iRepublic of the Philippines

^attbtsanbapanQuezon City

icitic

FIFTH DIVISION

PEOPLE OF THE PHILIPPINES,Plaintiff,

- versus

FRANCISCO N. MAMBA, JR., et al..Accused.

SB-19-CRM-0048 to 0049

For: Violation of Section 3(e) ofRepublic Act No. 3019, as amended

Present:

Lagos, Chairperson,Mendoza-Arcega andCorpus-Manalac, J7.

Promulgated:

-CC )3 . at

RESOLUTION

CORPUS - MANALAC,

For the Court's consideration are [1] accused Ramon Aytona's ̂ ''Urgent

Motion to Conduct Proper Preliminary Investigation and to Defer Arraignmentand TriaF dated August 9, 2019' (Criminal Case No. SB-19-CRM-0048 only)and [2] accused Mamba, Jr., et al.'s Motion for Reconsideration with Motion toDefer Arraignment dated August 13, 2019,^ as well as the prosecution'sConsolidated Comment and/or Opposition thereto.

Ramon Aytona's Urgent Motion to ConductProper Preliminary Investigation andto Defer Arraignment and Trial

Aytona prays for the remand of Criminal Case No. SB-19-CRM-0048 tothe Office of the Ombudsman for proper preliminary investigation, and in themeantime, prays for the abeyance of his arraignment pending resolution thereof.

^ Records, Volume 3, pp. 608-614 .^ Francisco N. Mamba, Jr. and William N. Mamba both posted cash bail bond on June 4, 2019 (Records, Volume ^2, page 44); Anabel S. Turingan, Frederick G. Baligod, Juliana Filipina F. Padilla, Jose O. Palacpac, Leticia A.Acob, feresita V. Espinosa, Merlina B. Dayag, and Petra B. Delos Santos posted their respective cash bail bondsbefore the Regional Trial Court of Cauayan City, Isabela on June 7, 2010 (Records, Vol. 2, p. 260)

Urgent Motion to Conduct Proper Preliminary Investigation" and to Defer Arraignment and Trial; Page 2and Motion for Reconsideration with Motion to Defer ArraignmentSB-12-CRM-0048 to 49PP vs. Francisco N. Mamba, Jr., et al.X X

He avers that sometime in July 2019, he learned that a Warrant of Arrestwas issued against him and he immediately thereafter, he posted bail on July 19,2019. That this case came as a surprise to him as he did not received any copy ofthe subpoena nor notice from the Office of the Ombudsman during preliminaryinvestigation thereof, hence, he was not able to submit any Counter-Affidavit oradduce evidence on his behalf. He claims that he has no address in Katarungan

Village, Muntinlupa and that he is not connected with Feshan Philippines, Inc.where the subpoena appears to have been sent. That his correct address is at 43-AAbao Street, Brgy. Paang Bundok, La Loma, Quezon City. He contends that sincehe was not notified of the preliminary investigation, he was therefore, not givenan opportunity to controvert the evidence against him. Citing the case of DuterteV. Sandiganbayan,^ he maintains that he was deprived of his constitutional rightto due process.

Accused Mamba, Jr., et al.'sMotion for Reconsiderationwith Motion to Defer Arraignment

Accused beg this Court to review, re-assess, re-evaluate and re-consider theResolution dated August 5, 2019 denying their Motion to Quash essentially on thefollowing grounds:

1. Inordinate delay in violation of the right to speedydisposition of cases is a recognized ground for amotion to quash or immediate dismissal because itgoes into the jurisdiction of the Court; and

2. Under the parameters laid down by the Constitution,the Ombudsman Act of 1989 and case law, there is

violation of the right of the accused to speedydisposition of these cases that warrants theimmediate dismissal thereof.

