Repetitive motions to invalidate or summarily terminate a criminal indictment prior to plea and trial, however they may be named or identified -- whether as a motion to quash or motion to dismiss or by any other nomenclature -- delay the administration of justice and unduly burden the court system.  Grounds not included in the first of such repetitive motions are generally deemed waived and can no longer be used as bases of similar motions subsequently filed.

Section 5 of the Anti-Graft Law is constitutional.  It penalizes certain presidential relatives who "intervene, directly or indirectly, in any business, transaction, contract or application with the Government."  This provision is not vague or "impermissibly broad," because it can easily be understood with the use of simple statutory construction.  Neither may the constitutionality of a criminal statute such as this be challenged on the basis of the "overbreadth" and the "void-for-vagueness" doctrines, which apply only to free-speech cases.


Before us is a Petition for Certiorari^[1] under Rule 65 of the Rules of Court, seeking to set aside the November 20, 2001^[2] and the March 1, 2002^[3] Resolutions of the Sandiganbayan in Criminal Case No. 13736.  The first Resolution disposed thus:

"WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED.  The arraignment of the accused and the pre-trial of the case shall proceed as scheduled."^[4]

The second Resolution denied reconsideration.


The facts of the case are narrated by the Sandiganbayan as follows:

"[The People of the Philippines], through the Presidential Commission on Good Government (PCGG), filed on July 12, 1989 an information before [the anti-graft court] charging the accused [with] violation of Section 5, Republic Act No. 3019,^[5] as amended.  The Information reads:

'That on or about and during the period from July 16, 1975 to July 29, 1975, in Metro Manila, Philippines, and within the jurisdiction of [the    Sandiganbayan], said [petitioner], brother-in-law of Ferdinand E. Marcos, former President of the Philippines, and therefore, related to the latter by affinity within the third civil degree, did then and there wil[l]fully and unlawfully, and with evident bad faith, for the purpose of promoting his self-interested [sic] and/or that of others, intervene directly or indirectly, in a contract between the National Shipyard and Steel Corporation (NASSCO), a government-owned and controlled corporation and the Bataan Shipyard and Engineering Company (BASECO), a private corporation, the majority stocks of which is owned by former President Ferdinand E. Marcos, whereby the NASSCO sold, transferred and conveyed to the BASECO its ownership and all its titles and interests over all equipment and facilities including structures, buildings, shops, quarters, houses, plants and expendable and semi-expendable assets, located at the Engineer Island known as the Engineer Island Shops including some of its equipment and machineries from Jose Panganiban, Camarines Norte needed by BASECO in its shipbuilding and ship repair program for the amount of P5,000,000.00.

'Contrary to law.'

"On December 27, 1996, the accused filed his first 'MOTION TO DISMISS AND TO DEFER ARRAIGNMENT' claiming that no valid preliminary investigation was conducted in the instant case.  He asserts that if a preliminary investigation could be said to have been conducted, the same was null and void having been undertaken by a biased and partial investigative body.

"On January 9, 1997, [the Sandiganbayan], through the First Division, issued an order giving the accused fifteen days to file a Motion for Reinvestigation with the Office of the Special Prosecutor.

"[Petitioner] questioned said order before the Supreme Court via a petition for Certiorari and Prohibition with prayer for temporary restraining order.  On January 21, 1998, the Supreme Court dismissed the petition for failure to show that [the Sandiganbayan] committed grave abuse of discretion in issuing the assailed order.

"On November 9, 1998, the [petitioner] filed with the Office of the Special Prosecutor a Motion to Quash.

"On September 22, 1999, x  x  x  Special Prosecution Officer (SPO) III Victorio U. Tabanguil, manifested that the prosecution had already concluded the reinvestigation of the case.  He recommended the dismissal of the instant case.  Both the Deputy Special Prosecutor and the Special Prosecutor approved the recommendation.  However, Ombudsman Aniano A. Desierto disagreed and directed the prosecutors to let the [petitioner] present his evidence in Court.

"Subsequently, [petitioner] filed on October 8, 1999 his second 'MOTION TO QUASH AND TO DEFER ARRAIGNMENT'.

