Hermis Carlos Perez vs. Sandiganbyan and the Ombudsman

FIRST DIVISION

[ G.R. No. 245862, November 03, 2020 ]

HERMIS CARLOS PEREZ, PETITIONER, VS. SANDIGANBAYAN AND THE OMBUDSMAN, RESPONDENTS.

DECISION

CAGUIOA, J:

This is a petition1'for'certiorari'and prohibition, with a prayer for the issuance of writ of preliminary injunction and temporary restraining order, filed by the petitioner Hermis Carlos Perez (Perez), seeking to nullify the Resolutions dated January 29, 20192'and March 8, 20193'of the Sandiganbayan in SB-18-CRM-0526. The challenged resolutions of the Sandiganbayan denied Perez's Motion to Quash4'for lack of merit, ruling that that the offense has not prescribed and there was no violation of Perez's right to the speedy disposition of cases.

The Facts

On April 27, 2016, a complaint for Malversation of Public Funds or Property, for violation of Sections 3(e) and (g) of Republic Act (R.A.) No. 3019,5'and for violation of Sections 37 and 48 of R.A. No. 90036'was filed against Perez, in his capacity as the Mayor of Bi'an, Laguna. The complaint also impleaded Victor G. Rojo (Rojo), a private individual connected with Etsaw Consultancy and Construction of Environmental Technologies International Corporation of the Philippines7'(ECCE).

The complaint stemmed from a Memorandum of Agreement8'(MOA) executed on November 12, 2001 between the Municipality of Bi'an, as represented by Perez, and ECCE, as represented by Rojo, wherein the Municipality of Bi'an agreed to use ECCE's Hydromex Technology for its solid waste management program, and to obtain its services for project management, documentation, as-built drawings, installation, testing, supervision, and training. The MOA further stated that the Municipality of Bi'an was satisfied and convinced of ECCE's capability to carry out the solid waste management program after it had observed ECCE's Hydromex Technology in the Quezon City Hall compound. Perez's authority to enter into the MOA was earlier granted by the'Sangguniang Bayan'of Bi'an through'Kapasiyahan Blg.'239-(2001),9'issued on October 1, 2001.

An amended MOA was supposedly executed on March 25, 2002, having the same terms and conditions as the original MOA, except for the price and terms of payment. From ₱75,000,000.00, the price was reduced to ₱71,000,000.00, and the terms of payment were accelerated.10

The complaint, filed 14 years after the execution of the MOA, alleged that there was no competitive bidding undertaken to procure ECCE's solid waste management program and other services. Furthermore, it was alleged in the complaint that ECCE is incapable of complying with its contractual obligations under the MOA, especially since its investment in a Waste Treatment Machine is ₱130,303.39 but ECCE's subscribed capital stock amounts only to ₱28,000.00. The complaint further cited the harm and injury to residents near the dumpsite operations of ECCE.11

After more than four months from the filing of the complaint, the Office of the Ombudsman (OMB) Graft Investigation & Prosecution Officer issued a report on September 6, 2016, recommending the assignment of the case to a member of the Environmental Ombudsman Team. On October 13, 2016, Perez and Rojo were directed to file their respective counter-affidavits.12

On November 22, 2016, Perez's counsel filed a formal entry of appearance, and moved for the extension of time to submit the required counter-affidavit. On December 20, 2016, Perez submitted his counter-affidavit to the OMB, denying the accusations in the complaint.13'Perez argued that the transaction between ECCE and the Municipality of Bi'an was reviewed by the Local Prequalification, Bids and Awards Committee (PBAC). According to him, R.A No. 9184,14'or the Government Procurement Reform Act, is not applicable to the ECCE contract, and that Sections 37 and 38 of the Local Government Code15'(LGC) should instead apply.16

In a Resolution17'dated February 22, 2018, the OMB Graft Investigation and Prosecution Officer found probable cause to charge Perez with the violation of Section 3(e) of R.A. No. 3019:

WHEREFORE, this Office finds probable cause to indict respondent HERMIS C. PEREZ for violation of Section 3(e) of R.A. No. 3019. Let the corresponding Information be'FILED'before the Sandiganbayan.

The charges for Malversation of Public Funds or Property and violation of Section 3(g) of R.A. No. 3019 and Sections 37 and 48 [of R.A. No. 9003 against respondent Perez are DISMISSED for lack of merit.

The charges against respondent VICTOR G. ROJO are'DISMISSED'for lack of merit.

SO ORDERED.18

The OMB held that the execution of the MOA with ECCE was an act of manifest partiality on the part of Perez. ECCE was chosen without the benefit of a public bidding, which was the default mode of procurement even prior to the enactment of the Government Procurement Reform Act in 2003. Both the Local Government Code and the Commission on Audit (COA) Circular No. 92-38619'prescribe competitive public bidding. The OMB also found that Perez

was unable to substantiate his defense that the MOA was reviewed by the Local PBAC of Bi'an.20

Moreover, the OMB held that Perez acted with gross inexcusable negligence in awarding the solid waste management program to ECCE. Since ECCE has a subscribed capital stock of only ₱28,000.00 and a paid-up capital of ₱7,000.00, the OMB found that Perez failed to conduct his own due diligence prior to the execution of the MOA. As a result, the OMB ruled that unwarranted benefits were given to ECCE.21

As for the charge of conspiracy with Rojo, the OMB held that there was no evidence to establish this fact. The OMB also found insufficient evidence to prove the elements of the other criminal charges against Perez.22

On February 28, 2018, Ombudsman Conchita Carpio Morales (Ombudsman Carpio Morales) approved the February 22, 2018 Resolution finding probable cause against Perez.23'Perez moved for the partial reconsideration of this resolution on May 7, 2018.24'This motion was denied in the June 7, 2018 Order of the OMB.25

On July 19, 2018, an Information26'was prepared against Perez, the accusatory portion of which reads as follows:

That from 12 November 2001 to 25 March 2002, or sometime prior or subsequent thereto, in Bi'an, Laguna, Philippines, and within the jurisdiction of this Honorable Court, accused'HERMIS CARLO PEREZ, a high-ranking public officer, being then the Municipal Mayor of Bi'an, Laguna, while in the performance of his administrative and/or official functions and committing the crime in relation to office, taking advantage of his official position, acting with evident bad faith, manifest partiality and/or gross inexcusable negligence, did then and there willfully, unlawfully and criminally give Etsaw Consultancy and Construction of Environmental Technologies International Corporation of the Philippines (ECCE) and/or Victor G. Rojo, President of ECCE, unwarranted benefit, advantage or preference by awarding, causing and/or ensuring the award to the latter the contract for the solid waste management program of the municipality, as well as the services for the project management, documentation/as-built drawings, installation, testing, acceptance, supervision and training services via Memorandum of Agreement dated 12 November 2001, and Agreement for the Supply of Hydromex Technology-Related Equipment dated 25 March 2002, in the amount of PhP71,000,000.00 despite the following irregularities: (a) the absence of a public bidding as ECCE was only selected based on the latter's presentation of the Hydromex Technology, in violation of the Local Government Code and COA Circular No. 92-386; (b) the lack of the recommendation and/or approval of the bids and awards committee; (c) failure to conduct due diligence and background check on the financial qualification and technical capability of ECCE to undertake the project, which only had the subscribed capital stock of PhP28,000.00, and a paid-up capital of PhP7,000.00, and by causing or facilitating the payments in favor of ECCE notwithstanding the said irregularities, to the damage and prejudice of the government.

CONTRARY TO LAW.27

Ombudsman Carpio Morales approved the Information on July 20, 2018. Later, or on October 2, 2018, Ombudsman Samuel R. Martires likewise signified his approval to the filing of the Information with the Sandiganbayan.28'The Information was finally filed with the Sandiganbayan on October 5, 2018.29

On October 31, 2018, Perez moved to quash30'the Information on the ground of prescription of the offense. Perez pointed out that the alleged violation of Section 3(e) of R.A. No. 3019 occurred on November 12, 2001 up to March 25, 2002. Under Section 11 of R.A. No. 3019, all offenses punishable under this law prescribe after 15 years. Since the Information was filed with the Sandiganbayan only on October 5, 2018, or more than 16 years from the commission of the offense, the criminal charges should be dismissed on the ground of prescription. In addition, Perez invoked his constitutional right to the speedy disposition of cases.31

The People of the Philippines (People) opposed Perez's motion to quash. In its comment,32'the People argued that the prescription of the offense charged against Perez should be reckoned from the discovery of its commission. Even if the court were to reckon the period of prescription from the commission of the offense on November 12, 2001, the complaint against Perez was filed with the OMB on April 27, 2016, effectively tolling the running of the prescriptive period. As regards the right to the speedy disposition of cases, the People maintained that there was no delay, and even if there was any, the delay was not inordinate.33

Ruling of the Sandiganbayan

In a Resolution dated January 29, 2019, the Sandiganbayan found Perez's motion bereft of merit:

WHEREFORE, premises considered, the motion to quash of accused'Hermis Carlo Perez'is hereby'DENIED'for lack of merit.

Let the arraignment of the above-named accused be set accordingly.

SO ORDERED.34

On the issue of prescription of the offense, the Sandiganbayan ruled that the 15-year period is applicable because R.A. No. 10910,35'the amendatory law of R.A. No. 3019, took effect only on July 21, 2016. The Sandiganbayan likewise ruled that the prescriptive period commenced to run only from the discovery of the commission of the offense, pursuant to the "blameless ignorance"36'doctrine in Section 2 of Act No. 3326.37'For this reason, it was only when the problems with the MOA became evident that the offense was discovered. In any case, the Sandiganbayan held that even if it were to reckon the prescriptive period on the'Sangguniang Bayan's passage of its resolution on October 1, 2001, which approved the execution of the subject MOA, the filing of the complaint with the OMB interrupted the running of the prescriptive period.38

Further, the Sandiganbayan held that there was no violation of Perez's right to speedy disposition of cases. Since the complaint was filed on April 27, 2016 and the Information was filed with the Sandiganbayan on October 5, 2018, the OMB was able to resolve the preliminary investigation within a reasonable period of time. The Sandiganbayan further ruled that even if there was delay, Perez impliedly acquiesced when he failed to file a motion for the early resolution of his case.39

On February 13, 2019, Perez filed a motion for the reconsideration40'of the Sandiganbayan's January 29, 2019 Resolution. Again, he argued that information as to the commission of the offense is readily available as early as October 1, 2001, the date of the'Sangguniang Bayan'resolution, or as late as March 25, 2002, the date of the MOA's amendment. He also stated that the filing of the complaint with the OMB cannot interrupt the prescriptive period, as only judicial or court proceedings may toll prescription.41'The People opposed this motion.42

The Sandiganbayan, in its Resolution dated March 8, 2019, denied Perez's motion for having been filed beyond the reglementary period under the Revised Guidelines for Continuous Trial of Criminal Cases. The Sandiganbayan also ruled on the merits and found the motion of Perez unmeritorious:

WHEREFORE, the instant motion is'DENIED'for lack of merit. This Court's Resolution dated January 29, 2019, is hereby'AFFIRMED IN TOTO.

SO ORDERED.43

Hence, Perez filed the instant petition.

