RECENT JURISPRUDENCE – REMEDIAL LAW

PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR

GENERAL OF THEPHILIPPINE NATIONAL POLICE, CHIEF STATE
PROSECUTOR JOVENCITO ZUÑO, STATE PROSECUTORS PETER L. ONG and
RUBEN A. ZACARIAS; 2ND ASSISTANT CITY PROSECUTOR CONRADO M.
JAMOLIN and CITY PROSECUTOR OF QUEZON CITY CLARO ARELLANO v.
PANFILO M. LACSON
G.R. No. 149453, 07 October 2003, (as related to SC Decisions on April 1, 2003 and May 28, 2002)
En Banc (Callejo Sr., J.)

If a criminal case is provisionally dismissed with the express consent of the accused, the
case may be revived only within the periods provided in the new rule. On the other hand, if
a criminal case is provisionally dismissed without the express consent of the accused or over
his objection, the new rule would not apply. The case may be revived or refiled even
beyond the prescribed periods subject to the right of the accused to oppose the same on the
ground of double jeopardy or that such revival or refiling is barred by the statute of
limitations. Express consent to a provisional dismissal is given either viva voce or in writing.
It is a positive, direct, unequivocal consent requiring no inference or implication to supply its
meaning.

On May 18, 1995, then PNP Director-General Recaredo Sarmiento II announced, in a press
conference, the killing of eleven (11) members of the Kuratong Baleleng Gang (KBG) in a shootout
with police elements near the fly-over along Commonwealth Avenue, Quezon City at about 4:00
A.M. that day. Delos Reyes claimed that the police team arrested the eleven (11) gang members in
early morning of May 18, 1995 at the gang’s safe house in Superville Subdivision, Parañaque; that
after their arrest, the gang members were made to board two vans, their hands tied behind their
backs, and brought initially to Camp Crame where a decision to summarily execute them was made,
and later to Commonwealth Avenue where they were shot to death by elements of ABRITFG. The
ABRITFG is a composite police team called the Anti-Bank Robbery and Intelligence Task Force
Group (ABRITFG) composed of elements of the National Capital Region Command (NCRC) and
headed by Chief Superintendent Jewel Canson; Traffic Management Command, headed by Senior
Superintendent Francisco Subia, Jr.; Presidential Anti-Crime Commission (PACC), headed by Chief
Superintendent Panfilo M. Lacson; Central Police District Command, headed by Chief
Superintendent Ricardo de Leon; and Criminal Investigation Command (CIC), headed by Chief
Superintendent Romeo Acop. However, there were assertions that the killing was a rubout and not a
shootout, hence an investigation was conducted.

On June 1, 1995, PNP Director for Investigation, filed murder charges with the Office of the
Ombudsman against ninety-seven (97) officers and personnel of ABRITFG. The next-of-kin of the
slain KBG members also filed murder charges against the same officers and personnel. Ombudsman
filed before the Sandiganbayan eleven (11) Informations for MURDER, docketed against
respondent Panfilo M. Lacson and twenty-five (25) other accused. All twenty-six (26) of them were
charged as principals. Amended Informations were filed against the same twenty-six (26) suspects
but the participation of respondent Lacson was downgraded from principal to accessory. With the
downgrading of charges against him, respondent Lacson questioned the jurisdiction of the
Sandiganbayan to hear the criminal cases as none of the “principal” accused in the Amended

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Informations was a government official with a Salary Grade (SG) 27 or higher, citing Section 2 of R.
A. No. 7975 then prevailing. Accordingly, the Sandiganbayan ordered the cases transferred to the
Regional Trial Court. The Ombudsman then cited the amendment to RA 7975 by RA 8249 which
deleted the word principal as qualifying the participation of the public official. Supreme Court, while
agreeing that with the amendment the case should go to the Sandiganbayan , nonetheless ordered
the transfer of the criminal cases to the Regional Trial Court on the ground that the Amended
Informations for murder failed to indicate that the offenses charged therein were committed in
relation to, or in discharge of, the official functions of the respondent, as required by R. A. No.
8249.