"On February 9, 2000, the [Sandiganbayan] denied the motion for lack of merit.

"On June 19, 2001, [the] accused filed a 'MOTION FOR LEAVE TO FILE MOTION TO DISMISS'.  On June 29, 2001, the [Sandiganbayan] admitted the motion and admitted the attached (third) Motion to Dismiss.

"The [Motion to Dismiss] raise[d] the following grounds:

'I.       THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF

LAW OF [PETITIONER] WAS VIOLATED DURING THE PRELIMINARY INVESTIGATION STAGE IN THE FOLLOWING WAYS:

'A.     NO VALID PRELIMINARY INVESTIGATION

WAS CONDUCTED IN THE INSTANT CASE; AND

'B.     THE PRELIMINARY INVESTIGATION WAS

CONDUCTED BY A BIASED AND PARTIAL INVESTIGATOR

'II.     THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE

INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM WAS VIOLATED

'III.    PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973

CONSTITUTION, [PETITIONER] IS IMMUNE FROM CRIMINAL PROSECUTION

'IV.    THE CRIMINAL ACTION OR LIABILITY HAS BEEN

EXTINGUISHED BY PRESCRIPTION'"^[6]

The Sandiganbayan explained that all the grounds invoked by petitioner, except the third one, had already been raised by him and passed upon in its previous Resolutions.^[7] In resolving the third ground, the anti-graft court pointed out that Section 17 of the 1973 Constitution became effective only in 1981 when the basic law was amended.  Since his alleged illegal intervention had been committed on or about 1975, the amended provision was inapplicable to him.^[8]

In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan passed upon the other grounds he had raised.  It ruled that his right to a preliminary investigation was not violated, because he had been granted a reinvestigation.^[9] It further held that his right to be informed of the nature and cause of the accusation was not trampled upon, either, inasmuch as the Information had set forth the essential elements of the offense charged.^[10]

Hence, this Petition.^[11]


In his Memorandum, petitioner assigns the following errors for our consideration:

"Whether or not the Honorable Sandiganbayan erred and gravely abused its discretion amounting to lack of, or in excess of jurisdiction

1. In not dismissing and/or quashing Criminal Case No. 13736 despite clear and incontrovertible evidence that:
2. 
   
   1. Section 5 of Republic Act No. 3019 is unconstitutional because its vagueness violates the due process right of an individual to be informed of the nature and the cause of the accusation against him;
   2. 
      
   3. Section 5 of Republic Act No. 3019 is unconstitutional because it violates the due process right of an individual to be presumed innocent until the contrary is proved;
   4. 
      
   5. The constitutional right of petitioner x x x to be informed of the nature and the cause of the accusation against him was violated;
   6. 
      
   7. The constitutional right to due process of law of petitioner x x x was violated during the preliminary investigation stage in the following ways:
   8. 
      
      1. No valid preliminary investigation was con-ducted for Criminal Case No. 13736; and
      2. 
         
      3. The preliminary investigation was conducted by a biased and partial investigator.
      4. 
         
   9. The criminal action or liability has been extinguished by prescription; and
   10. 
       
   11. Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner x x x is immune from criminal prosecution.

And

2. In light of the foregoing, in denying petitioner['s] x x x right to equal protection of the laws."^[12]

Simply stated, the issues are as follows:  (1) whether Section 5 of Republic Act 3019 is unconstitutional; (2) whether the Information is vague; (3) whether there was a valid preliminary investigation; (4) whether the criminal action or liability has been extinguished by prescription; and (5) whether petitioner is immune from criminal prosecution under then Section 17 of Article VII of the 1973 Constitution.


The Petition has no merit.


Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time in the Sandiganbayan through a Supplemental Motion to Dismiss.  Attached to his December 7, 2001 Motion for Reconsideration of the Order denying his Motion to Dismiss was this Supplemental Motion which was, in effect, his third motion to quash.^[13] We note that the Petition for Certiorari before us challenges the denial of his original, not his Supplemental, Motion to Dismiss.

