SB-17-CRM-0242 to 0245 People vs. Alejandro N. Abarratigue, et al.

13 Pages·2017·0.59 MB·English

REPUBLIC OF THE PHILIPPINES
Quezon City
SIXTH DIVISION
(cid:9)
PEOPLE OF THE PHILIPPINES, SB-I 7-CRM-2402 to 2405
(cid:9)
Plaintiff,
For: Violation of Sec. 3(e)
of R.A. No. 3019, as amended
Present
- versus -
FERNANDEZ, SJ, J.,
Chairperson
MIRANDA, J. and
ALEJANDRO N. ABARRATIGUE, PAHIMNA,* J.
El AL.,
Accused.
Promulgated:
PUIR 122OiB,..'
x--------------------------------------------------------------------------------------x
RESOLUTION
FERNANDEZ, SJ, J.
This resolves accused Alejandro N. Abarratigue's Motion to
Quash' and his Manifestation With Supplemental Motion to Quash.2

Accused Abarratigue prays that this Court quash the
Informations in the present cases on the ground that the facts charged
therein do not constitute an offense. He avers:
1. Although the Informations contain allegations of acts constituting
offenses committed by the accused, the offense alleged therein
is not vio tion of Sec. 3(e) of Republic Act No. 3019 (R.A. No.
3019)
* The present (cid:9) submitted for resolution on January 17, 2018, after the prosecution filed its
Comment/Opposition (Order dated January 11, 2018; Record, p. 320-A); In view of the vacancy in the Sixth
Division (Per Administrative Order No. 023-2018 dated January 15, 2018; Revised Internal Rules of the
Sandiganbayan, Rule XII, Sec. 3)
1 Dated January 4, 2018; Record, pp. 313-318
2 Dated February 9, 2018 and filed on February 13, 2018
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People vs. Abarratigue, et al.
Criminal Cases No. SB-I 7-CRM-2402 to 2405
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2. Only the first element of violation of Sec. 3(e) of R.A. No. 3019
was alleged.
3. The Informations do not allege that undue injury was caused to
the government or to any party when the accused allegedly
awarded the contracts to Doxia Marketing and LSM Pharma &
Medical Supply.
4. The Information in the present cases do not state the specific
participation of the accused.
5. Assuming that there were irregularities in the bidding and award
of the subject contracts, he cannot be held liable for his act of
affixing his signature because he relied solely on the
recommendation of his subordinates.
6. As Mayor, he could not be expected to examine every single
detail of the subject transactions.
7. He did not interfere or participate in the affairs of the Bids and
Awards Committee (BAC).
8. He merely evaluated the findings of the BAC after the same were
forwarded to his office. He took steps to ensure that the BAC
complied with all the mandatory requirements provided by law.
He approved the transactions only after he was satisfied that the
procedures were duly complied with.
9. The government could not have sustained damage because the
contracts were awarded to eligible bidders with the lowest
calculated and responsive bids.
10.The purchases of medical supplies were done for a public
purpose. The Informations did not allege that he, or any other
party for that matter, benefited or gained from the subject
transactions.
In the Comment/Opposition (On the accused Alejandro N.
Abarratigue's Motion to Quash dated January 4, 2018), the
prosecution counters:
1. The fundamental test in determining the sufficiency of the
averments in an information is whether the facts alleged therein,
if hypothetically admitted, constitute the elements of the offense.
2. The Informations comply with Sec. 6, ule 110 of the Rules of
Court, and are therefore sufficien
Dated January 15, 2018; Record, pp. 348-356
RESOLUTION
People vs. Abarratigue, et al.
Criminal Cases No. SB-I 7-CRM-2402 to 2405
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3. The information only needs to state the ultimate facts; the
evidentiary and other details can be provided during the trial.
4. The present cases fall under the second mode of committing the
offense of violation of Sec. 3(e) of R.A. No. 3019, i.e., by giving
any private party any unwarranted benefits, advantage or
preference.
