PRESIDENTIAL AD HOC FACT-FINDING COMMITTEE ON BEHEST LOANS represented by MAGTANGGOL C. GUNIGUNDO, PCGG Chairman and ORLANDO C. SALVADOR, as Consultant, Technical Working Group of the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, petitioners, vs. HON. ANIANO A. DESIERTO as Ombudsman; JOSE Z. OSIAS; PACIFICO E. MARCOS; EDUARDO V. ROMUALDEZ; FERNANDO C. ORDOVEZA; and JUANITO ORDOVEZA, Members of the Board of Directors of Philippine Seeds, Inc.; CONCERNED MEMBERS OF THE DEVELOPMENT BANK OF THE PHILIPPINES, respondents. Kyleä

The core issue in this special civil action for certiorari is whether public respondent Ombudsman Aniano A. Desierto (hereafter OMBUDSMAN) committed grave abuse of discretion in holding that the offenses with which the other respondents were charged in OMB-0-96-0968 had already prescribed.

This case originated as G.R. No. 129763, the docket number given to the Motion for Extension of Time to File Petition for Review filed by the Presidential Commission on Good Government (PCGG).1 [Rollo, G.R. No. 129763, 2-3.] The motion was granted. However, what was filed was a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, with the Presidential Ad Hoc Fact-Finding Committee on Behest Loans (hereafter COMMITTEE) as petitioner. The petition was docketed as G.R. No. 130140. Accordingly, G.R. No. 129763 is now deemed functus officio.

Initially, the Court dismissed the petition in this case on technical grounds. But, upon petitioner’s motion for reconsideration, the petition was reinstated, and the respondents were required to comment on the petition. EsmmÓ is

In its Manifestation (In Lieu of Comment),2 [Rollo, G.R. No. 130140, 170-171. Henceforth, references to rollo shall mean the rollo in this case.] the Development Bank of the Philippines (DBP) manifested that it would "rel[y] on the evaluation and exercise of the discretionary power conferred on Petitioner in the prosecution of the instant petition."

In its Manifestation and Motion3 [Id., 186-188.] of 16 February 1998, the Office of the Solicitor General (OSG) informed the Court that it could not represent the OMBUDSMAN for the following reasons: (a) the Solicitor General is the Vice-Chairman of petitioner COMMITTEE; (b) being an agency of the Government, the COMMITTEE is entitled to be represented by the OSG; and (c) the petition was signed by Associate Solicitor Salvador C. Guevarra, who is presently on detail with the PCGG, and by Commissioner Herminio A. Mendoza of the PCGG, which is also a client of the OSG. The Court then required the OMBUDSMAN to file his own comment, which he did on 11 June 1998.4 [Rollo, 203-214.]

Copies of the resolution requiring comment on the petition sent to the other respondents were returned to sender because the said respondents had "MOVED." Since the challenged resolution and order of the OMBUDSMAN were issued before said other respondents were even required to submit their counter-affidavits, impleading them in this case is not necessary; hence, this case can be resolved without their inclusion as respondents.

As culled from the initiatory pleadings and MEMORANDA of the COMMITTEE and the OMBUDSMAN, the undisputed facts are as follows: Esâ msc

On 8 October 1992, President Fidel V. Ramos issued Administrative Order No. 13, creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, with the Chairman of the PCGG as Chairman; the Solicitor General as Vice Chairman; and one representative each from the Office of the Executive Secretary, Department of Finance, Department of Justice, Development Bank of the Philippines, Philippine National Bank, Asset Privatization Trust, Government Corporate Counsel, and the Philippine Export and Foreign Loan Guarantee Corporation as members. The Committee was directed to perform the following functions:

On 9 November 1992, President Ramos issued Memorandum Order No. 61 directing the COMMITTEE to "include in its investigation, inventory, and study all non-performing loans which shall embrace both behest and non-behest loans." It likewise provided for the following criteria which might be "utilized as a frame of reference in determining a behest loan," to wit:

x x x

Moreover, a behest loan may be distinguished from a non-behest loan in that while both may involve civil liability for non-payment or non-recovery, the former may likewise entail criminal liability."

In its FOURTEENTH (14TH) REPORT ON BEHEST LOANS to President Ramos, dated 15 July 1993,5 [Annex "F" of Petition: Rollo, 40, et seq.] the COMMITTEE reported that the Philippine Seeds, Inc., (hereafter PSI) of which the respondents in OMB-0-96-0968 were the Directors, was one of the twenty-one corporations which obtained behest loans.

In his instructions handwritten on the cover of the aforementioned Report, President Ramos directed COMMITTEE Chairman Magtanggol C. Gunigundo to, inter alia, "proceed with administrative and judicial actions against the twenty-one firms (out of 21) in this batch with positive findings ASAP."6 [Id., 40.]

On 2 March 1996, the COMMITTEE through Orlando O. Salvador, the PCGG consultant detailed with the COMMITTEE, filed with the OMBUDSMAN a sworn complaint7 [Annex "G" of Petition; Rollo, 78-81.] against the Directors of PSI namely, Jose Z. Osias, Pacifico E. Marcos, Eduardo V. Romualdez, Fernando C. Ordoveza, and Juanito Ordoveza; and the Directors of the Development Bank of the Philippines who approved the loans for violation of paragraphs (e) and (g) of Section 3 of Republic Act No. 3019, as amended, which read: Kycalrâ

. . .

. . .

The complaint, later docketed as OMB-0-96-0968, alleged as follows:

In the resolution8 [Annex "C" of Petition; Rollo, 55-58. This was signed by Atty. Roline M. Ginez-Jabalde, Graft Investigation Officer II; recommended for approval by Angel C. Mayoralgo, Jr., Director of the Evaluation and Preliminary Investigation Bureau; and reviewed by Nicanor J. Cruz, Jr., Asst. Ombudsman, PACPO, OIC, EIO.] dated 14 May 1996 and approved on 9 June 1996, the OMBUDSMAN dismissed the complaint in OMB-0-96-0968 on the ground of prescription. Relying on People v. Dinsay,9 [C.A., 40 O.G., 12th Supp., 50.] a case decided by the Court of Appeals, he ratiocinated that since the questioned transactions were evidenced by public instruments and were thus open for the perusal of the public, the prescriptive period commenced to run from the time of the commission of the crime, not from the discovery thereof. Reckoning the prescriptive period from 1969, 1970, 1975, and 1978, when the disputed transactions were entered into, the OMBUDSMAN ruled that the offenses with which respondents were charged had already prescribed. ScslxÓ

