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ANNOTATION

FORFEITURE PROCEEDINGS
By *
ALICIA GONZALEZ-DECANO

_________________

Two of the issues raised in the above-entitled case is

whether or not the Sandiganbayan has jurisdiction over the
petition for forfeiture since it is civil in nature and whether
or not the Ombudsman has authority to investigate and
initiate forfeiture proceedings against petitioner Garcia.
The Supreme Court ruled in the affirmative in both
issues and the petition for certiorari was dismissed.
In order to understand fully the ruling of the Supreme
Court in this case, study of the litany of cases involving the
issue is imperative.
1. Almeda Sr. vs. Perez, No. L-18428, August 30, 1962, 5
SCRA 970, discusses Anti-Graft Law and foreclosure
proceedings.

„x x x The proceeding under Republic Act No. 1379 otherwise

known as Anti-Graft Law is not a criminal proceeding, because it
does not terminate in the imposition of a penalty but merely in the
forfeiture of the properties illegally acquired in favor of the State
(Section 6), and because the procedure outlined therein leading to
forfeiture is that provided for in a civil action.‰

The Supreme Court continued:

_______________

* Law Professor, University of Pangasinan and Consultant and

Professorial Lecturer, UST Graduate School of Law.
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„x x x The preliminary investigation required prior to the filing of

the petition, in accordance with section 2 of the Act, is provided
expressly to be one similar to a preliminary investigation in a
criminal case, but the other steps in the proceedings are those for
civil proceedings. It follows that amendment of the charges or the
petition for forfeiture may be made before trial, or in the course of
trial without need of another investigation, and that amendments
setting forth newly discovered acquisitions may be inserted in the
petition without the consent of the respondent.
Furthermore, Supreme Court promulgated the test to determine
whether a proceeding is civil or criminal. Forfeiture proceedings
may be either civil or criminal in nature and may be in rem or in
personam. If they are under a statute such that if an indictment is
presented the forfeiture can be included in the criminal case they
are criminal in nature, although they may be civil in form; and
where it must be gathered from the statute that the action is meant
to be criminal in its nature, it cannot be considered as civil. If,
however, the proceeding does not involve the conviction of the
wrongdoer for the offense charged, the proceeding is of a civil
nature; and under statutes which specifically so provide, where the
act or omission for what the forfeiture is imposed is not also a
misdemeanor, such forfeiture may be sued for and recovered in a
civil action. (37 C.J.S. Forfeitures, Sec. 5, pp. 15-16)

In addition it was ruled:

„x x x Hence, in the first place, the proceeding under R.A. No. 1379
does not terminate in the imposition of a penalty but merely
forfeiture of the properties illegally acquired in favor of the state.
(Sec. 6) In the second place, the procedure outlined in the law
leading to forfeiture is that provided for in a civil action. Thus,
there is a petition (Sec. 3), then an answer (Sec. 4) and lastly a
hearing. The preliminary investigation which is required prior to
the filing of the petition, in accordance with Section 2 of this Act, is
provided expressly to be one similar to the preliminary
investigation in a criminal case. If the investigation is only similar
to that in a criminal case, but the other steps in the proceedings are
those for civil proceedings, it stands to reason that the proceeding is
not criminal. Had it been a criminal proceeding there would have
been, after a preliminary investigation, a reading of information, a
plea of guilty or not guilty, and a trial thereafter, with the
publication of the judgment in

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the presence of the defendant. But these proceedings as above set

forth, are not provided for in the law.‰

2. Cabal vs. Kapunan, Jr., No. L-19052, December 29, 1962,

6 SCRA 1059, modifies the ruling in the case of Almeda, Sr.
vs. Perez. In the former case, the court held that the
doctrine laid down in Almeda, Sr. vs. Perez refers to the
purely procedural aspect of the proceeding and has no
bearing on the substantial rights of the respondents,
particularly their constitutional rights against self-
incrimination.
The Supreme Court in this instant case, speaks of
forfeiture of unexplained wealth and the nature of
forfeiture is penalty.
The Highest Tribunal held:

„x x x Such forfeiture partakes the nature of a penalty x x x In a

strict signification, a forfeiture is a divestiture of property without
compensation, in consequence of a default or an offense and the
term is used in such a sense on this article. A forfeiture as thus
defined, is imposed by way of a punishment not by the mere
conviction of the parties, but by the lawmaking power, to insure a
prescribed course of conduct. It is a method deemed necessary by
the legislature to restrain the commission of an offense and to aid in
the presentation of such an offense. The effect of such a forfeiture is
to transfer the title to the specific thing from the owner to the
sovereign power. (23 Am. Jur. 599)
„In BlackÊs Law Dictionary, a forfeiture is defined to be the
incurring of a liability to pay a definite sum of money as the
consequences of violating the provision of the same statute or
refusal to comply with some requirements of law. It may be said to
be a penalty imposed for misconduct or breach of duty. (Com. vs.
French, 114 S. W. 255).

