonies of the seven prosecution witnesses that have so far been presented. Given this circumstance, the trial court, motu proprio, should have called additional witnesses for the purpose of questioning them himself in order to satisfy his mind with reference to particular facts or issues involved in the case.13 Based on the foregoing, it is evident that petitioner was deprived of her day in court. Indeed, it is not only the State, but more so the offended party, that is entitled to due process in criminal cases. Inasmuch as the acquittal of the accused by the court a quo was done without regard to due process of law, the same is null and void. It is as if there was no acquittal at all, and the same cannot constitute a claim for double jeopardy.14 By contending that the challenged Decision is void for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, the petition does not violate the right of the accused against double jeopardy. It is elementary that double jeopardy attaches only when the following elements concur: (1) the accused are charged under a complaint or information sufficient in form and substance to sustain their conviction; (2) the court has jurisdiction; (3) the accused have been arraigned and have pleaded; and (4) they are convicted or acquitted, or the case is dismissed without their consent. Thus, even assuming that a writ of certiorari is granted, the accused would not be placed in double jeopardy because, from the very beginning, the lower tribunal had acted without jurisdiction. Precisely, any ruling issued without jurisdiction is, in legal contemplation, necessarily null and void and does not exist.15 Otherwise put, the dismissal of the case below was invalid for lack of a fundamental prerequisite, that is, due process.16 In rendering the judgment of dismissal, the trial judge in this case acted without or in excess of jurisdiction, for a judgment which is void for lack of due process is equivalent to excess or lack of jurisdiction.17 Indeed, "jurisdiction" is the right to hear and determine, not to determine without hearing.18 Lack of jurisdiction is one of the grounds for the annulment by the Court of Appeals of judgments or final orders and resolutions of Regional Trial Courts.19 Hence, the remedy taken by petitioner before the Court of Appeals was correct. WHEREFORE, in view of the foregoing, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 37341 is REVERSED AND SET ASIDE. The Order dismissing Criminal Case Nos. 6307-6312 is ANNULLED, and this case is REMANDED to the Regional Trial Court of Legazpi City, Branch 8, for further proceedings. The public prosecutor is ORDERED to complete the presentation of all available witnesses for the prosecution. SO ORDERED.

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shall not exceed thirty (30) days, or both, at the discretion of the court." reads as follows:

This information

The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Lat of violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II, Title IV of ordinance No. 1, S. 1974, with damage to the City Government of Batangas, and penalized by the said ordinance, committed as follows: That from November, 1974 to February, 1975 at Batangas City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to defraud the City Government of Batangas, without proper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices to lower or decrease the consumption of electric fluid at the Opulencia Ice Plant situated at Kumintang, Ibaba, this city and as a result of such unathorized installations of electric wirings and devices made by the accused, the City Government of Batangas was damaged and prejudiced in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine currency, covering the period from November 1974 to February, 1975, to the damage and prejudice of the City Government of Batangas in the aforestated amount of P41,062.16, Philippine currency. The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February 1976, he filed a motion to dismiss the information upon the grounds that the crime there charged had already prescribed and that the civil indemnity there sought to be recovered was beyond the jurisdiction of the Batangas City Court to award. In an order dated 6 April 1976, the Batangas City Court granted the motion to dismiss on the ground of prescription, it appearing that the offense charged was a light felony which prescribes two months from the time of discovery thereof, and it appearing further that the information was filed by the fiscal more than nine months after discovery of the offense charged in February 1975. Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before the Court of First Instance of Batangas, Branch 11, another information against Manuel Opulencia, this time for theft of electric power under Article 308 in relation to Article 309, paragraph (1), of the Revised Penal Code. This information read as follows: The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime of theft, defined and penalized by Article 308, in relation to Article 309, paragraph (1) of the Revised Penal Code, committed as follows: That on, during, and between the month of November, 1974, and the 21st day of February, 1975, at Kumintang, lbaba, Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain and without the knowledge and consent of the Batangas Electric Light System, did then and there, wilfully, unlawfully and feloniously take, steal and appropriate electric current valued in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the damage and prejudice of the said Batangas Electric Light System, owned and

G.R. No. L-45129 March 6, 1987 PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Court of First Instance of Batangas, Second Branch, and MANUEL OPULENCIA, respondents.

FELICIANO, J.: In this petition for certiorari and mandamus, the People of the Philippines seek to set aside the orders of the respondent Judge of the Court of First Instance of Batangas in Criminal Case No. 266, dated 12 August 1976 and 8 November 1976, respectively, quashing an information for theft filed against private respondent Manuel Opulencia on the ground of double jeopardy and denying the petitioner's motion for reconsideration. On 1 February 1975, members of the Batangas City Police together with personnel of the Batangas Electric Light System, equipped with a search warrant issued by a city judge of Batangas City, searched and examined the premises of the Opulencia Carpena Ice Plant and Cold Storage owned and operated by the private respondent Manuel Opulencia. The police discovered that electric wiring, devices and contraptions had been installed, without the necessary authority from the city government, and "architecturally concealed inside the walls of the building" 1 owned by the private respondent. These electric devices and contraptions were, in the allegation of the petitioner "designed purposely to lower or decrease the readings of electric current consumption in the electric meter of the said electric [ice and cold storage] plant." 2 During the subsequent investigation, Manuel Opulencia admitted in a written statement that he had caused the installation of the electrical devices "in order to lower or decrease the readings of his electric meter. 3 On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of Batangas City an information against Manuel Opulencia for violation of Ordinance No. 1, Series of 1974, Batangas City. A violation of this ordinance was, under its terms, punishable by a fine "ranging from Five Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which

