717 Phil. 638
On August 2, 2004, Disini filed a motion to quash, alleging that the criminal actions had been extinguished by prescription, and that the informations did not conform to the prescribed form. The Prosecution opposed the motion to quash.
Criminal Case No. 28001
That during the period from 1974 to February 1986, in Manila, Philippines, and within the jurisdiction of this Honorable Court, accused HERMINIO T. DISINI, conspiring together and confederating with the then President of the Philippines Ferdinand E. Marcos, did then and there, wil[l]fully, unlawfully and feloniously offer, promise and give gifts and presents to said Ferdinand E. Marcos, consisting of accused DISINI’s ownership of two billion and five hundred (2.5 billion) shares of stock in Vulcan Industrial and Mining Corporation and four billion (4 billion) shares of stock in The Energy Corporation, with both shares of stock having then a book value of P100.00 per share of stock, and subcontracts, to Engineering and Construction Company of Asia, owned and controlled by said Ferdinand E. Marcos, on the mechanical and electrical construction work on the Philippine Nuclear Power Plant Project (“Project”) of the National Power Corporation at Morong, Bataan, all for and in consideration of accused Disini seeking and obtaining for Burns and Roe and Westinghouse Electrical Corporation (Westinghouse), the contracts to do the engineering and architectural design and to construct, respectively, the Project, as in fact said Ferdinand E. Marcos, taking undue advantage of his position and committing the offense in relation to his office and in consideration of the aforesaid gifts and presents, did award or cause to be awarded to said Burns and Roe and Westinghouse, the contracts to do the engineering and architectural design and to construct the Project, respectively, which acts constitute the crime of corruption of public officials.
CONTRARY TO LAW.
Criminal Case No. 28002
That during the period 1974 to February 1986, in Manila, Philippines, and within the jurisdiction of the Honorable Court, accused HERMINIO T. DISINI, conspiring together and confederating with the then President of the Philippines, Ferdinand E. Marcos, being then the close personal friend and golfing partner of said Ferdinand E. Marcos, and being further the husband of Paciencia Escolin-Disini who was the first cousin of then First Lady Imelda Romualdez-Marcos and family physician of the Marcos family, taking advantage of such close personal relation, intimacy and free access, did then and there, willfully, unlawfully and criminally, in connection with the Philippine Nuclear Power Plant (PNPP) Project (“PROJECT”) of the National Power Corporation (NPC) at Morong, Bataan, request and receive from Burns and Roe, a foreign consultant, the total amount of One Million U.S. Dollars ($1,000,000.00), more or less, and also from Westinghouse Electric Corporation (WESTINGHOUSE), the total amount of Seventeen Million U.S. Dollars ($17,000,000.00), more or less, both of which entities were then having business, transaction, and application with the Government of the Republic of the Philippines, all for and in consideration of accused DISINI securing and obtaining, as accused Disini did secure and obtain, the contract for the said Burns and Roe and Westinghouse to do the engineering and architectural design, and construct, respectively, the said PROJECT, and subsequently, request and receive subcontracts for Power Contractors, Inc. owned by accused DISINI, and Engineering and Construction Company of Asia (ECCO-Asia), owned and controlled by said Ferdinand E. Marcos, which stated amounts and subcontracts constituted kickbacks, commissions and gifts as material or pecuniary advantages, for securing and obtaining, as accused DISINI did secure and obtain, through the direct intervention of said Ferdinand E. Marcos, for Burns and Roe the engineering and architectural contract, and for Westinghouse the construction contract, for the PROJECT.
CONTRARY TO LAW.