5. The evident bad faith, manifest partiality or gross inexcusable
negligence on the part of accused Abarratigue is apparent from
the fact that he awarded the contracts to obviously unqualified
bidders. As then local chief executive, he was expected to know
the procedures, and was duty-bound to strictly follow and
implement the same.
6. The accused' blatant disregard of the procedures in the bidding
and award of contracts resulted in the giving of unwarranted
benefits, advantage or preference in favor of unqualified bidders.
7. The arguments raised by accused Abarratigue are matters of
defense which should be properly addressed in a full-blown trial
on the merits.
In accused Abarratigue's Manifestation With Supplemental
Motion to Quash, he manifests that he is adopting the Omnibus Motion'
filed by accused Frincillo, Mengote, Tapia, Abayare, Pazon and Babon,
on the matter of violation of their right to speedy disposition of cases.
He also argues:
1. The Office of the Ombudsman has lost its authority to file the
Information in the present cases because his right to speedy
disposition of cases was violated.
2. Private complainants filed their respective complaint-affidavits
against him as early as 2012.
3. He immediately filed his counter-affidavit upon being directed to
do so. However, the Informations charging the accused with
violation of Sec. 3(e) of R.A. No. 3019 were filed only on
December 1, 2017 - almost six (6) years from the filing of said
complaint-affidavits.
4i. To Quash the lnformation/Dism sefo [sic] Violation of Accused' Constitutional Right to Speedy
Disposition of Their Cases 2. To Reduce Accused' Bail Bond by Fifty Percent (50%); Dated December 11, 2017;
Record, pp. 239-251;
RESOLUTION
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Criminal Cases No. SB-I 7-CRM-2402 to 2405
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During the proceedings on February 15, 2O18, the prosecution
argued its comments to accused Abarratigue's Supplemental Motion
to Quash as follows:
1) It is adopting its comment6 to the motion filed by accused Frincillo,
et al. and reiterating the same; and,
2) There is no inordinate delay, thus the Ombudsman has authority
to file the present Information;
THE COURT'S RULING
The Court resolves to deny accused Abarratigue's Motion to
Quash and Supplemental Motion to Quash.
A. Sufficiency of the Informations
A motion to quash on the ground that the facts charged do not
constitute an offense assails the sufficiency of the Information. In
resolving a motion to quash on such ground, the Court need not go
beyond the allegations in the Information, which are hypothetically
admitted. As the Supreme Court held in People v. Sandiganbayan:8

The main purpose of an Information is to ensure that an
accused is formally informed of the facts and the acts constituting the
offense charged. Where insufficient, an accused in a criminal case
can file a motion to have the Information against him quashed and/or
dismissed before he enters his plea. A motion to quash challenges
the efficacy of an Information and compels the court to determine
whether the Information suffices to require an accused to endure the
rigors of a trial. Where the Information is insufficient and thus cannot
be the basis of any valid conviction, the court must drop the case
immediately and save an accused from the anxiety and convenience
of a useless trial.
A motion to quash an Information on the ground that the facts
charged do not constitute an offense should be resolved on the basis
of the allegations in the Information whose truth and veracity are
hypothetically admitted. The question that must be answered is
whether such allegations are sufficient to establish the elements of
the crime charged without considering matters aliunde. In
proceeding to resolve this issue, courts must look into three matters:
Order dated February 15, 2018
6 Dated January 3, 2018; Record, pp. 295-307
' Rules of Court. Rule 117, Sec. 3(a)
8 G.R. No. 160619, September 9, 2015
RESOLUTION
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Criminal Cases No. SB-I 7-CRM-2402 to 2405
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(1) what must be alleged in a valid information; (2) what the elements
of the crime charged are; and (3) whether these elements are
sufficiently stated in the Information.
An Information is considered sufficient if it complies with Sec 6,
Rule 110 of the Rules of Court. The provision reads:
Sec. 6. Sufficiency of complaint or information. - A complaint
or information is sufficient if it states the name of the accused; the
designation of the offense given by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended
party; the approximate date of the commission of the offense; and
the place where the offense was committed.
