In this special civil action for certiorari, prohibition and mandamus with prayer for temporary restraining order and/or preliminary injunction, petitioner Panfilo O. Domingo (hereafter DOMINGO) seeks to nullify the resolution1 [Per Atienza, N., J., with Escareal, R. and Amores, A., JJ., concurring. Rollo, 32-34.] of 15 March 1993 of the Second Division of the Sandiganbayan denying his motion to quash the information against him for violation of Section 3(e) in relation to Section 4(a) of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act.

The records show that on 26 May 1987, the Philippine National Bank (PNB) filed a complaint with the Tanodbayan against former President Ferdinand E. Marcos; Rodolfo M. Cuenca, then president of the Construction and Development Corporation of the Philippines (CDCP); and Joaquin T. Venus, Jr., former Deputy Presidential Assistant. The complaint was docketed as TBP Case No. 87-02391.2 [Rollo, 35-44.]

In an Order dated 1 September 1987, Special Prosecutor Juan T. Templonuevo dropped from the complaint Ferdinand Marcos, who was out of the country and therefore outside the criminal jurisdiction of the Tanodbayan, so as not to delay the preliminary investigation against the other respondents. In the same order, it was also directed that a subpoena be issued to DOMINGO, the President of PNB at the time of the questioned transactions, it appearing from the evidence on record that he was involved in the case.3 [Id., 69.] However, the subpoena addressed to DOMINGO at PNB, Escolta, Manila, his last known address, was returned "unserved," since he was no longer connected with the said bank at the time it was served.4 Id., 70.]

On 8 June 1988, in line with the ruling in Zaldivar v. Sandiganbayan,5 [160 SCRA 843 (1988)] then Ombudsman Conrado M. Vasquez issued Administrative Order No. 1 addressed to the Office of the Special Prosecutor and Deputized Tanodbayan Prosecutors authorizing them to continue the preliminary investigation of cases pending as of 27 April 1988 until the same are terminated.6 [Rollo, 71-72.]

On 6 February 1992, after a finding of probable cause to implead DOMINGO in the case, Special Prosecution Officer (SPO) III Teresita V. Diaz-Baldos issued an order directing him to submit a counter-affidavit.7 [Id., 73.] DOMINGO submitted on 9 March 1992 his counter-affidavit with the Office of the Special Prosecutor.8 [Id., 74-90.] Misoedpâ

On 9 July 1992, SPO III Diaz-Baldos issued a resolution recommending that DOMINGO and Rodolfo M. Cuenca be prosecuted for violation of Section 3(e) in relation to Section 4(a) of Republic Act No. 3019, as amended, but that the complaint be dismissed as against Ferdinand E. Marcos for being moot and academic by reason of his death, and as against Joaquin T. Venus for lack of merit.9 [Rollo, 107-113.] This was approved by Ombudsman Conrado M. Vasquez, and the corresponding information was filed with the Sandiganbayan on 30 July 1992. The case was docketed therein as Criminal Case No. 17847.10 [Id., 114-116.] The information reads as follows:

On 11 August 1992, DOMINGO filed a petition for reinvestigation11 [Id., 117-125.] with the Sandiganbayan. The latter directed the prosecution to treat the petition as a motion for reconsideration of the 9 July 1992 resolution.12 [Id., 141-143.] The motion was, however, denied by the Office of the Special Prosecutor on 14 January 1993.13 [Rollo, 144-146.] Edpä sc

On 19 February 1993, petitioner filed with the Sandiganbayan a motion to quash the information against him on the grounds that (1) the criminal action or liability has been extinguished by prescription, and (2) the facts charged do not constitute an offense.14 [Id., 147-153.] In its Resolution of 15 March 1993 the Sandiganbayan denied the motion to quash.15 [Id., 32-34.]

Not satisfied, DOMINGO filed the instant petition alleging that the respondent Sandiganbayan acted with grave abuse of discretion amounting to lack of jurisdiction when it denied his motion to quash the information.

Meanwhile, on 17 August 1993, during his arraignment in Criminal Case No. 17847, DOMINGO refused to enter a plea; hence, the Sandiganbayan ordered that a plea of "not guilty" be entered for him.16 [Id., 242.]

We shall first take up the issue of prescription.