Upon the denial of his original Motion to Quash on February 9, 2000, petitioner could have filed a motion for reconsideration of the denial.  Had reconsideration been turned down, the next proper remedy would have been either (1) a petition for certiorari^[14] -- if there was grave abuse of discretion -- which should be filed within 60 days from notice of the assailed order;^[15] or (2) to proceed to trial without prejudice to his right, if final judgment is rendered against him, to raise the same questions before the proper appellate court.^[16] But instead of availing himself of these remedies, he filed a "Motion to Dismiss" on June 19, 2001.

Impropriety of
Repetitive Motions

There is no substantial distinction between a "motion to quash" and a "motion to dismiss."  Both pray for an identical relief, which is the dismissal of the case.  Such motions are employed to raise preliminary objections, so as to avoid the necessity of proceeding to trial.  A motion to quash is generally used in criminal proceedings to annul a defective indictment.  A motion to dismiss, the nomenclature ordinarily used in civil proceedings, is aimed at summarily defeating a complaint.  Thus, our Rules of Court use the term "motion to quash" in criminal,^[17] and "motion to dismiss" in civil, proceedings.^[18]

In the present case, however, both the "Motion to Quash" and the "Motion to Dismiss" are anchored on basically the same grounds and pray for the same relief.  The hairsplitting distinction posited by petitioner does not really make a difference.

By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second motion to quash.  A party is not permitted to raise issues, whether similar or different, by installment.  The Rules abhor repetitive motions.  Otherwise, there would be no end to preliminary objections, and trial would never commence.  A second motion to quash delays the administration of justice and unduly burdens the courts.  Moreover, Rule 117 provides that grounds not raised in the first motion to quash are generally deemed waived.^[19] Petitioner's "Motion to Dismiss" violates this rule.

Constitutionality of
the Challenged Provision

If only for the foregoing procedural lapses, the Petition deserves to be dismissed outright.  However, given the importance of this case in curtailing graft and corruption, the Court will nevertheless address the other issues on their merit.  Petitioner challenges the validity of Section 5 of Republic Act 3019, a penal statute, on the ground that the act constituting the offense is allegedly vague and "impermissibly broad."

It is best to stress at the outset that the overbreadth^[20] and the vagueness^[21] doctrines have special application only to free-speech cases.  They are not appropriate for testing the validity of penal statutes.  Mr. Justice Vicente V. Mendoza explained the reason as follows:

"A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible 'chilling effect' upon protected speech.  The theory is that '[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.' The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes.  Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct.  In the area of criminal law, the law cannot take chances as in the area of free speech.

x x x                          x x x                             x x x

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases.  They cannot be made to do service when what is involved is a criminal statute.  With respect to such statute, the established rule is that 'one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.'  As has been pointed out, 'vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant.'"^[22] (underscoring supplied)

"To this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity."^[23] While mentioned in passing in some cases, the void-for-vagueness concept has yet to find direct application in our jurisdiction.  In Yu Cong Eng v. Trinidad,^[24]  the Bookkeeping Act was found unconstitutional because it violated the equal protection clause, not because it was vague.  Adiong v. Comelec^[25] decreed as void a mere Comelec Resolution, not a statute.  Finally, Santiago v. Comelec^[26] held that a portion of RA 6735 was unconstitutional because of undue delegation of legislative powers, not because of vagueness.

Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass acquittal of parties whose cases may not have even reached the courts.  Such invalidation would constitute a departure from the usual requirement of "actual case and controversy" and permit decisions to be made in a sterile abstract context having no factual concreteness.  In Younger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these words:^[27]

"[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary.  The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided."

For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a "manifestly strong medicine" to be employed "sparingly and only as a last resort."  In determining the constitutionality of a statute, therefore, its provisions that have allegedly been violated must be examined in the light of the conduct with which the defendant has been charged.^[28]

As conduct -- not speech -- is its object, the challenged provision must be examined only "as applied" to the defendant, herein petitioner, and should not be declared unconstitutional for overbreadth or vagueness.

The questioned provision reads as follows:

"Section 5.    Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession."