As a consequence, proceedings for forfeiture of property are

deemed criminal or penal, and, hence, the exemption of
defendants in criminal case form the obligation to be
witnesses against themselves are applicable thereto.
 The Supreme Court continued to expound:

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„x x x Generally speaking, information for the forfeiture of goods

that seek no judgment of fine or imprisonment against any person
are deemed to be civil proceedings in rem. Such proceedings are
criminal in nature to the extent that where the person using the res
illegally is the owner or rightful possessor of it, the forfeiture
proceeding is in the nature of punishment. They have been held to
be so far in the nature of criminal proceedings that a general
verdict on several counts is good. According to the authorities such
proceedings, where the owner of the property appears, are so far
considered as quasi-criminal proceedings as to relieve the owner
from being a witness against himself and to prevent the compulsory
production of his books and papers. x x x‰ (23 Am. Jur. 612)

In addition, the Supreme Court postulated:

„Although the contrary view formerly obtained, the later decisions

are to the effect that suits for foreclosure incurred by the
commission of offenses against the law are so far of a quasi-criminal
nature as to be within the reason of criminal proceedings for all
purposes of x x x that portion of the fifth amendment which
declares that no person shall be compelled in any criminal case to
be a witness against himself. x x x a witness or party called as
witness cannot be made to testify against himself as to matters
which would subject his property to forfeiture.‰ (23 Am. Jur. 616)
„The rule protecting a person from being compelled to furnish
evidence which would incriminate him exists not only when he is
liable criminally to prosecution and punishment, but also when his
answer would tend to expose him to a x x x forfeiture.‰ (58 Am. Jur.
Sec. 43, p. 48)
„This provision against compelling a person to take the stand as
a witness against himself applies only to criminal, quasi-criminal,
and penal proceedings, including a proceeding civil in form for
forfeiture of property by reason of commission of offense, but not a
proceeding in which the penalty recoverable is civil or remedial in
nature. x x x‰ (58 Am. Jur. Sec. 44, p. 49)

The Supreme Court cited the case of Boyd vs. U.S. (116
U.S. 616, 29 L, ed. 746), when it held that the information,
in a proceeding to declare a forfeiture of certain property
because of the evasion of a certain revenue law, though
techni-

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cally a civil proceeding, is in substance and effect a

criminal one, and that suits for penalties and forfeiture are
within the reason of criminal proceedings for the purpose of
that portion of the fifth amendment of the constitution of
the U.S. which declares that no person shall be compelled
in a criminal case to be a witness against himself.
3. Republic vs. Agoncillo, No. L-27257, August 31, 1971,
40 SCRA 579, emphasizes forfeiture under Republic Act
No. 1379, its aim and nature.
The Supreme Court theorized:

„x x x Republic Act 1379 is the first of the basic statutes intended to

minimize, if not put an end to, the incidence of graft and corruption
in the public service. As a consequence, proceedings for forfeiture of
property are deemed criminal or penal, and, hence, the exemption of
defendants in criminal case from the obligation to be witnesses
against themselves are applicable thereto.

The lower court stated that the defendants having been

previously charged with a violation of Act No. 1379, which
was held penal in character under a valid complaint filed
with a court of competent jurisdiction to which they had
thereafter pleaded, with such case having been dismissed
without their express consent, the plea of double jeopardy
would lie. The Republic appealed.
Unfortunately, such a decision failed to take into account
that the complaint alleged that the 1960 previous action for
forfeiture, docketed as Civil Case No. 44686 of the CFI of
Manila was dismissed without prejudice. The decision of
the lower court was reversed on the following grounds:

a. This Court adheres to its pronouncement in Cabal vs. Kapunan.

Speaking through the then Associate Justice, now Chief Justice
Roberto Concepcion, it was categorically held: as a consequence,
proceedings for forfeiture of property are deemed criminal or penal,
and, hence, the exemption of defendants in criminal case from the
obligation to be witness against themselves are applicable thereto.

