EN BANC

[ G.R. No. 101689. March 17, 1993 ]

CARLITO U. ALVIZO, PETITIONER, VS. THE

SANDIGANBAYAN (THIRD DIVISION), RESPONDENT.

DECISION

REGALADO, J.:

This petition for certiorari and prohibition with preliminary injunction seeks
to annul and set aside the resolutions of respondent Sandiganbayan, dated
November 22, 1990[1] and June 20, 1991,[2] for allegedly having been issued
with grave abuse of discretion and in excess of jurisdiction, and to restrain
respondent court from proceeding with petitioner’s arraignment and trial in
Criminal Case No. 14893 thereof.

The records show that in a communication dated May 4, 1989,[3] then

Congressman Ernesto T. Estrella of the Second District of Surigao del Sur
called the attention of then Secretary of Justice Sedfrey A. Ordoñez to the
apparent inability of the Provincial Fiscal of Surigao del Sur to prosecute
herein petitioner Carlito Y. Alvizo, who was then a member of the Surigao del
Sur Sangguniang Panlalawigan. It appears that petitioner had been dismissed
as Clerk of Court of the Court of First Instance of Surigao del Sur when he
was found to have incurred a deficiency in his accounts in the amount of
P31,612.50, pursuant to a decision of the Supreme Court in Administrative
Matter No. 818-TEL, promulgated on April 18, 1979. Petitioner’s dismissal
was without prejudice to his criminal prosecution.[4]

Acting on Congressman Estrella’s letter, on June 7, 1989 then Chief State

Prosecutor Fernando de Leon, on behalf of Justice Secretary Ordoñez,
referred the matter to the Provincial Fiscal of Surigao del Sur for appropriate
action. Consequently, a preliminary investigation, docketed as OMB-0-89-
01717, was conducted by Second Assistant Provincial Prosecutor Vicente L.
Suarez who thereafter recommended the filing of an information for
malversation against herein petitioner. This recommendation was, however,
reversed by Provincial Prosecutor Pretextato Montenegro but whose
recommendation was in turn overruled by Ombudsman Conrado M. Vasquez.
[5] Thus, on May 17, 1990 an information[6] was accordingly filed with
respondent Sandiganbayan, initiating the present Criminal Case No. 14893
which charges petitioner with malversation of public funds.

On August 29, 1990, petitioner filed a motion to quash the

information[7] allegedly for failure of the same to include a certification by
the investigating fiscal that he conducted a personal examination of the
complainant and his witnesses during the preliminary investigation. Then, on
October 17, 1990, petitioner filed a supplemental motion to quash[8] this time
contending that the filing of the information in this case is violative of his
constitutional rights to due process and the speedy disposition of the case
against him, as enunciated in Tatad vs. Sandiganbayan,[9] in an obvious
appeal to libertarian inclinations or affectations.

Petitioner avers therein that as early as 1979, a criminal investigation had

already been commenced against him for malversation of public funds by the
then Tanodbayan, which was docketed as TBP Case No. 8003-05-05.
However, it was only on May 17, 1990, or twelve years after the initial
preliminary investigation was conducted, that an information was filed against
him with the Sandiganbayan. Hence, petitioner claims, by allowing the
preliminary investigation to remain pending for eleven years without taking
any action whatsoever, the Tanodbayan clearly violated his rights to due
process and speedy disposition of his cases.

In a resolution promulgated on November 22, 1990, respondent

Sandiganbayan denied petitioner’s motion and supplemental motion to quash.
Petitioner’s motion for reconsideration was likewise denied in a resolution
dated June 20, 1991.

Consequent thereto, petitioner is now before us contending that respondent

court committed a grave abuse of discretion in denying his aforestated
motions despite the timely objection to the lack of a certification in the
information that the complainant and his witnesses had been personally
examined by the investigating officer, and in spite of the inordinate delay in
the filing of the information in violation of petitioner’s constitutional rights to
due process and speedy trial.

The petition is devoid of merit and the extraordinary writs sought by

petitioner cannot justifiably issue.

Petitioner initially avers that the information is defective because it does not
contain a certification by the investigating prosecutor that the latter personally
examined the complainant and his witnesses, in contravention of the
requirement under Section 4, Rule 112 of the Rules of Court which provides:

“Sec. 4. Duty of the investigating fiscal. - If the investigating fiscal

finds cause to hold the respondent for trial he shall prepare the
resolution and corresponding information. He shall certify under
oath that he has examined the complainant and his witnesses, x x
x.”