On the first ground, the accused aver that although inordinate delay is notspecifically included among the grounds to quash Information imder the Rules ofCriminal Procedure, it is a violation of the Constitutional right to speedy casedisposition which goes into the jurisdiction of the Court, thus, a valid ground fora motion to quash and a meritorious motion under the Rules for Continuous Trialin Criminal Cases. That such violation renders the proceedings null and voidciting Article 5 of the Constitution, "acts done in contravention of prohibitory andmandatory provisions of law are null and void xxx." They further claim that

y' Rodrigo Duterte v. Sandiganbayan, G.R No. 130191, April 27, 1998

Preliminary Investigationand to Defer Arraignment and Trial;

PP vs. Francisco N. Mamba, Jr., et al.

inordinate delay as a ground for immediate dismissal of cases is well-establishedby case law. That in the recent case of Magante v. Sandiganbayan, the SupremeCourt held that there is no waiver of the right to speedy disposition of cases evenif the same was not invoked during the preliminary investigation. It is enough thatthe right to speedy disposition of cases is raised before arraignment and pre-trial.They allege that there is no need for the right to resort first to the remedy of Rule65 as suggested by this Court in the assailed Resolution.

As to the second ground, the accused maintain that the issue herein is notcomplex and the evidence is not voluminous to warrant the delay of eight (8) yearsfrom the filing of the complaint to the filing of the information. Further, theprosecution has not presented any justifiable reasons thereto. They allege that theysuffered from the long delay because their witnesses have either died or can nolonger recall events of the long past and the documents for their defense may nolonger be available, and that they are at a disadvantage as compared to theprosecution whose evidence remain intact in the records of the Commission onAudit.

The Prosecution's

Consolidated Comment and/or Opposition

To Aytona s motion, the prosecution counters that Aytona's participationin SB-19-CRM-0048 is that he allegedly received the payment ofPhp3,101,962.50 covered by PNB Check No. 14438 dated April 5, 2004^ onbehalf of Feshan Philippines, Inc. which issued an Official Receipt^ to theTreasurer's Office of the LGU of Tuao, Cagayan, as payment for the deliveredliquid organic fertilizer. Aytona signed the Disbursement Voucher for the sameamount representing receipt of payment by Feshan Philippines, Inc.^ And sinceAytona represented Feshan Philippines, Inc., the service to him of the notice atthe last known address of the latter at Blk. 117 Lot 7G, Araneta St., KatarunganVillage, Phase 2, Muntinlupa City, based on the records of these cases, is deemeda valid service to him. Invoking Section 3(d) of Rule 112 of the Rules of Court,as well as under the Rules of Procedure of the Office of the Ombudsman, AO No.7, Rule II, Section 4(e), the prosecution avers that the cases shall be resolved basedon the records since the respondent cannot be subpoenaed, or if subpoenaed, doesnot submit counter-affidavits x x x x x ."

On the alleged inordinate delay in investigation, the prosecution basicallymaintains that while there may have been an apparent institutional delay in theresolution of the complaint during preliminary investigation, the delay was "not

^ Dorsal portion of the Check, Records, Vol. 3, p. 643^ Id, p. 644" Id., p. 645

Urgent Motion to Conduct Proper Preliminary Investigationand to Defer Arraignment and Trial; Page 4and Motion for Reconsideration with Motion to Defer ArraignmentSB-12-CRM-0048to49PP vs. Francisco N. Mamba, Jr., at al.

vexatious, capricious nor oppressive." That the perceived delay was justified bythe circumstances peculiar to these cases, such that under the "balancing testframework" in Guini, et al vs. Sandiganbayan^ the length of delay, the reasonsfor delay, the assertion or failure to assert such right by the accused and theprejudice caused by the delay shall be considered. That while there may have beena gap of a period of 5 years, 2 months and 15 days (from April 25, 2012 to July10, 2017) pending resolution of the complaint, the same is justified by thecomplexity of the cases involving the 728 Million Fertilizer Fund Scam whichwas novel that called for the creation of a Special Panel to investigate, the numberof respondents, the layers of review and the change of administration contributedto the delay, but the same was not vexatious. The prosecution reiterates that themotion is not among the meritorious motions allowed under the Guidelines forContinuous Trial ofCriminal Cases nor a valid ground for a motion to quash underthe Rules of Court.

RULING

After a careful evaluation of the records as well as the respective allegationsof the parties, the Court resolves to deny both motions for lack of merit.