Petitioner also claims that the phrase "to intervene directly or indirectly, in any business, transaction, contract or application with the Government" is vague and violates his right to be informed of the cause and nature of the accusation against him.^[29] He further complains that the provision does not specify what acts are punishable under the term intervene, and thus transgresses his right to be presumed innocent.^[30] We disagree.

Every statute is presumed valid.^[31] On the party challenging its validity weighs heavily the onerous task of rebutting this presumption.^[32] Any reasonable doubt about the validity of the law should be resolved in favor of its constitutionality.^[33] To doubt is to sustain, as tersely put by Justice George Malcolm.  In Garcia v. Executive Secretary,^[34] the rationale for the presumption of constitutionality was explained by this Court thus:

"The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary.  To doubt is to sustain.  This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments.  The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted."^[35]

In the instant case, petitioner has miserably failed to overcome such presumption.  This Court has previously laid down the test for determining whether a statute is vague, as follows:

"x x x [A] statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute.  It can only be invoked against that species of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction.

"A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application.   In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.^[36] But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities.  The first may be 'saved' by proper construction, while no challenge may be mounted as against the second whenever directed against such activities.^[37] With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case.

"The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.^[38] It must be stressed, however, that the 'vagueness' doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest.  Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated.  An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes."^[39]

A simpler test was decreed in Dans v. People,^[40] in which the Court said that there was nothing vague about a penal law that adequately answered the basic query "What is the violation?"^[41] Anything beyond -- the hows and the whys -- are evidentiary matters that the law itself cannot possibly disclose, in view of the uniqueness of every case.^[42]

The question "What is the violation?"  is sufficiently answered by Section 5 of RA 3019, as follows:

1. The offender is a spouse or any relative by consanguinity or affinity within the third civil degree of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives; and
2. 
   
3. The offender intervened directly or indirectly in any business, transaction, contract or application with the government.

Applicability of
Statutory Construction

As to petitioner's claim that the term intervene is vague, this Court agrees with the Office of the Solicitor General that the word can easily be understood through simple statutory construction.  The absence of a statutory definition of a term used in a statute will not render the law "void for vagueness," if the meaning can be determined through the judicial function of construction.^[43] Elementary is the principle that words should be construed in their ordinary and usual meaning.

"x x x. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them;^[44]  much less do we have to define every word we use.   Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment.  Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act x x x.

"x x x [I]t is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification,^[45]  unless it is evident that the legislature intended a technical or special legal meaning to those words.^[46] The intention of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed."^[47]

The term intervene should therefore be understood in its ordinary acceptation, which is to "to come between."^[48] Criminally liable is anyone covered in the enumeration of Section 5 of RA 3019 -- any person who intervenes in any manner in any business, transaction, contract or application with the government.  As we have explained, it is impossible for the law to provide in advance details of how such acts of intervention could be performed.  But the courts may pass upon those details once trial is concluded.  Thus, the alleged vagueness of intervene is not a ground to quash the information prior to the commencement of the trial.

In sum, the Court holds that the challenged provision is not vague, and that in any event, the "overbreath" and "void for vagueness" doctrines are not applicable to this case.


Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further contends that the Information itself is also unconstitutionally vague, because it does not specify the acts of intervention that he supposedly performed.^[49] Again, we disagree.

When allegations in the information are vague or indefinite, the remedy of the accused is not a motion to quash, but a motion for a bill of particulars.^[50]  The pertinent provision in the Rules of Court is Section 9 of Rule 116, which we quote:

"Section 9.  Bill of particulars. -- The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial.  The motion shall specify the alleged defects of the complaint or information and the details desired."

The rule merely requires the information to describe the offense with sufficient particularity as to apprise the accused of what they are being charged with and to enable the court to pronounce judgment. ^[51] The particularity must be such that persons of ordinary intelligence may immediately know what is meant by the information.^[52]

While it is fundamental that every element of the offense must be alleged in the information,^[53] matters of evidence -- as distinguished from the facts essential to the nature of the offense -- need not be averred.^[54] Whatever facts and circumstances must necessarily be alleged are to be determined by reference to the definition and the essential elements of the specific crimes.^[55]

In the instant case, a cursory reading of the Information shows that the elements of a violation of Section 5 of RA 3019 have been stated sufficiently.  Likewise, the allegations describe the offense committed by petitioner with such particularity as to enable him to prepare an intelligent defense.  Details of the acts he committed are evidentiary matters that need not be alleged in the Information.