The cases were raffled off to Branch 81 of the Regional Trial Court of Quezon City, then
presided by Judge, now Associate Justice of the Court of Appeals, Wenceslao Agnir, Jr. Before the
accused could be arraigned, some prosecution witnesses recanted their affidavits which implicated
respondent Lacson in the murder of the KBG members while others also executed their respective
affidavits of desistance declaring that they were no longer interested to prosecute these cases. Due to
these developments, the twenty-six (26) accused, including respondent Lacson, filed five separate
but identical motions to (1) make a judicial determination of the existence of probable cause for the
issuance of warrants of arrest; (2) hold in abeyance the issuance of the warrants, and (3) dismiss the
cases should the trial court find lack of probable cause. On March 29, 1999, Judge Agnir issued a
Resolution dismissing criminal cases. Meanwhile, amendments on the Rules of Court as to the
Criminal Procedure were being deliberated and the modified Rules on Criminal Procedure took
effect on December 1, 2000.

On March 27, 2001, PNP Director Leandro R. Mendoza indorsed to the Department of Justice
the new affidavits of P/Insp. Ysmael S. Yu and P/S Insp. Abelardo Ramos regarding the Kuratong
Baleleng incident for preliminary investigation. On the strength of these new evidence, on June 6,
2001, eleven (11) Informations for murder were filed before the Regional Trial Court of Quezon
City and were docketed as Criminal Cases Nos. 01-101102 to 01-101112. The new Informations
charged as principals thirty-four (34) people, including respondent Lacson and his twenty-five (25)
other co-accused in the previous cases. On the same day, respondent Lacson filed before the Court
of Appeals a petition for certiorari. On August 24, 2001, the Court of Appeals (Special Third
Division), rendered the now assailed Decision. It characterized the termination of Criminal Cases
Nos. Q-99-81679 to Q-99-81689 ( the previous cases ) as “provisional dismissal,” and considered
Criminal Cases Nos. 01-101102 to 01-101112 as mere revivals of the same. Applying Section 8, Rule
117 of the 2000 Revised Rules of Criminal Procedure, it dismissed the criminal cases against the
respondent.

On May 28, 2002, the Supreme Court, in a Resolution dated as such, granted the petition of the
Republic stating that “in light of the lack of or the conflicting evidence on the various requirements
to determine the applicability of Section 8, Rule 117, this Court is not in a position to rule whether
or not the re-filing of the cases for multiple murder against respondent Lacson should be enjoined.
Fundamental fairness requires that both the prosecution and the respondent Lacson should be
afforded the opportunity to be heard and to adduce evidence on the presence or absence of the
predicate facts upon which the application of the new rule depends. They involve disputed facts and
arguable questions of law. The reception of evidence on these various issues cannot be done in this
Court but before the trial cour. Hence, the cases were remanded to RTC Quezon City. The

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petitioners then filed a petition for reconsideration contending that there was no provisional
dismissal and that Rule 117 Sec 8 cannot be given retroactive application.

On April 3, 2003, in a Resolution , the Supreme Court favored the petitioners. The Resolution
was prepared by Justice Romeo Callejo Sr. He prepared the draft for the reason that he was the one
who replaced Ret. Justice De Leon, to whom the Lacson case was originally assigned. It was here
where the court finally resolved the issues and held that Sec 8 of Rule 117 will not apply to Criminal
Cases Nos. 01-101102 to 01-101112 because it was not proven that the respondent Lacson gave
consent to the dismissal of such cases and that the heirs of the victims were notified. Also, assuming
that the said rule applies, it would be applied prospectively and not retroactively. This time it was the
turn of respondent Lacson to file his motion for reconsideration. The respondent also filed an
omnibus motion asking the inhibition of Gloria Macapagal-Arroyo’s appointed SC justices and a
motion to set the case for oral arguments.

On October 7, 2003, the latest En Banc Resolution was promulgated which denied the omnibus
motion and motion to set the case for oral arguments; and denied with finality Lacson’s motion for
reconsideration. Hence, the Supreme Court ordered the criminal cases be re-raffled to one of the
branches of the Regional Trial Court of Quezon City to hear and decide the case.

UPDATE: After the Oct 3, 2003 SC Resolution, the case was re-raffled to the sala of Judge
Yadao. On November 12, 2003 Quezon City Regional Trial Court Judge Theresa Yadao dismissed
the multiple murder case against Lacson and 33 other accused citing “manifest error” made by the
prosecution.

ISSUES:
1. Whether or not the rules on Provisional Dismissal (The Revised Rules of Criminal
Procedure Sec 8, Rule 117) applies in criminal cases 01-101101 to 01-101112.
2. Whether Sec 8 Rule 117 be applied retroactively from March 1999 dismissal by Judge
Agnir or prospectively from the date of its effectivity on December 2001.
3. Whether or not the respondent’s motion calling for the inhibitions of Arroyo-appointed
Supreme Court Justices should be granted.

HELD:

Having invoked said rule before the petitioners-panel of prosecutors and before the Court of
Appeals, the respondent is burdened to establish the essential requisites thereof, namely:

1. the prosecution with the express conformity of the accused or the accused moves for a
provisional (sin perjuicio) dismissal of the case; or both the prosecution and the accused move for a
provisional dismissal of the case;
2. the offended party is notified of the motion for a provisional dismissal of the case;
3. the court issues an order granting the motion and dismissing the case provisionally;
4. the public prosecutor is served with a copy of the order of provisional dismissal of the case.

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Petitioners contend that it will not apply since the dismissal of the cases was without the consent
of herein respondent Lacson and that there were no notices given to the heirs of the victims which
are conditions sine qua non for the application of the said rule. Respondent, on the other hand,
insists that as found by Judge Agnir, he himself moved for the dismissal of the cases and that the
heirs of the victims were notified through the public and private prosecutors since the prosecutors
were present during the March 22, 1999 hearing wherein respondent moved for the judicial
determination of probable cause.

In this case, the respondent has failed to prove that the first and second requisites of the first
paragraph of the new rule were present when Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-
81679 to Q-99-81689. Irrefragably, the prosecution did not file any motion for the provisional
dismissal of the said criminal cases. For his part, the respondent merely filed a motion for judicial
determination of probable cause and for examination of prosecution witnesses alleging that under
Article III, Section 2 of the Constitution. The respondent, through counsel, even admitted that
despite his plea for equitable relief in his motion for a judicial determination of probable cause in the
RTC, he did not agree to a provisional dismissal of the cases. The respondent insisted that the only
relief he prayed for before Judge Agnir, Jr. was that warrants for his arrest be withheld pending a
finding of probable cause. He asserted that the judge did not even require him to agree to a
provisional dismissal of the cases. A judicial admission is a formal statement made either by a party
or his or her attorney, in the course of judicial proceeding which removes an admitted fact from the
field of controversy. It is a voluntary concession of fact by a party or a party’s attorney during such
judicial proceedings, including admissions in pleadings made by a party. It may occur at any point
during the litigation process. An admission in open court is a judicial admission. A judicial
admission binds the client even if made by his counsel.

As to notice the facts show that the heirs of the victims were not notified thereof prior to the
hearing on said motion on March 22, 1999. Respondent filed his motion only on March 17, 1999
and set it for hearing on March 22, 1999 or barely five days from the filing thereof. Although the
public prosecutor was served with a copy of the motion, the records do not show that notices
thereof were separately given to the heirs of the victims or that subpoenae were issued to and
received by them, including those who executed their affidavits of desistance who were residents of
Dipolog City or Piñan, Zamboanga del Norte or Palompon, Leyte. There is as well no proof in the
records that the public prosecutor notified the heirs of the victims of said motion or of the hearing
thereof on March 22, 1999. Since the conditions sine qua non for the application of the new rule
were not present when Judge Agnir, Jr. issued his resolution, the State is not barred by the time limit
set forth in the second paragraph of Section 8 of Rule 117 of the Revised Rules of Criminal
Procedure. The State can thus revive or refile Criminal Cases Nos. Q-99-81679 to Q-99-81689 or
file new Informations for multiple murder against the respondent.

The State says that if it will be applied retroactively, it would violate the right of the People to
due process, and unduly impair, reduce, and diminish the State’s substantive right to prosecute the
accused. While the respondent asserts that the rule may be applied retroactively since there is no
substantive right of the State that may be impaired since the State’s witnesses were ready, willing and
able to provide their testimony and that the State has more than reasonable time to indict him when
the rule took effect on December 2000.

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Statutes of limitations are construed as acts of grace, and a surrender by the sovereign of its right
to prosecute or of its right to prosecute at its discretion. The periods fixed under such statutes are
jurisdictional and are essential elements of the offenses covered. On the other hand, the time-bar
under Section 8 of Rule 117 is akin to a special procedural limitation qualifying the right of the State
to prosecute making the time-bar an essence of the given right or as an inherent part thereof, so that
the lapse of the time-bar operates to extinguish the right of the State to prosecute the accused. The
time-bar under the new rule does not reduce the periods under Article 90 of the Revised Penal
Code, a substantive law. It is but a limitation of the right of the State to revive a criminal case against
the accused after the Information had been filed but subsequently provisionally dismissed with the
express consent of the accused. Upon the lapse of the timeline under the new rule, the State is
presumed, albeit disputably, to have abandoned or waived its right to revive the case and prosecute
the accused. The dismissal becomes ipso facto permanent.

Statutes regulating the procedure of the courts will be construed as applicable to actions pending
and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to
that extent. The fact that procedural statutes may somehow affect the litigants’ rights may not
preclude their retroactive application to pending actions. The retroactive application of procedural
laws is not violative of any right of a person who may feel that he is adversely affected. Nor is the
retroactive application of procedural statutes constitutionally objectionable. The reason is that as a
general rule no vested right may attach to, nor arise from, procedural laws. It has been held that “a
person has no vested right in any particular remedy, and a litigant cannot insist on the application to
the trial of his case, whether civil or criminal, of any other than the existing rules of procedure. The
new rule is not unreasonable to both the State and the accused. The time-bar may appear, on first
impression, unreasonable compared to the periods under Article 90 of the Revised Penal Code.
However, in fixing the time-bar, the Court balanced the societal interests and those of the accused
for the orderly and speedy disposition of criminal cases with minimum prejudice to the State and the
accused. It took into account the substantial rights of both the State and of the accused to due
process.

However, the rule cannot be applied retroactively in this case. The time-bar under the new rule
was fixed by the Court to excise the malaise that plagued the administration of the criminal justice
system for the benefit of the State and the accused; not for the accused only. The Court agrees with
the petitioners that to apply the time-bar retroactively is inconsistent with the intendment of the new
rule. Instead of giving the State two years to revive provisionally dismissed cases, the State had
considerably less than two years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-
99-81679 to Q-99-81689 on March 29, 1999. The new rule took effect on December 1, 2000. If the
Court applied the new time-bar retroactively, the State would have only one year and three months
or until March 31, 2001 within which to revive these criminal cases. The period is short of the two-
year period fixed under the new rule. On the other hand, if the time limit is applied prospectively,
the State would have two years from December 1, 2000 or until December 1, 2002 within which to
revive the cases. This is in consonance with the intendment of the new rule in fixing the time-bar
and thus prevent injustice to the State and avoid absurd, unreasonable, oppressive, injurious, and
wrongful results in the administration of justice.

In this case, when the Court approved Section 8, it intended the new rule to be applied
prospectively and not retroactively, for if the intention of the Court were otherwise, it would defeat

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the very purpose for which it was intended, namely, to give the State a period of two years from
notice of the provisional dismissal of criminal cases with the express consent of the accused. It
would be a denial of the State’s right to due process and a travesty of justice for the Court to apply
the new rule retroactively in the present case as the respondent insists, considering that the criminal
cases were provisionally dismissed by Judge Agnir, Jr. on March 29, 1999 before the new rule took
effect on December 1, 2000. A retroactive application of the time-bar will result in absurd, unjust
and oppressive consequences to the State and to the victims of crimes and their heirs. It must be
stressed that the institution and prosecution of criminal cases are governed by existing rules and not
by rules yet to exist. It would be the apex of injustice to hold that Section 8 had a platonic or ideal
existence before it was approved by the Court. The past cannot be erased by a capricious retroactive
application of the new rule.

Due process requires fundamental fairness. In determining what fundamental fairness consists
of in a particular situation, relevant precedents must be considered and the interests that are at stake;
private interests, as well as the interests of the government must be assessed. In this case, in holding
that the new rule has prospective and not retroactive application, the Court took into consideration
not only the interests of the respondent but all other accused, whatever their station in life may be.
The interest of the State in the speedy, impartial and inexpensive disposition of criminal cases was
likewise considered.

The respondent points out that the following members of the Court ( Renato Corona, Ma. Alicia
Austria-Martinez, Conchita Morales, Romeo Callejo and Adolfo Azcuna ) were appointed by
President Gloria Macapagal-Arroyo after the February 19, 2002 oral arguments and after the case at
bar was submitted for the decision of the Court. He asserts that although A.M. No. 99-8-09-SC
specifically provides that it applies only to the divisions of the Court, it should likewise apply to this
case and accordingly the case should be unloaded by Callejo and be re-raffled to other SC justice.

The respondent’s reliance on Supreme Court Circular No. 99-8-09 is misplaced. As admitted by
the respondent, the said circular is applicable only to motions for reconsideration in cases assigned
to the Divisions of the Court. For cases assigned to the Court En Banc, the policy of the Court had
always been and still is, if the ponente is no longer with the Court, his replacement will act upon the
motion for reconsideration of a party and participate in the deliberations thereof. This is the reason
why Justice Callejo, Sr. who had replaced retired Justice De Leon, prepared the draft of the April 1,
2003 Resolution of the Court.

The Court also ruled that there was no need for its newest members to inhibit themselves from
participating in the deliberation of the respondent’s Motion for Reconsideration. Although Justices
Conchita Carpio-Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna were not yet members of the
Court during the February 18, 2002 oral arguments before the Court, nonetheless they were not
disqualified to participate in the deliberations on the petitioner’s motion for reconsideration of the
May 28, 2002 Resolution of the Court or of the instant motion for reconsideration. Neither is
Justice Callejo, Sr. disqualified to prepare the resolution of the Court on the motion for
reconsideration of the respondent. When the Court deliberated on petitioners’ motion for
reconsideration, Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr. and Adolfo S. Azcuna were
already members of the Court. It bears stressing that transcripts of stenographic notes taken during
the February 18, 2002 hearing and oral arguments of the parties are parts of the records of this case,

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and available to the parties and their counsels. Besides, the respondent sought the inhibition of
Justices Conchita C. Morales and Adolfo S. Azcuna only after they had already concurred in the
Court’s Resolution dated April 1, 2003. Case law has it that a motion for disqualification must be
denied when filed after a member of the Court has already given an opinion on the merits of the
case, the rationale being that a litigant cannot be permitted to speculate upon the action of the
Court, only to raise an objection of this sort after a decision has been rendered.

The respondent’s reliance on Supreme Court Circular No. 99-8-09 is misplaced. As admitted by
the respondent, the said circular is applicable only to motions for reconsideration in cases assigned
to the Divisions of the Court. For cases assigned to the Court En Banc, the policy of the Court had
always been and still is, if the ponente is no longer with the Court, his replacement will act upon the
motion for reconsideration of a party and participate in the deliberations thereof. This is the reason
why Justice Callejo, Sr. who had replaced retired Justice De Leon, prepared the draft of the April 1,
2003 Resolution of the Court.

Dispositive part of the October 7, 2003 SC En banc decision. (The latest SC decision before the
criminal cases were re-raffled to the Branch 81 RTC Quezon City presided by Judge Yadao):

IN LIGHT OF ALL THE FOREGOING, respondent Panfilo M. Lacson’s Omnibus Motion

and Motion to Set for Oral Arguments are DENIED. The respondent’s Motion for
Reconsideration and its Supplement are DENIED WITH FINALITY. The Executive Judge of the
Regional Trial Court of Quezon City is hereby DIRECTED to CONSOLIDATE Criminal Cases
Nos. 01-101102 to 01-101112 and to RE-RAFFLE the same with dispatch to one of the branches of
the Regional Trial Court of Quezon City designated as a special court, exclusively to try and decide
heinous crimes.

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