On Ramon Aytona's Urgent Motion to ConductProper Preliminary Investigation andto Defer Arraignment and Trial

As aptly argued by the prosecution, the notice to Aytona was sent by theOffice of the Ombudsman to Feshan Philippines, Inc. at Blk. 117 Lot 7G, AranetaSt., Katarungan Village, Phase 2, Muntinlupa City. The records bear proof thatAytona received pa3mients from the LGU of Tuao, Cagayan, as a representativeof Feshan Philippines, Inc., and therefore the service of notice to Aytona at thelatter's last known address constitutes a valid attempt to serve the notice to him.There is no doubt as to the said address of Feshan Philippines, Inc., consideringthat the separate notices to respondents Redentor H. Antolin (General Manager)and Deonilla Misola Gregorio a.k.a Julie Gregorio (President), both of FeshanPhilippines, Inc. were duly received by both at the said address, who filed theirrespective Counter-Affidavits. Hence, Aytona's excuse that he was not notifiedgains no ground. Though the notice to Aytona was retumed unserved with notation"unknown," under the circumstances. Section 3(d) of Rule 112 of the Rules ofCourt authorizes the investigating officer to resolve the complaint based oncomplainant's evidence "if respondent cannot be subpoenaed." Proceeding toresolve the complaint under this situation finds procedural support in Ombudsman

^ GR Nos. 146897, August 6, 2002

ti\2^^%^^It""'°" "'"'""""'° '>^'"^"^"» '^' 'PP vs. Francisco N. Mamba, Jr., et al.X :

Atoinistrative Mer No. 7, Rule Xl, Section 4(e).« and therefore, the investigatingofficer fairly had a legal authority to resolve the complaint based on the evidenceon record even absent any Counter-Affidavit from Aytona.

On accused Mamba, et al.'sMotion for Reconsiderationwith Motion to Defer Arraignment

Here, the accused argue on the supposed procedural propriety of a motionto quash as a vehicle to raise the issue of inordinate delay, as allegedly, the lattergoes into the question of jurisdiction of this Court, which can be raised at anytime, and that there is no waiver of the right to speedy disposition of cases evenif not invoked during the preliminary investigation for as long as the saidconstitutional infraction is raised prior to arraignment before the Sandig^bayanciting Magante v. Sandiganbayan^

The Court, however, maintains its ruling in the assailed Resolution, viz;Procedurally, inordinate delay is not one of the grounds to quash

an Information under Rule 117 of the Rules of Court, Section 3 thereofprovides, viz:

X X X X

^iTiereas, Section 2 of the same Rule clearly provides that themotion "xxx shdl distinctly specify its factual and legal grounds. Thecourt shall consider no ground other than those stated in the motion,except lack of jurisdiction over the offense charged." Further, Item III,2(b)(iv) of the Revised Guidelines for Continuous Trial of CriminalCases provides that a "[m]otion to quash information when the groundis not one of those stated in Sec. 3, Rule 117" is considered a "prohibitedmotion and shall be denied outright before the scheduled arraignmentwithout need of comment and/or opposition." Neither could it be treatedas a meritorious motion under the Revised Guidelines for ContinuousTrial of Criminal Cases as the grounds thereof are limited to thoseprovided in Item III(2)(c).

The accused, however, is not left without recourse.Jurisprudence'® tells that the remedy of an aggrieved party in criminalcomplaints before the Ombudsman where its finding is tainted withgrave abuse of discretion is to file a petition for certiorari under Rule65 of the 1997 Rules of Court. However, the records of these cases are

"Section 4. Procedure - The prelimmaty investigation ofcases falling undert the jurisdiction of the jbandiganbayan andx x x xshall he conducted in the same manner prescribed in Section 3, Rule 112 of the Rules //Of Court, subject to the following provisions: Ij

(^) Ifthe respondent cannot be served with the order mentioned Vin paragraph 6 hereof, or having been served, does not comply iftherewith, the complaint shall be deemed submitted for resolution onthe basis ofevidence on the record.Xxx

"Elpidio Tagaan Magante V. S'andiganbayan, G.R. Nos. 230950-51, July 23, 2018Tirol V. Del Rosario, G.R. No. 135913, November 1999; Kuizon v. Desierto, G.R. Nos. 140619-24, March 9

2001; Acuna v. Deputy Ombudsman for Luzon, G.R. No. 144692, January 31, 2005

Urgent Motion to Conduct Proper Preliminary Investigation' and to Defer Arraignment and Trial; Page 6and Motion for Reconsideration with Motion to Defer ArraignmentSB-12-CRM-0048to49

PP vs. Francisco N. Mamba, Jr., et al.x- X

bereft of any showing that they availed of such remedy at the opportunetime.

On this nick alone, the motion to quash should be deniedoutright. Even giving due course thereon, the motion is not impressedwith merit.

Xxx

Undoubtedly in these cases, the Informations are valid and the Court hasacquired jurisdiction over the cases which is not ousted by the mere issue raisedon alleged inordinate delay. Lack ofjurisdiction as a ground to quash Informationunder Rule 117, Section 3 of the Rules of Court relates to lack of jurisdiction overthe offense charged, which is not die situation herein. As stated in the assailedResolution^ the grounds to quash an Information are enumerated under Rule 117,Section 3 of the Rules of Court which does not include inordinate delay. Neitheris it a valid ground for quashal of Information under the Revised Guidelines forContinuous Trial of Criminal Cases, which simply reckons the grounds cited inRule 117, Section 3 of the Rules of Court. Verily, the accused's motion to quashis not a meritorious motion imder Item III, 2(b)(iv) of the same Guidelines.

It has to be noted that notwithstanding the procedural infirmity of themotion to quash, this Court in the exercise of its discretion, gave due course to themotion, and proceeded to tackle the merit of alleged inordinate delay, albeit thesame was resolved in the negative, as quoted hereunder:

The movants claim that the Office of the Ombudsman

incurred delay in the investigation and resolution of their case foreleven (11) years.

The Court disagrees.

Following the recent ruling in Cagang," the Supreme Courtheld that fact-finding investigations are no longer included in theperiod for the determination of inordinate delay. It starts only uponthe filing of the formal complaint and the subsequent conduct of thepreliminary investigation. In the instant cases, the count only startson November 28, 2011 when the Field Investigation Office (FIG) ofthe Office of the Ombudsman was submitted for preliminaryinvestigation up to the filing of the Informations in Court on April 5,2019. Thus, accused's allegation of an eleven (ll)-year delay iserroneous.

Moreover, a review of the material dates of these cases revealthat although there may have been delay in the disposition of thecases, such delay is not capricious, whimsical nor arbitrary thatwould render rights nugatory considering the magnitude of thePhp728 Million Fertilizer Scam. Hereunder is the timeline ofinvestigation, viz: I

Supra, Note 3

Urgent Motion to Conduct Proper Preliminary Investigationand to Defer Arraignment and Trial;and Motion for Reconsideration with Motion to Defer ArraignmentSB-12-CRM.0048 to 49

PP vs. Francisco N. Mamba, Jr., et al.

Page?

July 9,2004

June 25,2007

July 6,2007

June 1,2011

November 10,2011

November 28,2011

April 19,2012

April 24,2012

April 25,2012

July 10,2017

July 28,2017

January 10,2018

Field Investigation Office (FIG) initiallyconducted fact-finding investigations;

The Task Force Abono submitted to then

Ombudsman Ma. Merceditas N.