Its motion for reconsideration having been denied by the OMBUDSMAN in the Order10 [Annex "A" of Petition; Rollo, 24-26.] of 19 May 1997, the COMMITTEE filed this case raising this sole issue:

The COMMITTEE argues that the right of the Republic of the Philippines to recover behest loans as ill-gotten wealth is imprescriptible pursuant to the mandate of Section 15 of Article XI of the Constitution, which provides:

Behest loans are part of the ill-gotten wealth which former President Marcos and his cronies accumulated and which the Government through the PCGG seeks to recover. Besides, even assuming ex gratia that the right to file criminal charges against the respondents is prescriptible, the prescriptive period should be counted from the discovery of the crimes charged, and not from the date of their commission. The ruling in Dinsay is not applicable to the case at bar. First, it is a decision of the Court of Appeals; hence, it does not establish a doctrine and can only have a persuasive value. Second, it involved a prosecution for estafa in that the accused disposed of his property claiming that it was free from any lien or encumbrance despite the fact that a notice of lis pendens was registered with the Registry of Deeds. The sale, cancellation of the accused’s title, and issuance of a new title to the buyer could not have been concealed from the offended parties or their lawyers because these transactions took place when the civil case involving the said property and the offended parties was in progress. Third, Dinsay involved private parties, while the instant case involves the Government and public officers. Fourth, the ruling is not absolute, since no less than this Court in People vs. Monteiro11 [192 SCRA 548 (1990)] said: Jjjuris

Also, in People v. Duque,12 [212 SCRA 607 (1992)] which involved a prosecution for illegal recruitment under Article 38 of the Labor Code, this Court held:

Finally, the COMMITTEE asserts that even assuming that the discovery rule does not apply, still, because of the principle of "equitable tolling," prescription has not yet set in for the offenses with which respondents in OMB-0-96-0960 were charged. This principle is based on the doctrine "contra non valentem agere nulla currit praescriptio," i.e., "no prescription shall run against a person unable to bring an action." The COMMITTEE was unable to bring the action, for the cause therefor was not known or reasonably known to it owing to the fact that (1) the loans, being behest, were concealed; (2) both parties to the loan transactions were in conspiracy to perpetrate the fraud against the State; and (3) the loans were granted at the time then President Marcos was at the threshold of his authority when no one dared question, much less investigate, any of his orders. slxä mis

The OMBUDSMAN takes a different view. For one, he asserts that Section 15 of Article XI of the Constitution is not applicable, since what the COMMITTEE seeks in OMB-0-96-0968 is not to recover the unlawfully acquired wealth from the respondents therein but to hold them criminally liable for violation of R.A. No. 3019. The dismissal of the case is not a bar to the institution of forfeiture proceedings against the concerned former government officials and cronies.

For another, the OMBUDSMAN insists that the offenses with which the respondents were charged had already prescribed. As a matter of fact it prescribed in ten years pursuant to the original provision of Section 11 of R.A. No. 3019, which fixed the prescriptive period at ten years. B.P. Blg. 195, which increased the prescriptive period to fifteen years, became effective only on 16 March 1982 and cannot be given retroactive effect; hence, the offenses which might have arisen from the grant of the assailed loans in 1969, 1975 and 1978 prescribed in 1979, 1985 and 1988, respectively.

The OMBUDSMAN points to Section 2 of Act No. 3326, which governs prescription of crimes under special laws and which reads as follows:

According to him, the computation of the prescriptive period from the date of discovery would only be resorted to if the commission of the crime be not known at the day of the commission. The phrase "if the same be not known" does not mean "lack of actual knowledge," but that the crime "is not reasonably knowable" by reason of the nature of the crime or the environmental circumstances thereof. In the case filed by the COMMITTEE, the crimes alleged to have been committed were "reasonably knowable" because the transactions were "never conducted clandestinely ... [but] carried out in the open, leaving a trail of public instruments/documents accessible and susceptible to evaluation." Moreover, as can be drawn from the allegation in the COMMITTEE’s complaint that the DBP initiated PSI foreclosures starting March 1975, the corresponding mortgages were executed and registered. Hence, the doctrine laid down in Dinsay is applicable. Likewise, in People v. Sandiganbayan,13 [211 SCRA 243 (1992)] this Court ruled that the prescriptive period for the violation of R.A. No. 3019, which was allegedly committed by Paredes by misrepresenting in an application for land patent that the subject land was disposable, started to run from the date of the filing of the application. Yet, in said case the falsity of Paredes’ representation regarding the disposability of the land was not capable of being drawn from the application alone; nevertheless, this Court was not deterred from holding that prescription started to run from the filing of the application. SdaÓ adsc

Finally, the OMBUDSMAN maintains that any confidential relationship between the former strongman and the respondents DBP officials ceased altogether after the February 1986 EDSA revolution. Even assuming then that the running of the 10-year period of prescription was suspended by reason of the said confidential relationship, the same re-started in February 1986 and went on to lapse in February 1996. However, the complaint of the COMMITTEE in OMB-0-96-0968 was filed only on 2 March 1996.

We agree with the OMBUDSMAN that Section 15 of Article XI of the Constitution applies only to civil actions for recovery of ill-gotten wealth, and not to criminal cases, such as the complaint against the respondents in OMB-0-96-0968. This is clear from the proceedings of the Constitutional Commission of 1986.

What is now Section 15 of Article XI of the Constitution was originally Section 13 of the proposed Article on Accountability of Public Officers in Committee Report No. 17 submitted to the Constitutional Commission by its Committee on Accountability of Public Officers,14 [2 Record of the Constitutional Commission, 263-264.] viz:

At the plenary session, Commissioner Hilario G. Davide, Jr., succeeded in having that Section amended. Thus:

. . . Sclawä

. . .

As shown, the amendment made the provision applicable as well to criminal actions arising from, relating or incident to, or involving ill-gotten wealth.

However, on motion for reconsideration by Commissioner Christian Monsod, who explained that the intention of the Committee was to limit the proposed Section 13 to civil actions, and without objection on the part of Commissioner Davide, the motion for reconsideration was granted. As a consequence, the amendment of Commissioner Davide regarding the applicability of the Section to criminal actions was deleted. After further proceedings the Section was further amended by the insertion of the phrase "from them or from their transferees." Thus: MisÓ sc

. . . Scä

. . .

Then, on motion of the Committee on Style, the Section 13 which became Section 15, was approved; thus:

The upshot of the foregoing discussion is that the prosecution of offenses arising from, relating or incident to, or involving ill-gotten wealth contemplated in Section 15, Article XI of the Constitution may be barred by prescription.