Perez insists that prescription of the offense had set in his favor. Since October 1, 2001, or the date of approval of the'Sangguniang Bayan'resolution, the MOA was known to the public and irregularities in its execution may already be discovered. Perez also argues that prescription may be reckoned on November 12, 2001, the date of the notarization of the MOA, or at most, on March 25, 2002, when the MOA was amended. Insofar as the interruption of the prescriptive period is concerned, Perez disputes the Sandiganbayan ruling that the filing of the complaint with the OMB tolled the prescription of the offense. Finally, Perez again invokes his right to the speedy disposition of cases, positing that the OMB took more than two (2) years to resolve the complaint.44'The petition also prays for the issuance of an injunctive writ against the Sandiganbayan to enjoin further proceedings in the criminal case.45

Issues

There are two issues for the resolution of the Court:

(a) Whether the offense charged against Perez has prescribed; and

(b) Whether Perez's right to the speedy disposition of cases was violated.

The Court's Ruling

The Court finds the petition meritorious.

Before proceeding with the merits of this case, the Court first determines whether Perez's motion for reconsideration was timely filed. The challenged March 8, 2019 Resolution of the Sandiganbayan states that Perez filed his motion for the reconsideration of the denial of his motion to quash beyond the five day period prescribed in the Revised Guidelines for Continuous Trial of Criminal Cases.46'The pertinent portions of the Revised Guidelines for Continuous Trial of Criminal Cases state:

III. Procedure

x x x x

2. Motions

(c)'Meritorious Motions. - Motions that allege plausible grounds supported by relevant documents and/or competent evidence, except those that are already covered by the Revised Guidelines, are meritorious motions, such as:

v. Motion to quash information on the grounds that the facts charged do not constitute an offense, lack of jurisdiction, extinction of criminal action or liability, or double jeopardy under Sec. 3, par. (a), (b), (g), and (i), Rule 117;

The motion for reconsideration of the resolution of a meritorious motion shall be filed within a non-extendible period of five (5) calendar days from receipt of such resolution, and the adverse party shall be given an equal period of five (5) calendar days from receipt of the motion for reconsideration within which to submit its comment. Thereafter, the motion for reconsideration shall be resolved by the court within a non'-extendible period of five (5) calendar days from the expiration of the five (5)-day period to submit the comment.

Motions that do not conform to the requirements stated above shall be considered unmeritorious and shall be denied outright.

By his own allegation, Perez received the January 29, 2019 Resolution of the Sandiganbayan on February 4, 2019.47'Thus, he should have filed the motion for reconsideration on or before February 9, 2019. But since Perez filed his motion on February 13, 2019,48'the Sandiganbayan ruled that Perez's motion may be denied based on this ground alone.49

While Perez indeed belatedly moved for the reconsideration of the denial of his motion to quash, the Court has, in some instances, liberally applied procedural rules. This exception applies to meritorious cases, as when it would result in the outright deprivation of the litigant's liberty or property.50

In this case, the liberty and the constitutional right of the accused are at stake. The allegations of Perez are hinged on the extinction of his criminal liability because of the prescription of the offense. He likewise maintains that there was a violation of his right to the speedy disposition of cases. Verily, the dismissal of this petition on the basis of a mere technicality may result in the unjust deprivation of the liberty of the accused.

The prescription of offenses definedin special penal laws generally beginsto run upon the commission of theoffense.

In resolving issues concerning the prescription of offenses, the Court must determine the following: (a) the prescriptive period of the offense; (b) when the period commenced to run; and (c) when the period was interrupted.51

Since Perez was charged with the violation of Section 3(e) of R.A. No. 3019, the prescriptive period of the offense is found in Section 1152'of the same law, which provides that all offenses punishable under R.A. No. 3019 prescribes in 15 years. This provision was later amended by R.A. No. 10910, increasing the prescriptive period from 15 to 20 years. The amendatory law took effect on July 21, 2016. As such, this longer period of prescription may not be retroactively applied to crimes committed prior to the passage of R.A. No. 10910.53'The applicable prescriptive period of the offense charged against Perez is therefore 15 years.

R.A. No. 3019 does not explicitly provide when the period begins to run. For this purpose, reference should be made to Act No. 3326, which governs the prescription of offenses punished by special penal laws.

As a general rule, Section 2 of Act No. 3326 prescribes that prescription is triggered by the commission of the crime:

SECTION 2. Prescription shall begin to run from the day of the'commission'of the violation of the law, and'if the same be not known at the time, from the discovery thereof and the institution of judicial proceeding for its investigation and punishment.

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

If the commission of the offense is not known at that time, prescription begins to run from its discovery. This is otherwise referred to as the "blameless ignorance" principle which the Sandiganbayan relied upon to hold that the offense charged against Perez has not prescribed.

Initial reference to the "blameless ignorance" principle was made in the Concurring and Dissenting Opinion of Justice Reynato S. Puno (Justice Puno) in the 1999 case of'Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto.54'In his opinion, Justice Puno stated that:

The application of this provision is'not simple and each case must be decided according to its facts. It involves a careful study and analysis of'contentious facts: (a) when the commission of the violation of the law happened; (b) whether or not the violation was known at the time of its commission, and (c) if not known then, the time of its discovery. In addition, there is the equally'difficult problem of choice of legal and equitable doctrines'to apply to the above elusive facts. For the'general rule'is that the mere fact that a person entitled to an action has no knowledge of his right to sue or of the facts out of which his right arises, does not prevent the running of the statute. This stringent rule, however, admits of an'exception. Under the "blameless ignorance" doctrine, the statute of limitations runs'only'upon discovery of the fact of the invasion of a right which will support a cause of action. In other words, courts decline to apply the statute of limitations where the plaintiff neither knew nor had'reasonable means'of knowing the existence of a cause of action. Given all these factual and legal difficulties, the public respondent should have ordered private respondents to answer the sworn complaint, required a reply from the petitioners and conducted such hearings as may be necessary so he could have all the vital facts at his front and, upon their basis, resolve whether the offense charged has already prescribed. x x x55'(Italics in the original)

This "blameless ignorance" principle was mostly applied in cases involving behest loans executed during the Martial Law regime,56'as an exception to the general rule that prescription runs from the commission of the crime. Behest loans, by their very nature, are not easily discovered as they normally involved a large-scale conspiracy among the loan beneficiaries and the concerned public officials. Furthermore, there were negative repercussions entailing the prosecution of these offenses during the Martial Law regime. Taking the unique circumstances of behest loans under consideration, the Court ruled that the prescription of offenses arising from these contracts did not run until after the State discovered the violations.57

As an exception, the "blameless ignorance" principle applies when the plaintiff is unable to know or has no reasonable means of knowing the existence of a cause of action. It cannot always be invoked to extend the prescriptive period of the offense.