Clearly, petitioner already brought the issue of lack of preliminary investigation when he questioned before this Court in GR No. 128317 the Sandiganbayan's Order giving him 15 days to file a Motion for Reinvestigation with the Office of the Special Prosecutor.^[56] Citing Cojuangco v. Presidential Commission on Good Government,^[57] he undauntedly averred that he was deprived of his right to a preliminary investigation, because the PCGG acted both as complainant and as investigator.^[58]

In the case cited above, this Court declared that while PCGG had the power to conduct a preliminary investigation, the latter could not do so with the "cold neutrality of an impartial judge" in cases in which it was the agency that had gathered evidence and subsequently filed the complaint.^[59] On that basis, this Court nullified the preliminary investigation conducted by PCGG and directed the transmittal of the records to the Ombudsman for appropriate action.

It is readily apparent that Cojuangco does not support the quashal of the Information against herein petitioner.  True, the PCGG initiated the present Complaint against him; hence, it could not properly conduct the preliminary investigation.  However, he was accorded his rights -- the Sandiganbayan suspended the trial and afforded him a reinvestigation by the Ombudsman.  The procedure outlined in Cojuangco was thus followed.

The Sandiganbayan's actions are in accord also with Raro v. Sandiganbayan,^[60] which held that the failure to conduct a valid preliminary investigation would not warrant the quashal of an information.  If the information has already been filed, the proper procedure is for the Sandiganbayan to hold the trial in abeyance while the preliminary investigation is being conducted or completed.^[61]


The issue of prescription was the principal basis of the Motion to Quash filed by petitioner with the Sandiganbayan on October 8, 1999.^[62] Such issue should be disregarded at this stage, since he failed to challenge its ruling debunking his Motion within the 60-day period for the filing of a petition for certiorari.  A party may not circumvent this rule by filing a subsequent motion that raises the same issue and the same arguments.

Furthermore, it is easy to see why this argument being raised by petitioner is utterly unmeritorious.  He points out that according to the Information, the offense was committed "during the period from July 16, 1975 to July 29, 1975."  He argues that when the Information was filed on July 12, 1989,^[63] prescription had already set in, because the prescriptive period for a violation of Republic Act No. 3019 is only ten (10) years from the time the offense was allegedly committed.  The increase of this prescriptive period to fifteen (15) years took effect only on March 16, 1982, upon the enactment of Batas Pambansa Blg. 195.^[64]

Act No. 3326, as amended,^[65] governs the prescription of offenses penalized by special laws.  Its pertinent provision reads:

"Sec. 2.         Prescription shall begin to run from the day of the commission of the violation of the law, and if the same not be known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment.

"The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy."

Consistent with the provision quoted above, this Court has previously reckoned the prescriptive period of cases involving RA 3019 (committed prior to the February 1986 EDSA Revolution) from the discovery of the violation.^[66] In Republic v. Desierto, the Court explained:

"This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto.  In the said recent case, the Board of Directors of the Philippine Seeds, Inc. and Development Bank of the Philippines were charged with violation of paragraphs (e) and (g) of Section 3 of RA No. 3019, by the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, created by then President Fidel V. Ramos to investigate and to recover the so-called 'Behest Loans', where the Philippine Government guaranteed several foreign loans to corporations and entities connected with the former President Marcos.  x x x In holding that the case had not yet prescribed, this Court ruled that:

'In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the violations of RA No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the 'beneficiaries of the loans.'  Thus, we agree with the COMMITTEE that the prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission.

x x x                   x x x                 x x x

'People v. Duque is more in point, and what was stated there stands reiteration:  In the nature of things, acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the applicable statute requires that if the violation of the special law is not known at the time, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts.'  (Italics supplied)

"There are striking parallelisms between the said Behest Loans Case and the present one which lead us to apply the ruling of the former to the latter.  First, both cases arose out of seemingly innocent business transactions; second, both were 'discovered' only after the government created bodies to investigate these anomalous transactions; third, both involve prosecutions for violations of RA No. 3019; and, fourth, in both cases, it was sufficiently raised in the pleadings that the respondents conspired and connived with one another in order to keep the alleged violations hidden from public scrutiny.