Gutierrez a Consolidated InvestigationReport relative to the Php728 MillionFertilizer Fund Scam including thesubject matters of the instant cases;

FIO Assistant Ombudsman Melchor

Arthur H. Carandang recommended theapproval of the said Report;

The Task Force Abono, FIO filed itsComplaint dated March 31,2011 againstherein accused before the Office of the

Ombudsman on June 1, 2011, docketedasOMB-C-C-ll-0779-L;

wasFact-finding investigationcompleted, the Investigation Report andthe Complaint was approved byOmbudsman Conchita Carpio Morales;

The FIO Complaint was submitted forPreliminary Investigation;

Frederick G. Baligod, Anabel Turingan,Petra Batin Delos Santos, RodolfoCardenas, Juliana Filipina F. Padilla,Letecia Agustin Acob, Jose O. Palacpacfiled their respective Counter-Affidavit;

Francisco N. Mamba, Jr., William N.Mamba, Merlina B. Dayag filed theirrespective Counter-Affidavit;

Teresita Espinosa filed her Counter-Affidavit;

The Office of the Ombudsman issued aResolution finding probable causeagainst the accused and recommendingthe filing of Information against them;

Ombudsman Conchita Carpio Moralesapproved the said Resolution dated July10,2017.

GlPO 111 Afleso submitted a draft Order

modifying the Resolution issued on July10, 2017 on the ground "that respondentRamon Aytona was inadvertentlyincluded in par. a(ii) in the enumerationof respondents sought to be indicted forviolation of Section 3(e) of RA 3019 forthe unnumbered Disbursement Voucher

(DV) dated July 2,2004. As discussed inthe Resolution, Aytona's activeparticipation in the transaction was onlywith respect to DV No. 401-04-04-024.Likewise, the dismissal of the complaintas to respondents Redentor H. Antolin

Urgent Motion to Conduct Proper Preliminary Investigationand to Defer Arraignment and Trial;and Motion for Reconsideration with Motion to Defer ArraignmentSB-12-CRM-0048 to 49

PP vs. Francisco N. Mamba, Jr., et al.X

Page 8

and Julie M. Gregorio was not expresslystated in the dispositive portion."

January 22,2018 Ombudsman Conchita Carpio-Moralesapproved the aforesaid Order relative tothe case;

February 7,2018 Ombudsman Carpio-Morales approvedand signed the Informations;

February 5,2019 Newly appointed Ombudsman SamuelMartirez signed the Informations,

Aoril 5 2019 The two (2) Informations of the inst^tcases were filed before theSandiganbayan;

From the filing of the Complaint on November 28, 2011, itwas only on April 25, 2012 that the last Counter-Affidavit[Espinosa] was filed, while the Order ̂ Al® Counter-Affidavh toAytona was returned unserved. As it looks, it rnay be ^e^onableto deduct said intervening period from the timeline of preliimnatyinvestigation. Meanwhile, the scope of the facts, the ̂ ^^er orespondents, as well as the complexity of the issues posed ̂ d thelayers of reviewing authorities understandably took time for theOffice of the Ombudsman to complete the evaluation of the ̂ e.An examination of the Informations filed also showstheir approval by Ombudsman Carpio-Morales on Feb^ 72018 they also bear the signature on February 5, 2019 oOmbudsman Martirez who was appointed Ombudsman on My 2 ,2018 that finally signaled the filing of the Informations. Meamngto say t^e transLn of leadership in the Office of toe Ombudsmanalso justifiably took toll on toe time spent before toe Informationsreached toe Court.

Amida the supposed delay, the accused did not file before theOffice of the Ombudsman any motion or letter dimng theXinary investigation, seeking the eariy resoludon of the^filed against them and signifying that they are not waiyir^g theirright to the speedy disposition thereof. This is in addtUon to the totthat there was nothing on record that would show tot ̂ ey fiW amotion for reconsideration to the Resolution dated July 10, 2017fmding probable cause against them, or that they raised the issue ofinordinate delay. They did nothing and justInformations to be filed in Court, which is construed as anabdication of such right.

While there may have been "institutional delay" in thedisposition of the case by the Office of the Ombudsm^to in Cagang, the same should not be taken against the right of them pmLute and protect its intemst under the circumstances.In toe said case, toe Supreme Court elucidates m this wise.

The reality is that institutional delay [is] ̂that the court must address. The prosecution is staffed by .overworked and underpaid goveminent lawyers with Imounting caseloads, x x x. jJ

r

Urgent Motion to Conduct Proper Preliminary Investigation ^and to Defer Arraignment and Trial;and Motion for Reconsideration with Motion to Defer ArraignmentSB-12-CRM-0048to49

PP vs. Francisco N. Mamba, Jr., et al.