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operated by the City Government of Batangas, in the aforementioned sum of P41,062.16. The above information was docketed as Criminal Case No. 266 before the Court of First Instance of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion to Quash, dated 5 May 1976, alleging that he had been previously acquitted of the offense charged in the second information and that the filing thereof was violative of his constitutional right against double jeopardy. By Order dated 16 August 1976, the respondent Judge granted the accused's Motion to Quash and ordered the case dismissed. The gist of this Order is set forth in the following paragraphs: The only question here is whether the dismissal of the first case can be properly pleaded by the accused in the motion to quash. In the first paragraph of the earlier information, it alleges that the prosecution "accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in relation to Sec. 6(d) and Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage to the City Government of Batangas, etc. " (Emphasis supplied). The first case, as it appears, was not simply one of illegal electrical connections. It also covered an amount of P41,062.16 which the accused, in effect, allegedly with intent to defraud, deprived the city government of Batangas. If the charge had meant illegal electric installations only, it could have alleged illegal connections which were done at one instance on a particular date between November, 1974, to February 21, 1975. But as the information states "that from November, 1974 to February 1975 at Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to defraud the City Government of Batangas, without proper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices, etc." (Emphasis supplied), it was meant to include the P 41,062.16 which the accused had, in effect, defrauded the city government. The information could not have meant that from November 1974 to 21 February 1975, he had daily committed unlawful installations. When, therefore, he was arraigned and he faced the indictment before the City Court, he had already been exposed, or he felt he was exposed to consequences of what allegedly happened between November 1974 to February 21, 1975 which had allegedly resulted in defrauding the City of Batangas in the amount of P 41,062.16. (Emphases and parentheses in the original) A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied by the respondent Judge in an Order dated 18 November 1976. On 1 December 1976, the present Petition for certiorari and mandamus was filed in this Court by the Acting City Fiscal of Batangas City on behalf of the People. The basic premise of the petitioner's position is that the constitutional protection against double jeopardy is protection against a second or later jeopardy of conviction for the same offense. The petitioner stresses that the first information filed before the City Court of

Batangas City was one for unlawful or unauthorized installation of electrical wiring and devices, acts which were in violation of an ordinance of the City Government of Batangas. Only two elements are needed to constitute an offense under this City Ordinance: (1) that there was such an installation; and (2) no authority therefor had been obtained from the Superintendent of the Batangas City Electrical System or the District Engineer. The petitioner urges that the relevant terms of the City Ordinance which read as follows: Section 3.-Connection and Installation (a) x x x (b) The work and installation in the houses and building and their connection with the Electrical System shall be done either by the employee of the system duly authorized by its Superintendent or by persons adept in the matter duly authorized by the District Engineer. Applicants for electrical service permitting the works of installation or connection with the system to be undertaken by the persons not duly authorized therefor shall be considered guilty of violation of the ordinance. would show that: The principal purpose for (sic) such a provision is to ensure that electrical installations on residences or buildings be done by persons duly authorized or adept in the matter, to avoid fires and accidents due to faulty electrical wirings. It is primarily a regulatory measure and not intended to punish or curb theft of electric fluid which is already covered by the Revised Penal Code. 5 The gist of the offense under the City Ordinance, the petitioner's argument continues, is the installing of electric wiring and devices without authority from the proper officials of the city government. To constitute an offense under the city ordinance, it is not essential to establish any mens rea on the part of the offender generally speaking, nor, more specifically, an intent to appropriate and steal electric fluid. In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Penal Code filed before the Court of First Instance of Batangas in Criminal Case No. 266 has quite different essential elements. These elements are: 1. That personal property be taken; 2. That the personal property (taken) belongs to another; 3. That the taking be done with intent of gain; 4. That the taking be done without the consent of the owner; and 5. That the taking be accomplished without violence against or intimidation of persons or force upon things. 6

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The petitioner also alleges, correctly, in our view, that theft of electricity can be effected even without illegal or unauthorized installations of any kind by, for instance, any of the following means: 1. Turning back the dials of the electric meter; 2. Fixing the electric meter in such a manner that it will not register the actual electrical consumption; 3. Under-reading of electrical consumption; and 4. By tightening the screw of the rotary blade to slow down the rotation of the same. 7 The petitioner concludes that: The unauthorized installation punished by the ordinance [of Batangas City] is not the same as theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit the first or a frustration thereof and that the second offense is not necessarily included in the offense charged in the first inforrnation 8 The above arguments made by the petitioner are of course correct. This is clear both from the express terms of the constitutional provision involved which reads as follows: No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. (Emphasis supplied; Article IV (22), 1973 Constitution) 9 and from our case law on this point. 10 The basic difficulty with the petitioner's position is that it must be examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an exception to the general proposition: the constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. This was made clear sometime ago in Yap vs. Lutero. 11 In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court of Iloilo City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to Ordinance No. 15, Series of 1954, of the City of Iloilo. The information charged him with having "wilfully, unlawfully and feloniously drive[n] and operate[d]" an automobile "recklessly and without reasonable caution thereby endangering other vehicles and pedestrians passing in said street." Three months later, Yap was again charged in Criminal Case No. 16443 of the same Municipal Court, this time with serious physical injuries through reckless imprudence. The information charged him with violation of the Revised Motor Vehicle