In'Del Rosario v. People,58'(Del Rosario) the Court rejected the Sandiganbayan's application of this doctrine with respect to the offense of non-filing of the Statement of Assets, Liabilities, and Net Worth (SALN). The filing of the SALN is mandatory for all public officials and employees, and there are fixed dates for its annual submission. Thus, the Court held in'Del Rosario'that the discovery rule is inapplicable because the OMB could easily verify the non-observance of the SALN requirement. Counting the period of prescription from the discovery of the offense therefore remains an exception to the general rule.

Here, the Court does not agree with the Sandiganbayan's reliance on the "blameless ignorance" principle to rule that the offense here has not prescribed.

Under the LGC, the local chief executive may enter into contracts on behalf of the local government unit, with the prior authorization from the concerned'sanggunian. Legible copies of the contracts are required to be posted at a conspicuous place in the provincial capitol, or the city, municipal or barangay hall.59'The concerned local government unit is further required to post a summary of the revenues and disbursements of funds for the preceding fiscal year, in at least three publicly accessible and conspicuous places in the local government unit, within 30 days from the end of the fiscal year.60

These posting requirements under the LGC constitute sufficient notice of the local government unit's contractual obligations. In line with this, information was readily available as regards the execution of the MOA with ECCE, especially since any funds disbursed for the payment of ECCE's services should have been posted at the end of the fiscal year. If there were irregularities in the execution of the MOA or the procurement of ECCE's services, including the absence of competitive bidding, such irregularities could have been discovered without substantial delay. Reference to the posted copies of the MOA and the other publicly available documents regarding the transaction provides the State with reasonable means of knowing the existence of the crime. As the Court adequately clarified in'Presidential Commission on Good Government (PCGG) v. Carpio Morales:61'"[i]f the necessary information, data, or records based on which the crime could be discovered is readily available to the public, the general rule applies."62

In this regard, the Sandiganbayan gravely abused its discretion when it misapplied the discovery rule. There was neither any allegation nor evidence that Perez deliberately concealed the MOA with ECCE from the public, such that it would be impossible for the State to discover the anomalies in the contract. For this reason, prescription began to run upon the execution of the MOA between the Municipality of Bi'an and ECCE on November 12, 2001, or when the violation of Section 3(e) of R.A. No. 3019 was allegedly committed.63

The running of the prescriptive periodwas tolled upon the filing of thecomplaint with the OMB.

Perez avers that since the Information was filed with the Sandiganbayan only on October 5, 2018, the offense has prescribed. According to him, Act No. 3326 explicitly states that prescription is interrupted when judicial proceedings are instituted against the accused. On this matter, he argues that the filing of the complaint with the OMB on April 27, 2016 is not the judicial proceeding contemplated under the law. Perez is incorrect.

Prescription is interrupted when the preliminary investigation against the accused is commenced. In'People v. Pangilinan,64'the Court held as follows:

x x x There is no more distinction between cases under the RPC and those covered by special laws with respect to the interruption of the period of prescription. The ruling in'Zaldivia v. Reyes, Jr.'is not controlling in special laws.'In'Llenes v. Dicdican, Ingco, et al. v. Sandiganbayan, Brillante v. CA, and Sanrio Company Limited v. Lim, cases involving special laws, this Court held that the institution of proceedings for preliminary investigation against the accused interrupts the period of prescription. In'Securities and Exchange Commission v. Interport Resources Corporation, et. al., the Court even ruled that investigations conducted by the Securities and Exchange Commission for violations of the Revised Securities Act and the Securities Regulations Code effectively interrupts the prescription period because it is equivalent to the preliminary investigation conducted by the DOJ in criminal cases.

In fact, in the case of'Panaguiton, Jr. v. Department of Justice, which is [on] all fours with the instant case, this Court categorically ruled that commencement of the proceedings for the prosecution of the accused before the Office of the City Prosecutor effectively interrupted the prescriptive period for the offenses they had been charged under BP Blg. 22. Aggrieved parties, especially those who do not sleep on their rights and actively pursue their causes, should not be allowed to suffer unnecessarily further simply because of circumstances beyond their control, like the accused's delaying tactics or the delay and inefficiency of the investigating agencies.65'(Emphasis supplied)

The filing of the complaint with the OMB on April 27, 2016 against Perez effectively commenced the preliminary investigation proceedings. After the filing of the complaint, the OMB was duty-bound to determine whether probable cause existed to charge Perez with the offenses stated in the complaint.66'It was at that point that the prescriptive period was interrupted ' approximately 14 years and five months after the commission of the alleged offense.

While Act No. 3326 speaks of'judicial'proceedings to suspend the period of prescription, the Court had settled in'Panaguiton, Jr. v. Department of Justice67'that the commencement of proceedings for the prosecution of the accused serves to interrupt the prescriptive period, even if the case is not filed yet with the appropriate court. This interpretation of Act No. 3326 took into account the changes in the procedure for the prosecution of criminal offenses since the law's enactment in 1926.

It must be pointed out that when Act No. 3326 was passed on 4 December 1926, preliminary investigation of criminal offenses was conducted by justices of the peace, thus, the phraseology in the law, "institution of judicial proceedings for its investigation and punishment," and the prevailing rule at the time was that once a complaint is filed with the justice of the peace for preliminary investigation, the prescription of the offense is halted.