DOMINGO contends that his alleged criminal liability has already been extinguished by prescription. In support thereof he claims that the prescriptive period commenced to run in July 1980 when the crime was allegedly committed, and was only tolled on 6 February 1992, when he was impleaded as party-respondent by Prosecutor Diaz-Baldos. The filing of the complaint with the Tanodbayan on 26 May 1987 produced no legal effect and could never be deemed to have validly interrupted the running of the prescriptive period, considering that effective 2 February 1987, the Tanodbayan was divested of its authority to conduct preliminary investigation unless duly authorized by the Ombudsman.

We are not persuaded.

In resolving the issue of prescription of the offense charged, the following should be considered: (1) the period of prescription for the offense charged; (2) the time the period of prescription starts to run; and (3) the time the prescriptive period was interrupted. Sceä dp

The Anti-Graft and Corrupt Practices Act (R.A. No. 3019) provides for its own prescriptive period. Section 11 thereof reads: "All offenses punishable under this Act shall prescribe in ten years." This was later amended by Batas Pambansa Blg. 195, approved on 16 March 1982, which increased the prescriptive period of the crime from ten years to fifteen years.

Since the law alleged to have been violated, 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. 3326,17 [An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin to Run.] 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 the crime was committed. However, if the violation of the special law is 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.18 [Presidential Ad Hoc Fact Finding Committee on Behest Loans v. Desierto, G.R. No. 130140, 25 October 1999, citing People v. Duque, 212 SCRA 607 (1992)]

In the present case, it was well-nigh impossible for the government, the aggrieved party, to have known the violations committed at the time the questioned transactions were made because both parties to the transactions were allegedly in conspiracy to perpetrate fraud against the government.19 [Supra note 18.] The alleged anomalous transactions could only have been discovered after the February 1986 Revolution when one of the original respondents, then President Ferdinand Marcos, was ousted from office. Prior to said date, no person would have dared to question the legality or propriety of those transactions.20 [Id.] Hence, the counting of the prescriptive period would commence from the date of discovery of the offense, which could have been between February 1986 after the EDSA Revolution and 26 May 1987 when the initiatory complaint was filed. Calrspä ped

As to when the period of prescription is interrupted, the second paragraph of Section 2 of Act. No. 3326, as amended, provides that it is "when proceedings are instituted against the guilty person." Whether the running of the prescriptive period was tolled on 1 September 1987, when DOMINGO was impleaded as an accused, or on 30 July 1992, when the information against him was filed with the Sandiganbayan, is immaterial; for only about one or six years, respectively, has elapsed from the date of the discovery of the alleged offense. Thus, the prescriptive period, whether ten years as provided in R.A. No. 3019 or fifteen years as provided in the amendatory Act, has not yet lapsed. The motion to quash on the ground of prescription was, therefore, correctly denied.

We now come to the question of whether the facts charged in the information constitute an offense.

The fundamental test on the viability of a motion to quash on the ground that the facts averred in the information do not amount to an offense is whether the facts asseverated would establish the essential elements of the crime defined in the law.21 [Ingco v. Sandiganbayan, 272 SCRA 563, 573 (1997)] In this examination, matters aliunde are not considered.22 [Id.]

As a general proposition, a motion to quash on the ground that the allegations of the information do not constitute the offense charged, or any offense for that matter, should be resolved on the basis alone of said allegations whose truth and veracity are hypothetically admitted.23 [People v. De la Rosa, 98 SCRA 190, 196 (1980); Lopez v. Sandiganbayan, 249 SCRA 281, 289 (1995)] The informations need only state the ultimate facts; the reasons therefor could be proved during the trial.24 [Gallego v. Sandiganbayan, 115 SCRA 793 (1982)]

DOMINGO, together with Rodolfo Cuenca, was charged with violation of Section 3(e), in relation to Section 4(a), of Republic Act No. 3019, as amended. These provisions read:

The elements of the offense under Section 3(e) are the following: (1) that the accused is a public officer or a private person charged in conspiracy with the former; (2) that the said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions; (3) that he or she causes undue injury to any party, whether the government or a private party; (4) that such undue injury is caused by giving unwarranted benefits, advantage or preference to such parties; and (5) that the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.25 [Pecho v. Sandiganbayan, 238 SCRA 116, 128 (1994); Ingco v. Sandiganbayan, supra note 32; Llorente, Jr. v. Sandiganbayan, 287 SCRA 382, 398 (1998)]

The information specifically stated as follows:

Clearly, the facts alleged in the information constitute a violation of Section 3(e) of R.A. No. 3019, as amended. Hence, the motion to quash must fail. CÓ alrsc

Finally, DOMINGO avers that the long and inordinate delay in the termination of the preliminary investigation and the filing of the information violated his right to speedy trial, invoking the ruling enunciated in Tatad v. Sandiganbayan.26 [159 SCRA 70 (1988)]

The concept of speedy disposition of cases is a relative term and must necessarily be a flexible concept. Hence, the doctrinal rule is that in the determination of whether that right has been violated, the factors that may be considered and balanced are the length of delay, the reasons for such delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the delay.27 [Alvizo v. Sandiganbayan, 220 SCRA 55, 63-64 (1993)] The right of an accused to a speedy trial is guaranteed to him by the Constitution, but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly indicting criminals. It secures rights to an accused, but it does not preclude the rights of public justice.28 [People v. Gines, et al., 197 SCRA 481, 488 (1991)]

A review of the records show that his right has not been violated. The Office of the Special Prosecutor, in its Comment/ Opposition to the Motion to Quash,29 [Rollo, 126-130.] has adequately explained the reason for the said delay, to wit:

Perforce, DOMINGO cannot validly claim that he was denied due process of law considering that one of the principal reasons for the delay was precisely to afford him the opportunity to submit his counter-affidavit since the first subpoena was returned unserved. After DOMINGO filed his counter-affidavit on 9 March 1992, the corresponding information was in due time filed on 30 July 1992. The delay, if any, was actually more beneficial, rather than prejudicial, to petitioner in that it was intended to afford him the opportunity to refute the charges made against him.

It is also worthy to note at this point the long-standing doctrine that writs of injunction or prohibition will not lie to restrain a criminal prosecution for the reason that public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. The writ may issue only in specified cases, among which are to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights.31 [Santiago v. Vasquez, 205 SCRA 162 (1992)] Such exceptions do not obtain in this case.

Thus, there being no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Sandiganbayan, the Resolution denying DOMINGO’s Motion to Quash must be, and is hereby, AFFIRMED.

WHEREFORE, the petition in this case is hereby DISMISSED. The Sandiganbayan is DIRECTED to try and decide Criminal Case No. 17847 with purposeful dispatch.

Costs against the petitioner.

I am constrained to dissent.

Let me review the facts.

On May 26, 1987, the Philippine National Bank (PNB) filed a complaint with the Tanodbayan against the following: Ferdinand E. Marcos, Rodolfo M. Cuenca and Joaquin T. Venus, Jr.1 Docketed as TBP Case No. 87-02391. Respondents were former president Ferdinand E. Marcos, Construction and Development Company of the Philippines (CDCP) president and Marcos crony Rodolfo M. Cuenca, and former presidential assistant Joaquin T. Venus, Jr.] Petitioner was not one of the respondents therein.2 [Petition, Annex "B", Rollo, pp. 35-43.]

On September 1, 1987, Special Prosecutor Juan T. Templo-Nuevo issued a subpoena to petitioner upon the ground that on the basis of the evidence on record, petitioner, along with others, is involved in the case.3 [Petition, Annex "D", Rollo, p. 70.] The subpoena, however, was not served upon petitioner since he was no longer connected with PNB, Escolta, Manila, the address indicated in the subpoena. Acctä mis

On June 8, 1988, Ombudsman Justice Conrado M. Vasquez (ret.) issued Administrative Order No. 1 addressed to the Office of the Special Prosecutor and Deputized Tanodbayan Prosecutors authorizing them to continue the preliminary investigation of cases pending as of April 27, 1988, until the same are terminated.4 [Petition, Annex "E", Rollo, pp. 71-72.]

On February 6, 1992, almost five (5) years after the complaint had been filed, Special Prosecution Officer (SPO) III Teresita V. Diaz-Baldos, issued an order directing petitioner to submit his counter-affidavit, holding that there is probable cause to implead him in the case.5 [Petition, Annex "F", Rollo, p. 73.]

On March 9, 1992, petitioner submitted his counter-affidavit to the Office of the Special Prosecutor.6 [Petition, Annex "G", Rollo, pp. 74-90.]

On July 9, 1992, SPO III Teresita V. Diaz-Baldos issued a resolution recommending that petitioner be prosecuted for violation of Section 3(e) in relation to Section 4(a), of Republic Act (R.A.) No. 3019.7 [Petition, Annex "H", Rollo, pp. 107-113.]