Law (Act No. 3992 as amended by Republic Act No. 587) committed by driving and operating an automobile in a reckless and negligent manner and as a result thereof inflicting injuries upon an unfortunate pedestrian. Yap moved to quash the second information upon the ground that it placed him twice in jeopardy of punishment for the same act. This motion was denied by the respondent municipal judge. Meantime, another municipal judge had acquitted Yap in Criminal Case No. 16054. Yap then instituted a petition for certiorari in the Court of First Instance of Iloilo to set aside the order of the respondent municipal judge. The Court of First Instance of Iloilo having reversed the respondent municipal judge and having directed him to desist from continuing with Criminal Case No. 16443, the respondent Judge brought the case to the Supreme Court for review on appeal. In affirming the decision appealed from and holding that the constitutional protection against double jeopardy was available to petitioner Yap, then Associate Justice and later Chief Justice Roberto Concepcion wrote: To begin with, the crime of damage to property through reckless driving with which Diaz stood charged in the court of first instance is a violation of the Revised Penal Code (third paragraph of Article 365), not the Automobile Law (Act No. 3992, as amended by Republic Act No. 587). Hence, Diaz was not twice accused of a violation of the same law. Secondly, reckless driving and certain crimes committed through reckless driving are punishable under different provisions of said Automobile Law. Hence from the view point of Criminal Law, as distinguished from political or Constitutional Law they constitute, strictly, different offenses, although under certain conditions, one offense may include the other, and, accordingly, once placed in jeopardy for one, the plea of double jeopardy may be in order as regards the other, as in the Diaz case. (Emphases in the original) Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the same offense." (Emphasis in the original) The second sentence of said clause provides that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense, whereas the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act provided that he is charged with different offenses, or the offense charged in one case is not included in or does not include, the crime charged in the other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. 12 Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same offense. So long as jeopardy has attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case. The issue in the case at bar hinges, therefore, on whether or not, under the information in case No. 16443, petitioner could if he failed to plead double jeopardy be convicted of the same act charged in case No.

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16054, in which he has already been acquitted. The information in case No. 16054 alleges, substantially, that on the date and in the place therein stated, petitioner herein had wilfully, unlawfully and feloniously driven and operated "recklessly and without reasonable caution" an automobile described in said information. Upon the other hand, the information in case No. 16443, similarly states that, on the same date and in the same place, petitioner drove and operated the aforementioned automobile in a "reckless and negligent manner at an excessive rate of speed and in violation of the Revised Motor Vehicle Law (Act No. 3992), as amended by Republic Act No. 587, and existing city ordinances." Thus, if the theories mentioned in the second information were not established by the evidence, petitioner could be convicted in case No. 16443 of the very same violation of municipal ordinance charged in case No. 16054, unless he pleaded double jeopardy. It is clear, therefore, that the lower court has not erred eventually sustaining the theory of petitioner herein. Put a little differently, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charge: the constitutional protection against double jeopardy is available only where an Identity is shown to exist between the earlier and the subsequent offenses charged. In contrast, where one offense is charged under a municipal ordinance while the other is penalized by a statute, the critical inquiry is to the identity of the acts which the accused is said to have committed and which are alleged to have given rise to the two offenses: the constitutional protection against double jeopardy is available so long as the acts which constitute or have given rise to the first offense under a municipal ordinance are the same acts which constitute or have given rise to the offense charged under a statute. The question may be raised why one rule should exist where two offenses under two different sections of the same statute or under different statutes are charged, and another rule for the situation where one offense is charged under a municipal ordinance and another offense under a national statute. If the second sentence of the double jeopardy provision had not been written into the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. An offense penalized by municipal ordinance is, by definition, different from an offense under a statute. The two offenses would never constitute the same offense having been promulgated by different rule-making authorities though one be subordinate to the other and the plea of double jeopardy would never lie. The discussions during the 1934-1935 Constitutional Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would not otherwise be covered by the first sentence. 13 The question of Identity or lack of Identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved. The question of Identity of the acts which are claimed to have generated liability both under a municipal ordinance and a national statute must be addressed, in the first instance, by examining the location of such acts in time and space. When the acts of the accused as set out in the two informations are so related to each other in time and space as to be reasonably regarded as having taken place on the same occasion and where those acts have been moved by one and the same, or a continuing, intent or voluntary design or negligence, such acts may be appropriately characterized as an integral whole capable of giving rise to penal liability simultaneously under different legal enactments (a municipal ordinance and a national statute).