"This Court's pronouncement in the case of Domingo v. Sandiganbayan is quite relevant and instructive as to the date when the discovery of the offense should be reckoned, thus:

'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 perpetuate fraud against the government.  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.  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.'"^[67]

The above pronouncement is squarely applicable to the present case.  The general rule that prescription shall begin to run from the day of the commission of the crime cannot apply to the present case.  It is not legally prudent to charge the State, the aggrieved party, with knowledge of the violation of RA 3019 at the time the alleged intervention was made.  The accused is the late President Ferdinand E. Marcos' brother-in-law.  He was charged with intervening in a sale involving a private corporation, the majority stocks of which was allegedly owned by President Marcos.

Prior to February 1986, no person was expected to have seriously dared question the legality of the sale or would even have thought of investigating petitioner's alleged involvement in the transaction.  It was only after the creation^[68] of PCGG^[69] and its exhaustive investigations that the alleged crime was discovered.  This led to the initiation on November 29, 1988 of a Complaint against former President Marcos and petitioner for violation of the Anti-Graft and Corrupt Practices Act.  Consequently, the filing of the Information on July 12, 1989 was well within the prescriptive period of ten years from the discovery of the offense.


Petitioner argues that he enjoys derivative immunity, because he allegedly served as a high-ranking naval officer -- specifically, as naval aide-de-camp -- of former President Marcos.^[70] He relies on Section 17 of Article VII of the 1973 Constitution, as amended, which we quote:

"The President shall be immune from suit during his tenure.  Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure.

"x x x                         x x x                             x x x"

As the Sandiganbayan aptly pointed out, the above provision is not applicable to petitioner because the immunity amendment became effective only in 1981 while the alleged crime happened in 1975.

In Estrada v. Desierto,^[71] this Court exhaustively traced the origin of executive immunity in order to determine the extent of its applicability.  We explained therein that executive immunity applied only during the incumbency of a President.  It could not be used to shield a non-sitting President from prosecution for alleged criminal acts done while sitting in office.  The reasoning of petitioner must therefore fail, since he derives his immunity from one who is no longer sitting as President.  Verily, the felonious acts of public officials and their close relatives "are not acts of the State, and the officer who acts illegally is not acting as such but stands on the same footing as any other trespasser."

In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its discretion in issuing the assailed Resolutions.^[72] On the contrary, it acted prudently, in accordance with law and jurisprudence.

WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the Sandiganbayan AFFIRMED.  Costs against petitioner.

SO ORDERED.

Davide, Jr., C.J., Quisumbing, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Puno, Ynares-Santiago, and Sandoval-Gutierrez, JJ., in the result.
Corona, J., on leave.
Tinga, J., in the result. Please see separate opinion.
Chico-Nazario, J., no part. Ponente of assailed SB Resolutions.

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^[1] Rollo, pp. 3-55.

^[2] Id., pp. 56-62.

^[3] Id., pp. 63-68.  Fifth Division.  Penned by Justice Minita V. Chico-Nazario (chairman), with the concurrence of Justices Ma. Cristina G. Cortez-Estrada and Francisco H. Villaruz Jr. (members).

^[4] Sandiganbayan Resolution, p. 5; rollo, p. 62.

^[5] Anti-Graft and Corrupt Practices Act.

^[6] Sandiganbayan Resolution, pp. 1-3; rollo, pp. 56-60.

^[7] Id., p. 60.

^[8] Ibid.

^[9] Id., p. 64.

^[10] Id., p. 66.