Without giving petitioner a chance to seek a reconsideration/review of the resolution, on July 30, 1992, Prosecutor Baldos filed directly with the Sandiganbayan an information charging petitioner Panfilo O. Domingo and Rodolfo M. Cuenca, with violation of Section 3(e) in relation to Section 4(a) of Republic Act No. 3019, as amended, dropping two (2) of the original respondents, namely, Ferdinand E. Marcos and Joaquin T. Venus, Jr.8 [Petition, Annex "I", Rollo, pp. 114-116.] Edpâ mis

On August 11, 1992, petitioner filed with the Sandiganbayan a petition for reinvestigation.9 [Petition, Annex "J", Rollo, pp. 117-125.]

On October 28, 1992, the Sandiganbayan partially granted the petition for reinvestigation in the sense that it directed the prosecution to consider the petition for reinvestigation as a motion for reconsideration of the July 9, 1992 resolution.10 [Petition, Annex "M", Rollo, pp. 141-143.]

On January 14, 1993, the Special Prosecutor denied petitioner’s motion for reconsideration.11 [Petition, Annex "N", Rollo, pp. 145-146.]

On February 19, 1993, petitioner filed with the Sandiganbayan a motion to quash the information against him upon the grounds that (1) the criminal action or liability has been extinguished by prescription, and (2) the facts charged do not constitute an offense.12 [Petition, Annex "O", Rollo, pp. 147-153.]

On March 10, 1993, respondent People of the Philippines filed with the Sandiganbayan an opposition with motion to admit.13 [Petition, Annex "P", Rollo, pp. 154-157.]

On March 15, 1993, the Sandiganbayan promulgated its resolution denying the motion to quash ruling that if the facts alleged were true, the offense had been committed.14 [Petition, Annex "A", Rollo, pp. 32-34.] Jjä sc

Hence, this petition.15 [Petition filed on April 1, 1993, Rollo, pp. 2-30.]

Petitioner submits that the facts charged in the information do not constitute an offense. I agree.

Parenthetically, the prosecution itself dismissed or dropped the case against former president Ferdinand E. Marcos and Joaquin T. Venus, without stating the reason why. And more, the prosecution did not include in the information the members of the board of directors of the Philippine National Bank who approved the application for letter of credit.

The charge is for violation of Section 3(e) of Republic Act No. 3019, as amended. The elements of this offense are as follows:

In a later case, the Court clarified that the third element of causing undue injury could only mean actual injury or damage.17 [People vs. Sandiganbayan, G. R. No. 125534, October 13, 1999; Pecho vs. Sandiganbayan, supra.]

The "Information" against petitioner reads as follows:

In my view, the information fails to allege specifically the third element of the offense charged of causing undue injury or damage to the government by acts of manifest partiality, evident bad faith or gross inexcusable negligence causing actual injury or damage.19 [Pecho vs. Sandiganbayan, supra; Llorente, Jr. vs. Sandiganbayan, supra, on pp. 398-399.] As bank president, it was actually petitioner’s duty to make a recommendation on the bank client’s application for letter of credit as a business decision. The information does not allege that petitioner’s act of "facilitating" or "making possible" or "recommending" the PNB board’s approval of CBCP’s application for a US$40 million letter of credit was done through manifest partiality, evident bad faith or gross inexcusable negligence and caused actual damage to the bank or the government, and in what amount. On the contrary, "good faith is always presumed" to use the words of the ponente in a precedent case.20 [Venus vs. Desierto, 298 SCRA 196, 217 (1998)] Quashal is proper where the facts stated in the information are incomplete and do not convey the elements of the crime.21 [People vs. Purisima, 86 SCRA 542 (1978); People vs. Asuncion, 161 SCRA 490 (1988)] Consequently, the facts charged against petitioner do not constitute the offense of violation of Section 3 (e), Republic Act No. 3019, as amended.22 [Llorente, Jr. vs. Sandiganbayan, supra; Pecho vs. Sandiganbayan, supra, on p. 131; Venus vs. Desierto, supra, citing Fernando vs. Sandiganbayan, 212 SCRA 680, 687-688 (1992); Enrile vs. Salazar, 186 SCRA 217 (1990); Allado vs. Diokno, 232 SCRA 192 (1994)]

IN VIEW WHEREOF, I vote to grant the petition and to quash the information in Criminal Case No. 17847 of the Sandiganbayan.2/18/00 8:47 AM