In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and serious physical injuries through reckless imprudence under the Revised Motor Vehicle Law as derived from the same act or sets of acts that is, the operation of an automobile in a reckless manner. The additional technical element of serious physical injuries related to the physical consequences of the operation of the automobile by the accused, i.e., the impact of the automobile upon the body of the offended party. Clearly, such consequence occurred in the same occasion that the accused operated the automobile (recklessly). The moral element of negligence permeated the acts of the accused throughout that occasion. In the instant case, the relevant acts took place within the same time frame: from November 1974 to February 1975. During this period, the accused Manuel Opulencia installed or permitted the installation of electrical wiring and devices in his ice plant without obtaining the necessary permit or authorization from the municipal authorities. The accused conceded that he effected or permitted such unauthorized installation for the very purpose of reducing electric power bill. This corrupt intent was thus present from the very moment that such unauthorized installation began. The immediate physical effect of the unauthorized installation was the inward flow of electric current into Opulencia's ice plant without the corresponding recording thereof in his electric meter. In other words, the "taking" of electric current was integral with the unauthorized installation of electric wiring and devices. It is perhaps important to note that the rule limiting the constitutional protection against double jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute literalness. The Identity of offenses that must be shown need not be absolute Identity: the first and second offenses may be regarded as the "same offense" where the second offense necessarily includes the first offense or is necessarily included in such first offense or where the second offense is an attempt to commit the first or a frustration thereof. 14 Thus, for the constitutional plea of double jeopardy to be available, not all the technical elements constituting the first offense need be present in the technical definition of the second offense. The law here seeks to prevent harrassment of an accused person by multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements. As Associate Justice and later Chief Justice Ricardo Paras cautioned in People vs. del Carmen et al., 88 Phil. 51 (1951): While the rule against double jeopardy prohibits prosecution for the same offense, it seems elementary that an accused should be shielded against being prosecuted for several offenses made out from a single act. Otherwise, an unlawful act or omission may give use to several prosecutions depending upon the ability of the prosecuting officer to imagine or concoct as many offenses as can be justified by said act or omission, by simply adding or subtracting essential elements. Under the theory of appellant, the crime of rape may be converted into a crime of coercion, by merely alleging that by force and intimidation the accused prevented the offended girl from remaining a virgin. (88 Phil. at 53; emphases supplied) By the same token, acts of a person which physically occur on the same occasion and are infused by a common intent or design or negligence and therefore form a moral unity, should not be segmented and sliced, as it were, to produce as many different acts as there are offenses under municipal ordinances or statutes that an enterprising prosecutor can find It remains to point out that the dismissal by the Batangas City Court of the information for violation of the Batangas City Ordinance upon the ground that such offense had already

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prescribed, amounts to an acquittal of the accused of that offense. Under Article 89 of the Revised Penal Code, "prescription of the crime" is one of the grounds for "total extinction of criminal liability." Under the Rules of Court, an order sustaining a motion to quash based on prescription is a bar to another prosecution for the same offense. 15 It is not without reluctance that we deny the people's petition for certiorari and mandamus in this case. It is difficult to summon any empathy for a businessman who would make or enlarge his profit by stealing from the community. Manuel Opulencia is able to escape criminal punishment because an Assistant City Fiscal by inadvertence or otherwise chose to file an information for an offense which he should have known had already prescribed. We are, however, compelled by the fundamental law to hold the protection of the right against double jeopardy available even to the private respondent in this case. The civil liability aspects of this case are another matter. Because no reservation of the right to file a separate civil action was made by the Batangas City electric light system, the civil action for recovery of civil liability arising from the offense charged was impliedly instituted with the criminal action both before the City Court of Batangas City and the Court of First Instance of Batangas. The extinction of criminal liability whether by prescription or by the bar of double jeopardy does not carry with it the extinction of civil liability arising from the offense charged. In the present case, as we noted earlier, 16 accused Manuel Opulencia freely admitted during the police investigation having stolen electric current through the installation and use of unauthorized elibctrical connections or devices. While the accused pleaded not guilty before the City Court of Batangas City, he did not deny having appropriated electric power. However, there is no evidence in the record as to the amount or value of the electric power appropriated by Manuel Opulencia, the criminal informations having been dismissed both by the City Court and by the Court of First Instance (from which dismissals the Batangas City electric light system could not have appealed 17) before trial could begin. Accordingly, the related civil action which has not been waived expressly or impliedly, should be remanded to the Court of First Instance of Batangas City for reception of evidence on the amount or value of the electric power appropriated and converted by Manuel Opulencia and rendition of judgment conformably with such evidence. WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for related civil liability be remanded to the Court of First Instance of Batangas City for further proceedings as indicated above. No pronouncement as to costs. SO ORDERED. Yap (Chairman), Narvasa, Melencio-Herrera, Gancayco and Sarmiento, JJ., concur. Cruz, J., took no part.

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G.R. No. 149453

May 28, 2002

Crame where a decision to summarily execute them was made, and later to Commonwealth Avenue where they were shot to death by elements of ABRITFG.5 (4) On May 26, 1995, SPO2 Corazon dela Cruz, another CIC investigator, executed an affidavit corroborating the material allegations of delos Reyes. Dela Cruz claimed that she was with delos Reyes from the time the eleven (11) KBG members were arrested up to the time they were killed in Commonwealth Avenue.6 (5) On May 31, 1995, Armando Capili, a reporter of Remate, executed an affidavit stating that he was present when the KBG members were arrested in Superville Subdivision.7 (6) On June 1, 1995, Chief Superintendent Job A. Mayo, PNP Director for Investigation, filed murder charges with the Office of the Ombudsman against ninety-seven (97) officers and personnel of ABRITFG. The next-of-kin of the slain KBG members also filed murder charges against the same officers and personnel.8 (7) Ombudsman Aniano Desierto then created a panel of investigators to conduct a preliminary investigation of the murder charges. The panel was headed by Deputy Ombudsman for Military Affairs Bienvenido Blancaflor. On October 20, 1995, the panel issued a resolution recommending the dismissal of the charges for lack of probable cause. (8) Ombudsman Desierto referred the resolution for review by a panel composed of Over-all Deputy Ombudsman Francisco Villa as head, and Special Prosecutor Leonardo Tamayo and Assistant Ombudsman Abelardo Aportadera as members. On November 20, 1995, the review panel reversed the Blancaflor resolution and found probable cause for the prosecution of multiple murder charges against twenty-six (26) officers and personnel of ABRITFG.9 (9) On November 2, 1995, the Ombudsman filed before the Sandiganbayan eleven (11) Informations for MURDER, docketed as Criminal Cases Nos. 23047 to 23057, against respondent Panfilo M. Lacson and twenty-five (25) other accused. All twenty-six (26) of them were charged as principals.10 The following appear to be the victims: Meleubren Sorronda in Crim. Case No. 23047; Welbor Elcamel in Crim. Case No. 23048; Carlito Alap-ap in Crim. Case No. 23049; Jevy Redillas in Crim. Case No. 23050; Ray Abalora in Crim. Case No. 23051; Joel Amora in Crim. Case No. 23052; Alex Neri in Crim. Case No. 23053; Rolando Siplon in Crim. Case No. 23054; Manuel Montero in Crim. Case No. 23055; Sherwin Abalora in Crim. Case No. 23056; and Pacifico Montero in Crim. Case No. 23057. (10) Upon motion of the respondent, the criminal cases were remanded to the Ombudsman for reinvestigation. On March 1, 1996, Amended Informations were filed against the same twenty-