^[11] This case was deemed submitted for resolution on March 6, 2003, upon this Court's receipt of petitioner's Memorandum, signed by Atty. Enrico Q. Fernando.  The Memorandum of the Office of the Ombudsman, signed by Deputy Special Prosecutor Robert E. Kallos, Director Rodrigo V. Coquia, and Special Prosecution Officer Elvira C. Chua, was received by this Court on January 30, 2003.  The Memorandum of the Office of the Solicitor General, signed by Solicitor General Alfredo L. Benipayo, Assistant Solicitor General Alexander G. Gesmundo, and Associate Solicitor Raymond C. de Lemos, was received on February 19, 2003.

^[12] Petitioner's Memorandum, p. 6.

^[13] On October 8, 1999, petitioner had already filed a Motion to Quash, which was denied by the Sandiganbayan on February 9, 2000.  Then on June 19, 2001, he filed a Motion to Dismiss.

^[14] A motion for reconsideration is generally required prior to the filing of a petition for certiorari to allow the tribunal an opportunity to correct its assigned errors (Lasco v. United Nations Revolving Fund for Natural Resources Exploration, 241 SCRA 681, 684, February 23, 1995; Butuan Bay Wood Export Corp. v. CA, 297 SCRA 297, 305, April 28, 1980).  Being interlocutory, the order denying a motion to quash is not appealable.  The Order may, however, be reviewed in the ordinary course of law by an appeal from the judgment after trial. (Tan Jr. v. Sandiganbayan, 354 Phil. 463, 470, July 10, 1998; Cruz v. CA, 194 SCRA 145, 152, February 18, 1991; Bulaong v. CA, 181 SCRA 618, 622, January 30, 1990; Gamboa v. Cruz, 162 Phil. 642, 652, June 27, 1988.)

^[15] §4, Rule 65 of the Rules of Court.

^[16] Tan Jr. v. Sandiganbayan, 354 Phil. 463, 470, July 10, 1998; Cruz v. CA, 194 SCRA 145, 152, February 18, 1991; Bulaong v. CA, 181 SCRA 618, 622, January 30, 1990.

^[17] Governed by Rule 117.

^[18] Under Rule 16.

^[19] §9, Rule 117 of the Rules of Court, states:  "The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g) and (i) of section 3 of this Rule." The exceptions refer to the following grounds:  the facts do not constitute an offense, lack of jurisdiction over the offense charged, extinction of the offense or penalty, and double jeopardy.

^[20] "The overbreadth doctrine x x x decrees that 'a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.'" Separate Opinion of Mr. Justice Vicente V. Mendoza in Estrada v. Sandiganbayan, 421 Phil. 290, 430, November 19, 2001 (citing NAACP v. Alabama, 377 U.S. 288, 307, 12 L. Ed. 2d 325, 338 [1958]; Shelton v. Tucker, 364 U.S. 479, 5 L. Ed. 2d 231 [1960]).

^[21] The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Separate Opinion of Mr. Justice Mendoza in Estrada v. Sandiganbayan 421 Phil. 290, 429-430, November 19, 2001 (citing Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 [1926]; in turn cited in Ermita-Malate Hotel and Motel Operators Ass'n  v. City Mayor, 20 SCRA 849, 867 [1967]).

^[22] Separate Opinion of Mr. Justice Mendoza in Estrada v. Sandiganbayan, supra.

^[23] Separate Opinion of Mr. Justice Panganiban in Estrada v. Sandiganbayan, supra.

^[24] 271 US 500, June 7, 1926.

^[25] 207 SCRA 712, March 31, 1992.

^[26] 270 SCRA 106, March 19, 1997.

^[27] 401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971), per Black, J.

^[28] Separate Opinion of Mr. Justice Mendoza in Estrada v. Sandiganbayan, supra.

^[29] Petitioner's Memorandum, p. 9.

^[30] Id., p. 11.

^[31] Heirs of Juancho Ardona v. Reyes, 210 Phil. 187, 207, October 26, 1983; Peralta v. Commission on Elections, 82 SCRA 30, 55, March 11, 1978; Ermita-Malate Hotel & Motel Operations Association, Inc. v. Hon. City Mayor of Manila, 127 Phil. 306, 314, July 31, 1967.

^[32] Estrada v. Sandiganbayan, supra; Heirs of Juancho Ardona v. Reyes, supra; Peralta v. Commission on Elections, supra.