4. Defendant HERMINIO T. DISINI is a close associate of defendant Ferdinand E. Marcos and the husband of the first cousin of Defendant Imelda R. Marcos. By reason of this relationship x xx defendant Herminio Disini obtained staggering commissions from the Westinghouse in exchange for securing the nuclear power plant contract from the Philippine government.Through its letter dated April 8, 1991, the PCGG transmitted the records of Criminal Case No. 28001 and Criminal Case No. 28002 to then Ombudsman Conrado M. Vasquez for appropriate action, to wit:
x x x x
13. Defendants Herminio T. Disini and Rodolfo Jacob, by themselves and/or in unlawful concert, active collaboration and willing participation of defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking undue advantage of their association and influence with the latter defendant spouses in order to prevent disclosure and recovery of ill-gotten assets, engaged in devices, schemes, and stratagems such as:
x x x x
(c) unlawfully utilizing the Herdis Group of Companies and Asia Industries, Inc. as conduits through which defendants received, kept, and/or invested improper payments such as unconscionably large commissions from foreign corporations like the Westinghouse Corporation;
(d) secured special concessions, privileges and/or benefits from defendants Ferdinand E. Marcos and Imelda R. Marcos, such as a contract awarded to Westinghouse Corporation which built an inoperable nuclear facility in the country for a scandalously exorbitant amount that included defendant’s staggering commissions – defendant Rodolfo Jacob executed for HGI the contract for the aforesaid nuclear plant;
In line with the decision of the Supreme Court in the case of Eduardo M. Cojuangco, Jr. versus the PCGG (G.R. Nos. 92319–92320) dated October 2, 1990, we are hereby transmitting to your Office for appropriate action the records of the attached criminal case which we believe is similar to the said Cojuangco case in certain aspects, such as: (i) some parts or elements are also parts of the causes of action in the civil complaints[-] filed with the Sandiganbayan; (ii) some properties or assets of the respondents have been sequestered; (iii) some of the respondents are also party defendants in the civil cases.Ostensibly, the PCGG’s letter of transmittal was adverting to the ruling in Cojuangco, Jr. v. Presidential Commission on Good Government (Cojuangco, Jr.), viz:
Although the authority of the PCGG has been upheld by the Supreme Court, we are constrained to refer to you for proper action the herein-attached case in view of the suspicion that the PCGG cannot conduct an impartial investigation in cases similar to that of the Cojuangco case. x x x
x x x [T]he PCGG and the Solicitor General finding a prima facie basis filed a civil complaint against petitioner and intervenors alleging substantially the same illegal or criminal acts subject of the subsequent criminal complaints the Solicitor General filed with the PCGG for preliminary investigation. x x x.It appears that the resolutions of the Office of the Ombudsman, following its conduct of the preliminary investigation on the criminal complaints thus transmitted by the PCGG, were reversed and set aside by the Court in Presidential Commission on Good Government v. Desierto, with the Court requiring the Office of the Ombudsman to file the informations that became the subject of Disini’s motion to quash in Criminal Case No. 28001 and Criminal Case No. 28002.
Moreover, when the PCGG issued the sequestration and freeze orders against petitioner’s properties, it was on the basis of a prima facie finding that the same were ill-gotten and/or were acquired in relation to the illegal disposition of coconut levy funds. Thus, the Court finds that the PCGG cannot possibly conduct the preliminary investigation of said criminal complaints with the “cold neutrality of an impartial judge,”as it has prejudged the matter. x x x
x x x x
The Court finds that under the circumstances of the case, the PCGG cannot inspire belief that it could be impartial in the conduct of the preliminary investigation of the aforesaid complaints against petitioner and intervenors. It cannot possibly preside in the said preliminary investigation with an even hand.
The Court holds that a just and fair administration of justice can be promoted if the PCGG would be prohibited from conducting the preliminary investigation of the complaints subject of this petition and the petition for intervention and that the records of the same should be forwarded to the Ombudsman, who as an independent constitutional officer has primary jurisdiction over cases of this nature, to conduct such preliminary investigation and take appropriate action. (Bold emphasis supplied)
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government whether in a permanent, acting or interim capacity, at the time of the commission of the offense:It is underscored that it was the PCGG that had initially filed the criminal complaints in the Sandiganbayan, with the Office of the Ombudsman taking over the investigation of Disini only after the Court issued in Cojuangco, Jr. the directive to the PCGG to refer the criminal cases to the Office of the Ombudsman on the ground that the PCGG would not be an impartial office following its finding of a prima facie case being established against Disini to sustain the institution of Civil Case No. 0013.
x x x x
b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office.
c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. (Bold emphasis supplied)
In cases where none of the accused are occupying positions corresponding to salary grade ‘27’ or higher, as prescribed in the said Republic Act No. 6758, or military or PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court and municipal circuit trial court, as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129, as amended.
x x x x
In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.