PEOPLE OF THE PHILIPPINES, ET AL., vs. PANFILO M. LACSON RESOLUTION Before us is a petition for review on certiorari seeking to reverse and set aside the Decision1 of the Court of Appeals dated August 24, 2001 in CA-G.R. SP No. 65034.2 The said Decision of the appellate court granted respondent Lacson's Second Amended Petition for Prohibition with application for the issuance of a Temporary Restraining Order, (1) assailing the Order issued by Judge Herminia Pasamba of the Regional Trial Court (RTC) of Manila, Branch 40, that allowed the continuation of the re-investigation of Criminal Cases Nos. Q-99-81679 to Q-9981689 or the Kuratong Baleleng cases; and (2) praying for the dismissal of Criminal Cases Nos. Q-01-101102 to Q-01-101112 entitled "People of the Philippines v. Panfilo Lacson, et al." pending before Branch 81 of the RTC of Quezon City. The following appear in the records of this case: (1) On May 18, 1995, then PNP Director-General Recaredo Sarmiento II announced, in a press conference, the killing of eleven (11) members of the Kuratong Baleleng Gang (KBG) in a shootout with police elements near the fly-over along Commonwealth Avenue, Quezon City at about 4:00 A.M. that day.3 (2) On May 22, 1995, morning papers carried the news that SPO2 Eduardo delos Reyes had claimed that the killing of the eleven (11) gang members was a "rub-out" or summary execution and not a shootout.4 (3) In an affidavit he executed the following day, delos Reyes stated, among others, that he was part of a composite police team called the Anti-Bank Robbery and Intelligence Task Force Group (ABRITFG) composed of elements of the National Capital Region Command (NCRC) and headed by Chief Superintendent Jewel Canson; Traffic Management Command, headed by Senior Superintendent Francisco Subia, Jr.; Presidential Anti-Crime Commission (PACC), headed by Chief Superintendent Panfilo M. Lacson; Central Police District Command, headed by Chief Superintendent Ricardo de Leon; and Criminal Investigation Command (CIC), headed by Chief Superintendent Romeo Acop. Delos Reyes claimed that the police team arrested the eleven (11) gang members in early morning of May 18, 1995 at the gang's safe house in Superville Subdivision, Paraaque; that after their arrest, the gang members were made to board two vans, their hands tied behind their backs, and brought initially to Camp

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six (26) suspects but the participation of respondent Lacson was downgraded from principal to accessory. Arraignment then followed and respondent entered a plea of not guilty.11 (11) With the downgrading of charges against him, respondent Lacson questioned the jurisdiction of the Sandiganbayan to hear the criminal cases as none of the "principal" accused in the Amended Informations was a government official with a Salary Grade (SG) 27 or higher, citing Section 2 of R. A. No. 7975 then prevailing. Accordingly, the Sandiganbayan ordered the cases transferred to the Regional Trial Court.12 (12) The Office of the Special Prosecutor filed a motion for reconsideration of the transfer. Pending resolution of the motion, R. A. No. 8249 took effect on February 23, 1997, amending R. A. No. 7975. In particular, the amendatory law deleted the word "principal" in Section 2 of R. A. No. 7975, thereby expanding the jurisdiction of the Sandiganbayan to include all cases where at least one of the accused, whether principal, accomplice or accessory, is a government official of Salary Grade (SG) 27 or higher. The amendment is made applicable to all cases pending in any court in which trial has not yet begun as of the date of its approval.13 (13) In Lacson v. Executive Secretary,14 respondent Lacson challenged the constitutionality of the amendment and contended that the Sandiganbayan had no jurisdiction over the criminal cases. This Court, while dismissing the constitutional challenge, nonetheless ordered the transfer of the criminal cases to the Regional Trial Court on the ground that the Amended Informations for murder failed to indicate that the offenses charged therein were committed in relation to, or in discharge of, the official functions of the respondent, as required by R. A. No. 8249. (14) Criminal Cases Nos. 23047 to 23057 were raffled off to Branch 81 of the Regional Trial Court of Quezon City, then presided by Judge, now Associate Justice of the Court of Appeals, Wenceslao Agnir, Jr., and re-docketed as Criminal Cases Nos. Q-99-81679 to Q-99-81689. (15) Before the accused could be arraigned, prosecution witnesses Eduardo de los Reyes, Corazon de la Cruz, Armando Capili and Jane Gomez recanted their affidavits which implicated respondent Lacson in the murder of the KBG members. On the other hand, private complainants Myrna Abalora,15 Leonora Amora,16 Nenita Alap-ap,17 Imelda Montero,18 Margarita Redillas,19 Carmelita Elcamel20 and Rolando Siplon21 also executed their respective affidavits of desistance declaring that they were no longer interested to prosecute these cases.22 (16) Due to these developments, the twenty-six (26) accused, including respondent Lacson, filed five separate but identical motions to (1) make a judicial determination of the existence of probable cause for the issuance of warrants of arrest; (2) hold in abeyance the issuance of the warrants, and (3) dismiss the cases should the trial court find lack of probable cause. (17) The records of the case before us are not clear whether the private offended parties were notified of the hearing on March 22, 199923 held by Judge Agnir to resolve the motions filed by respondent Lacson and the other accused. (18) During the said hearing, the private offended parties who desisted do not appear to have been presented on the witness stand. In their stead, Atty. Godwin Valdez testified that he assisted them in preparing their affidavits of desistance and that he signed said affidavits as witness. On the other hand, Atty. Aurora Bautista of the Philippine Lawyer's League presented