When an offense is committed by more than one person, all
of them shall be included in the complaint or information.
(underscoring supplied)
The Information only needs to aver the ultimate facts constituting
the offense, not the details of why and how such acts allegedly
amounted to the elements of the offense.
The elements of violation of Sec. 3(e) of R.A. No. 3019 are as
follows:
1. The accused must be a public officer discharging administrative,
judicial or official functions;
2. The accused must have acted with manifest partiality, evident
bad faith or inexcusable negligence; and
3. Such act caused any undue injury to any party, including the
government, or giving any private party unwarranted benefits,
advantage or preference in the discharge of his or her functions. 9

The Information in Crim. Case No. SBA 7-CRM-2402 alleges the
following:
1. Accused Alejandro N. Abarratigue (Municipal Mayor), Esmeralda
H. Frincillo (Chairperson of the BAC), Lesarbo L. Mengote, Raul
R. Tapia, Renato M. Abayare, Roel A. Pazon (BAC members)
and Alan A. Babon (BAC Secretariat) were public officers, all, of
the Municipality of Hinabagan, Western Samar.
Consigna v. People, G.R. No. 175750-51, April 2, 2014
RESOLUTION
People vs. Abarratigue, et aL
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x x
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2. The accused, conspiring with one another, committed the acts in
the performance of their respective administrative and/or official
functions, in relation to office, and taking advantage of their
official positions.
3. The accused acted with evident bad faith, manifest partiality
and/or gross inexcusable negligence by:
a. Omitting to conduct the requisite eligibility check or
screening of bidders in the procurement activity relating to
the Municipality of Hinabangan's purchase of medicines
and medical supplies;
b. Accepting the bid of Doxia Marketing in said procurement
activity despite its failure to submit and/or meet the
eligibility requirements under Republic Act No. 9184 (R.A.
No. 9184) and its implementing rules and regulations;
c. Recommending approval or award of contracts to Doxia
Marketing who is an ineligible and unqualified bidder;
d. Approving the award of the contract to Doxia Marketing
despite being unqualified and ineligible; and/or
e. Signing the corresponding vouchers and/or other related
papers for the release of the funds therefor, thereby
causing or facilitating the release of public funds to Doxia
Marketing even if it was an unqualified bidder, and thus not
entitled thereto.
4. The aforementioned acts of the accused resulted in the award of
the contract to Doxia Marketing and the release of funds thereto,
despite it being an unqualified bidder. The award of the contract
and the release of funds to Doxia Marketing constitute
unwarranted benefits, advantage and/or preference.
The four (4) Informations are similarly worded, aside from the
following details:
I. The dates of the alleged commission of the crime;
2. The names of the bidder, in particular, Doxia Marketing in Crim.
Case No. SB-I 7-CRM-2402, and LSM Pharma & Medical Supply
in Crim. Cases No. SB-I 7-CRM-2403 to 2045;
3. Accused Frincillo is included only in Crim. Cases No. SB-17-
CRM-2402 and 2404; and
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Criminal Cases No. SB-I 7-CRM-2402 to 2405
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4. Accused Pazon is included only in Crim. Cases No. SB-I 7-CRM-
2402 and 2403.
The Informations sufficiently allege the ultimate facts constituting
the elements of violation of Sec. 3(e) of R.A. No. 3019. Although the
specific participation of each accused was not indicated, it is clear from
the Informations that the accused are alleged to have acted in the
performance of their respective official functions, and in relation to
office. Therefore, it is understood that the acts allegedly done by the
accused were not done by all of them, but that specific acts can be
attributable to certain accused by reason of the performance of their
official functions. For example, the act of recommending the award of
the contract pertains to the members of the BAC. On the other hand,
the act of approving the award pertains to accused Abarratigue, as
Municipal Mayor.
That the Informations do not allege undue injury do not render
them insufficient. In Sison v. People,10 it was held that there are two
(2) ways by which violation of Sec. 3(e) of R.A. No. 3019 may be
committed - first, by causing undue injury to any party, and second, by
giving any private party any unwarranted benefit, advantage or
preference. To wit:
x x x. While it is true that the prosecution was not able to
prove any undue injury to the government as a result of the
purchases, it should be noted that there are two ways by which
Section 3(e) of RA 3019 may be violated -the first, by causing undue
injury to any party, including the government, or the second, by giving
any private party any unwarranted benefit, advantage or preference.
Although neither mode constitutes a distinct offense, an accused
may be charged under either mode or both. The use of the
disjunctive "or" connotes that the two modes need not be present at
the same time. In other words, the presence of one would suffice for
conviction.
(underscoring supplied)
The accused may be charged under either mode or both. Here,
the Informations charge the accused with awarding the subject
contracts to Doxia Marketing and LSM Pharma & Medical Supply,
respectively, and causing the release of public funds thereto, despite
them being unqualified bidders. These allegations constitute the
element of giving any private party any unwarranted benefit, advantag
10 G.R. Nos. 170339-403, March 9, 2010
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or preference. Under this mode, it is not necessary to allege damage
or injury to the government.
The rest of accused Abarratigue's arguments are matters of
defense, which are better threshed out during the trial on the merits.
B. Violation of the right to speedy disposition of cases
The Court adopts its ruling in the Resolution dated March 1, 2018,
denying the Omnibus Motion filed by accused Frincillo, Mengote, Tapia,
Abayare, Pazon and Babon, for lack of merit. The pertinent portion 11

of said Resolution reads:
The right to speedy disposition of cases is guaranteed by Sec.
16, Art. Ill of the Constitution, which reads:
Sec. 16. All persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or administrative bodies.
The Supreme Court, in Corpuz v. Sandiganbayan,12 teaches
that such right was designed to prevent oppression by holding
criminal prosecution over the citizen for an indefinite time, and to
prevent delays in the administration of justice. This right is violated
only when the proceedings are attended by vexatious, capricious
and oppressive delays. Because speedy disposition is a flexible
concept, the court must use a balancing test and consider the
circumstances peculiar to each case. Viz.:
- (cid:9) The right of the accused to a speedy trial and to a speedy disposition
of the case against him was designed to prevent the oppression of the
citizen by holding criminal prosecution suspended over him for an
indefinite time, and to prevent delays in the administration of justice by
mandating the courts to proceed with reasonable dispatch in the trial of
criminal cases. Such right to a speedy trial and a speedy disposition of a
case is violated only when the proceeding is attended by vexatious,
capricious and oppressive delays. The inquiry as to whether or not an
accused has been denied such right is not susceptible by precise
qualification. The concept of a speedy disposition is a relative term and
must necessarily be a flexible concept.
While justice is administered with dispatch, the essential ingredient is
orderly, expeditious and not mere speed. It cannot be definitely said how
long is too long in a system where justice is supposed to be swift, but
deliberate. It is consistent with delays and depends upon circumstances.
It secures rights to the accused, but it does not preclude the rights of public
justice. Also, it must be borne in mind that the rights given to the accused
by the Constitution and the Rules of Court are shields, not weapons; hence,
courts are to give meaning to that intent.
pp. 5-10
12G.R. No. 162214, November 11, 2004
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People vs. Abarratigue, et al.
Criminal Cases No. SB-I 7-CRM-2402 to 2405
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xxx
In determining whether the accused has been deprived of his right to
a speedy disposition of the case and to a speedy trial, four factors must
be considered: (a) length of delay; (b) the reason for the delay; (c) the
defendant's assertion of his right; and (d) prejudice to the defendant. x x
X
That the particular circumstances unique to each case must
be considered was reiterated in the more recent case of Remulla v.
Sandiganbayan.13 To wit:
Accordingly, both sets of cases only show that '[a] balancing test of
applying societal interests and the rights of the accused necessarily
compels the court to approach speedy trial cases on an ad hoc basis." To
reiterate, none of the factors in the balancing test is either a necessary or
sufficient condition; they are related and must be considered together with
other relevant circumstances. x x x
Here, the fact-finding investigation commenced on October 7,
14 15
2013. The Affidavit dated March 26, 2014 of the Public
Assistance and Corruption Prevention Office (PACPO), Office of the
Ombudsman, recommending that the fact-finding case be upgraded
into formal criminal and administrative cases against the accused
was filed with the Office of the Ombudsman on October 9, 2014. On
December 18, 2014, the respondents were directed to file their
16
respective counter-affidavits. The accused, except accused
Babon, filed their respective Counter-Affidavits on April 8, 2015.17
On May 6, 2015, the parties were then directed to submit their
respective verified position papers summarizing the charges,
defenses, and/or other claims contained in their previously filed
affidavits and other pleadings. None of the parties, however,
complied with said directive. 18
The Joint Resolution dated January 10, 2017 finding probable
cause to indict the respondents for four (4) counts of violation of Sec.
3(e) of R.A. No. 3019 was approved on January 24, 2017.19 In the
Joint Order dated May 25, 2017,20 the Office of the Ombudsman
denied accused Abarratigue's Motion for Reconsideration, but
partially granted those of accused Frincillo, Mengote, Tapia, Abayare,
Pazon and Babon, and modified the Joint Resolution by
recommending that accused Frincillo and Pazon be indicted for onl
13 G.R. No. 218040, April 17, 2017
14 Record, p. 55
15 Record, pp. 5557
16 Record, p. 20
17 Record, pp. 86-236
18 Record, pp. 20-21
19 Record, pp. 16-36
20 Record, pp. 39-53
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Criminal Cases No. SB-I 7-CRM-2402 to 2405
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two (2) counts of violation of Sec. 3(e) of R.A. No. 3019. Thereafter,
the four (4) Informations were filed on December 1, 2017.
21
In Torres v. Sandiganbayan, it was held that speedy
disposition of cases covers not only the period within which the
preliminary investigation was conducted, but also all stages to which
the accused is subjected, including the fact-finding investigations
conducted prior to the preliminary investigation proper. Thus, length
of delay is computed from the start of the fact-finding investigation to
the filing of the Information in the present cases - a period of almost
four (4) years and two (2) months.
According to the prosecution, even if there was delay in the
fact-finding and preliminary investigations, the same was not
inordinate. The Supreme Court recognized that the disposition of
cases pending before the Office of the Ombudsman takes time
because of the steady stream of cases reaching said Office.
Moreover, it was not shown how the delay was vexatious, capricious
and oppressive. These terms were defined in Tai Lim v. Court of
Appeals22 as thus:
x x x. As the Appellate Court put it in "Steward versus State, 13 Arkansas,
720": "what the constitution prohibits is vexatious, capricious and
oppressive delays, manufactured by them ministers of justice." Not every
delay in the trial is vexatious, capricious or oppressive. In the legal
firmament. The terms have distinct connotations. Vexatious suggests an
act which is willful and without reasonable cause, for the purpose of
annoying and embarrassing another or one lacking justification and
intended to harass (page 2548, Third Edition, Webster's International
Dictionary). Oppressive connotes an unjust or cruel exercise of power or
authority. Capricious action, on the other hand, means willful and
unreasoning action x x x.
This Court is inclined to agree with the prosecution. Although
the Informations were filed with this Court only after more than four
(4) years, such period can be broken down into the following:
Start of the fact-finding investigation to the 1 year
filing of the PACPO's Affidavit
Filing of the Counter-Affidavits from the Almost 4 months
time the respondents Were directed to file
the same
Filing (cid:9) of (cid:9) the (cid:9) respondents' (cid:9) Counter- More than 1 year
Affidavits to the approval (cid:9) of the Joint and 9 m'rp" 4
Resolution
'I
1
21 G.R. Nos. 221562-69, October 5, 2016
21 G.R. No. 131483, October 26, 1999, citing the ruling of the Court of Appeals