Since the law alleged to have been violated, i.e., paragraphs (e) and (g) of Section 3, R.A. No. 3019, as amended, is a special law, the applicable rule in the computation of the prescriptive period is Section 2 of Act No. 3326,19 [Entitled "An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal Ordinances to Provide When Prescription Shall Begin to Run."] as amended, which provides:

This simply means that if the commission of the crime is known, the prescriptive period shall commence to run on the day it was committed.

In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the violations of R.A. No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the "beneficiaries of the loans." Thus, we agree with the COMMITTEE that the prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission.

The assertion by the OMBUDSMAN that the phrase "if the same be not known" in Section 2 of Act No. 3326 does not mean "lack of knowledge" but that the crime "is not reasonably knowable" is unacceptable, as it provides an interpretation that defeats or negates the intent of the law, which is written in a clear and unambiguous language and thus provides no room for interpretation but only application. Maniâ kx

The OMBUDSMAN’s reliance on Dinsay is misplaced. The estafa committed by the accused was known to the offended party from the very start; hence, it could even be said that the commission and the discovery of the offense were simultaneous.20 [People v. Monteiro, supra note 11, at 553.] Neither is People v. Sandiganbayan21 [Supra note 13, at 246-247.] of any help to OMBUDSMAN. We ruled therein that the prescriptive period commenced to run from the filing of the application for the following reasons:

There was no showing that Paredes had connived with "all the department personnel, who had a hand in processing and approving the application" of Paredes. Consequently, such personnel could have easily discovered the falsity in Paredes’ claim and denounced it. It would have been entirely different if the public officials concerned conspired with him, in which case, they would have hidden the misdeed to escape culpability.

People v. Duque22 [Supra note 12, at 613-614.] is more in point, and what was stated there stands reiteration: In the nature of things, acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the applicable statute requires that if the violation of the special law is not known at the time, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts.

In the case at bar the OMBUDSMAN forthwith dismissed the complaint in Case No. OMB-0-96-0968 without even requiring the respondents to submit their counter-affidavits and solely on the basis of the dates the alleged behest loans were granted, or the dates of the commission of the alleged offense was committed.

Since the computation of the prescriptive period for the filing of the criminal action should commence from the discovery of the offense, the OMBUDSMAN clearly acted with grave abuse of discretion in dismissing outright Case No. OMB-0-96-0968. It should have first received the evidence from the complainant and the respondents to resolve the case on its merits and on the issue of the date of discovery of the offense.

IN LIGHT OF ALL THE FOREGOING, judgment is hereby rendered GRANTING the petition, and SETTING ASIDE the resolution of 14 May 1996 and the Order of 19 May 1997 of the public respondent OMBUDSMAN in Case No. OMB-0-96-0968.

The OMBUDSMAN is hereby directed to proceed with the preliminary investigation of the case OMB-0-96-0968 taking into account the foregoing disquisitions. Ncmâ

No pronouncement as to costs.

Mendoza, Panganiban, Quisumbing, Purisima, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.

Melo, J., see concurring and dissenting opinion.

Puno, J., see concurring and dissenting opinion.

Vitug, J., see concurring opinion.

Bellosillo, J., joins J. Melo in his concurring and dissenting opinion.

Kapunan, Pardo, and Ynares-Santiago, JJ., joins J. Puno in his concurring and dissenting opinion. Oldmisâ o

I join in the initial premise of the ponencia of Mr. Chief Justice Hilario G. Davide, Jr. for whom I only have the highest respect for his scholarly and in-depth resolution of the issues at hand, particularly its commanding interpretation of Section 15, Article XI of the 1987 Constitution which declares that the imprescriptibility of "[t]he right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees …" only refers to the civil action that may be brought against the erring parties, and not to the criminal action. However, I beg to disagree with the conclusion that the case must be remanded to the Ombudsman to reopen the proceedings. My humble position on the matter is that the offense or offenses herein involved have already prescribed.

The ponencia adverts to the view that the period of prescription for the offenses should be reckoned from the discovery of the offense by the State and not from the time the questioned transactions were made. It notes that, as alleged, the public officials concerned connived or conspired with the "beneficiaries of the loans" (p. 16) and concludes that the Ombudsman clearly acted with grave abuse of discretion in dismissing Case No. OMB-0-96-0968 outrightly since he should have first received the evidence from complainant and respondents to resolve the case on its merits and on the issue of the date of discovery of the offense. NcmmisÓ

The material facts are succinctly presented in the ponencia, which I now further capsulize. On October 8, 1992, President Fidel V. Ramos issued Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, which was directed, inter alia, to inventory all behest loans, and identify the lenders and borrowers, including the principal officers and stockholders of the borrowing firms, as well as the persons responsible for granting the loans or who influenced the grant thereof. On November 9, 1992, he issued Memorandum Order No. 61 directing the Committee to "include in its investigation, inventory, and study all non-performing loans which shall embrace both behest and non-behest loans." Specific criteria which may be "utilized as a frame of reference in determining a behest loan" were likewise included in the directive. The investigation resulted in the finding that twenty-one (21) corporations, including the Philippine Seeds, Inc. (PSI), obtained behest loans. Subsequently, the Committee filed with the Ombudsman a sworn complaint against PSI's Directors, as well as the Directors of the DBP who approved the loans for violation of Paragraphs (e) and (g), Section 3 of Republic Act No. 3019, as amended. The questioned transactions took place in 1969, 1975, and 1978; the criminal complaint was filed on March 2, 1996. In dismissing the same, the Ombudsman ratiocinated that the offenses charged against respondents had already prescribed considering the 10-year prescriptive period provided by Section 11 of Republic Act No. 3019.

There is no question that the applicable law is Section 2 of Act No. 3326 (An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal Ordinances to Provide When Prescription Shall Begin to Run) which reads:

By the text of the aforestated provision, the general rule is that prescription shall begin to run "from the day of the commission of the violation of the law ..." If the performance of an act constitutes the violation of the law, then prescription starts from the performance of that act; if the violation of the law consists of an omission to perform an act, then prescription is counted from the date the omitted act ought to have been done.

Upon the other hand, if the commission of the violation of the law "be not known at the time [of the commission]," then prescription shall begin to run "from the discovery thereof," that is, the discovery of the commission or non-performance of the act which constitutes the violation of the law.

Based on the above premises, the following conclusions are respectfully submitted:

Prescription begins to run from the day of the "commission of the violation of the law," or the performance of the act which constitutes the violation of the law, and not from "discovery" of the illegal character of the act committed, for verily, the illegality of an act is not "discovered"; only the commission of an act can be "discovered".SdaaÓ miso

The rulings laid down in the cases of Zaldivia vs. Reyes, Jr. (211 SCRA 277 [1992]) and Llenes vs. Dicdican (260 SCRA 207 [1996]) pertinently enunciate the principle that prescription begins from the discovery of the act, whether the act charged be a violation of a special law or the Revised Penal Code.