the affidavits of recantation of prosecution witnesses Eduardo de los Reyes, Armando Capili and Jane Gomez. Only prosecution witness Corazon de la Cruz testified to affirm her affidavit.24 (19) On March 29, 1999, Judge Agnir issued a Resolution25 dismissing Criminal Cases Nos. Q-99-81679 to Q-99-81689, as follows: "As already seen, the documents attached to the Informations in support thereof have been rendered meaningless, if not absurd, with the recantation of the principal prosecution witnesses and the desistance of the private complainants. There is no more evidence to show that a crime has been committed and that the accused are probably guilty thereof. Following the doctrine above-cited, there is no more reason to hold the accused for trial and further expose them to an open and public accusation. It is time to write finis to these cases and lay to rest the ghost of the incident of May 18, 1995 so that all those involved--- the accused, the prosecution witnesses and the private complainants alike--- may get on with their lives. The Court is not unmindful of the admonition in the recent case of People vs. Court of Appeals (G.R. No. 126005, January 21, 1999) where the Supreme Court said that the general rule is that 'if the Information is valid on its face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts should not dismiss it for want of evidence, because evidentiary matters should be presented and heard during the trial', and that the ruling in Allado vs. Diokno 'is an exception to the general rule and may be invoked only if similar circumstances are clearly shown to exist.' This Court holds that the circumstances in the case at bench clearly make an exception to the general rule. WHEREFORE, in view of the foregoing, the Court finds no probable cause for the issuance of the warrants of arrest against the accused or to hold them for trial. Accordingly, the Informations in the above-numbered cases are hereby ordered dismissed." SO ORDERED."26 (20) On March 27, 2001, PNP Director Leandro R. Mendoza indorsed to the Department of Justice the new affidavits of P/Insp. Ysmael S. Yu and P/S Insp. Abelardo Ramos regarding the Kuratong Baleleng incident for preliminary investigation. On the strength of this indorsement, Secretary of Justice Hernando B. Perez formed a panel to investigate the matter. On April 17, 2001, the respondent was subpoenaed to attend the investigation of Criminal Cases Nos. Q-99-81679 to Q-99-81689.27 (21) On May 28, 2001, respondent Lacson, et al., invoking, among others, their constitutional right against double jeopardy, filed a petition for prohibition with application for temporary restraining order and/or writ of preliminary injunction with the Regional Trial Court of Manila, primarily to enjoin the State prosecutors from conducting the preliminary investigation. The petition was docketed as Civil Case No. 01-100933 and raffled to Branch 40, presided by Judge Herminia V. Pasamba.28

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(22) The plea for temporary restraining order was denied by Judge Pasamba in an Order29 dated June 5, 2001, viz: "After a study, this Court submits that the dismissal of Criminal Cases Nos. Q-9981679 to Q-99-81689 is not one on the merits and without any recorded arraignment and entered plea on the part of the herein petitioners. The dismissal was a direct consequence of the finding of the Quezon City RTC that no probable cause exists for the issuance of warrants of arrest against petitioners herein and to hold them for trial. The arraignment had with the Sandiganbayan does not put the case in a different perspective since the Sandiganbayan was adjudged to be without any jurisdiction to try the cases. It is the People of the Philippines who is the complainant in the Kuratong Baleleng case and remains to be the complainant in the present investigation initiated thru a letter of PNP Chief Mendoza dated March 27, 2001 (Exhibit "B") together with the sworn statements of witnesses Ramos and Yu (Exhibits "2" and "3" - supportive of the refiling of the case (Exhibit "9"). xxx xxx xxx