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b. Nor can there be any difference of view as to significance to be

attached to the jeopardy clause of the constitution on which
insistence is laid by defendants. The assumption is that after a
trial, the accused is either found guilty or freed of the criminal
charge against him. x x x The constitutional mandate is thus a role
of finality. A single prosecution for an offense is all the law allows. It
protects an accused from harassment, enables him to treat what
had transpired as a closed chapter in his life, either to exult in his
freedom or to be resigned to whatever penalty is imposed, and is a
bar to unnecessary litigation, in itself time-consuming and expense
producing for the state as well. x x x
c. The reliance by defendants, now appellees, on the
constitutional right is misplaced. It is true, jeopardy had attached
with a valid complaint having been filed in a court of competent
jurisdiction and defendants having been thereafter arraigned and
pleaded. It had not terminated though. There was neither
conviction nor acquittal. There was dismissal without prejudice.

4. Katigbak vs. Solicitor General, G.R. No. 19328,

December 22, 1989, 180 SCRA 540, states that in Republic
Act 1379, forfeiture to the state of property of a public
officer or employee which is manifestly out of proportion to
his salary as such and his other lawful income and the
income from legitimately acquired property has been held
to partake of the nature of a penalty; Proceedings for
forfeiture of property are deemed criminal or penal. No
retroactive effect.
The Supreme Court postulated:

„x x x Whatever persuasiveness might have been carried by the

ruling on the issue of the learned Trial Judge in 1961, the fact is
that the nature of R.A. No. 1379 as penal was in 1962 clearly and
categorically pronounced by this Court in Cabal vs. Kapunan, Jr.
Citing voluminous authorities, the Court in that case declared that
„forfeiture to the state of property of a public officer or employee
which is manifestly out of proportion to his salary as such x x x and
his other lawful income and the income from legitimately acquired
property has been held to partake of the nature of a penalty and
that proceedings for forfeiture of property are deemed criminal or
penal, and, hence, the exemption of defendants in criminal cases
from the obligation to be witnesses against themselves is applicable
thereto. The

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doctrine was reaffirmed and reiterated in 1971, Republic vs.

Agoncillo. (supra)

The Highest Tribunal further postulated:

„x x x The forfeiture of property provided for in Republic Act No.

1379 being in the nature of a penalty; and it being axiomatic that a
law is ex post facto which inter alia makes criminal an act done
before the passage of the law and which was innocent when done,
and punishes such an act‰, or „assuming to regulate civil rights and
remedies only, in effect impose a penalty or deprivation of a right
for something which when done was unlawful,‰ it follows that the
penalty of forfeiture prescribed by R.A. 1379 cannot be applied to
acquisitions made prior to its passage without running afoul of the
constitutional provisions condemning ex post facto laws or bill of
attainder. But this is precisely what has been done in the case of the
Katigbaks. The trial court declared certain of their acquisitions in
1953, 1954, and 1955 to be illegal under Republic Act No. 1379
although made prior to the enactment of the law, and impose a lien
thereon in favor of the government in the sum of P100,000.00. Such
a disposition is, quite obviously, constitutionally impermissible.‰

5. Republic vs. Sandiganbayan, G.R. No. 90529, August 16,

1991, 210 SCRA 667, underscores the power of the present
Special Prosecutor to conduct preliminary investigation
and to prosecute is subject to limitations. It also reiterates
the findings in the previous cases regarding forfeiture
proceedings.
The Supreme Court pronounced:

„x x x A perusal of Sections 4 (d) and 12 of Presidential Decree No.

1486, in conjunction with Section 2 of Republic Act No. 1379,
readily reveals that Presidential Decree No. 1486 had impliedly
repealed section 2 of Republic Act No. 1379 by transferring both the
jurisdiction of the former courts of first instance over the authority
of the Solicitor General to file a petition for forfeiture under R.A.
No. 1379 to the Sandiganbayan and the then Chief Special
Prosecutor, respectively.

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Then, Presidential Decree No. 1607 was enacted on

December 10, 1978, amending the power of the former
Tanodbayan to investigate administrative complaints and
providing for the creation of the office of the Chief Special
Prosecutor whose powers were substantially retained by
the later law.
The scope of the then TanodbayanÊs authority was
broadened on July 18, 1979 by a subsequent law,
Presidential Decree No. 1630, to include, aside from the
power to investigate any administrative act. Whether
amounting to any criminal offense or not of any
administrative agency, the following powers: to file the
necessary information or complaint with the
Sandiganbayan or any court or administrative agency and
prosecute the same if, after preliminary investigation, he
finds a prima facie case; and to file and prosecute civil and
administrative cases involving graft and corrupt practices
and such other offenses committed by public officers and
employees, including those in government owned or
controlled corporations, in relation to their office. The
exclusive authority to conduct preliminary investigation of
all cases cognizable by the Sandiganbayan, to file
information therefore and to direct and control the
prosecution of said cases was also specifically restored by
said decree to the Tanodbayan. In addition, the power to
conduct the necessary investigation and to file and
prosecute the corresponding criminal and administrative
cases before the Sandiganbayan or the proper court or
before the proper administrative agency against any public
personnel who has acted in a manner warranting criminal
or disciplinary action or proceedings was likewise
transferred from the Chief Special Prosecutor to the
Tanodbayan. x x x

„With the ratification of the present constitution, the existing

Tanodbayan became known as office of the Special Prosecutor which
continued to exercise its powers except those conferred on the office
of the Ombudsman to be known as the Tanodbayan created under
the said constitution. The office of the Ombudsman and the office of
the Special Prosecutor were officially and respectively created
under Republic Act No. 6770, otherwise known as the Ombudsman
Act of 1989, and Executive Order No. 244.‰

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At present, the powers of the Ombudsman, as defined by

R.A. No. 6770 corollary to Section 13, Article XI of the 1987
Constitution, include, inter alia, the authority to: (1)
investigate and prosecute on its own or on complaint by
any person, any act or omission of any public officer or
employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary
jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the investigation of
such cases; and (2) to investigate and initiate the proper
action for the recovery of ill-gotten and/or unexplained
wealth amassed after February 25, 1986 and the
prosecution of the parties involved therein.
In the light of the foregoing pronouncements, there is no
doubt that the power of the present Special Prosecutor to
conduct preliminary investigation and to prosecute is
subject to the following limitations: (a) it extends only to
criminal cases within the jurisdiction of the
Sandiganbayan, and (b) the same may be exercised only by
authority of the Ombudsman.
Republic Act No. 6770 provided for the functional and
structural organization of the Ombudsman. x x x The
Ombudsman is now vested with primary jurisdiction over
cases cognizable by the Sandiganbayan. It would appear
therefore, that, as declared by respondent Sandiganbayan,
it is the Ombudsman who should file the petition for
forfeiture involved in this case.
In the case of respondent Macario Asistio, Jr., the
alleged unexplained wealth was supposed to have been
acquired from 1981 to 1983. Verily, the Ombudsman like
the Special Prosecutor has no authority to initiate and file
the petition for forfeiture against respondent Asistio.
 It is our considered opinion therefore, that in cases of
unlawfully acquired wealth amassed before February 25,

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1986, as is the situation obtaining in the case at bar, it is

the Solicitor General who should file the petition for
forfeiture.
6. Olivar vs. Office of the Ombudsman, G.R. No. 102420,
December 20, 1994, 239 SCRA 283, speaks of the supposed
illgotten wealth of Prospero Olivar, then commanding
General of the PC Metrocom and who retired from service
on February 26, 1986. Shortly thereafter, letters were sent
to the Presidential Commission on Good Government,
charging him with violations of the Anti-Graft and Corrupt
Practices Act (R.A. No. 3019) and the Unexplained Wealth
Act (R.A. No. 1379). The letters were referred to the New
Armed Forces of the Philippines Anti-Graft Board which
the PCGG had created for the purpose of investigating
cases of unexplained wealth and corrupt practices against
AFP personnel whether retired or in active practice.
The anti-graft board cleared Olivar of the charges filed
against him, however the PCGG disapproved the findings
and recommendation of the AFP anti-graft board and
ordered a review of the case, directing Fiscals Arturo T. De
Guia and Peter T. Tabang to do the said review. Fiscal
Tabang recommended that the findings of the anti-graft
board be affirmed but the PCGG disapproved the
recommendation and ordered Prosecutor Donato Sor Suyat,
Jr. to take over.
Petitioner filed a motion for clarification with
alternative prayer for dismissal. On November 2, 1989,
Commissioner Maximo A. Maceren denied the motion.
Motion for reconsideration was filed but it was denied.
Petitioner complied by filing „Compliance with
Reservations Ex Abudanti Causa.‰ On November 23, 1990,
the PCGG endorsed the records of the case to the Office of
the Ombudsman who required Olivar to submit counter-
affidavits and the Income Tax Return for 1978, 1979-1980-
1981-1984 and 1985, hence this petition for certiorari and
prohibition.
The question for decision is whether the petitioner may
be compelled to file his counter-affidavit notwithstanding
the

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fact that no sworn statement or affidavit has been file

against him. The Supreme Court ruled.

„x x x In our criminal justice system, the law enforcer who

conducted the criminal investigation, gathered the evidence and
thereafter filed the complaint for the purpose of preliminary
investigation cannot be allowed to conduct the preliminary
investigation of his own complaint. It is to say the least arbitrary
and unjust.

It is such instances that We say, one cannot be a prosecutor

and judge at the same time. Having gathered the evidence
and filed the complaint, as a law enforcer, he cannot be
expected to handle with impartiality the preliminary
investigation of his own complaint, this time is a public
prosecutor.‰
Before the respondent can be required to submit
counter-affidavit and other supporting documents, the
complainant must submit his affidavit and those of his
witnesses. This is true not only of prosecutions of graft
cases under Republic Act No. 3019 but also of actions for
recovery of unexplained wealth under Republic Act No.
1379, because paragraph 2 of this latter law requires that
before a petition is filed there must be a „previous inquiry
similar to preliminary investigation in criminal cases.‰
The lack of a complaint and affidavits cannot be excused
on the plea that this case originated in anonymous letter
sent to the PCGG. Because of leads furnished by those
letters it would seem that the PCGG has found sufficient
evidence justifying its demand to petitioner to explain. It is
incumbent upon complainant to reduce the evidence into
affidavits. x x x This is a requirement not only of Rule II,
par. 4 (a) of respondentÊs Rules of Procedure but also of due
process in adversary proceedings.
To conclude, the PCGG has become the complainant in
this case. Its case must stand or fall on the evidence it has.
Petitioner cannot be compelled to submit his evidence in
the form of counter-affidavits and supporting documents
before the

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PCGG as complainant, has embodied its evidence in

affidavits or sworn statements.
Petition is granted.
7. Republic vs. Sandiganbayan, G.R. No. 152154,
November 18, 2003, 416 SCRA 133, highlights the
forfeiture proceedings in the Sandiganbayan regarding the
Marcoses.
The Supreme Court made the following
pronouncements:

„x x x A careful study of the provisions of R.A. 1379 readily discloses

that the forfeiture proceedings in the Sandiganbayan did not violate
the substantive rights of the respondent Marcoses. These
proceedings are civil in nature, contrary to the claim of the
Marcoses that is penal in character.
„x x x In Almeda Sr. vs. Perez, (discussed in No. 1 hereof), we
suggest a test to determine whether the proceedings for forfeiture is
civil or criminal . . . . Forfeiture proceedings may be either civil or
criminal in nature, and may be in rem or in personam. If they are
under a statute such that if an indictment is presented the
forfeiture can be included in the criminal case. They are criminal in
nature, although they may be civil in form; and where it must be
gathered from the statute that the action is meant to be criminal in
its nature, it cannot be considered as civil. If, however the
proceedings does not involve the conviction of the wrongdoer for the
offense charged in the proceeding is of a civil in nature; and under
statutes which specifically so provide, where the act or omission for
which the forfeiture is imposed is not also a misdemeanor, such
forfeiture may be sued for and recovered on a civil action. (37 CJS
Forfeiture Sec. 5, pp. 15-16). In the case of Republic vs.
Sandiganbayan, Macario Asistio, Jr., this court categorically
declared that: the rule is settled that forfeiture proceedings are
actions in rem and therefore civil in nature.‰

Under Republic Act No. 1379 and E.O. Nos. 1 & 2, the
Government is required only to state the known lawful
income of respondents for the prima facie presumption of
illegal provenance to attach. As we fully explained in our
July 15, 2003 decision, petitioner Republic was able to
establish this prima facie presumption. Thus, the burden of
proof shifted, by law to the respondents to show by clear
and convincing evidence that the Swiss deposits were
lawfully acquired and that they

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had other legitimate sources of income. This respondent

Marcoses did not do. They failed·or rather refused·to
raise any genuine issue of fact warranting a trial for the
reception of evidence therefor. x x x

„x x x It would be repulsive to our basic concepts of justice and

fairness to allow respondents to further delay the adjudication of
this case and defeat the judgment of this court which was
promulgated only after all the facts, issues and other considerations
essential to a fair and just determination had been judicially
evaluated.‰

Petitioner Republic has the right to a speedy disposition of

this case, it would readily be apparent to a reasonable mind
that respondent Marcoses have been deliberately resorting
to every procedure devised to delay the resolution hereof.
There is justice waiting to be done. The people and the
State are entitled to favorable judgment, free from
vexatious, capricious and oppressive delays, the salutary
objective being to restore the ownership of the Swiss
deposits to the rightful owner, the Republic of the
Philippines within the shortest possible time.
The respondent Marcoses cannot deny that the delays in
this case have all been made at their instance. The records
can testify to this uncontrovertible fact. It will be a
mockery of justice to allow them to benefit from it. By their
own deliberate acts·not those of the Republic or anybody
else·they are deemed to have altogether waived or
abandoned their right to proceed to trial. x x x

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