^[33] Heirs of Juancho Ardona v. Reyes, supra; Peralta v. Commission on Elections, supra.

^[34] 204 SCRA 516, December 2, 1991.

^[35] Id., p. 523, per Cruz, J.

^[36] Citing People v. Nazario, 165 SCRA 186, 195-196, August 31, 1988.

^[37] Ibid.

^[38] Citing State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR 2d 750.

^[39] Estrada v. Sandiganbayan, supra, p. 352, per Bellosillo, J.

^[40] 349 Phil. 434, January 29, 1998.

^[41] Id., p. 462, per Romero, J.

^[42] Ibid.

^[43] Caltex v. Palomar, 18 SCRA 247, September 29, 1966, Estrada v. Sandiganbayan, supra, p. 443.

^[44] Citing 82 CJS 68, p. 113; People v. Ring, 70 P. 2d 281, 26 Cal. App 2d Supp. 768.

^[45] Citing Mustang Lumber, Inc. v. Court of Appeals, 257 SCRA 430, 448, June 18, 1996.

^[46] Citing PLDT v. Eastern Telecommunications Phil., Inc., 213 SCRA 16, 26, August 27, 1992.

^[47] Estrada v. Sandiganbayan, supra, pp. 347-348.

^[48] Webster's Third New International Dictionary, 1993 ed., p. 11.

^[49] Petitioner's Memorandum, p. 14.

^[50] Dans v. People, supra, p. 461.

^[51] Estrada v. Sandiganbayan, 427 Phil. 820, 858, February 26, 2002; People v. Arcillas, 348 SCRA 729, 733, December 27, 2000; U.S. v. Go Chanco, 23 Phil. 641, 645, December 28, 1912.

^[52] People v. Arcillas, supra.

^[53] Naya v. Abing, 398 SCRA 364, 369, February 27, 2003; Estrada v. Sandiganbayan, supra; Balitaan v. CFI of Batangas, Branch II, 201 Phil. 311, 322, July 30, 1982.

^[54] Balitaan v. CFI of Batangas, Branch II, supra, p. 323; People v. Arbois, 138 SCRA 24, 32, August 5, 1985.

^[55] Naya v. Abing, supra, p. 369; Estrada v. Sandiganbayan, supra, p. 859; Balitaan v. CFI of Batangas, Branch II, supra, p. 322.

^[56] Sandiganbayan Resolution, dated November 20, 2001, p. 2 (supra, p. 59); Office of the Special Prosecutor's Comment, p. 5 (rollo, p. 201); Comment of the Office of the Solicitor General, p. 8 (rollo, p. 224).

^[57] 190 SCRA 226, October 2, 1990.

^[58] Petitioner's Memorandum, pp. 21-22.

^[59] Cojuangco v. Presidential Commission on Good Government, supra, p. 255; See also Republic v. Desierto, 416 Phil. 59, 65, August 23, 2001.

^[60] 390 Phil. 917, July 14, 2000.

^[61] Id., p. 941.

^[62] Sandiganbayan Resolution dated February 9, 2000; rollo, p. 158.

^[63] Petitioner's Memorandum, p. 24.

^[64] Ibid.

^[65] 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.

^[66] Salvador v. Desierto, GR No. 135249, January 16, 2004; Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, 415 Phil. 723, August 22, 2001.

^[67] Republic v. Desierto, supra, pp. 76-78, per De Leon Jr., J.

^[68] On February 28, 1986, by virtue of Executive Order No. 1.

^[69] This Commission was tasked with the recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, during his administration; the investigation of cases of graft and corruption; and adoption of safeguards and  institution of adequate measures to prevent the occurrence of corruption.

^[70] Petitioner's Memorandum, p. 31.

^[71] 353 SCRA 452, 516-524, March 2, 2001, per Puno, J.

^[72] Land Bank of the Philippines v. Court of Appeals, supra; De Baron v. Court of Appeals, 368 SCRA 407, 415, October 26, 2001; Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, 170 SCRA 246, 254, February 13, 1989; Butuan Bay Wood Export Corp. v. Court of Appeals, 97 SCRA 297, 303, April 28, 1980.

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TINGA, J.: