This pleading is a REPLY to rebut the OPPOSITION in a pending motion to suspend proceedings in a criminal case based on PREJUDICIAL QUESTION. The Reply was prepared by our law office, as counsel for the accused-movant in the "motion to suspend proceedings in a criminal case based on PREJUDICIAL QUESTION". We are sharing it for legal research purposes of our readers/followers.
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
Xxx CITY
BRANCH xxx
PEOPLE OF THE PHILIPPINES,
Plaintiff,
Crim.
Case No. xxx
-Versus
-
For:
Violation of
Xxx Sec.
3 (g), RA 3019
(Salary Grade 14)
Former Barangay Chairman
Address:
Accused.
x----------------------------------------x
REPLY
THE
ACCUSED, by counsel, respectfully states:
1.
X
x x.
2.
This
Reply rebuts the Comment/Opposition, dated 18 October 2016, of the Office of
the Ombudsman to the:
“URGENT MOTION
TO SUSPEND PROCEEDINGS BASED ON PREJUDICIAL QUESTION PURSUANT TO SECTION 11,
PARAGRAPH “B”, RULE 116, RULES OF CRIMINAL PROCEDURE”, dated October 5, 2015,
of the accused.
3. In the APPEAL MEMORANDUM, dated June
16, 2016, filed by herein accused xxx (and his co-appellants) with the
COMMISSION ON AUDIT (COA), they prayed for the following reliefs:
“WHEREFORE,
premises considered, it is respectfully prayed that:
1. The questioned NOTICE OF DISALLOWANCE
NO. xxx, dated November 18, 2014, issued by the Appellees be SET ASIDE AND
NULLIFIED; and
2. The transaction subject matter thereof
be AFFIRMED AND DECLARED PROPER, LEGITIMATE, LAWFUL AND VALID.
FURTHER, the
Appellants pray for such and other reliefs as may be deemed just and equitable
in the premises.”
4.
The
said appeal which is pending with the COA is clearly PREJUDICIAL to the instant
criminal case.
4.1.
If
the COA rules with finality to set aside and nullify the questioned notice of
disallowance and to affirm and declare as proper, legitimate, lawful and valid
the transaction subject matter of the said appeal (which is exactly the same
subject matter of the instant criminal case), the legal and operative effect thereof
would be to declare the innocence of the
herein accused with respect to the offense charged in the instant criminal case.
5.
It must be noted that the sole
evidence of the Office of the Ombudsman in filing and prosecuting the instant
criminal case is based exactly on the same COA report and notice of
disallowance (which is now under a pending appeal by the accused). Nothing else.
6.
The
internal rules, policies and procedures of Office of the Ombudsman with respect
to criminal cases pending before any tribunal of the Judiciary, which is a
constitutionally independent branch of Government, are not superior to the Rules of Court being enforced by the Supreme Court throughout
the entire Judiciary.
7.
Section 11, Paragraph “B”, Rule 116,
of the Rules of Criminal Procedure empowers
this Court TO SUSPEND the instant
criminal proceeding until after the FINAL RESOLUTION of the pending and prior
PREJUDICIAL QUESTION (COA Appeal) alleged and discussed in the pending motion
to suspend proceedings of the accused.
7.1.
No
internal rules, procedures and policies of the Office of the Ombudsman may
overrule the aforementioned provision of the Rules of Court of the Supreme
Court.
8. The case of PHILIPPINE AGILA SATELLITE,
INC. represented by MICHAEL C. U. DE GUZMAN vs. SEC. JOSEFINA TRINIDADLICHAUCO
and the HON. OMBUDSMAN, G.R. No. 134887, July 27, 2006, is relevant to this
pending incident.
8.1.
It
involved a civil case and an Ombudsman case for criminal violation of R.A. No.
3019 (Anti-Graft and Corrupt Practices Act).
8.2.
The
main issue in the said case was “whether there exists a prejudicial question”.
8.3.
The
Supreme Court cited Section 7, Rule 111
of the Rules on Criminal Procedure which provides:
Section
7. Elements of prejudicial question. – The
elements of a prejudicial question are: (a) the previously instituted civil
action involves an issue similar or intimately related to the issue raised in
the subsequent criminal action, and (b) the resolution of such issue determines
whether or not the criminal action may proceed.
8.4.
The Supreme Court
held therein that “the rationale for the principle of prejudicial question is
that although it does not conclusively resolve the guilt or innocence of the
accused, it tests the sufficiency of the allegations in the complaint or
information in order to sustain the further prosecution of the criminal
case”. It added: “Hence, the need for
its prior resolution before further proceedings in the criminal action may be
had.”
8.5.
Analogous to the
instant case, the accused in the aforementioned citation was charged with the
violation of the related provision of Section
3(e) of R.A. 3019.
8.6.
The Supreme Court
stated that the elements of Section 3(e)
of R.A. 3019 were as follows:
* The accused is a public officer
discharging administrative or official functions or private persons charged in
conspiracy with them;
* The public officer committed the
prohibited act during the performance of his official duty or in relation to
his public position;
* The public officer acted with manifest
partiality, evident bad faith or gross, inexcusable negligence; and
·
His action caused
undue injury to the Government or any private party, or gave any party any
unwarranted benefit, advantage or preference to such parties.
8.7.
The Supreme Court
added that the related prior civil cases against the accused therein (Lichauco)
involved three causes of action: (a)
injunction; (b) declaration of nullity of award; and (c) damages arising
from Lichauco’s questioned acts.
8.8.
The Supreme Court
stated:
“If
the award to the undisclosed bidder of orbital slot 153ºE is, in the civil
case, declared valid for being within
Lichauco’s scope of authority to thus free her from liability for
damages, there would be no prohibited
act to speak of nor there basis for undue injury claimed to have been suffered
by petitioner. The finding by the Ombudsman of the existence of a
prejudicial question is thus well-taken.”
8.8.1.
Note that in that
aforecited citation the Office of the Ombudsman respected the doctrine of
PREJUDICIAL QUESTION as enshrined in the Rules of Criminal Procedure at its
investigation phase. (In the instant case, its Prosecution and Monitoring Bureau disagrees with the doctrine).
9. The case of EDDIE
B. SABANDAL, petitioner, vs. HON. FELIPE S. TONGCO, Presiding Judge, Regional
Trial Court, Manila, Branch 42, and PHILIPPINES TODAY, respondents, [G. R. No.
124498. October 5, 2001], cited on Page 4 of the Comment/Opposition of the
Prosecution and Monitoring Bureau of the Office of the Ombudsman referred to
the following issue:
“The issue raised is
whether a prejudicial question exists to warrant the suspension of the trial of
the criminal cases for violation of
Batas Pambansa Bilang 22 against petitioner until after the resolution
of the civil action for specific
performance, recovery of overpayment, and damages.”
9.1.
The said issue is not on all fours
with the issue in the instant criminal case.
9.1.1.
In
the aforecited case the simple issue involved the issuance of a bouncing check, a separate crime in itself.
The mere issuance of a
bouncing check is a crime.
9.2.
The
civil cases for specific performance,
recovery of overpayment and damages were not deemed to be prejudicial questions in
relation to the case for violation of BP Blg. 22.
10. In the said citation, the Supreme Court held:
“x x x.
In this case, the issue in
the criminal cases for violation of Batas Pambansa Bilang 22 is whether the
accused knowingly issued worthless checks.
The issue in the civil
action for specific performance, overpayment, and damages is whether
complainant Sabandal overpaid his obligations to Philippines Today, Inc.
If, after trial in the
civil case, petitioner is shown to have overpaid respondent, it does not follow
that he cannot be held liable for the bouncing checks he issued, for the mere
issuance of worthless checks with knowledge of the insufficiency of funds
to support the checks is itself an offense.[18]
The lower court,
therefore, did not err in ruling that the pendency of a civil action for
specific performance, overpayment, and damages did not pose a prejudicial
question in the criminal cases for violation of Batas Pambansa Bilang 22.
Furthermore, the peculiar
circumstances of the case clearly indicate that the filing of the civil case
was a ploy to delay the resolution of
the criminal cases.
Petitioner filed the civil
case three years after the
institution of the criminal charges against him. Apparently, the civil action
was instituted as an afterthought to delay the proceedings in the criminal
cases.
Petitioner’s claim of
overpayment to respondent may be raised as a defense during the trial of
the cases for violation of Batas Pambansa Bilang 22 charged against him.
The civil action for
recovery of civil liability is impliedly instituted with the filing of
the criminal action.[19]. Hence, petitioner may invoke all defenses pertaining
to his civil liability in the criminal action.[20].
Xx x.”
11. The issues in the case of BRIG. GEN. (Ret.) JOSE S. RAMISCAL, JR.,
Petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents. G.R.
Nos. 169727-28, August 18, 2006, which was cited on Page 67 of the
Comment/Opposition are IRRELEVANT to the pending issue of PREJUDICIAL QUESTON
in the instant case:
“x x x.
I. THE
RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR
EXCESS OF JURISDICTION IN SUSTAINING THE OMBUDSMANS FINDING OF PROBABLE CAUSE FOR THE
COMMISSION OF ONE HUNDRED FORTY EIGHT (148) COUNTS OF ESTAFA THRU FALSIFICATION OF PUBLIC DOCUMENT AND ANOTHER ONE
HUNDRED FORTY EIGHT (148) COUNTS OF VIOLATION
OF REPUBLIC ACT NO. 3019 AND IN NOT DISMISSING THE INFORMATIONS.
II. THE
RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR
EXCESS OF JURISDICTION IN NOT
QUASHING THE INFORMATIONS AND IN NOT DISMISSING THE CASES
NOTWITHSTANDING THAT IT HAD NO
JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION.
III. THE
RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR
EXCESS OF JURISDICTION IN NOT
QUASHING THE INFORMATION IN CRIMINAL CASE NO. 28023 (ESTAFA
THROUGH
FALSIFICATION), NOTWITHSTANDING THAT THE FACTS
CHARGED THEREIN WERE AN ESSENTIAL PART OF ONE CONTINUING CRIME OF ESTAFA
SEPARATELY CHARGED IN CRIMINAL CASES NOS. 28021, 28025, 28027 AND 28029,
PENDING IN THE THIRD, FIRST, FIFTH AND SECOND DIVISIONS OF THE SANDIGANBAYAN,
RESPECTIVELY, CONSIDERING THAT BASED ON THE DOCUMENTS ADDUCED BY THE PEOPLE AND
FOR OBVIOUS WANT OF RELIABLE EVIDENCE, ONLY
ONE INFORMATION FOR ESTAFA SHOULD HAVE BEEN FILED FOR ALL THESE CASES
INCLUDING THE REMAINING ONE HUNDRED FORTY THREE (143) COUNTS COVERED BY THE OSP
MEMORANDUM DATED JUNE 15, 2004, ANNEX T;
IV. THE
RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR
EXCESS OF JURISDICTION IN NOT
QUASHING THE INFORMATION IN CRIMINAL CASE NO. 20822 (VIOLATION OF RA
NO. 3019) NOTWITHSTANDING THAT THE SAID CASE WAS ABATED BY CRIMINAL CASE NO.
20823 (ESTAFA THROUGH FALSIFICATION)
BECAUSE THE VERY FACTS ALLEGED IN THE FORMER WERE ALSO THE VERY FACTS ALLEGED
IN THE LATTER, THUS VIOLATING THE RULE
ON DOUBLE JEOPARDY.
X x x.”
11.1.
As summarized by
the Supreme Court, the issues in the said case were as follows:
“x x
x.
The issues are the following: (1) whether the Ombudsman committed grave abuse of discretion amounting to
excess or lack of jurisdiction in finding probable
cause against petitioner for estafa
through falsification of public document and for violation of Section 3(e) of
R.A. No. 3019; (2)
whether the Sandiganbayan committed grave abuse of discretion amounting to
excess of jurisdiction in finding probable
cause against petitioner for the issuance
of warrants for petitioners arrest without first conducting a hearing; (3) whether petitioner may be charged
and prosecuted for five (5) counts of estafa
thru falsification of public documents; and (4) whether petitioner may
be prosecuted for both estafa through
falsification of a public document and violation of Section 3(e) of R.A. No.
3019 without violating his right against double jeopardy.
X x x.”
11.2.
The
foregoing issues are totally IRRELEVANT to the issue of the pending PREJUDICIAL
QUESTION in the instant case.
12.
The Prosecution
cited on Page 6 of its Comment/Opposition the case of MARIO FL. CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, Presiding
Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF
THE PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET
AL., respondents, G.R. No. L-53373, June 30, 1987. The Supreme Court
summarized the issues in the said case, thus:
“Hence
this petition for review of said decision was filed by accused whereby
petitioner prays that said decision be reversed and set aside, respondent judge
be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said
criminal case, declaring the information
filed not valid and of no legal force and effect, ordering respondent
Judge to dismiss the said case, and declaring
the obligation of petitioner as purely civil.”
12.1.
The issues in the said case are likewise IRRELEVANT to
the pending issue of PREJUDICIAL QUESTION in the instant criminal case.
12.2.
The crucial
doctrines held in that case which were all IRRELEVANT to the issue of
PREJUDICIAL QUESTION) were as follows:
“x x
x.
However,
one may ask, if the trial court refuses to grant the motion to dismiss filed by
the fiscal upon the directive of the Secretary of Justice will there not be a
vacuum in the prosecution? A state prosecutor to handle the case cannot
possibly be designated by the Secretary of Justice who does not believe that
there is a basis for prosecution nor can the fiscal be expected to handle the
prosecution of the case thereby defying the superior order of the Secretary of
Justice.
The
answer is simple. The role of the
fiscal or prosecutor as We all know is to see that justice is done and not
necessarily to secure the conviction of the person accused before the Courts.
Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to
proceed with the presentation of evidence of the prosecution to the Court to
enable the Court to arrive at its own independent judgment as to whether the
accused should be convicted or acquitted. The fiscal should not shirk from the
responsibility of appearing for the People of the Philippines even under such
circumstances much less should he abandon
the
prosecution of the case leaving it to the hands of a private prosecutor for
then the entire proceedings will be null and void. 37 The least that the fiscal
should do is to continue to appear for the prosecution although he may turn
over the presentation of the evidence to the private prosecutor but still under
his direction and control. 38
The rule therefore in this
jurisdiction is that once a complaint or information is filed in Court any
disposition of the case as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the Court. Although
the fiscal retains the direction and control of the prosecution of criminal
cases even while the case is already in Court he cannot impose his opinion on
the trial court. The Court is the best and sole judge on what to do with the
case before it. The determination of
the case is within its exclusive jurisdiction and competence. A motion to
dismiss the case filed by the fiscal should be addressed to the Court who has
the option to grant or deny the same. It does not matter if this is
done before or after the arraignment of the accused or that the motion was
filed after a reinvestigation or upon instructions of the Secretary of Justice
who reviewed the records of the investigation.
In
order therefor to avoid such a situation whereby the opinion of the Secretary
of Justice who reviewed the action of the fiscal may be disregarded by the
trial court, the Secretary of Justice
should, as far as practicable, refrain from entertaining a petition for review
or appeal from the action of the fiscal, when the complaint or information has
already been filed in Court. The matter should be left entirely for the
determination of the Court.
X x
x.”
13.
At this juncture, it is apropos to cite the case of RE: SUBPOENA DUCES TECUM DATED JANUARY 11, 2010 OF ACTING DIRECTOR ALEU A. AMANTE,
PIAB-C, OFFICE OF THE OMBUDSMAN, A.M. No. 10-1-13-SC, March 2, 2010.
13.1.
By analogy, in the
aforecited case, which involved the power of the Office of the Ombudsman to
issue subpoenas, the Supreme Court lectured on the limitations on the powers of
the Office of the Ombudsman and the legal and constitutional duty of the
said Office to comply with the Constitution, the laws, Rules of Court, and the
applicable jurisprudence, to wit:
“The grant of this authority,
however, is not unlimited, as the Ombudsman must necessarily observe and abide
by the terms of the Constitution and our laws, the Rules of Court and the
applicable jurisprudence on the issuance, service, validity and efficacy of
subpoenas. Under the Rules of Court, the issuance of subpoenas, including a
subpoena duces tecum, operates under the requirements of reasonableness and relevance.
THUS:
“x x
x.
As
guide in the issuance of compulsory processes to Members of this Court, past
and present, in relation to complaints touching on the exercise of our judicial
functions, we deem it appropriate to discuss for the record the extent of the Ombudsman’s
authority in these types of complaints.
In
the appropriate case, the Office of the Ombudsman has full authority to issue
subpoenas, including subpoena duces tecum, for compulsory attendance of
witnesses and the production of documents and information relating to matters
under its investigation.[2] The grant
of this authority, however, is not unlimited, as the Ombudsman must necessarily
observe and abide by the terms of the Constitution and our laws, the Rules of
Court and the applicable jurisprudence on the issuance, service, validity and
efficacy of subpoenas. Under the Rules of Court, the issuance of subpoenas,
including a subpoena duces tecum, operates under the requirements of
reasonableness and relevance.[3] For the production of documents to be
reasonable and for the documents themselves to be relevant, the matter under
inquiry should, in the first place, be one that the Ombudsman can legitimately
entertain, investigate and rule upon.
In
the present case, the matter that gave rise to the issuance of a subpoena duces
tecum was a criminal complaint filed by the complainants Lozano for the alleged
violation by retired Supreme Court Chief Justice Hilario Davide, Jr. and
retired Associate Justice Ma. Alicia Austria-Martinez of Section 3(e) of R.A.
3019, as amended (the Anti-Graft and Corrupt Practices Act).
A
first step in considering whether a criminal complaint (and its attendant
compulsory processes) is within the authority of the Ombudsman to entertain
(and to issue), is to consider the nature of the powers of the Supreme Court.
This Court, by constitutional design, is supreme in its task of adjudication;
judicial power is vested solely in the Supreme Court and in such lower courts
as may be established by law. Judicial power includes the duty of the courts,
not only to settle actual controversies, but also to determine whether grave
abuse of discretion amounting to lack or excess of jurisdiction has been
committed in any branch or instrumentality of government.[4] As a rule, all
decisions and determinations in the exercise of judicial power ultimately go to
and stop at the Supreme Court whose judgment is final. This constitutional
scheme cannot be thwarted or subverted through a criminal complaint that, under
the guise of imputing a misdeed to the Court and its Members, seeks to revive
and re-litigate matters that have long been laid to rest by the Court.
Effectively, such criminal complaint is a collateral attack on a judgment of
this Court that, by constitutional mandate, is final and already beyond question.
X x
x.”
WHEREFORE,
premises considered, it is respectfully prayed that the proceedings in the
instant criminal case be SUSPENDED based on PREJUDICIAL QUESTION (i.e., the
pending prior quasi-judicial case
involving the unresolved/pending APPEAL OF THE ACCUSED BEFORE THE COMMISSION ON
AUDIT, NATIONAL CAPITAL REGIONAL OFFICE, supra) pursuant to Section 11, Paragraph “B”, Rule 116, of the
Rules of Criminal Procedure, the same to
remain SUSPENDED until after the FINAL RESOLUTION of the pending prior
PREJUDICIAL QUESTION as discussed in the main body of this motion.
FURTHER, the accused respectfully
prays for such and other reliefs as may be deemed just and equitable in the
premises.
Las Pinas
City, November 23, 2016.
LASERNA CUEVA-MERCADER
LAW OFFICES
Counsel for Accused
Unit 15, Star Arcade, C. V. Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel/Fax: 8725443 & 8462539
Mobile: 09433425978
Email: lcmlaw@gmail.com
http://lcmlaw1.blogspot.com
http://twitter.com/lcmlaw_ph
http://facebook.com/lcmlawlaspinascity
x x x.
Copy Furnished:
Office of the City
Prosecutor.
Hall of Justice
Las Pinas City
(Personal
delivery)
Prosecution and
Monitoring Bureau
Office of the Ombudsman
3rd Flr., Ombudsman Annex Bldg.
Agham Rd., Diliman, Quezon City
Reg. Rec.
No.
Date PO
EXPLANATION
A copy hereof is served on opposing
counsel registered mail due to the distance of the office address of adverse
counsel, due to the lack of field staff of undersigned counsel at this time,
and due to the urgency of filing the same.
X
x x x.