A strict construction of Section 2 of Act No. 3326, as amended, compels the application of the rule that "[p]rescription shall begin to run from the day of the commission of the violation" and not "from the discovery thereof" which comes into play only when the commission of the violation of the law "be not known" at the time of its commission.

I agree with the Ombudsman's argument that the transactions were "never conducted clandestinely ... [but] carried out in the open, leaving a trail of public instruments/documents accessible and susceptible to evaluation." There were corresponding mortgages which were executed and registered (and obviously notarized and hence deemed public instruments). These documents even became part of the coverage of the citizenry's right to information (Section 7, Article III, 1987 Constitution; Section 6, Article IV, 1973 Constitution) since these are deemed official records, documents, and papers pertaining to official acts, transactions, or decisions. Notably, the loan documents had been open to public scrutiny for essentially three presidential regimes.

In point is the ruling in People vs. Sandiganbayan (211 SCRA 241 [1992]) where the accused Paredes was charged with violation of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act, for allegedly filing a false application for a land patent. In said case, we held that the prescriptive period started to run from the date of the filing of the application. We disagreed with the theory that the prescriptive period should not commence upon the filing of Paredes' application because no one could have known about it except Paredes and the Lands Inspector, for the following reasons: Sdaad

The foregoing ratio decidendi is applicable to the cases involving behest loans. In applying for any type of loan with the Government, the necessary bureaucratic procedures must be followed and thus a loan would have to be assessed and approved by the loan agency and later subject to some form of internal or external audit. Therefore, as in the aforecited case, a number of public officials were aware of the loans from the time of their approval.

Additionally, the above-cited case articulates the rationale of the doctrine of prescription in criminal cases: Scsä daad

As a corollary principle, whenever the State or the agency of Government charged with the duty to prosecute offenses takes the position that the commission of an act was "not known at the time" and that, therefore, prescription shall commence to run only "from the discovery thereof" (that is, the discovery of the commission of the act), it assumes the burden of showing that the commission of the violation of the law was "not known at the time." It is respectfully submitted that the State has failed to exhibit in this task. There was not the least effort on its part to show that the offenses were not discoverable at the time of commission. Jurisä

In this regard, I find it inaccurate to say that the obtaining a behest loan constitutes a continuing offense. This view subscribes to the postulate that the reckoning date for prescription is not fixed at the date of approval of the loans considering that other elements of the act occurred at later dates. Similar to a transitory offense, in a continuing offense, some acts material and essential to a continuing crime occur in one province and some in another (Parulan vs. Director of Prisons, 22 SCRA 638 [1968]). This concept is based on the theory that there is a continuance or repetition of the offense wherever the defendant may be found. However, it must be emphasized that a continuing crime is only deemed a single crime, consisting of a series of acts but all arising from one criminal resolution (Reyes, The Revised Penal Code, Vol. I, 1993 ed., p. 680). It is an unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy (Ibid., p. 681, citing 22 C.J.S. 52). For purposes of venue in criminal procedure, a continuing crime is one which is consummated in one place, yet by reason of the nature of the offense, the violation of the law is deemed continuing. Examples are evasion of service of sentence, where the prisoner moves from one place to another; kidnapping and illegal detention, where the deprivation of liberty is persistent and continuing from one place to another; and libel, where the libelous matter is published or circulated from one province to another (Parulan vs. Director of Prisons, supra). Violation of B.P. Blg. 22 also falls under this definition when the dishonored check was issued in one place but delivered in another (People, et al. vs. Grospe, et al., 157 SCRA 154 [1988]).

On the contrary, the procurement of a behest loan is consummated at the time the transaction was entered into, or more specifically, at the time the parties to the loan transaction came into agreement as to the terms thereof. Hence, the violation of the law cannot be considered as continuing, in contrast to the examples mentioned above. Its time and place of consummation are fixed and definite.

Granting arguendo that the State had no knowledge of the violation of Republic Act No. 3019 in the exact years of approval of the loans, that is, in 1969, 1975, and 1978, discovery of the violation should be counted, at the very latest, from February 28, 1986, where by virtue of Executive Order No. 1, the Aquino Administration disclosed its knowledge of the "vast resources of the government ... amassed by former President Ferdinand E. Marcos, his immediate family, relatives, and close associates both here and abroad." Definitely not as late as 1992 when the Committee was convened, but as early as February, 1986, the date of the fall of the Marcos regime. Scä juris

In the case at bar, it is indubitable that the moment the loans were approved during the presidency of President Marcos, such approval, which was done by the DBP, amounted to official governmental action, which, under Section 3, paragraph (m) of Rule 131 of the Rules of Court, bears the presumption of regularity. The subsequent change in the administration definitely did not make such acts unofficial or clandestine.

The following queries now present themselves: In the first place, what brought about the issuance of Administrative Order No. 13 which created the Committee that reported the alleged behest loans obtained by the PSI? What prompted President Ramos to convene such kind of fact-finding committee? The Committee itself admits that behest loans are part of the alleged ill-gotten wealth which former President Ferdinand Marcos and his cronies accumulated and which the Government, through the Presidential Commission on Good Government (PCGG), seeks to recover under Section 15, Article XI of the 1987 Constitution. Hence, the answers are to be found in the Constitution itself and in the circumstances surrounding the framing thereof, particularly the aforestated provision on the right of the State to recover behest loans as ill-gotten wealth. Such provision was included in our Constitution because as early as the 1986 EDSA Revolution, and even antedating such historical event, there was already knowledge of the accumulation of ill-gotten wealth, including the grant of behest loans. Viewed by the Marcos Administration, such loans were not behest. However, in the eyes of the framers of the 1987 Constitution, as well as the Aquino and the Ramos administrations, the former even pre-dating the drafting of the Constitution, such loans bore the apparent stamp of illegality, and hence must be investigated. Ergo, the creation of the Committee which, in the course of its investigation, "discovered" the behest loans subject of the instant case. Jurisä sc

It is quite illogical to state that prescription of the criminal action against private respondents commenced to run only from the time the Committee was organized by former President Fidel V. Ramos. It is true that in cases of fraud or concealment of an offense, the statute of limitations begins to run only when the culpable act is actually discovered unless in the exercise of reasonable diligence it might have been sooner discovered. However, I cannot accept the view that although the defrauded party (in this case, the Philippine government) had the opportunity or the power to investigate and discover the fraud, it is not sufficient to charge the same with such notice or knowledge since it only had a suspicion of fraud which is not sufficient to constitute a discovery that will set the State in motion.