Institutional delay, in the proper context, should notbe taken against the State. Most cases handled by the Officeof the Ombudsman involve individuals who have theresources and who engage private counsel with the meansand resources to fully dedicate themselves to their client'scase. More often than not, the accused only invoke the rightto speedy disposition of cases when the Ombudsman hasalready rendered an unfavorable decision. The prosecutionshould not be prejudiced by private counsels' failure toprotect the interests of their clients or the accused's lack ofinterest in the prosecution of their case.

The Php728 Million Fertilizer Scam is of suchmagnitude that the right of the State to prosecute should not beunreasonably prejudiced on a belatedly raised issue of "mordmatedelay" in investigation. As affirmed in the same case of Cagang,the State is entitled to due process and to be heard in its case asmuch as the accused, viz:

The State is as much entitled to due process as the accused.In People v. Leviste:

[I]t must be emphasized that the state, like anyother litigant, is entitled to its day in court, and to areasonable opportunity to present its case. A hastydismissal such as the one in question, instead of uncloggmgdockets, has actually increased the workload of the justicesystem as a whole and caused uncalled-for delays m thefinal resolution of this and other cases. Unwittingly, theprecipitate action of the respondent court, instead of easingthe burden of the accused, merely prolonged the litigationand ironically enough, unnecessarily delayed the case m theprocess, causing the very evil it apparently sought to avoid.Such action does not inspire public confidence in theadministration of justice.

Let it be reiterated at this point that in Cagang, the Supreme Court ctoifiedthe mode of analysis in situations where the right to speedy disposition of casesor the right to speedy case disposition is invoked. Among others, it held.

Xxx

Fourth, determination of the length of delay is nevermechanical. Courts must consider the entire context of the case,from the amount of evidence to be weighed to the simplicity orcomplexity of the issues raised.

An exception to this rule is if there is an ̂ legation that theprosecution of the case was solely motivated by malice, such aswhen the case is politically motivated or when there is continuedprosecution despite utter lack of evidence. Malicious intent rnaybe gauged from the behavior of the prosecution throughout theproceedings. If malicious prosecution is properly alleged ansubstantially proven, the case would automatically be dismissewithout need of further analysis of the delay.

Urgent Motion to Conduct Proper Preliminary Investigationand to Defer Arraignment and Trial;

ArraignmentSB-12-CRM-0048 to 49

PP vs. Francisco N. Mamba, Jr., et al.

v^other exception would be the waiver of the accused to theright to speedy disposition of cases or the right to speedy trial. Ifit can be proven Aat the accused acquiesced to the delay, theconstitutional right can no longer be invoked.X X X X

The issues raised by the accused in the instant motion have already beendiscussed by this Court in the assailed Resolution. The accused have not presentedany new and compelling argument that would warrant the reversal thereof. Aspointed out therein, "[w]hile there may have been "institutional delay" in thedisposition of the case, the same should not be taken against the right of the Stateto prosecute and protect its interest under the circumstances as it was not shownthat the delay was motivated by malice, neither was it capricious or oppressive.These cases are but one of the many cases involved in the Php728 MillionFertilizer Scam concerning an alleged scheme of such magnitude and intricaciescomprising a significant number of personalities nationwide such that the right ofthe State to prosecute shall not be conveniently brushed aside under thecircumstances.

WHEREFORE, premises considered, this Court resolves to deny accusedAytona's '"'"Urgent Motion to Conduct Proper Preliminary Investigation and toDefer Arraignment and TriaF filed on August 13, 2019, as well as accusedMamba, et al. s 'Motion for Reconsideration with Motion to Defer Arraignment^filed on August 14,2019, both for lack of merit.

SO ORDERED.

MARYANN E. CORPUS - MANALACAssociate Justice

WE CONCUR:

R^A£LR. LAGOSAssociate Justice

Chairperson

MARIA THEflESA^MEND ►ZA-ARCEGAAssociate Ju ice