x x x x
x x x xUnquestionably, public officials occupying positions classified as Grade 27 or higher are mentioned only in Subsection 4a and Subsection 4b, signifying the plain legislative intent of limiting the qualifying clause to such public officials. To include within the ambit of the qualifying clause the persons covered by Subsection 4c would contravene the exclusive mandate of the PCGG to bring the civil and criminal cases pursuant to and in connection with E.O. Nos. 1, 2, 14 and 14-A. In view of this, the Sandiganbayan properly took cognizance of Criminal Case No. 28001 and Criminal Case No. 28002 despite Disini’s being a private individual, and despite the lack of any allegation of his being the co-principal, accomplice or accessory of a public official in the commission of the offenses charged.
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government whether in a permanent, acting or interim capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade ‘27’ and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors engineers and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or -controlled corporations, state universities or educational institutions or foundations;
(2) Members of Congress and officials thereof classified as Grade ‘27’ and up under the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade ‘27’ and higher under the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office. (bold emphasis supplied)
x x x x
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 proceedings for its investigation and punishment.The ruling on the issue of prescription in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto is also enlightening, viz:
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 double jeopardy.
Generally, the prescriptive period shall commence to run on the day the crime is committed. That an aggrieved 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 prescriptive period. An exception to this rule is the “blameless ignorance” doctrine, incorporated in Section 2 of Act No. 3326. Under this 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, the courts would decline to apply the statute of limitations where the plaintiff does not know or has no reasonable means of knowing the existence of a cause of action.” It was in this accord that the Court confronted the question on the running of the prescriptive period in People v. Duque which became the cornerstone of our 1999 Decision in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto (G.R. No. 130149), and the subsequent cases which Ombudsman Desierto dismissed, emphatically, on the ground of prescription too. Thus, we held in a catena of cases, that if the violation of the special law was not known at the time of its commission, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts.Accordingly, we are not persuaded to hold here that the prescriptive period began to run from 1974, the time when the contracts for the PNPP Project were awarded to Burns & Roe and Westinghouse. Although the criminal cases were the offshoot of the sequestration case to recover ill-gotten wealth instead of behest loans like in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, the connivance and conspiracy among the public officials involved and the beneficiaries of the favors illegally extended rendered it similarly well-nigh impossible for the State, as the aggrieved party, to have known of the commission of the crimes charged prior to the EDSA Revolution in 1986. Notwithstanding the highly publicized and widely-known nature of the PNPPP, the unlawful acts or transactions in relation to it were discovered only through the PCGG’s exhaustive investigation, resulting in the establishment of a prima facie case sufficient for the PCGG to institute Civil Case No. 0013 against Disini. Before the discovery, the PNPPP contracts, which partook of a public character, enjoyed the presumption of their execution having been regularly done in the course of official functions. Considering further that during the Marcos regime, no person would have dared to assail the legality of the transactions, it would be unreasonable to expect that the discovery of the unlawful transactions was possible prior to 1986.
Corollary, it is safe to conclude that the prescriptive period for the crime which is the subject herein, commenced from the date of its discovery in 1992 after the Committee made an exhaustive investigation. When the complaint was filed in 1997, only five years have elapsed, and, hence, prescription has not yet set in. The rationale for this was succinctly discussed in the 1999 Presidential Ad Hoc Fact-Finding Committee on Behest Loans, that “it was well-high impossible for the State, the aggrieved party, to have known these crimes committed prior to the 1986 EDSA Revolution, because of the alleged connivance and conspiracy among involved public officials and the beneficiaries of the loans.” In yet another pronouncement, in the 2001 Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto (G.R. No. 130817), the Court held that during the Marcos regime, no person would have dared to question the legality of these transactions. (Citations omitted)
In Ingco v. Sandiganbayan and Sanrio Company Limited v. Lim, which involved violations of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) and the Intellectual Property Code (R.A. No. 8293), which are both special laws, the Court ruled that the prescriptive period is interrupted by the institution of proceedings for preliminary investigation against the accused. In the more recent case of Securities and Exchange Commission v. Interport Resources Corporation, the Court ruled that the nature and purpose of the investigation conducted by the Securities and Exchange Commission on violations of the Revised Securities Act, another special law, is equivalent to the preliminary investigation conducted by the DOJ in criminal cases, and thus effectively interrupts the prescriptive period.The prevailing rule is, therefore, that irrespective of whether the offense charged is punishable by the Revised Penal Code or by a special law, it is the filing of the complaint or information in the office of the public prosecutor for purposes of the preliminary investigation that interrupts the period of prescription. Consequently, prescription did not yet set in because only five years elapsed from 1986, the time of the discovery of the offenses charged, up to April 1991, the time of the filing of the criminal complaints in the Office of the Ombudsman.