The premise on which Executive Order No. 1 is based was not mere suspicion of fraud. Could mere suspicion be enough basis for the significant empowerment of the PCGG to conduct investigation and require submission of evidence in order to ascertain the facts germane to its objective? The PCGG was categorically vested with the power to "sequester or place or cause to be placed under its control or possession any building or office wherein any ill-gotten wealth or properties may be found, and any records pertaining thereto . . ." (Underscoring supllied) Why not start then with its own backyard, by investigating all financial institutions in government? Instead, it ran after private property of cronies, leaving out said lending institutions that may have favored said cronies due to the latter’s relationship or close affiliation with former President Marcos. MisjÓ uris

Saliently, there exists not only a suspicion or a badge of fraud, but also a historical antecedent of fraud which even became the basis of a law. Yet the government institution which was charged with the duty of uncovering all ill-gotten wealth failed to act comprehensively.

With the highest respect, I must express my disagreement with the statement in the ponencia that it was "well-nigh impossible for the State, the aggrieved party, to have known the violations of Republic Act No. 3019 at the time the questioned transactions were made ..." Precisely because the approval of the loans were deemed official governmental action, there was no concealment. But, as discussed above, granting that no one at that time could question the transactions because no one dared to assail the authority of then President Marcos who may have facilitated the approval of the loans, still, upon the overthrow of the Marcos regime in February, 1986, the State had all the opportunities to question the subject transactions. During that time, the State already had information that Marcos and his cronies acquired ill-gotten wealth, which clearly includes loans approved during the Marcos regime. Such undeniable knowledge is manifested as follows: Jjä lex

(1) Executive Order No. 1 issued on February 28, 1986. -- The very first executive order issued by then President Corazon C. Aquino after her assumption to office and the ouster of President Marcos on February 25, 1986 emphasized the "urgent need to recover all ill-gotten wealth" which was premised on her administration's assertion that "vast resources of the government have been amassed by former President Ferdinand E. Marcos, his immediate family, relatives, and close associates both here and abroad." Upon such premises, the Presidential Commission on Good Government (PCGG) was created and was charged with the task of assisting the President in regard to the "recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship." NewÓ miso

Manifestly, as early as February 28, 1986, the PCGG already had the power and authority to "sequester or place or cause to be placed under its control or possession any building or office wherein any ill-gotten wealth or properties may be found, and any records pertaining thereto, in order to prevent their destruction, concealment or disappearance which would frustrate or hamper the investigation or otherwise prevent the Commission from accomplishing its task;" "[t]o provisionally take over in the public interest or to prevent the disposal or dissipation, business enterprises and properties taken over by the government of the Marcos Administration or by entities or persons close to former President Marcos, until the transactions leading to such acquisition by the latter can be disposed of by the appropriate authorities"; and "[t]o enjoin or restrain any actual or threatened commission of acts by any person or entity that may render moot and academic, or frustrate, or otherwise make ineffectual the efforts of the Commission to carry out its tasks under this order." The PCGG was likewise granted the power, inter alia, to conduct investigation and require submission of evidence in order to ascertain the facts germane to its objective.

Thereafter, the PCGG could have easily dragooned governmental financial institutions and investigated the same to recover ill-gotten wealth. It could have with the least effort handily placed the DBP under investigation. But inexplainably, it failed to do so at that time.

(2) Executive Order No. 2 issued on March 12, 1986. -- This executive order gives additional and more specific data and directions on the recovery of ill-gotten properties amassed by the leaders and supporters of the previous regime. It provided that "... the Government of the Philippines is in possession of evidence showing that there are assets and properties purportedly pertaining to former President Ferdinand E. Marcos, and/or his wife Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents or nominees which had been or were acquired by them directly or indirectly, through or as a result of the improper or illegal use of funds or properties owned by the Government of the Philippines or any of its branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue advantage of their office, authority, influence, connections or relationship, resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines; ..." (Italics supplied) Acctä mis

(3) Proclamation No. 3 issued on March 25, 1986 creating the Freedom Constitution. -- Article II of the Provisional Constitution, otherwise known as the Freedom Constitution, mandates that "[t]he President shall give priority to measures to achieve the mandate of the people to: ... (d) recover ill-gotten properties amassed by the leaders and supporters of the previous regime and protect the interest of the people through orders of sequestration or freezing of assets or accounts..."

(4) Executive Order No. 14 issued on May 7, 1986. -- This executive order empowered the PCGG, "with the assistance of the Office of the Solicitor General and other government agencies, ... to file and prosecute all cases investigated by it ... as may be warranted by its findings."

(5) Aside from Section 15, Article XI of the 1987 Constitution (which was ratified by the people in the February 2, 1987 plebiscite), the framers thereof included Section 26, Article XVIII regarding the recovery of the funds and properties plundered during the Marcos regime, as follows: Misä act

The foregoing historical antecedents were surveyed in Presidential Commission on Good Government v. Peña (159 SCRA 556 [1988]) where this Court charged the PCGG "with the herculean task of bailing the country out of the financial bankruptcy and morass of the previous regime and returning to the people what is rightfully theirs"; and in Bataan Shipyard & Engineering Co., Inc. v. PCGG (150 SCRA 181 [1987]) confirming the Aquino Administration's knowledge of the ill-gotten properties amassed by the leaders and supporters of the previous regime and the urgent need to recover the same. Sâ djad

Going back to the case at bar, it is clear that Administrative Order No. 13, as supplemented by Memorandum Order No. 61, was the first formal act of the Government that dealt exclusively with the inventory of all behest loans for the primary purpose of determining the courses of action that the Government should take to recover those loans. But patently, this act should have been done during the Aquino Administration. Unfortunately, no one in government thought of such act until 1992.

The ponencia, citing People v. Duque (212 SCRA 607 [1992]), further suggests that prescription for offenses penalized under special laws begins to run only from the discovery of the unlawful nature of the acts constituting the offense, seemingly suggesting that discovery of the unlawful nature of "behest loans" came about only when the Committee investigated the transactions using the criteria prescribed in the November 9, 1992 Memorandum Order No. 61 of President Ramos. With the highest respect, this intimation, in my opinion, leads to incongruity and peculiar circumstances.