The historical perspective on the application of Act No. 3326 is illuminating. Act No. 3226 was approved on 4 December 1926 at a time when the function of conducting the preliminary investigation of criminal offenses was vested in the justices of the peace. Thus, the prevailing rule at the time, as shown in the cases of'U.S. v. Lazada'and'People v. Joson, is that the prescription of the offense is tolled once a complaint is filed with the justice of the peace for preliminary investigation inasmuch as the filing of the complaint signifies the institution of the criminal proceedings against the accused. These cases were followed by our declaration in'People v. Parao and Parao'that the first step taken in the investigation or examination of offenses partakes the nature of a judicial proceeding which suspends the prescription of the offense. Subsequently, in'People v. Olarte, we held that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed cannot try the case on the merits. In addition, even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the proceedings against the offender, and hence, the prescriptive period should be interrupted.68

Since the OMB carries the mandate of investigating acts or omissions of public officers or employees,69'the Sandiganbayan was correct in ruling that the prescriptive period was interrupted by the filing of the complaint with the OMB. The OMB's conduct of a preliminary investigation carries the same effect as that originally contemplated in Act No. 3326, which is the institution of proceedings for the investigation and subsequent punishment of the offender. Although the complaint was filed at the eleventh hour, so to speak, it was still made within the 15-year period under Section 11 of R.A. No. 3019.

Having settled the issue on whether the prescriptive period for the prosecution of the offense has set in, the Court proceeds to determine whether there was a violation of Perez's right to speedy disposition of cases.

There was inordinate delay in theresolution of the preliminaryinvestigation.

In his petition, Perez argues that the OMB's resolution on the complaint took more than two years, which violated his right to the speedy disposition of cases.70'The Court agrees that the intervening delay in the resolution of the preliminary investigation against Perez was unjustified.

The constitutional guarantee on due process requires the State not only to observe the substantive requirements on preliminary investigation, but to conform with the prescribed periods under the applicable rules. The correlation of the due process rights of the accused and the right to speedy disposition of cases was explained in'Tatad v. Sandiganbayan71'(Tatad) as follows: "[s]ubstantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law."72

Recently, the Court, in'Cagang v. Sandiganbayan, Fifth Division73'(Cagang), clarified the guidelines in resolving questions concerning the right to speedy disposition of cases:

First, the right to speedy disposition of cases is different from the right to speedy trial. While the rationale for both rights is the same, the right to speedy trial may only be invoked in criminal prosecutions against courts of law. The right to speedy disposition of cases, however, may be invoked before any tribunal, whether judicial or quasi-judicial. What is important is that the accused may already be prejudiced by the proceeding for the right to speedy disposition of cases to be invoked.

Second, a case is deemed initiated upon the filing of a formal complaint prior to a conduct of a preliminary investigation. This Court acknowledges, however, that the Ombudsman should set reasonable periods for preliminary investigation, with due regard to the complexities and nuances of each case. Delays beyond this period will be taken against the prosecution. The period taken for fact-finding investigations prior to the filing of the formal complaint shall not be included in the determination of whether there has been inordinate delay.

Third, courts must first determine which party carries the burden of proof. If the right is invoked within the given time periods contained in current Supreme Court resolutions and circulars, and the time periods that will be promulgated by the Office of the Ombudsman, the defense has the burden of proving that the right was justifiably invoked. If the delay occurs beyond the given time period and the right is invoked, the prosecution has the burden of justifying the delay.

If the defense has the burden of proof, it must prove'first, whether the case is motivated by malice or clearly only politically motivated and is attended by utter lack of evidence, and'second, that the defense did not contribute to the delay.

Once the burden of proof shifts to the prosecution, the prosecution must prove'first, that it followed the prescribed procedure in the conduct of preliminary investigation and in the prosecution of the case;'second, that the complexity of the issues and the volume of evidence made the delay inevitable; and'third, that no prejudice was suffered by the accused as a result of the delay.

Fourth, determination of the length of delay is never mechanical. Courts must consider the entire context of the case, from the amount of evidence to be weighed to the simplicity or complexity of the issues raised.

An exception to this rule is if there is an allegation that the prosecution of the case was solely motivated by malice, such as when the case is politically motivated or when there is continued prosecution despite utter lack of evidence. Malicious intent may be gauged from the behavior of the prosecution throughout the proceedings. If malicious prosecution is properly alleged and substantially proven, the case would automatically be dismissed without need of further analysis of the delay.

Another exception would be the waiver of the accused to the right to speedy disposition of cases or the right to speedy trial. If it can be proven that the accused acquiesced to the delay, the constitutional right can no longer be invoked.

In all cases of dismissals due to inordinate delay, the causes of the delays must be properly laid out and discussed by the relevant court.

Fifth, the right to speedy disposition of cases or the right to speedy trial must be timely raised. The respondent or the accused must file the appropriate motion upon the lapse of the statutory or procedural periods. Otherwise, they are deemed to have waived their right to speedy disposition of cases.74

The guidelines in'Cagang, similar to'Tatad, recognize the significance of the prosecution's adherence to the specified time periods for the resolution of the preliminary investigation. This is apparent in the third guideline of'Cagang'where courts are directed to first determine whether the prosecution or the defense carries the burden of proving that the delay is justified, or unjustified, as the case may be. In order to make this determination, courts must look into when the right to speedy disposition was invoked,'i.e., whether within or beyond the period prescribed under the rules.

Accordingly, for purposes of assessing whether the right of Perez to the speedy disposition of cases was violated, the Court must examine whether the OMB observed the specified time periods in its conduct of the preliminary investigation. But aside from the reglementary periods for the filing of the counter-affidavits and reply affidavits, the Rules of Procedure of the OMB75'do not prescribe a period within which the preliminary investigation should be concluded. That said, the Rules also provide, however, that preliminary investigation shall be conducted in accordance with Section 3, Rule 112 of the Rules of Court, subject to the specific provisions under the Rules of Procedure of the OMB.76

In Section 3(f), Rule 112 of the Rules of Court, the investigating officer must determine whether there is sufficient ground to hold the respondent for trial within 10 days after the investigation. Furthermore, Section 4, Rule 112 of the Rules of Court, which also fills the gap77'in the procedure lacking in the Rules of Procedure of the OMB, likewise states:

Section 4.'Resolution of investigating prosecutor and its review. - x x x

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the'Sandiganbayan'in the exercise of its original jurisdiction.'They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or'motu propio, the Secretary of Justices reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. (Emphasis supplied)

Clearly, upon the termination of the investigation or the submission of the case for resolution, the investigating officer of the OMB has 10 days within which to determine the presence of probable cause.

The records of this case show that the complaint against Perez was filed on April 27, 2016. He was directed to file his counter-affidavit on October 13, 2016. After about five weeks, or on November 22, 2016, Perez requested for additional time to comply with this directive. Perez eventually filed his counter-'affidavit on December 20, 2016.78

Thereafter, the resolution of the complaint against Perez remained stagnant for nearly two years, that is, until the investigating officer issued the February 22, 2018 Resolution finding probable cause to charge him with violation of Section 3(e) of R.A. No. 3019. Perez's motion for reconsideration was denied on June 7, 2018, and an Information dated July 19, 2018 was prepared by the Assistant Special Prosecutor of the OMB. The Information was then filed with the Sandiganbayan only on October 5, 2018, or more than two months counted from the denial of Perez's motion for reconsideration.79

From the filing of the last pleading on December 20, 2016, it took the OMB one year, two months, and two days to resolve the complaint against Perez. The preliminary investigation was therefore resolved beyond the 10-day period prescribed under the Rules. Following'Cagang, the burden of proof was then shifted to the prosecution, who was required to establish that such delay was not inordinate. This involves proving the following: (a) the prosecution followed the prescribed procedure in the conduct of preliminary investigation and in the prosecution of the case; (b) the complexity of the issues and the volume of evidence made the delay inevitable; and (c) no prejudice was suffered by the accused as a result of the delay.80

The OMB was unable to establish thatthe delay was justified in this case.

Up until the filing of Perez's counter-affidavit, the OMB observed the time limitations set in its own procedural rules and in Section 3, Rule 112 of the Rules of Court. However, upon the submission of Perez's counter-affidavit on December 20, 2016, there was a lull in the proceedings for preliminary investigation. Significantly, the OMB did not set the case for further clarificatory hearing. Neither was Perez or the other parties required to submit additional documents. The OMB justified its inaction for more than a year by citing its heavy workload, and by invoking the judicial notice taken by courts of the steady stream of cases filed before it.81

Indeed, the Court has recognized that there are constraints in the OMB's resources, which hampers its capacity to timely carry out its mandates and increasing caseload,82'which'Cagang'referred to as institutional delay.83'However, this does not, by itself, suffice to explain the belated resolution of the preliminary investigation against an accused. As when parties request for additional time to comply with the court's directive, or for the admission of a belatedly filed pleading, the Court does not accept the solitary explanation of heavy workload on the part of the party's counsel.84

Aside from the mounting workload of the OMB, the prosecution must also establish that the issues are so complex and the evidence so voluminous, which render the delay inevitable. In this case, the prosecution neither alleged nor proved any of these circumstances. The oft-recognized principle of institutional delay is not a blanket authority for the OMB's non-observance of the periods fixed for preliminary investigation. The Court's ruling in'Javier v. Sandiganbayan85'is instructive:

At this juncture, it is well to point out that the Ombudsman cannot repeatedly hide behind the "steady stream of cases that reach their office" despite the Court's recognition of such reality. The Court understands the reality of clogged dockets - from which it suffers as well - and recognizes the current inevitability of institutional delays. However, "steady stream of cases" and "clogged dockets" are not talismanic phrases that may be invoked at whim to magically justify each and every case of long delays in the disposition of cases. Like all other facts that courts take into consideration in each case, the "steady stream of cases" should still be subject to proof as to its effects on a particular case, bearing in mind the importance of the right to speedy disposition of cases as a fundamental right.86

Furthermore, the questioned transaction in this case involves only one contract, consisting of two pages, executed between two entities. The records are not voluminous, such that it would require additional time for the investigating prosecutor to review. The transaction was also straightforward - it did not require an exhausting examination for purposes of unraveling a grander scheme designed to circumvent the relevant procurement laws, rules, and regulations. The delay in the resolution of the preliminary investigation is therefore unjustified.

The Sandiganbayan, however, held that Perez waived his right to the speedy disposition of cases because he did not "take any step whatsoever to accelerate the disposition of the matter."87'In its January 29, 2019 Resolution, the Sandiganbayan stated that:

Even assuming there was delay in the termination of the preliminary investigation, accused is deemed to have slept on his right to a speedy disposition of cases.'Currit tempus contra decides et sui juris contempores'(Time runs against the slothful and those who neglect their rights.)'Apparently, accused was impervious to the implications and contingencies of the projected criminal prosecution posed against him. He did not take any step whatsoever to accelerate the disposition of the matter. His nonchalance lends the impression that he did not object to the supervening delay, and hence it was impliedly with his acquiescence. He did not make any overt act like, for instance, filing a motion for early resolution.88'(Emphasis in the original)

In ruling that Perez should have moved for the early resolution of his case, the Sandiganbayan effectively shifted the burden back to the accused, despite the manifest delay on the part of the prosecution to terminate the preliminary investigation. The filing of a motion for early resolution is not a mandatory pleading during a preliminary investigation. With or without the prodding of the accused, the Rules of Procedure of the OMB, as well as Section 3, Rule 112 of the Rules of Court, fixed the period for the termination of the preliminary investigation. In other words, the OMB has the positive duty to observe the specified periods under the rules. The Court's pronouncement in'Coscolluela v. Sandiganbayan'(First Division),89'which was not abandoned in Cagang, remains good law,90'to wit:

Being the respondents in the preliminary investigation proceedings, it was not the petitioners' duty to follow up on the prosecution of their case.Lαwρhi৷ Conversely, it was the Office of the Ombudsman's responsibility to expedite the same within the bounds of reasonable timeliness in view of its mandate to promptly act on all complaints lodged before it. As pronounced in the case of'Barker v. Wingo:

A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process.91

The Court cannot emphasize enough that Perez's supposed inaction - or, to be more accurate, his failure to prod the OMB to perform a positive duty - should not be deemed as nonchalance or acquiescence to an unjustified delay. The OMB is mandated to "act promptly on complaints filed in any form or manner against officers and employees of the Government, or of any subdivision, agency or instrumentality thereof, in order to promote efficient service."92'In conjunction with the accused's constitutionally guaranteed right to the speedy disposition of cases, it was incumbent upon the OMB to adhere to the specified time periods under the Rules of Court. Mere inaction on the part of the accused, without more, does not qualify as an intelligent waiver of this constitutional right.93

Most importantly, the Sandiganbayan neglected to see that Perez moved for the quashal of the Information against him at the earliest opportunity, that is, soon after the Information was filed with the Sandiganbayan, and prior to his arraignment.94'This motion was timely filed in accordance with Section 1, Rule 117 of the Rules of Court.95'The filing of this motion clearly contradicts any implied intention on the part of Perez to waive his constitutional right to the speedy disposition of cases.

Since the prosecution failed to provide ample justification for the delay in the termination of preliminary investigation, the Sandiganbayan gravely abused its discretion in denying Perez's motion to quash. In the same manner, the application for an injunctive relief is meritorious. The Sandiganbayan is therefore permanently enjoined from proceeding with the case.

WHEREFORE, in view of the foregoing, the petition is hereby'GRANTED. The assailed Resolutions dated January 29, 2019 and March 8, 2019 of the Sandiganbayan in SB-18-CRM-0526 are'ANNULLED'and'SET ASIDE. The Sandiganbayan is likewise enjoined from further proceeding with the case, and is hereby ordered to DISMISS the criminal case docketed as SB-18-CRM-0526 for violation of the Constitutional right to speedy disposition of cases of petitioner Hermis Carlos Perez.

SO ORDERED.

Peralta, C. J., (Chairperson), Carandang, Zalameda, and'Gaerlan, JJ., concur.

Footnotes

1'Rollo, pp, 2-25.

2'Id. at 29-42. Penned by Associate Justice Kevin Narce B. Vivero with Associate Justices Sarah Jane T. Fernandez and Karl B. Miranda, concurring.

3'Id. at 43-50.

4'Id. at 55-66.

5'ANTI-GRAFT AND CORRUPT PRACTICES ACT (Approved August 17, 1960).

6'AN ACT PROVIDING FOR AN ECOLOGICAL SOLID WASTE MANAGEMENT PROGRAM, CREATING THE NECESSARY INSTITUTIONAL MECHANISMS AND INCENTIVES, DECLARING CERTAIN ACTS PROHIBITED AND PROVIDING PENALTIES, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES (Approved January 26, 2001).

7'Rollo, p. 67.

8'Id. at 78-80.

9'Id. at 81.

10'Id. at 69.

11'Id. at 69-70.

12'Id. at 36.

13'Id.

14'AN ACT PROVIDING FOR THE MODERNIZATION, STANDARDIZATION AND REGULATION OF THE PROCUREMENT ACTIVITIES OF THE GOVERNMENT AND FOR OTHER PURPOSES (Approved January 10, 2003).

15'R.A. No. 7160, as amended (Approved October 10, 1991).

16'Rollo, p. 71.

17'Id. at 67-77.

18'Id. at 76.

19'PRESCRIBING RULES AND REGULATIONS ON SUPPLY AND PROPERTY MANAGEMENT IN THE LOCAL GOVERNMENTS (Approved October 20, 1992).

20'Rollo, p. 72.

21'Id.

22'Id. at 73-76.

23'Id. at 76.

24'Id. at 36-37.

25'Id. at 37.

26'Id. at 51-53.

27'Id. at 51-52.

28'Id. at 37, 53.

29'Id. at 51.

30'Supra note 4.

31'Rollo, p. 63-65.

32'Id. at 84-95.

33'Id. at 84-93.

34'Id. at 42.

35'AN ACT INCREASING THE PRESCRIPTIVE PERIOD FOR VIOLATIONS OF REPUBLIC ACT NO. 3019, OTHERWISE KNOWN AS THE "ANTI-GRAFT AND CORRUPT PRACTICES ACT," FROM FIFTEEN (15) YEARS TO TWENTY (20) YEARS, AMENDING SECTION 11 THEREOF (Approved July 21, 2016).

36'Rollo, p. 32.

37'AN ACT TO ESTABLISH PERIODS OF PRESCRIPTION FOR VIOLATIONS PENALIZED BY SPECIAL ACTS AND MUNICIPAL ORDINANCES AND TO PROVIDE WHEN PRESCRIPTION SHALL BEGIN TO RUN (Approved December 4, 1926).

38'Rollo, p. 33.

39'Id. at 34-41.

40'Id. at 96-105.

41'Id. at 100-104.

42'Id. at 106-111.

43'Id. at 49.

44'Id. at 7-23.

45'Id. at 24.

46'A.M. No. 15-06-10-SC (Approved: April 15, 2017).

47'Rollo, p. 96.

48'Id.

49'Id. at 46-47.

50'See'Curammeng v. People, G.R. No. 219510, November 14, 2016, 808 SCRA 613; See also'Malixi v. Baltazar, G.R. No. 208224, November 22, 2017, 846 SCRA 244.