Contrary to petitioner’s submission, respondent court made a finding that the

investigating officer who conducted the preliminary investigation personally
examined the witness for the prosecution. Thus:

“With respect to the ground raised in the Motion to Quash that the
Certification appearing in the Information failed to state that the
Special Prosecutor or any authorized officer has personally
examined the complainant and his witnesses, the records of the
Office of the Ombudsman disclose that Nereo A. Sales, COA
Auditor, who examined the cash and accountabilities of the
accused, was personally examined by Second Assistant Provincial
Prosecutor Vicente L. Suarez of Surigao del Sur, by taking down
 his statement which the witness subscribed and swor(e) to before
said assistant prosecutor on December 8, 1989, and who certified
as follows:

‘THIS IS TO CERTIFY that I have personally

examined the affiant and that I am satisfied that he
voluntarily executed and understood his affidavit.’

“Actually, therefore, Second Assistant Provincial Prosecutor

Vicente L. Suarez who conducted the preliminary investigation in
this case personally examined the witnesses of the prosecution.
That the fact was not stated in the Information itself is merely a
formal defect which does not prejudice the substantial rights of the
accused and, hence, does not warrant the quashal of the
information. x x x.”[10]

It bears mention that this finding of the Sandiganbayan was never

convincingly refuted nor controverted with cogency by herein petitioner.

The certification appearing in the information filed in Criminal Case No.

14893 of the Sandiganbayan reads as follows:

“THIS IS TO CERTIFY that a preliminary investigation has been

conducted in this case; that there is reasonable ground to engender
a well-founded belief that the crime charged has been committed;
and that the accused is probably guilty thereof.”[11]

Definitely settled is the rule that notwithstanding the absence in the

information of a certification as to the holding of a preliminary investigation,
the information is nonetheless considered valid for the reason that such
certification is not an essential part of the information itself and its absence
cannot vitiate it as such.[12] Accordingly, we held in People vs.
Marquez[13] that:

“x x x It should be observed that section 3 of Rule 110 defines an

information as nothing more than ‘an accusation in writing
 charging a person with an offense subscribed by the fiscal and
filed with the court.’ Thus, it is obvious that such certification is
not an essential part of the information itself and its absence
cannot vitiate it as such. True, as already stated, section 14 of Rule
112 enjoins that ‘no information x x x shall be filed without first
giving the accused a chance to be heard in a preliminary
investigation’, but, as can be seen, the injunction refers to the non-
holding of the preliminary investigation, not the absence of the
certification. In other words, what is not allowed is the filing of the
information without a preliminary investigation having been
previously conducted, and the injunction that there should be a
certification is only a consequence of the requirement that a
preliminary investigation should first be conducted. x x x.”

In the case at bar, it is clear that there is a certification to the effect that a
preliminary investigation had been conducted. What is allegedly lacking is the
statement that the investigating prosecutor has personally examined the
complainant and his witnesses. We find no compelling reason why the
aforementioned doctrinal rules should not be made applicable to the present
case where the alleged violation alluded to by petitioner merely consists of a
failure to state compliance with a part of the proceedings involved in the
conduct of a preliminary investigation, that is, the personal examination by
the fiscal of the complainant and his witnesses but which examination was
actually conducted. The fact alone that the certification contains a statement
that a preliminary investigation had been conducted renders nugatory
petitioner’s arguments on the supposed nullity of the indictment.

We now proceed to the second issue raised by petitioner.

Invoking the ruling enunciated in the Tatad case, petitioner asseverates that
his right to speedy trial has been violated when the information was filed
before respondent court only after the lapse of eleven years from the time the
preliminary investigation of the present criminal charge against him was
supposedly conducted in 1979. Petitioner’s theory is erroneously premised.
He insists that the preliminary investigation which led to the filing of the
information in Criminal Case No. 14893 was commenced way back in 1979.
But there is nothing in the records to show that indeed a preliminary
investigation was initiated and/or conducted in that year. The
documents[14] presented by petitioner purporting to be the records of the
alleged earlier preliminary investigation do not show that such an
investigation has in fact been conducted in 1979. If at all, a perusal thereof
reveals that the documents merely contain a directive for the transmittal of the
pertinent records to the investigating fiscal and an authority for him to
conduct a preliminary investigation. It utterly fails, however, to establish that
a preliminary investigation had been actually commenced and conducted.

For the same reason, and further based on negative considerations of both its
admissibility and weight, neither does the additional evidence adduced on this
score by petitioner advance his lost cause, as aptly demonstrated by
respondent court in denying his motion for reconsideration:

“To support his said Motion for Recon­sideration, the accused, per
his Manifestation/Motion to Admit, dated December 20, 1990,
submitted to this Court the Affidavit dated December 3, 1990 of
the Provincial Prosecutor of Surigao del Norte, Hon. Quintin E.L.
Paredes, who stated therein that sometime in 1980 when he was
the the Senior Deputized Tanodbayan Special Prosecutor of that
province, he began the preliminary investigation of TBP Case No.
8003-05-05 against herein accused Carlito Alvizo, for
malversation of funds; that he sent out subpoena(e) to witnesses
but the complainant and his witnesses failed to appear; that
eventually the then Tanodbayan, Hon. Vicente Ericta deputized the
Provincial Fiscal of Surigao del Sur as Tanodbayan Special
Prosecutor so that he forwarded the record of the case to said
Tanodbayan in Manila who in turn directed the deputized
Tanodbayan Prosecutor/Provincial Fiscal of Surigao del Sur,
sometime in the middle of 1980, to conduct the preliminary
investigation of this case against the herein accused. However, the
said affidavit of Prosecutor Quintin E.L. Paredes is considered
 hearsay because he was not presented on the witness stand to be
cross-examined by the prosecution; moreover, it has also to be
taken with caution inasmuch as it was executed only on December
3, 1990 or after the promulgation of our Resolution of November
22, 1990 which is now sought to be reconsidered.”[15]

Perforce, the Tatad case may not properly be invoked in this case. There was
no violation of petitioner’s right to speedy trial for the simple reason that a
fair and rational consideration on both counts of the aforestated evidence on
record shows that the preliminary investigation in the present case was begun
not in 1979 but only in 1989; and the corresponding information was in due
time filed in 1990.

Nor are we persuaded by petitioner’s pretension that in this case the

prosecution arm of the Government allowed itself to be used for political
purposes as to put this case within the ambit of the pronouncements
in Tatad. The mere fact that here it was a congressman who called the
attention of the then Secretary of Justice to the failure of the corresponding
prosecutorial agency to comply with its duty, although that was pointedly
indicated by this Court itself in Administrative Matter No. 818-TEL, does not
mean that the prosecution spurred thereby was politically motivated.
Assuming arguendo the existence of personal differences between petitioner
and Congressman Estrella, the unassailable fact remains that the latter’s
communication to the Secretary of Justice primarily and justifiedly sought a
clarification and gave a reminder of the directive of this Court which had not
then been complied with.

Petitioner insistently harps on his main thesis that he was denied his
constitutional right to the speedy disposition of his case. He admits, however,
that delays per se are understandably attendant to all prosecutions and are
constitutionally permissible,[16] with the monition that the attendant delay
must not be oppressive.[17] Withal, it must not be lost sight of that the concept
of speedy disposition of cases is a relative term and must necessarily be a
flexible concept.[18] Hence, the doctrinal rule is that in the determination of
whether or not 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.[19]

While, regrettably, the prosecuting officers appear to have been enmeshed in

bureaucratic ennui and miscommunications in pursuing the prosecution of this
case, we are not oblivious of the confusion and handicaps under which they
had to operate and with which they had to contend under a martial law regime
during the parlous period material to this case. We take judicial cognizance of
the frequent amendments of procedural laws by presidential decrees, the
structural reorganizations in existing prosecutorial agencies and the creation
of new ones by executive fiat,[20] resulting in changes of personnel,
preliminary jurisdiction, functions and powers of prosecuting agencies.

Petitioner was definitely not unaware of the projected criminal prosecution

posed against him by the indication of this Court as a complementary sanction
in its resolution of his administrative case. He appears, however, to have been
insensitive to the implications and contingencies thereof by not taking any
step whatsoever to accelerate the disposition of the matter, which inaction
conduces to the perception that the supervening delay seems to have been
without his objection hence impliedly with his acquiescence.

We recognize the concerns often invoked that undue delay in the disposition
of cases may impair the ability of the accused to defend himself,[21] the usual
advertence being to the possible loss or unavailability of evidence for the
accused. We do not apprehend that such a difficulty would arise here. The
records of this Court in the administrative case earlier discussed refer to the
same offense charged in the present criminal case, with identical facts and
evidence being involved, aside from the significant consideration that the
determinative evidence therein presented and which would necessarily be
submitted in the prospective proceedings before respondent court are
principally documentary in nature.

Consequently, whatever apprehension petitioner may have over the

availability of such documents for his defense is inevitably shared in equal
measure by the prosecution for building its case against him. This case,
parenthetically, is illustrative of the situation that what is beneficial speed or
delay for one side could be harmful speed or delay for the other, and vice-
versa. Accordingly, we are not convinced at this juncture that petitioner has
been or shall be disadvantaged by the delay complained of or that such delay
shall prove oppressive to him. The just albeit belated prosecution of a criminal
offense by the State, which was enjoined by this very Court, should not be
forestalled either by conjectural supplications of prejudice or by dubious
invocations of constitutional rights.

WHEREFORE, there being no showing that the impugned resolutions of

respondent Sandiganbayan are tainted by grave abuse of discretion or
jurisdictional defect, the instant petition is DISMISSED for lack of merit.
SO ORDERED.