It is my position that when Section 2 of Act No. 3326 speaks of the "commission of the violation of the law" not being known at the time of its commission, it does not refer to "the commission of the violation of the law" not being known by any specific agency or instrumentality of government. It could not have conceivably intended, with respect to loans granted by government financial institutions, that the knowledge be that of the Committee created in 1992. The Committee could not have known of them when they were granted and committed in 1969, 1975, and 1978 since the Committee did not exist yet at the time. Sceä dp

Inversely, if no committee had been created, does it follow that the violation of the law would not have been known and that prescription would not even start to run? And what if the committee was to be created only after the turn of the century? Does it likewise follow that the prosecution of the offenses would not prescribe until after we are into the next millenium?

Moreover, the Committee did not "discover" the granting of the loans. This was never concealed. The approval of the loans has always been known. What the Committee found, or concluded, was that the loans were "behest loans", or allegedly in violation of the law, and only on the basis of criteria prescribed in the November 9, 1992 Memorandum Order No. 61 of President Ramos.

As explained hereinabove, the illegality of an act is not "discovered"; whether an act is legal or illegal is a matter of opinion and an opinion is not "discovered". In the instant case, that opinion could not have been made earlier than 1992 since it was only in that year when the criteria for "behest loans" were prescribed by executive pronouncement (not by law). Had the Committee not been created, and the criteria prescribed, would it mean that prescription would never have commenced to run? Sppedscâ

In this light, precisely to avoid such dissonance created by the circumstances discussed above, People vs. Duque (supra) itself dictates that "[a] statute on prescription of crimes is an act of liberality on the part of the State in favor of the offender. The applicable well-known principles of statutory interpretation are that statutes must be construed in such a way as to give effect to the intention of the legislative authority, and so as to give a sensible meaning to the language of the statute and thus avoid nonsensical or absurd results, departing to the extent unavoidable from the literal language of the statute." (Italics supplied)

With due respect, I disagree with my distinguished colleague, Mr. Justice Puno, who opines that "the facts before the public respondent were too little and too lean to enable him to render a just judgment," therefore necessitating a remand of the case to public respondent for further investigation, thus sharing the view of the ponencia that the Ombudsman must proceed with the preliminary investigation to receive evidence on the issue of the date of discovery of the offense. My distinguished colleague points out specific issues that must be settled in the case at bar, to wit: (a) whether the offense in the instant case was not known at the time of its commission; (b) whether or not the PCGG exercised due diligence to discover the offense; and (c) the date of the discovery of the offense. While I agree with the observation that each "behest loans" case has its own topography of facts, I believe that the issues mentioned above can satisfactorily be resolved by the data that we have on hand. CÓ alrsc

At the outset, it must be settled that the term "ill-gotten wealth" as used in the early issuances of former President Corazon C. Aquino, necessarily includes proceeds from behest loans (as admitted by the Committee), particularly benefiting borrowers who were granted such loans because of no other reason except their close association with former President Marcos. However, it must be noted that the such loans had not yet been named as "behest", although the concept of such undercollateralized loans already existed.

Section 1, paragraph (a) of the Rules and Regulations issued by then Minister of the PCGG Jovito R. Salonga provides:

Proceeds from behest loans undoubtedly fall under the third paragraph of the enumeration. In terms of manner of procurement, the sixth paragraph applies since the borrower may have taken advantage of relationship with former President Marcos or any of his immediate family members. Calrspä ped

Obviously, the PCGG had all the means and the power to run after the proceeds of behest loans by virtue of Executive Order No. 1. It had the power to recover all ill-gotten wealth accumulated by former President Marcos, his immediate family, relatives, subordinates, and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship. And pursuant thereto, the PCGG had the power and authority to conduct investigations as may be necessary in order to accomplish and carry out the purposes of said executive order. It even had the power to sequester or place or cause to be placed under its control or possession any building or office wherein any ill-gotten wealth or properties may be found, and any records pertaining thereto, in order to prevent their destruction, concealment or disappearance which would frustrate or hamper the investigation or otherwise prevent the Commission from accomplishing its task.

Pragmatically speaking, the PCGG had a list of all the known and conspicuous cronies of the former President Marcos. Sequestration proceedings were initiated left and right against them. In fact, some of the accounts frozen by the PCGG may have consisted of proceeds from behest loans. Ultimately the problem, however, boils down to the failure of the PCGG to institutionalize and categorize such loans. The PCGG definitely knew about them but had failed to act on them. The mentality of the government on the technical nature of these loans was yet to evolve.

It was only in 1992 when the government realized the void. Thus, the creation of the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, with the Chairman of the PCGG as Chairman, on October 8, 1992, and the conceptualization and categorization of a behest loan by virtue of Memorandum Order No. 61 issued on November 9, 1992. Notably, the following criteria were set as a frame of reference in determining said kind of loan: Edpä sc

Emphasis is placed on the fourth characteristic of a behest loan. Clearly, cronies had been the object of pursuit of the PCGG since the issuance of Executive Order No. 1. A crony would definitely refer to a close associate of former President Marcos, if not a family member or a subordinate. Whether it be 1986 or 1992, the meaning of the term has not changed. Why then did the PCGG not run after these borrowers earlier? As earlier stated, the PCGG could have easily placed the DBP under investigation, the same being a government financial institution, just like the Land Bank of the Philippines or the PNB. Edâ p

Going now to the details of the case at bar, who were the Directors of the PSI involved herein? We are referring to names such as, but not limited to, Pacifico E. Marcos, brother of former President Marcos, and Eduardo V. Romualdez, related to the former First Lady; names that manifestly fall under the term "crony".

In fine, let me reiterate my position that the PCGG failed to exercise due diligence in discovering the behest loan subject of this case. It could have done so with its huge powers. With the issuance of Executive Order No. 2 on March 12, 1986 based on the premise that the government was already in possession of evidence showing that there are assets and property purportedly pertaining to former President Marcos, and/or his wife, their close relatives, subordinates, business associates, dummies, agents or nominees, which had been acquired by them directly or indirectly, through or as a result of the improper or illegal use of funds or properties owned by the government or any of its branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue advantage of their office, authority, influence, connections or relationship, resulting in their unjust enrichment and causing grave damage and prejudice to the people and the Republic, and giving the PCGG power to freeze all assets and property in the Philippines in which former President Marcos and/or his wife, their close relatives, subordinates, business associates, dummies, agents, or nominees had any interest and participation, the PCGG could have exhausted all possibilities of acquiring said assets and thus run after the financial institutions that may have made the acquisition possible. Miä sedp

No investigation on the loans was made when it was within its power to do so during the Aquino Administration. If the Ad Hoc Committee could do it in 1992, why could not the PCGG have done it in 1986? My distinguished colleague, Mr. Justice Puno, himself posits that "[i]t is easily demonstrable that even before the creation of said committee, the State thru the PCGG, the DOJ, the OSG, and the Ombudsman, has already discovered similar offenses." (Underscoring supplied)

To recapitulate, it must be remembered that during the Marcos regime, the assailed loans bore the stamp of legality since it was the former President himself who facilitated the grant thereof. It was the following regime which contemplated illegality in their nature. Unfortunately, in 1986 and in the years thereafter, no criteria were set for the behest nature of loans. It took the State two regimes (and essentially six years) to finally get down the drawing board and to set concrete criteria to determine a loan as behest, as contained in President Ramos' Memorandum Order No. 61 which was issued on November 9, 1992, and to inventory the loans characterized as such. In fact, if we choose to be more analytical about it, the fact that said Memorandum Order provides that non-payment of a behest loan may entail not only civil but criminal liability inescapably characterizes the Memorandum Order as an ex post facto law which is proscribed by our Constitution (Section 22, Article III, 1987 Constitution). Significantly, the application of the criteria prescribed under Memorandum Order No. 61 (November 9, 1992) to transactions entered into prior to said order violates this constitutional proscription since said Memorandum Order provides for the infliction of punishment upon a person for an act done which, when it was committed, was innocent (People v. Sandiganbayan, supra, at p. 249, citing Black's Law Dictionary, 5th edition). Misoedpâ

There is thus no need to direct the Ombudsman to reopen the matter for the purpose of receiving evidence on when the government discovered the offense. The facts are unequivocal. The government knew about behest loans as evidenced by law, particularly the first executive orders of the Aquino Administration.

To be sure, we are all in unity as to the nobility of the task of the Committee, and as to the national importance and significance thereof. But all criminal prosecutions are governed by the Statute of Limitations, whereby, for reasons of grace and liberality, at one point, the State sets down and sheathes the sword of Damocles, which would otherwise eternally and endlessly hang over the heads of the citizenry. The instant case is one perfect example where, by clear provision of law, this mystic blade necessarily must cease to dangle. Dura lex sed lex.

I, therefore, vote to dismiss the instant petition. Edpâ mis

I concur with the majority opinion that section 15 of Article XI of the Constitution applies only to civil actions for recovery of ill-gotten wealth and not to criminal cases. I also agree that the case at bar should be remanded to the public respondent for reception of evidence on the issue of prescription. I respectfully submit that the public respondent committed grave abuse of discretion in prematurely dismissing motu proprio the sworn complaint filed by petitioner PCGG.

The law on prescription of special crimes like violation of R.A. No. 3019 (Anti-Graft Law) is provided for in Section 2 of Act No. 3326, viz:

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.1 [21 AM JUR 2d, 715-716.] 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.2 [Ibid., 716.] 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.

In failing to follow this procedure, I respectfully submit that the facts before the public respondent were too little and too lean to enable him to render a just judgment. The public respondent's ruling that the offense charged against private respondents has already prescribed is principally predicated on the finding that the loans in question were evidenced by public documents, like duly registered mortgaged contracts, which were easily discoverable. The ruling is at best arguable considering that the "behest" nature of the loans could not be reasonably known by a mere eye examination of the mortgage contracts. The "behest" nature of the loans appeared to petitioners with certainty only upon their discovery, among others, of the marginal notes made by former President Marcos to facilitate the grant of the loans to private respondents. These marginal notes, addressed to then DBP Chairman Leonides Virata, were contained in two (2) letters3 [Rollo, pp. 107-108 and pp. 109-110. ScÓ jj

In one of the letters, former President Marcos made the following notations for DBP Chairman Virata: "This is the kind of project we need. Suspend foreclosure and study restructuring and refinancing."] of private respondent PSI to then President Marcos requesting assistance for the restructuring of the loans. Beyond doubt, these marginal notes are not for public consumption and are not readily discoverable. I therefore submit that it would have been more prudent for the public respondent if he inquired more exhaustively on the confidential character of these marginal notes, i.e., whether they were concealed by private respondents and whether due diligence was exercised by petitioners to discover them. Jjä sc

With due respect, however, I do not agree with the majority that prescription should start to run from the discovery of the crime at bar. He opines that the crime at bar was discovered "x x x only after the Committee, pursuant to its authority under the 8 October 1992 Administrative Order No. 13 of President Ramos, conducted an investigation into the loans or guarantees granted or extended to the Philippine Seeds, Inc., using inter alia, the criteria prescribed in the 9 November 1992 Memorandum Order No. 61 of President Ramos." To start with, it is not fair to use as an assumption the allegation that "the public officials concerned connived or conspired with beneficiaries of the loans" to justify the conclusion that "it was well nigh impossible for the state x x x to have known the violations of R.A. 3019." There is absolutely no factual basis for this conclusion inasmuch as the accused public officials were never given an opportunity to answer the charge of the PCGG. It is thus premature for the court to rule that the commission of the crime at bar was not known to the State. In addition, the suggested date of discovery --- i.e., after the creation of the Presidential Ad Hoc Fact Finding Committee --- is too arbitrary a date. It is easily demonstrable that even before the creation of said committee, the State thru the PCGG, the DOJ, the OSG, and the Ombudsman, has already discovered similar offenses. The cases filed with the Ombudsman and the Sandiganbayan are unmistakable evidence of these discovered crimes.

There is another reason why I do not agree with the suggested date. The suggested date may work to the advantage of some of the contracting parties to the behest loans which have already been discovered before the creation of the said committee. In such cases, the prescriptive period of their crime will still not run since the proffered thesis suggests that the period will start to be counted only after the creation of the said committee. Sjä cj

Be that as it may, I agree with the majority that in dismissing the case at bar, the public respondent erroneously applied the decisions in the two cases of Dinsay and Sandiganbayan. The public respondent leaned heavily on the ruling of the Court of Appeals in the 1940 case of Dinsay4 [40 O.G. Suppl. 50.] that the prescriptive period for the crime charged therein began from the time the offense was committed as the transactions were evidenced by public instruments and notarization of these documents constituted constructive notice to the whole world. He also relied on People vs. Sandiganbayan5 [211 SCRA 241 (1992)] and held that when the "behest" loans were applied for, the loan documents passed through several departments and the accompanying mortgage contracts were duly registered. He then concluded that as no concealment was committed by the parties in the grant of the "behest" loans, there is no "discovery of crime" to speak of and the prescriptive period for the filing of the cases against them should be reckoned from the time of the commission of the offense. It is, however, respectfully submitted that the cases of Dinsay and People vs. Sandiganbayan are inapplicable to the case at bar whose factual milieu is entirely different. Dinsay involves falsification of a document, a crime penalized under the Revised Penal Code, while the Sandiganbayan case involves false application for title to a reserved land. In both cases, the fraudulent acts of defendants therein could not have been unknown to complainants. In Dinsay, the fraud committed clearly appeared on the very face of the public instrument covering the transaction. In the Sandiganbayan case, the nondisposable character of the subject lot could not have escaped the attention of several public officials who inspected the location of the lot and processed the false application. In Dinsay, defendant blatantly exercised acts of ownership over the disputed property from the very first time he came into possession. Hence, in the words of the Court, "there was nothing that was concealed or needed to be discovered" by the plaintiff therein. He knew from the start that defendant committed estafa but chose to sleep on his rights. Thus, Dinsay and Sandiganbayan bear a significant dissimilarity to the case at bar where petitioner PCGG contends that the offense committed by private respondents was not immediately known to it. Supremeä