The following disquisition in the Interport Resources case is instructive, thus:While it may be observed that the term “judicial proceedings” in Sec. 2 of Act No. 3326 appears before “investigation and punishment” in the old law, with the subsequent change in set-up whereby the investigation of the charge for purposes of prosecution has become the exclusive function of the executive branch, the term “proceedings” should now be understood either executive or judicial in character: executive when it involves the investigation phase and judicial when it refers to the trial and judgment stage. With this clarification, any kind of investigative proceeding instituted against the guilty person which may ultimately lead to his prosecution should be sufficient to toll prescription.Indeed, to rule otherwise would deprive the injured party the right to obtain vindication on account of delays that are not under his control.
Section 6. Sufficiency of complaint or information. — A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.The information in Criminal Case No. 28001 alleging corruption of public officers specifically put forth that Disini, in the period from 1974 to February 1986 in Manila, Philippines, conspiring and confederating with then President Marcos, willfully, unlawfully and feloniously offered, promised and gave gifts and presents to President Marcos, who, by taking undue advantage of his position as President, committed the offense in relation to his office, and in consideration of the gifts and presents offered, promised and given by Disini, President Marcos caused to be awarded to Burns & Roe and Westinghouse the respective contracts to do the engineering and architectural design of and to construct the PNPPP. The felonious act consisted of causing the contracts for the PNPPP to be awarded to Burns & Roe and Westinghouse by reason of the gifts and promises offered by Disini to President Marcos.
When the offense is committed by more than one person, all of them shall be included in the complaint or information.
The allegations in the information for corruption of public officials, if hypothetically admitted, would establish the essential elements of the crime. The information stated that: (1) Disini made an offer and promise, and gave gifts to President Marcos, a public officer; and (2) in consideration of the offers, promises and gifts, President Marcos, in causing the award of the contracts to Burns & Roe and Westinghouse by taking advantage of his position and in committing said act in relation to his office, was placed under circumstances that would make him liable for direct bribery. The second element of corruption of public officers simply required the public officer to be placed under circumstances, not absolute certainty, that would make him liable for direct or indirect bribery. Thus, even without alleging that President Marcos received or accepted Disini’s offers, promises and gifts – an essential element in direct bribery – the allegation that President Marcos caused the award of the contracts to Burns & Roe and Westinghouse sufficed to place him under circumstances of being liable for direct bribery.
- That the offender makes offers or promises, or gives gifts or presents to a public officer; and
- That the offers or promises are made or the gifts or presents are given to a public officer under circumstances that will make the public officer liable for direct bribery or indirect bribery.
The allegations in the information charging the violation of Section 4(a) of R.A. No. 3019, if hypothetically admitted, would establish the elements of the offense, considering that: (1) Disini, being the husband of Paciencia Escolin-Disini, the first cousin of First Lady Imelda Romualdez-Marcos, and at the same time the family physician of the Marcoses, had close personal relations and intimacy with and free access to President Marcos, a public official; (2) Disini, taking advantage of such family and close personal relations, requested and received $1,000,000.00 from Burns & Roe and $17,000,000.00 from Westinghouse, the entities then having business, transaction, and application with the Government in connection with the PNPPP; (3) President Marcos, the public officer with whom Disini had family or close personal relations, intervened to secure and obtain for Burns & Roe the engineering and architectural contract, and for Westinghouse the construction of the PNPPP.
- That the offender has family or close personal relation with a public official;
- That he capitalizes or exploits or takes advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift, material or pecuniary advantage from any person having some business, transaction, application, request, or contract with the government;
- That the public official with whom the offender has family or close personal relation has to intervene in the business transaction, application, request, or contract with the government.