(a) Respondent judge had ruled on the merits of the main prohibition action a quo rendering the same moot and academic by concluding that the dismissal of Criminal Cases Nos. Q-99-81679-Q-99-81689 by the QC RTC was not final and executory, hence [i] the complaints therein can be reinvestigated, and [ii] petitioner's arraignment while the case had not yet been remanded to the QC RTC and while the Sandiganbayan had valid jurisdiction thereover [Criminal Cases No. 230472048] was void, notwithstanding that the only issue in the TRO application was the existence or lack of a valid complaint as defined in S1 and S3, Rule 110. (b) Respondent Judge ruled that respondent State Prosecutors could proceed to reinvestigate and thereafter file new Informations on June 6, 2001 covering those offenses subject of Criminal Cases Nos. Q-99-81679-Q-99-81689 on the basis of affidavits filed after said cases were dismissed on March 29, 1999, despite the fact that under Section 8, Rule 117, cases similar to those filed against the petitioner and others (where the penalty imposable is imprisonment of six (6) years or more) cannot be revived after two (2) years from the date the dismissal order was issued. (c) Respondent Judge held that the petitioner had not shown a right to be preserved despite evidence showing the short cuts taken by respondent State prosecutors in re-investigating a dismissed case, in not complying with Rules in respect of its reopening, and in insisting that a valid complaint was filed in clear violation of the Rules and case law thereon, and despite the fact that the petitioner had shown that an inextendible deadline of June 5, 2001 was given him to file his counter-affidavit without which his indictment for a non-bailable offense is assured because of DOJ Secretary Hernando Perez's political schemes."34 (26) In the meantime, on June 8, 2001, respondent Lacson also filed with the RTC-QC Branch 81 (presided by Judge Ma. Theresa Yadao), a Motion for Judicial Determination of Probable Cause and in the absence thereof, to dismiss the cases outright. Respondent Lacson, however, filed a Manifestation and Motion dated June 13, 2001 seeking the suspension of the proceedings before the trial court.35 (27) The Court of Appeals issued a temporary restraining order enjoining Judge Yadao from issuing a warrant of arrest or conducting any proceeding or hearing in Criminal Cases Nos. 01-101102 to 01-101112.36 (28) On August 24, 2001, the Court of Appeals (Special Third Division), rendered the now assailed Decision. It characterized the termination of Criminal Cases Nos. Q-99-81679 to Q99-81689 as "provisional dismissal," and considered Criminal Cases Nos. 01-101102 to 01101112 as mere revivals of the same. Applying Section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure, it dismissed the criminal cases against the respondent, viz: "In sum, this Court is of the considered view that the subject dismissal of [the] criminal cases was provisional in nature and that the cases presently sought to be prosecuted by the respondents are mere revival or re-opening of the dismissed cases. The present controversy, being one involving "provisional dismissal" and revival of criminal cases, falls within the purview of the prescriptive period provided under Section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure. The second paragraph of the said provision is couched in clear, simple and categorical words. It mandates that for offenses punishable by imprisonment of more than six (6) years, as the subject criminal cases, their provisional dismissal shall become permanent two (2) years after the issuance of the order without the case having been revived. It should be noted that the revival of the subject criminal cases, even

Above considered, this Court finds petitioners have not preliminarily established that they have a right to be preserved pending hearing on the injunctive relief. WHEREFORE, the prayer for temporary restraining order is hereby DENIED. SO ORDERED."30 (23) On June 6, 2001, eleven (11) Informations for murder involving the killing of the same members of the Kuratong Baleleng gang were filed before the Regional Trial Court of Quezon City and were docketed as Criminal Cases Nos. 01-101102 to 01-101112. The new Informations charged as principals thirty-four (34) people, including respondent Lacson and his twenty-five (25) other co-accused in Criminal Cases Nos. Q-99-81679 to Q-99-81689. The criminal cases were assigned to Judge Ma. Theresa L. Yadao. (24) On the same day, respondent Lacson filed before the Court of Appeals a petition for certiorari31 against Judge Pasamba, the Secretary of Justice, the PNP Chief, State Prosecutors Ong and Zacarias, 2nd Assistant City Prosecutor Jamolin, and the People of the Philippines. The said petition was amended to implead as additional party-respondents State Prosecutor Claro Arellano and the RTC, Quezon City, Branch 81 in which the Informations in Criminal Cases Nos. 01-101102 to 01-101112 were filed.32 (25) The Second Amended Petition33 dated June 14, 2001 and admitted by the Court of Appeals on June 26, 2001, alleged: "The reliefs of certiorari, prohibition and injunction against the questioned Order (Annex A) and the new Informations in Criminal Cases Nos. 01-101102 to 01101112 pending before respondent Yadao (Annex B) are founded upon the grave abuse of discretion by respondent Judge Pasamba of her discretion in its issuance, the illegality of the proceedings of the respondent State Prosecutors as they cannot revive complaints which had been dismissed over two (2) years from the date the dismissal order was issued, and the invalidity of the new Informations for Murder filed against petitioners and others, all in defiance of law and jurisprudence as shown by the following:

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if reckoned from the DOJ's issuance of subpoenas to petitioner, was commenced only on April 19, 2001, that is, more than two (2) years after the issuance, on March 29, 1999, of RTC-Quezon City's Resolution, provisionally dismissing the criminal cases now sought to be revived. Applying the clear and categorical mandate of Section 8, Rule 117, supra, such efforts to revive the criminal cases are now definitely barred by the two-year prescriptive period provided therein. xxx xxx xxx

the relatives of the victims who desisted did not appear during the hearing to affirm their affidavits. Their affidavits of desistance were only presented by Atty. Godwin Valdez who testified that he assisted the private complainants in preparing their affidavits and he signed them as a witness. It also appears that only seven (7) persons submitted their affidavits of desistance, namely: a. Myrna Abalora, mother of the victims Sherwin Abalora and Rey Abalora b. Carmelita Elcamel, wife of Wilbur Elcamel;