With due respect too, I do not agree with my esteemed colleague, Mr. Justice Melo, who ventures the view that the prescriptive period of the crime at bar should start to be counted from February 1986 or after the authoritarian government was toppled down. He cites both the Freedom and the 1987 Constitutions, as well as various proclamations, executive orders and issuances, to support his thesis that the government was aware of these "behest" loans thru agencies like the PCGG that were created to recover these illegal loans and prosecute the guilty parties. All these, however, are generalizations which cannot concretely settle the specific issues in the case at bar - - - i.e., (a) whether the offense in the instant case is not known at the time of its commission, and (b) whether or not PCGG exercised due diligence to discover the offense and (c) the date of discovery of the offense. These "behest" cases are many and each has its own topography of facts different from the others. They cannot be resolved on the basis of generalities that are indifferent to the distinct slopes of each case.

In conclusion, I wish to stress that the offenses ascribed to private respondents are not the ordinary variety. They involve "behest" loans which bled white the economy of the country, one of the excesses of the authoritarian regime that led to the EDSA revolution, a serious evil that the 1987 Constitution aimed to extirpate. It is more in accord with the spirit of the Constitution for the public respondent to accord the petitioners a fair chance to prove that the offenses of private respondents were not readily knowable and that they exercised reasonable diligence in discovering them. The records show that on August 15, 1996, petitioner Orlando Salvador wrote a letter6 [Rollo, at p. 27.] to public respondent. He informed public respondent that on May 29, 1996, he requested for an update on the status of the "behest" loan cases he filed with said office "in order that (he may) be able to submit other documents needed x x x to facilitate the filing of appropriate criminal actions x x x." Said May 29, 1996 letter was not acted upon by public respondent for a few days before, or on May 14, 1996, the sworn complaint against the private respondents has already been dismissed on the ground of prescription. Courtä

It is not too late for public respondent to give the petitioners a fair chance to prove that prescription has not barred the filing of charges against private respondents. The case at bar is yet at the preliminary investigation stage where strict rules of procedure need not be applied at the expense of justice. As repeatedly stressed, the case at bar involves nothing less than the interest of the people and under the Constitution, public respondent is the protector of the people. As protector of the people, the public respondent possesses a vast arsenal of powers to prosecute wrongful acts or omissions of public officials and employees. The power to prosecute includes the power to investigate and gather evidence motu proprio. Public respondent's role should be pro-active when it comes to fulfilling his role of protecting the people's interest.

IN VIEW WHEREOF, I respectfully submit that the facts of the case at bar are incomplete and I vote that it be remanded to the public respondent for further reception of evidence. On the basis of the parties' evidence, the respondent Ombudsman should determine the date of the commission of the crime and if the same be not known at the time, he should determine the date of its discovery and from the totality of the facts rule on whether the crime at bar has prescribed. Jä lexj

In the instant petition, differing views have been expressed, given the circumstances involved in the case, on whether the prescriptive period applicable to the contemplated criminal action should be reckoned from the time the acts believed to constitute an offense are done or from the time the proper authorities are able to actually ascertain that the offense has been committed. The ruling of the public respondent that the offense charged against private respondents has already prescribed is predicated on the finding that the questioned "behest" loans are contained in public documents, some being duly recorded, that render them easily discernable or discoverable. Petitioner contends otherwise. LexjÓ uris

Article XI, Section 15, of the Constitution provides that the "right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees as transferees, shall not be barred by prescription, laches, or estoppel." This provision does seem to indicate that what is imprescriptible is the corresponding civil action to recover "ill-gotten" wealth but not the criminal action that may relate thereto. The criminal action, i.e., violation of Section 3 (c) and (g), Republic Act (R.A.) No. 3019, can prescribe conformably with the pertinent statute applicable which, in this instance, is Batas Pambansa Blg. 195, effective as of 16 March 1982, providing for a fifteen-year prescriptive period and thereby modifying to the above extent the ten-year period prescribed under R.A. No. 3019. In computing the prescriptive period, Act No. 3326, as amended, states:

In People vs. Sandiganbayan,1 [211 SCRA 241.] on the basis of its factual settings, the Court concluded that "the date of the violation of the law becomes the operative date of the commencement of the period of prescription" which, in that case, was the date of the filing of the application. There, the charge was for the violation of Republic Act No. 3019 allegedly committed through misrepresentation in an application for land patent (by wrongly stating that the land applied for was disposable in character). The Court said: JuriÓ smis

In People vs Duque,3 [212 SCRA 607.] upon the other hand, the Court held that the applicable prescriptive period "began to run from the time the recruitment activities of appellant Duque (charged with illegal recruitment) were ascertained by the complainants and by the POEA to have been carried out without any license or authority from the government."4 [At p. 615.] The Court ruled that the crime for which he was convicted had not prescribed because recruitment -

 Similar to Duque was the case of People vs. Monteiro,6 [192 SCRA 548.] where the Court said that the period of prescription for the offense (failure to register with the SSS) should be deemed to have commenced from the day of the discovery of the violation if this was not evident at the time of its commission, and that a "contrary view would be dangerous as the successful concealment of an offense during the period fixed for its prescription would be the very means by which the offender (might) escape punishment."7 [At p. 551.]

It seems quite obvious to me that the at bar is more akin to Duque and Monteiro than it is to the situation in People vs. Sandiganbayan. The supposed "behest" loans where involved, contracted in 1969, 1975 and 1978, could not be deemed illegal per se nor evident to be as such. Verily, in this instance, certain criteria or frame of reference had yet to be formulated and adopted, indeed by no less than a COMMITTEE created and constituted for the purpose, before the nature and character of the loans as being unlawful, if at all, could be clearly drawn. I am, therefore, inclined to agree with petitioner that the start of the prescriptive period is the day of actual discovery of the commission of the crime. -- end