51'Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, G.R. No. 130817, August 22, 2001, 363 SCRA 489, 493.

52'As amended by Batas Pambansa Blg. 195, Amending Certain Sections of R.A. No. 3019 (Approved March 16, 1982), Section 11 of R.A. No. 3019 reads as follows:

Sec. 11. Prescription of offenses. - All offenses punishable under this Act shall prescribe in fifteen years.

53'Presidential Commission on Good Government v. Gutierrez, G.R. No. 189800, July 9, 2018, 871 SCRA 148.

54'G.R. No. 130140, October 25, 1999, 317 SCRA 272.

55'Id. at 318-319.

56'Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, id.;'Presidential Ad Hoc Fact-'Finding Committee on Behest Loans v. Desierto, supra note 51;'Presidential Commission on Good Government v. Desierto, G.R. No. 135119, October 21, 2004, 441 SCRA 106.

57'Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, G.R. No. 130817, August 22, 2001, supra note 51, 494; See also'Republic v. Cojuangco, Jr., G.R. No. 139930, June 26, 2012, 674 SCRA 492, 505-506.

58'G.R. No. 199930, June 27, 2018, 868 SCRA 471.

59'Local Government Code of 1991, Book I, Title I, Chapter II, Sec. 22(c); See also Local Government Code of 1991, Book III, Title II, Chapter III, Article I, Sec. 444(b)(l)(vi).

60'Local Government Code of 1991, Book II, Title V, Chapter IV, Sec. 352.

61'G.R. No. 206357, November 12, 2014, 740 SCRA 368.

62'Id. at 381.

63'Rollo, pp. 68-69.

64'G.R. No. 152662, June 13, 2012, 672 SCRA 105.

65'Id. at 114-115.

66'OMB Administrative Order No. 07, Rules of Procedure of the Office of the Ombudsman, Rule II, Sec. 3.

67'G.R. No. 167571, November 25, 2008, 571 SCRA 549; See also'Securities and Exchange Commission v. Interport Resources Corporation, G.R. No. 135808, October 6, 2008, 567 SCRA 354.

68'Panaguiton, Jr. v. Department of Justice, id. at 559-560.

69'1987 CONSTITUTION, Article XI, Sec. 13(1).

70'Rollo, p. 23.

71'G.R. No. L-72335-39, March 21, 1988, 159 SCRA 70.

72'Id. at 82.

73'G.R. Nos. 206438, 206458 & 210141-42, July 31, 2018, 875 SCRA 374.

74'Id. at 449-451.

75'OMB Administrative Order No. 7, Rules of Procedure of the Office of the Ombudsman (April 10, 1990).

76'Id. at Rule II, Sec. 4.

77'See also R.A. No. 6770, AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE OFFICE OF THE OMBUDSMAN AND FOR OTHER PURPOSES, Sec. 18(2) (Approved November 17, 1989).

78'Rollo, p. 36.

79'Id. at 51, 54.

80'Cagang v. Sandiganbayan'(First Division), supra note 73, at 450-451.

81'Rollo, p. 88.

82'Corpuz v. Sandiganbayan, G.R. No. 162214, November 11, 2004, 442 SCRA 294;'Cagang v. Sandiganbayan (First Division), supra note 73, at 441-442.

83'In Cagang, pp. 441-442, the Court held as follows:

The reality is that institutional delay a reality that the court must address. The prosecution is staffed by overworked and underpaid government lawyers with mounting caseloads. The courts' dockets are congested. This Court has already launched programs to remedy this situation, such as the Judicial Affidavit Rule, Guidelines for Decongesting Holding Jails by Enforcing the Right of the Accused to Bail and to Speedy Trial, and the Revised Guidelines for Continuous Trial. These programs, however, are mere stepping stones. The complete eradication of institutional delay requires these sustained actions.

Institutional delay, in the proper context, should not be taken against the State. Most cases handled by the Office of the Ombudsman involve individuals who have the resources and who engage private counsel with the means and resources to fully dedicate themselves to their client's case. More often than not, the accused only invoke the right to speedy disposition of cases when the Ombudsman has already rendered an unfavorable decision. The prosecution should not be prejudiced by private counsels' failure to protect the interests of their clients or the accused's lack of interest in the prosecution of their case.

84'Heirs of Ramon B. Gayares v. Pacific Asia Overseas Shipping Corporation, G.R. No. 178477, July 16, 2012, 676 SCRA 450;'Adtel, Inc. v. Valdez, G.R. No. 189942, August 9, 2017, 836 SCRA 57, 67-68.

85'G.R. No. 237997, June 10, 2020, accessed at .

86'Id.

87'Rollo, p. 39.

88'Id.

89'G.R. Nos. 191411 & 191871, Ju1y 15, 2013, 701 SCRA 188.

90'Javier v. Sandiganbayan, supra note 85.

91'Coscolluela v. Sandiganbayan (First Division), supra note 89, at 199.

92'Coscolluela v. Sandiganbayan (First Division), id. at 197, citing'Enriquez v. Office of the Ombudsman, G.R. Nos. 174902-06, February 15, 2008, 545 SCRA 618, 627; See also'Cervantes v. Sandiganbayan, G.R. No. 108595, May 18, 1999, 307 SCRA 149, 155;'People v. Sandiganbayan, Fifth Division, G.R. No. 199151-56, July 25, 2016, 798 SCRA 36, 57;'Inocentes v. People, G.R. No. 205963-64, July 7, 2016, 796 SCRA 34, 50-51; 1987 CONSTITUTION, Article XI, Sec. 12.

93'Catamco v. Sandiganbayan (Sixth Division), G.R. Nos. 243560-62 & 243261-63, July 28, 2020, accessed at .

94'Rollo, p. 55.

95'Section 1, Rule 117 of the Rules of Court states:

SECTION 1.'Time to move to quash. - At any time before entering his plea, the accused may move to quash the complaint or information. (1)