WHEREFORE, the petition is GRANTED. As prayed for, the Temporary Restraining Order earlier issued against the conduct of further proceedings in Criminal Cases Nos. 01-101102 to 01-101112, including the issuance of warrants of arrest against the petitioner, PANFILO M. LACSON, is hereby made PERMANENT. Accordingly, with respect to said accused, the proceedings conducted by respondent State Prosecutors in respect of the said criminal cases are declared NULL AND VOID and the corresponding Informations, docketed as Criminal Cases Nos. 01-101102 to 01101112, entitled 'People of the Philippines vs. Panfilo M. Lacson, et al." and filed before respondent Judge Maria Theresa L. Yadao of Branch 81 of the Regional Trial Court of Quezon City, are hereby ordered DISMISSED. SO ORDERED."37 The issue is whether Section 8, Rule 117 bars the filing of the eleven (11) informations against the respondent Lacson involving the killing of some members of the Kuratong Baleleng gang. This rule which took effect on December 1, 2000 provides: "SEC. 8. Provisional dismissal.- A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived." Like any other favorable procedural rule, this new rule can be given retroactive effect. However, this Court cannot rule on this jugular issue due to the lack of sufficient factual bases. Thus, there is need of proof of the following facts, viz: (1) whether the provisional dismissal of the cases had the express consent of the accused; (2) whether it was ordered by the court after notice to the offended party, (3) whether the 2-year period to revive has already lapsed, and (4) whether there is any justification for the filing of the cases beyond the 2-year period. There is no uncertainty with respect to the fact that the provisional dismissal of the cases against respondent Lacson bears his express consent. It was respondent Lacson himself who moved to dismiss the subject cases for lack of probable cause before then Judge Agnir, hence, it is beyond argument that their dismissal bears his express consent. The records of the case, however, do not reveal with equal clarity and conclusiveness whether notices to the offended parties were given before the cases against the respondent Lacson were dismissed by then Judge Agnir. It appears from the resolution of then Judge Agnir that

c. Leonora Amora, mother of victim Joel Amora; d. Nenita Alap-ap, wife of victim Carlito Alap-ap; e. Imelda Montero, wife of victim Manuel Montero; f. Margarita Redillas, mother of victim Hilario Jevy Redillas; and g. Rolando Siplon. From the records of the case before us, it cannot be determined whether there were affidavits of desistance executed by the relatives of the three (3)38 other victims, namely: Meleubren Soronda, Pacifico Montero, Jr., and Alex Neri. The same records do not show whether they were notified of the hearing or had knowledge thereof. To be sure, it is not fair to expect the element of notice to be litigated before then Judge Agnir for Section 8, Rule 117 was yet inexistent at that time. The fact of notice to the offended parties was not raised either in the petition for prohibition with application for temporary restraining order or writ of preliminary injunction filed by respondent Lacson in the RTC of Manila, presided by Judge Pasamba, to enjoin the prosecutors from reinvestigating the said cases against him. The only question raised in said petition is whether the reinvestigation will violate the right of respondent Lacson against double jeopardy. Thus, the issue of whether or not the reinvestigation is barred by Section 8, Rule 117 was not tackled by the litigants. Nor was the fact of notice to the offended parties the subject of proof after the eleven (11) informations for murder against respondent Lacson and company were revived in the RTC of Quezon City presided by Judge Yadao. There was hardly any proceeding conducted in the case for respondent Lacson immediately filed a petition for certiorari in the appellate court challenging, among others, the authority of Judge Yadao to entertain the revived informations for multiple murder against him. This is not to be wondered at. The applicability of Section 8, Rule 117 was never considered in the trial court. It was in the Court of Appeals where respondent Lacson raised for the first time the argument that Section 8, Rule 117 bars the revival of the multiple murder cases against him. But even then, the appellate court did not require the parties to elucidate the crucial issue of whether notices were given to the offended parties before Judge Agnir ordered the dismissal of the cases against respondent Lacson and company. To be sure, there is a statement in the Decision of the appellate court to the effect that "records show that the prosecution and the private offended parties were notified of the hearing x x x."39 It is doubtful

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whether this finding is supported by the records of the case. It appears to be contrary to Judge Agnir's finding that only seven (7) of the complainants submitted affidavits of desistance. Indeed, the records of this case are inconclusive on the factual issue of whether the multiple murder cases against respondent Lacson are being revived within or beyond the 2-year bar. The reckoning date of the 2-year bar has to be first determined - - - whether it is from the date of the Order of then Judge Agnir dismissing the cases or from the dates the Order were received by the various offended parties or from the date of the effectivity of the new rule. If the cases were revived only after the 2-year bar, the State must be given the opportunity to justify its failure to comply with said timeline. The new rule fixes a timeline to penalize the State for its inexcusable delay in prosecuting cases already filed in courts. It can therefore present compelling reasons to justify the revival of cases beyond the 2-year bar. In light of the lack of or the conflicting evidence on the various requirements to determine the applicability of Section 8, Rule 117, this Court is not in a position to rule whether or not the refiling of the cases for multiple murder against respondent Lacson should be enjoined. Fundamental fairness requires that both the prosecution and the respondent Lacson should be afforded the opportunity to be heard and to adduce evidence on the presence or absence of the predicate facts upon which the application of the new rule depends. They involve disputed facts and arguable questions of law. The reception of evidence on these various issues cannot be done in this Court but before the trial court. IN VIEW OF THE FOREGOING, the case at bar is remanded to the RTC - Quezon City, Branch 81 so that the State prosecutors and the respondent Lacson can adduce evidence and be heard on whether the requirements of Section 8, Rule 117 have been complied with on the basis of the evidence of which the trial court should make a ruling on whether the Informations in Criminal Cases Nos. 01-101102 to 01-101112 should be dismissed or not. Pending the ruling, the trial court is restrained from issuing any warrant of arrest against the respondent Lacson. Melo and Carpio, JJ., take no part. SO ORDERED.

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